Category: Presumptions

How to ask the right questions in discovery

August 12, 2020

Discovery is part law, part art, and part intuition. The lawyer must generate questions that can be used, by themselves, to bring certain issues in front of the judge either because the opponent answered the questions or because they didn’t answer. If your point is that your opponent doesn’t own the claim even though they either said or implied that they do own it, then you need to do some investigation first so you can ask the right questions in the right way. If your point is that there are two agreements, one for loan and the other for securitization,

How to Fight Those "Declarations" from False Claimants in Foreclosures

August 7, 2020

The bottom line is that the loan account was extinguished contemporaneously with the origination or acquisition of the account. There is no loan account claimed as an asset of any company. The records of the self-proclaimed servicer are not records of the loan account or the establishment of the loan account on the books of any company. Therefore they are not records of the creditor. Besides being fabricated those records are irrelevant and inadmissible without foundation testimony and proof that the loan account has been established on the books of some creditor and even then, even that is irrelevant unless

ALERT! Migrating from fake notes to eNotes: If consumers don't stop this they will be without any defense to any abusive practice and any fake account started in their name

July 31, 2020

The banks have been securitizing data not debt. Now they are trying to make data the substitute for the real thing. In other words, screw the investors, screw the consumers, screw the government and the banks take everything. It’s not securitization that is evil. It is a handful of bankers who are lying to us about securitization. There is a factual and legal difference between securitization of loans and securitization of information about loans. The acceptance of eNOTES or any digitized version of important legal documents is an invitation to disaster. This will make 2008 nostalgic for us. We are

The missing second witness —Attacking the Business Records of A Servicer: Start with the fact that the company is self-proclaimed servicer with no proof of authority and then pivot to the absence of records establishing the debt as an asset.

July 29, 2020

Excellent article written by attorneys at Blank Rome on the issue of Business Record exceptions to the hearsay rule. The hearsay rule is simple. It excludes from evidence any statement that is uttered out of court — whether that statement is in writing or was made orally. see https://www.jdsupra.com/legalnews/florida-supreme-court-resolves-conflict-20649/ So here is what it looks like in a typical old-fashioned foreclosure trial. The witness testifies that he or she is the records custodian of a bank. He/she says she has the records of the homeowner/borrower from the bank and he/she testifies that he/she knows from his/her own personal knowledge that those

It's Not a Default If You Stop Paying — Unless Someone owns Your Debt and Can Prove Financial Loss

July 27, 2020

NOTE: BE AWARE THAT WELLS FARGO AND OTHERS MAY HAVE PUT YOUR TRANSACTION IN A FORBEARANCE PROGRAM WITH UNKNOWN TERMS. ======== I think that the banks have unfairly benefited from assumptions regarding the connection between the cessation of payments by homeowners and the existence of a default. * I think that there are elements of a default that we have never had to think about before. * The first element, in my opinion, is that somebody must have suffered a loss or injury * The second element is that the loss or injury must be the approximate result of a breach of Duty * The third element is that the Duty

Just like I said: Megabanks are doing just fine despite economic downturn — at the expense of investors, taxpayers and homeowners.

July 21, 2020

Major banks, including Citigroup, JPMorgan and Morgan Stanley used massive trading revenues to beat profit expectations despite the continued struggles of the United States economy during the coronavirus pandemic. Those trading units tend to perform best when markets are volatile, helping to guard the major banks against economic struggles. see https://www.cnbc.com/2020/07/17/without-big-wall-street-trading-arms-regional-banks-lean-on-mortgages-and-fees-to-beat-earnings.html Way back in 2006 and 2007 and when I first started publishing articles about the mortgage meltdown (before most people realized there was a meltdown) I reported that the major banks were siphoning off much of the wealth contained inside the U.S. I said that these mega banks were parking ill-gotten gains off-shore in various

Who is PennyMac and Why Was It Needed by Wall Street Banks?

July 17, 2020

I received an email from one of my most prolific contributors that I am republishing here because virtually everything in it is entirely correct. I especially approve of her point about the fact that servicer advances are funded from proceeds of public offerings of stock that were all purchased by the Wall Street banks who did the underwriting. Substance over form: the banks were giving PennyMac the money to make servicer advances. The banks were using the investor sourced money supply to buy the fake stock offering. None of it was real. The end result is that all roads lead

It's time to reassess the role of investment banks, originators, servicers and other players claiming "securitization" before the next foreclosure tidal wave.

July 10, 2020

Since foreclosures are about to start another meteoric rise, this would be a good time to write a new article on what went wrong the last time, what is going on now, and what is still likely to go wrong this time. * I know that some of the rantings on the internet seem like the spillage of conspiracy theorists and some of them are just that. But overall they are right. * The bottom line is that back in 1993, investment banks latched onto a scheme that had been partially developed by Michael Milken, who went to prison. The new

Does the REMIC Trust Exist?

July 8, 2020

In all jurisdictions, even if the trust has some assets, and therefore legal existence as a legal person, if the asset in question has not been entrusted to the trustee on behalf of beneficiaries, the existence of the trust is completely irrelevant. And all claims arising from the supposed existence of the trust are also irrelevant and lack Foundation. I agree that the existence of the Trust might be a subject for debate. However, the fact that a trust exists on paper does not mean that it exists relative to any loan or debt or note or mortgage. In fact,

From the Horse's Mouth: WAMU Originated "Loans" Are not Assets of Chase or Even Any trust If the Sale was to a "Depositor"

July 7, 2020

Many thanks to Bill Paatalo for bringing this to my attention. This article brings to the forefront a central issue that Wall Street cannot escape unless we let them: in the context of securitization, the paper transfers to the “depositor” is not a sale even if it is treated as a sale by the “Seller.” That means that the homeowner transactions that were falsely labeled as loans were never securitized. In other words, the whole thing is a lie. A LivingLie, which is why I named named this blog as such. == I would suggest that practitioners take note of

How to Use the Business Records Exception to Hearsay Rule to Keep Out "Servicer" Records in Foreclosure Cases

July 2, 2020

Fundamentally you must understand that the investment banks want you and everyone else to look only at the payments history — not the debt, who owns it and whether anyone suffered a loss resulting from any lack of payment by the homeowner. * Their strategy is to get the court to presume that in the absence of payments someone must have suffered a financial loss since the debt was clearly established in a transaction in which the homeowner received money and issued a note and mortgage. In the present securitization era that paradigm is wholly untrue but not obvious because the banks

Coming this fall! A new wave of illegal foreclosure claims. Will we get it right this time?

July 1, 2020

Some have pointed to some articles indicating that the securitization ponzi scheme collapsed already. It might be more accurate to say that the scheme was reorganized rather than collapsed. But even if it collapsed the Wall Street banks will continue sending servicers and foreclosure mills into the field to file foreclosures. After, all, it’s free money if they win, and there is so far, a statistical certainty that in nearly all cases they will win simply because of the erroneous belief by homeowners that they have done something wrong and that they have a moral obligation to leave the house, once they stop

Has any homeowner transaction ever been sold to investors? No? Then why are we accepting the bank myth that it was securitized?

June 26, 2020

Bob gives me a mortgage and I sign a note for $300k. Bob assigns the mortgage and note to Steve in exchange for “certificates / securities.” Bob retains the note and pledges to Jim in a collateral assignment to raise money to fund more loans. (i.e. WaMu and the Federal Home Loan Banks). I stop paying and soon Steve declares a default and tries to foreclose. My defense is that Steve doesn’t have the note, never took the note, and the note was collaterally assigned elsewhere before Steve filed the foreclosure action. If so, we can make that same defensive

What is Real in "Securitization"?

June 24, 2020

The first thing to remember about securitization is that it isn’t real. No Investor ever bought any debt, note or mortgage on residential property. That makes all the documents used in foreclosure of “securitized” loans totally fake. And that is why there was a 50 state settlement and hundreds of other settlements with regulators, attorneys general and investors. What was left out of all those settlements was any means by which illegal foreclosures could be stopped and any credits earned by homeowners or any credit which reduced the amount owed by the homeowners. As it turns out — nothing ever

How to Use the Real Deal On Securitization to Homeowner's Advantage

June 15, 2020

Like citizenship in this country litigation is not easy. We keep banging our heads against the same wall expecting a different result. We need a strategy that directly addresses the inescapable realities of every homeowner transaction and every securitization cycle. My substantive analysis of the transaction is that the homeowner was drafted into a securitization scheme which in my opinion clearly triggers quasi contract and quantum meruit — the only possibility for inquiring into the adequacy of consideration. Lawyers and litigants have shied away from this because of its complexity and because they don’t know how to approach it. * In simple

PennyMac and Other Companies are Making False Claims as "Servicers": Black Knight, the king of fabricated documents is behind 62% of all "servicing records."

June 10, 2020

The bottom line is that companies claiming to be servicers are not servicers although they perform some servicing functions as “clients” of Black Knight. This provides a veil of plausible deniability for lying in court about testimony and documents. Hiding behind litigation immunity foreclosures are being pursued and granted resulting in windfall payments to intermediaries who never had any stake in the financial stake of any homeowner transaction. Examination of the facts shows that the “boarding process” is nonsense i.e., a lie). “New Servicers” simply log on to the Black Knight system. There is no boarding required. It is a

The Best Article Yet on Illegal and Immoral Practices by Investment Banks Making False Claims About "Securitization of Debt" by Francesca Mari on Aaron Glantz Book "Homewreckers"

June 8, 2020

Francesca Mari in the JUNE 11, 2020 ISSUE of The New York Review of Books, has written a truly excellent piece on a book called “Homewreckers” by Aaron Glantz. If you ever had any doubt about whether homeowners have the moral high ground and whether the investment bankers have no moral or legal grounds for what they did, you should read the article and buy the book. ( I get nothing from sales of the book and I have not met either author — although I will contact them for interviews on my show). The only point that I think

How to Stop the Court from Speculating About the Identity of Claimants in Foreclosure Cases

May 29, 2020

As long as you continually attack the sub silentio assumptions of the court, you will be weakening the case against you for foreclosure. Failure to do so means almost certain failure. Foreclosure is considered a draconian remedy equivalent to capital punishment. All US jurisdictions have adopted as a matter of law and public policy (Article 9 §203 UCC) that the remedy will only be granted to one who paid value for the underlying obligation. If you don’t challenge the sub silentio assumptions of the court, then the judge is free is assume that the granting of foreclosure is a remedy

BEWARE: MORATORIUM ON FORECLOSURES MAY NOT STOP SALES OF THE PROPERTY

May 22, 2020

In a nutshell, moratoriums will do very little for homeowners or the courts. First unless a specific moratorium order states that it bars sales and evictions it is only the foreclosure action that is temporarily suspended. At some point in the near future, homelessness will spike because of a new tidal wave of foreclosures. Second a moratorium does nothing to forgive payments. So when the moratorium expires, all the payments are due unless you ask for and receive some sort of forbearance agreement from servicers (who probably don’t have any authority despite all appearances to the contrary). Third, don’t rely

Could IRS Enforcement of REMICs Bring Wall Street Into Line? Yes but they won't do it. Investors and homeowners continue to suffer as victims of fraud.

May 14, 2020

The most obvious places to look for correction in the illegal conspiracies masquerading as securitization of residential debt were the IRS , the SEC, the FDIC and the FTC and probably later the CFPB. Qui tam (whistleblower) actions were regularly dismissed because the agency that lost money due to false claims rejected the notion that it was a false claim or that anything bad had occurred. Sheila Bair lost her job as head of the FDIC for protesting policy set by Presidents Bush and Obama that failed to hold the line. So here is a 2014 article that talks about

The Curious Distraction of Applying "Adverse Possession" Rules to Foreclosures that are Time Barred by Statutes of Limitation.

May 1, 2020

The reference to “adverse possession” in any of these cases is not about legally changing title due to the statute of limitations enabling adverse possession. I know what that looks like. Possession that is adverse is not the legal definition of the statute governing “adverse possession”. Not even close. In this case the court was using the words “adverse possession” loosely. An adverse possession claim is procedural and substantive. * For adverse possession to even be an issue that a court could adjudicate one would need to file a complaint alleging that the Plaintiff did NOT have legal title but had possessed

This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don't? — Ineffective Counsel.

April 24, 2020

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure. The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding

Why Homeowners Lose Their Homes to Crooked Banks

April 21, 2020

The first and foremost thing about this is that where any loan is subject to claims of securitization, that claim is false. So no investor ever bought any loan, debt, note or mortgage. Not ever. All documents claiming to memorialize such transactions are false. So the designated claimant has no claim. To win these cases you must be realistic about what you are up against. The justice system doesn’t care about the merits of any claim, defense or denial unless it is properly and timely presented in accordance with the established rules of procedure and laws of evidence. It is

Magic Bullet? Maybe this: the foreclosure "team" are all witnesses, not claimants

April 15, 2020

The fact that the foreclosure players know — or even witnessed — the fact that you refused to make any further payments makes them a witness, not a claimant. * The investment banks say they are not liable as lenders for noncompliance with lending laws. OK. A good lawyer can make a powerful argument for estoppel — the investment banks cannot take one position — that it wasn’t a loan in terms of regulation of lenders — and then that it is a loan so they can foreclose without a creditor. * Two wrongs don’t make something right. The fact