Category: Presumptions

HEARSAY OBJECTION AND LACK OF FOUNDATION: How Lockbox and Separate Processing Agreements Divert Money and "Servicing" Functions to Undisclosed Third Parties Acting on Behalf of the Investment Bank Who Originated the Transaction with the Homeowner.

February 15, 2023

From LoanDepot quarterly report, 2022: The Company derives income primarily from gains on the origination and sale of loans to investors, income from loan servicing, and fees charged for settlement services related to the origination and sale of loans. Not one word about revenues or profits arising from the receipt of principal and interest from borrowers. But people who have done business with Loan Depot (and there are thousands of them) all think they borrowed money from Loan Depot. So when they see a document purpotedly endorsed or assigned from Loan Depot, it make sense. But it is a lie.

The irrefutable logic at the foundation of all successful foreclosure defense narratives

February 2, 2023

The mortgage lien is designed to protect against financial loss — not to promote financial gain. If Wall Street wants to protect the financial gains it created from its crazy scheme using weapons of mass financial destruction, then the least it should do is share a little of that with homeowners, consumers, the government, and investors. * I continually get the same question, mostly because neither the homeowner nor the “investigators” understand anything about being a licensed, educated, experienced investment banker, lawyer, or accountant. If they were any of those, they would not ask the question. * The latest question

TRID may be another easy win for Homeowners

May 5, 2022

since loss mitigation is a statutory condition precedent to foreclosure, there is a failure to comply with the condition that requires loss mitigation exhaustion before pursuing foreclosure, the steamrolling of homeowners is not just wrong, it is also a breach of statutory duty for which the homeowner can seek injunctive relief, damages, and attorney fees. TILA-RESPA integrated disclosures (TRID) is a series of guidelines that dictate what information mortgage lenders need to provide to borrowers and when they must provide it. TRID rules also regulate what fees lenders can charge and how these fees can change as the mortgage matures. But

FCRA Might Be Fertile Ground for Individual and Class Actions Especially under CFPB Rules

May 3, 2022

if the CRC does not perform the investigation or performs it incorrectly, you can sue them. In a world where the ability to access credit matters more than the ability to access savings, nothing could be more important than these provisions under the Fair Credit Reporting Act (FCRA). Anyone who read the book or saw the film “The Firm” knows that it is often a boring statute that can take down the worst offenders. It was mail fraud in that story. For more information ask the descendants of Al Capone who died in prison of syphilis after being convicted of

Interpleader Might Be Useful in Revealing the Absence of Any Unpaid Loan Account

April 28, 2022

One of my constant comment contributors recently informed me and others that she was trying a new tack. She writes “My attorneys are making a demand that any refi money be placed with the Court and that the judge decides who he wants to pay.” This is very close to an Interpleader action which is virtually unknown amongst laypeople and many lawyers. In an interpleader action, a party says to the court I have this asset and there are two conflicting claims to get it from me. In its purest form, the Interpleader says that he doesn’t care who gets

Notices To and From Servicer Might Mean Nothing at All

April 18, 2022

In homeowner finance, ALL claims start with notices from third parties with whom the homeowner has previously had no communication. My suggestion is that homeowners start challenging those letters, statements, and notices as soon as they arrive. Such challenges make “tracks in the sand” for later use in litigation. But the real issue arises repeatedly because the condition precedent to foreclosure about which there is no dispute is that first there must be a declaration of default. And in the world of securitization, there is no creditor, loan account, or any loss or ven risk of loss arising from a

How Evidence Works for and Against the Consumer/Homeowner

April 7, 2022

(Once again, because of minor medical issues I decline to do the Neil Garfield Show. I offer this instead) It is easy to get lost in the weeds. Don’t make up your own words or definitions because your definitions have no relevance to your case. Do hold the accusing side to their words and to the legally accepted definitions of those words as contained in statutes and cases. But above all, start at the beginning — a rookie mistake made by nearly all young litigators and pro se litigants who skip over the gold to pick up a few pieces

Why the UCC Matters in Foreclosure Cases

April 5, 2022

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so. The first thing you need to know about Foreclosure is that it is only about money. If you have the money and you pay it, there is no claim — or at least no claim against you. You might have a claim against a “debt collector” seeking to enforce a nonexistent debt for a nonexistent claimant. The second thing to remember is that, by definition,

How Those Refi's Were Turned Into Gold by the Investment Banks

January 12, 2022

Most people cannot conceive of why they should have been paid more at the purported “Closing” of their transaction than what they received or what they think was paid on their behalf. * But the bottom line is that in most cases, whether the transaction involved a resale of the home or “refinancing,” only a fraction of the money you thought was transacted was actually present. It’s not just that they should have been paid more — it is that the homeowner did not receive the money he or she promised to pay back. This fact is part of a

THREADING THE NEEDLE: IT IS WHAT THEY DON'T SAY THAT REVEALS THE TRUTH — AND YOU CAN USE IT!

January 5, 2022

So talk about splitting hairs — here is a statement from a company that is claimed by third parties to be the servicer of a “loan.” Note that the parties making the claim do NOT swear that PennyMac is servicing claims to administer, collect and enforce for them, but rather for some unknown creditor or some other entity that does NOT make such a claim. Think about that. Here is the quote: PennyMac, who, as the loan servicer, is authorized to accept payments for your loan. And here is the analysis of that statement: PennyMac IS authorized, although not by

Why I Think Homeowners Are Entitled to Receive a Second Payment From Investment Banks

January 4, 2022

All homeowners who think they have a mortgage loan have received one payment at a “closing” — or a payment allegedly made on their behalf. For reasons explained elsewhere on this blog, such payments on their behalf are mostly fictional where the underlying investment bank is the same “director” of funds. * The significance is that a second tree springs up in which the scheme described below is duplicated — with little or no cost to the investment banks. Each time the myth of “refinancing” is employed a new securitization tree springs up with dozens if not hundreds of branches.

Wilmington Entities in Foreclosure

December 29, 2021

The “Wilmington” name shows up with what appears to be increasing frequency in foreclosures. The bottom line, in my opinion, is that whenever the “Wilmington” name appears in foreclosure cases, it is an attempt to launder title such that the lawyers who prosecute the foreclosure process can reasonably imply that he or she is representing a creditor who is one or more of the following — none of which are true in any respect, in my opinion, and no evidence has ever been produced to support these premises: it is a holder in due course of a promissory note, It

Destroying, Hiding or Fabricating Evidence: Doctrines Regarding Spoliation of Evidence

December 28, 2021

The latest issue of the Florida Bar journal contains several interesting articles. One of them is entitled “Spoliation of Evidence and Non-party witnesses.” The author is Gary M Glassman, who is the attorney for Daytona Beach. The major points of the article that I think are relevant to Foreclosure Defense litigation are that (A) spoliation has a very broad meaning and (B) the refusal to produce documents that are relevant to the case at Bar raises an inference in favor of the homeowner, and might even give rise to a cause of action for damages. Foreclosure lawyers have long relied

Stop Using the Labels: Homeowners Lose Foreclosure Cases When They Refer to the "Servicer"

December 27, 2021

You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform. * I know I have contributed to the problem, but I think it’s time to stop using the labels that are promoted by the banks. * Companies that are claimed to be the “servicer”, by all accounts, do not perform any functions normally attributed to that label. This it is against the interests of the homeowner or the lawyer representing the homeowner to accept the use of the term unless there is foundation testimony as to the actual

Why You Need to Perform Investigation of Real Facts in the Real World

December 22, 2021

I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it). Question received from one of the readers of this blog: “I’m trying to understand how a house in NJ. Is alleged to be notarized in Florida and recorded by a company in Idaho (whose Name of course, is not

Tonight! Q&A on Prelitigation Strategies — QWR, DVL and Complaints to CFPB and State AG 6PM EST 3PM PST

December 9, 2021

Thursdays LIVE! Click into the Neil Garfield Show Tonight’s Show Hosted by Neil Garfield, Esq. Call in at (347) 850-1260, 6 pm Eastern Thursdays As a follow-up to our FREE presentation CLE webinar on Prelitigation Strategies and Practices, we offer an open mike Q&A on tonight’s show. Please think about your questions in advance and refrain from long monologues about your case. As an introduction let me state the obvious premise of this work: If as a consumer you have executed a promissory note and mortgage (or deed of trust) and you think that there is a loan account receivable somewhere

"Black Knight": Banks Are Peddling A False National Narrative of Declining Foreclosures

December 7, 2021

I’m busy today so I can’t publish my usual long analytical article. But one thing that is constantly staring at me is the fact that the national press and news releases are in basic conflict with local media. And the fact that local media is going out of business isn’t helping. Black Knight is a company whose size and reputation is entirely based upon preparation, presentation, and use of false documents and information that were forged, robosigned, and back-dated. Those were the days when it was called Lenders Processing Services in which DOCX was used to produce the false documents.

How Could This Not Be a Loan?

December 3, 2021

if the investment bank paid the homeowner as an incentive payment rather than as a loan, then there is no debt any more than salary or wages can later be called a loan. The fact that the consumer/homeowner thought or even wished it were otherwise makes no diffeerence. If I pay you money and you think it is a loan but I paid you for services you rendered, the substance of the transction is “fee for services” — not a loan — and there is no legal or ethical or moral obligation to pay it back. I think the one

Here is How Wall Street Smoke and Mirrors Works

December 1, 2021

The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels. As

How Likely Is It That a Homeowner Will Win a Foreclosure Case?

November 30, 2021

The answer to this question depends upon the homeowner — not the judge. * If the homeowner rigorously, aggressively and persistently seeks enforcement of the rules of civil procedure, the rules of discovery, the rules of evidence and enforcement of court orders, the chances of quite good that the homeowner role reach a very favorable result. * If the homeowner attempts to make a claim or state and affirmative defense that requires proof of malfeasance by the opposition (or anyone else), probability of failure is extremely high. * The general consensus has accepted the proposition set forth in the national

Unilateral Mistake: Equitable Defenses Explained — How homeowners can get the upper hand and defend against enforcement of contract that is different from the one they knew or intended

November 10, 2021

Homeowners are missing out on a huge opportunity for economic gain that balances the power between Wall Street and consumers. Courts of equity are courts of conscience, which should not be shackled by rigid rules of procedure,[51] and inherent in a court’s equitable powers is the authority to prevent injustice engendered by fraud, accident, or mistake.[52] Florida Bar Journal Novembert/December 2021 “Two, Three or Four Prongs? The Contractual Defense of Unilateral mistake in Florida” Second, there is a distinction between the equitable remedies of rescission and reformation that may further blur the lines. The Florida Supreme Court and a few others

Those letters from the lawyer for the "servicer": PHH

November 2, 2021

It is true that someone will execute a release of the lien. What is not true is that they have any authority to do so — nor is it true that PHH has any right to receive any money, whether it is a monthly payment or a payoff. In fact it is not true that PHH will receive any money. They won’t and they don’t. All payments are directed through lockbox contracts and FINTECH companies into accounts that may bear the name of a company claiming to be a serrvicer but which are owned by someone else. This is why

About that letter you receive from the company claimed to be your servicer: PennyMac

November 1, 2021

People keep getting letters and they tend to treat the information as real simply because it is in writing. That is the nub of the Wall Street scheme — send out written communication and documents without regard to the truth and people will assume that the document or letter would not have been sent if at least someone didn’t think it was true. SO I was recently sent a copy of a communication that was on PennyMac letterhead. People forget that you can create the letterhead of any company or person and pout it at the top of your document

EARLY BIRD DISCOUNT ON WEBINAR ENDS 9/22/21

September 16, 2021

APPROVED FOR 2.5 CLE CREDITS APPROVED BY THE FLORIDA BAR HOMEOWNER ATTENDANCE PERMITTED Live and On-Demand Available EARLY BIRD DISCOUNT ENDS 9/22/21 What to Look for in Examining an Assignment How to Successfully Litigate the Issues How lawyers can make money in this niche APON and GTC Honors, Inc. an approved host provider for CLE (for lawyers) credits in Florida and 26 other states that allow reciprocal credits for licensed attorneys announce that they are producing a seminar presented by Neil F Garfield, MBA, JD , trial lawyer for nearly 45 years and investment banker for 50 years. Only lawyers