Category: Presumptions

Tonight! Neil Garfield makes it simple: Lying for Dollars: How to Apply Your Understanding of Securitization Claims to Win

April 8, 2021

Thursdays LIVE! Click into the Neil Garfield Show Tonight’s Show Hosted by Neil Garfield, Esq. Call in at (347) 850-1260, 6pm Eastern Thursdays “Your Honor, this is a standard foreclosure.” That is the first lie told in court as lawyers, and companies claiming to be servicers, lenders, or trustees continue to play their game of lying for dollars. It’s obvious I have not simplified the explanation enough because both lawyers and homeowners still mostly don’t understand what I am talking about. That means they can’t use it effectively, as I have, and that means the judge won’t have any idea what you

Attack the "Successors"

April 6, 2021

In analyzing the paperwork in front of you, make sure you read every word and do not accept anything said at face value. A popular ruse by foreclosure mills is the use of the word “successor.” I have been saying that this word is used as a cover-up for “we don’t have title to the debt, note or mortgage.” That means they have no loss connected with a claimed scheduled payment that was not received by a “Servicer” who had no right to receive it in the first place. Hat tip to Gary Dubin, Esq. and Shelley Erickson. If they

Investment banks are pushing technical agenda on "integrated records" that would deny homeowners' due process.

March 22, 2021

When you lose your home in foreclosure, it is an involuntary gift to an investment bank that has already earned 12 times the amount of the transaction with you. The investment bank does NOT record the interest, principal or forced sale payment on any loan account receivable because there is no such account. Once again investment banks are attempting to subvert judicial process by technnical arguments that will ahve sweeping affects if dopted by the courts. The argument for “integrated records” pending in the Hawaii Supreme Court is nothing more than a pitch to have a series of reports admitted

WHAT IS A SERVICER ADVANCE? According to Ocwen it has zero credit risk and is not really an advance

January 29, 2021

One place where securitization players and foreclosure players don’t lie is in reports that are formally filed with the SEC. So in my research, I found a document in which Ocwen describes itself and which is subject to judicial notice because it is a government document downloaded from the Sec.gov website. The filing of 8k and other reports required by securities laws and regulations is an official act. It is a sworn representation by the issuer (Ocwen here) that the facts being presented are accurate and true on penalty of going to jail. Here we see a filing that identifies

TONIGHT! Why Lawyers Should Want Foreclosure Defense Cases and What They Are Missing $$$

January 21, 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 SHARE THIS POST WITH LAWYERS YOU KNOW!!! This show is devoted to convincing the lawyers who will listen that they are missing out on something very profitable and important. Representing homeowners faced with foreclosure papers can and does present an opportunity for large paydays, consistent victories in court, and playing a part in changing the trajectory of home finance in this country and around the world. In 2008 I presented a seminar that provided the essentials of

Homeowner's Dilemma and Pro Se Nightmare: Wanting the system to change is not the way to win a case

January 6, 2021

Homeowners win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation. Unfortunately, as we all know, all perjury and fraud upon the court is illegal but always allowed unless it is challenged in a timely and proper way. We need

Repurchase agreements only advance the myth that loans were purchased in the first place.

December 14, 2020

Investors would do much better if they stopped litigating the duty to enforce repurchase agreements. The repurchase agreement is void because there was no purchase. There are better claims to make that are more easily proven. Homeowner litigants need to have more courage and attack the existence and ownership of the underlying alleged obligation much more explicitly and directly. They will be pleasantly surprised. While they will never get an admission that the whole affair is a scam, they will be able to raise the inference and thus limit the evidence in court that would ordinarily be allowed to prove

Think You Have a Loan? Think Again! Don't allow the Wall Street "investment banks" to steal back money that was earned by homeowners.

December 11, 2020

What is obvious is false but only investment bankers know it. * Without knowing it, you are probably doing business with a Wall Street securities brokerage firm calling itself an “investment bank.” You didn’t know because they were never disclosed. And the money they paid to you was not a loan — at least not for them it wasn’t. They didn’t treat it that way on their own records and neither should you. That means they are attempting to collect back the money they paid to you even though it wasn’t a loan. * So what did they pay you

Sometimes the client figures it out better than the lawyer

December 7, 2020

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred. After decades of litigating and teaching litigation, the one common theme throughout my career has been the knowledge that often your best ideas come from the client, who is unencumbered by thoughts of what can’t be done. One such client of mine in the state of Hawaii asked a simple question. She asked whether the homeowner, post-foreclosure, could ask for surplus funds.

How and Why to Litigate Foreclosure and Eviction Defenses

December 2, 2020

[contact-form][contact-field label=”Name” type=”name” required=”true” /][contact-field label=”Email” type=”email” required=”true” /][contact-field label=”Website” type=”url” /][contact-field label=”Message” type=”textarea” /][/contact-form] Wall Street Transactions with Homeowners Are Not Loans * I think the biggest problem for people understanding the strategies that I have set forth on this blog is that they don’t understand the underlying principles. It simply is incomprehensible to most people how they could get a “loan” and then not owe it. It is even more incomprehensible that there could be no creditor that could enforce any alleged obligation of the homeowner. After all, the homeowner signed a note which by itself creates an

Why You Need to Understand the Truth and How to Use It to Successfully Defend Foreclosure Cases

November 20, 2020

Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud. You don’t need to believe me. You don’t need proof that what I am saying is true. You have every right in every court to file demands for discovery relating to the existence and ownership of the debt. Ask any lawyer or any judge. They will affirm this to be true. And ask any accountant. The debt exists only if someone maintains a current ledger entry on their own books of record that shows they paid value for the underlying obligation, along with having supporting documentation (proof of payment).

OK Let's Try It Anyway — Amicus Briefs

November 16, 2020

We now have an opportunity to attack the most absurd of the decisions on 2 grounds, to wit: The first is that the decisions are wrong based upon existing judicial doctrine, statutory law, and court precedent. The second is that the decisions are wrong because the justification for bending the law is also wrong. Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud. I know what I said and I meant it. But I have come under a lot of pressure particularly from one person in Hawaii whose financial contributions have been a substantial factor in keeping

Document Review for Dummies: Why homeowners and their lawyers get confused by documents proffered by foreclosure mills

November 10, 2020

It occurs to me that most questions I receive contain either an inquiry about the meaning of documents or statements as if they know the meaning of documents. So here is a short primer on reviewing documents that might help. WHAT (IF ANYTHING) IS THE TITLE OF THE DOCUMENT? While this seems to be simply a matter of reading and common sense, there is more to it than that. If I draw a rough picture of a dollar bill and hand it to you, nobody will accept it as payment for anything even if the writing on it says “United

Freddie Mac Changes Its Language from "Loan Portfolio" to "Reference Pool"

November 9, 2020

see https://www.streetinsider.com/Globe+Newswire/Freddie+Mac+Credit+Protects+%24167.3+Billion+of+Single-Family+Mortgages+in+Third+Quarter/17554183.html People still don’t believe it. Loans were not securitized but are being treated as though they were securitized. “Securitization” means selling off an asset in pro rata shares to investors who get a piece of paper telling them that they own X% of the asset. Ask anyone who knows (or read it yourself) — all of the securitization documents are “forward statements” meaning they are referencing a future event. And none of the securitization documents convey any ownership, equitable or legal interest in any debt, note, or mortgage. And the future event never occurs. That’s the point for

Why are conditions precedent so important in foreclosure cases?

November 6, 2020

The mischaracterization of a condition precedent alters the burden of proof. (e.s.) If compliance with the HUD regulation is a condition precedent to foreclosure, the plaintiff carries the burden of proving substantial compliance with the condition when it presents its case, so long as the borrower has made a specific denial of the plaintiff’s allegation that it had satisfied all conditions precedent (e.s.).2 See, e.g., Chrzuszcz, 250 So. 3d at 769–70. But if compliance with 24 C.F.R. § 203.604 is an affirmative defense, “[t]he defendant, as the one who raises the affirmative defense, bears the burden of proving that affirmative

Here we go — the next tidal wave of foreclosures is upon us. When the moratoriums are over prepare for shock and awe (again)

November 3, 2020

see https://www.abcactionnews.com/news/local-news/i-team-investigates/floridas-foreclosure-rate-second-highest-in-the-u-s-filings-increase-as-courts-open The Wall Street playbook calls for an insidious process of creeping up on you. Within days, in some cases, weeks in other cases and certainly within months, people are going to wake up to the fact that they are already in the middle of a foreclosure proceeding. And the new wave will be just as destructive as in 2008. Contrary to the party line that has been successfully advanced by Wall Street banks, foreclosure proceedings are NOT the result of non-payment. They are the result of greed. For non-payment to be a reason to seek redress in court,

Maine Decision Presents New Challenges for Hearsay objections on Fabricated Records

November 2, 2020

see Bank of N.Y. Mellon v. Shone, 2020 Me. 122 (Me. 2020) the record keeping shortcomings of some members of a particular business sector should not drive our interpretation of a rule of evidence that applies to the records of all businesses and, more broadly, as Rule 803(6)(B) indicates, to the records of any “organization, occupation, or calling.” If the records kept by mortgage lenders or loan servicers in particular are categorically unreliable, more stringent proof requirements might be appropriate. [e.s.] But there is no good reason to require in every case testimony based on personal knowledge of the practices

Trusts, Trustors, Settlors and Fake REMIC Trusts

October 28, 2020

All trusts that are legally recognized as such have the following basic components: the trustor/settlor who (a) executes a written trust agreement and (b) conveys property into the name of the named trustee to hold and manage the conveyed asset(s) for the benefit of named beneficiaries. So the three basic components are (1) property (the res), (2) a trustor/settlor, and (3) beneficiaries. Pooling and servicing agreements when read closely reveal in all cases that they are missing all three components. * Trustees only exist in relation to a defined trust. A trust may technically exist if it is written down

Foreclosures in Securitization World: deny everything they have to say and then pursue discovery — but in discovery you focus on the issues that are central to every foreclosure — status and ownership of the debt.

October 14, 2020

The danger is in the labels. I have some devoted followers and readers who have been great contributors — doing research on the real action and dynamics between the homeowner on the one hand and all the intermediaries and people of interest on the other hand. One of the things recently raised was the discovery of who is listed as having paid tax or insurance or other expenses. The danger is in the labels. The simple basic truth is that the banks are using a shell game that is based entirely on the false use of labels. So when we

More Details on VendorScape, CoreLogic and Black Knight

October 13, 2020

Hat tip to “Summer chione” So it is apparent that the banks are responding to discoveries about how orders are transmitted to lawyers, “servicers”, realtors etc.. While it is all the same playbook, they merely change the name of the characters. So internally the name VendorScape might still be used but externally, to the public, they are showing different names and even showing multiple names for the same “service”. But is always the same, to wit: a central repository of data that has been robotically entered to support misrepresentations of investment banks that massage the data, control the reports, and

Boilerplate Answers to Discovery Won't Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

October 2, 2020

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics: Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account). Both lawyers

Tonight! Is it time to sue Black Knight? 6PM EDT 3PM PDT The Neil Garfield Show

October 1, 2020

Thursdays LIVE! Click in to the Neil Garfield Show Tonight’s Show Hosted by Neil Garfield, Esq. Call in at (347) 850-1260, 6pm Eastern Thursdays Tonight I will discuss the curious case of blatant economic fraud on the entire country by investment banks. They figured out how to eliminate the risk of loss on lending, how not to be labelled as a lender subject to lending laws, and who pursue collection, administration and enforcement of obligations that do not exist. And then by denying the receipt of funds that paid off the loan on their own books they continue to operate as though

Watch that modification agreement. You are being forced to accept a virtual creditor instead of a real one.

September 29, 2020

“Morality is an existential threat to commerce and politics. Although we legislate morality we refuse to enforce it. It is OK to lie to consumers or borrowers but not OK to lie to a financial institution who by the way is lying to you.” Neil F Garfield, October 2009 speech to regional bankruptcy conference in Phoenix Arizona. The proposed modification agreement is an attempt to force or coerce the borrower into accepting a NEW term of the loan agreement that any attorney would advise against, to wit: acceptance of a designated creditor instead of a real one. The transmission of

Beware of Financial Rescue Scams Including Modifications

August 17, 2020

The offer of modification is actually inviting you to formally join the securitization process without getting paid for it. I write often about the illegality of the Wall Street schemes that have defrauded investors and homeowners out of their money and investments. But there is also another aspect to this. The coming Tidal Wave of evictions and foreclosures is going to produce a tidal wave of scams that deprive homeowners and tenants of what little income or assets they have left. Some of the scams are very close to legitimate business propositions. There is nothing wrong with a risk sharing