Category: TILA

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

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

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

Are Lawyers Missing the Boat Again on Foreclosure Defense?

June 12, 2020

The problem is that while most people think everyone has been bought off, and to a certain extent that is true, the real problem is that the clever plan of securitization is so counter-intuitive that nobody believes the truth that is in plain sight. The reason for fabricated documents is that there were no transactions, so the documents had to be fabricated to fit facially with the requirements of law for administration, collection and enforcement. To anyone who is not conversant in the language of finance, that seems impossible, unlikely, or just plain wrong. So rather than keeping an open

Transactions with Homeowners Are Part of Securitization Scheme: Why don't homeowners and their lawyers use this fact?

May 28, 2020

So the “RMBS” industry is pushing for “economic relief” in the Pandemic. If they get it, it will be another windfall for Wall Street and investment bankers will go from laughing to convulsing in the privacy of their board rooms. The Wall Street Journal published an article yesterday on how the mortgage market is not behaving “as expected.” With interest rates down so low there should be a flood of refinancing. And there is plenty demand to do just that. But, as the article points out, there might be demand but there is no supply. There is no supply because

About those tax statements you have seen or received on home "loans"

May 25, 2020

Answering your question requires tracing the convoluted strategy of the investment banks. Start with the proposition that each player is one of the separate business entities involved in the securities plan that claimed to “have” your loan in some manner, shape or form. Next go to the fact that the creditor role was extinguished in the plan. That leaves the debt with nobody to pay (no creditor). Nobody has an asset on their balance sheet corresponding to your transaction that was originated as a “loan.” BUT you are making payments as directed by people whom you think are actually authorized to tell you

Wait! Somebody must have paid something right?

February 7, 2020

How do you know what was paid by whom and when and what terms applied? The whole point here is that money was paid by investors who did not receive ownership to the debt, note or mortgage. Nor did they assign any equitable right to the debt, note or mortgage. Since the value was paid by a party who never received ownership, no “successor” would have any reason to pay value for ownership nor did they do so. * And before you decide to shift gears, the investment bank took in money from investors as a commercial deposit — i.e.

Rescission and Burden of Proof

September 25, 2019

There are winners and losers in every courtroom. When dealing with TILA Rescission under 15 USC §1635 you must go the extra mile in not merely showing the court why you should win, but also revealing that the opposition is not actually losing anything. The same logic applies to every foreclosure where securitization is either obvious or lurking in the background. The bottom line is that no payment of value has ever been paid or retained as a financial interest in the debt by the named claimant nor anyone in privity with the named claimant. Once you can show the

Finally a Judge Asks the right Questions about TILA Rescission and Invites Briefs

August 5, 2019

The time may now be coming where the court systems and Federal and State legislatures must come to terms with two inescapable legal facts: (1) That borrowers who sent TILA rescission notices — and particularly those who sent them within 3 years of consummation of the mortgage — still own the land that was deemed “lost” in foreclosure. (2) That such borrowers possess valid claims to recover title. possession and money damages. It was bound to happen and now it has. In one case, a judge is asking the following questions and inviting briefs on the following subjects: What is the effect of the failure to return

Tonight! How to Use TILA Rescission in Court! The Neil Garfield Show 6PM EDT

August 1, 2019

FORENSIC AUDITORS TAKE NOTE Thursdays LIVE! The Neil Garfield Show or prior episodes Or call in at (347) 850-1260, 6pm Eastern Thursdays ******************************* There are many potential claims arising out of attempted foreclosure after TILA rescission is effective. * But one of them is not a violation of your rescission rights. By pleading that you are putting into play the burden of proving the effectiveness of rescission which has already occurred by operation of law. * By pleading or arguing such a notion you are inviting interpretation form a court that is only too happy to reject your claim. In most cases

Just to be clear, MERS is absolutely nothing.

July 16, 2019

For some reason I have been getting more questions about MERS lately. My analogy has always been that MERS is like a holograph of an empty paper bag. So here are some basic factors for the checklist and analysis: MERS never signed any contract with any borrower. MERS never has any contractual or other legal relationship with investors (certificate holders) or Government Sponsored Entities (GSEs) like Fannie, Freddie or Sallie. MERS never signed any agreement or contract with most named “lenders.” MERS never signed any agreement or contract with respect to any specific loan transaction or acquisition. MERS was never

What is Fair?

July 15, 2019

The question should not be the bipolar question of who gets a “free house,” with the answer being the borrower or a party claiming entitlement to enforce. The question should be how to create a new equitable and legal infrastructure to clean up the mess that the banks created without unnecessarily penalizing either the investors who put up the money in the first place and the borrowers who put up their lives. This is a question that BOTH the courts and the legislatures must face for failure to do so compounds the already compounding chaos and tragedy that befell our

Stop Feeling Guilty — Be A Warrior

April 9, 2019

Shame is the reason why most borrowers don’t contest foreclosures. That shame turns to intense anger when they realize that they were used, screwed, abused and now they are targets in a continuing blitz to embezzle much needed money from their lives and from the financial system generally. The genius behind companies like Citi is… Deception by Branding. “Citi” is not a company, it’s a brand of a conglomerate of companies. Even its subsidiary “Citibank N.A.” is deceptive. First let’s dispel the myth that subsidiaries are equal to their parents. Not true, not even when they are wholly-owned subsidiaries. They

Unworthy Trusts

March 12, 2019

The simple fact is that the REMIC trusts do not exist in the real world. The parties named as trustees — e.g. US Bank, Deutsch, BONY/Mellon — are trust names that are used by permission through what is essentially a royalty agreement. If you are dealing with a trust then you are dealing with a ghost. Discovery is the way to reveal the absence of any knowledge, activity or reports ever conducted, issued or published by the named Trustee on behalf of the “trust” or the alleged “beneficiaries.” Take deposition of officers of the named Trustee. Your opposition will try

TILA Rescission and Bankruptcy: What Happens When the Bankruptcy Court Gets it Wrong

March 1, 2019

When TILA rescission has occurred the encumbrance is eliminated and the debt converts from one arising from a promissory note to one arising from a statute — 15 USC §1635. The debt then becomes subject to the statute of limitations for claims under TILA because the debt now arises under TILA. If the statute has run the debt is barred. Thus when the court gets it wrong and ignores the TILA Rescission it is warping the value of the bankruptcy estate as well as allowing secured status to unsecured creditors. ============================== DONATE to LivingLies Let us help you plan for

The Facts Behind Smoke and Mirrors

January 24, 2019

Nearly everyone is confused as to the identity of the real holder in due course, or the “creditor,” or the owner of the debt. Nearly everyone thinks that ultimate it is investors who purchased certificates. In fact there is no holder in due course and there never will be in most instances. There was never any possibility for a holder in course claim because in most cases the origination of the loan took place in what is called a table funded loan, which is against public policy as a matter of law (as expressed in the Truth in Lending Act).

Tolling the Statute of Limitations by Initiating Administrative Processes

January 23, 2019

A recent case brought to mind a possible argument for tolling the applicable statute of limitations (SOL) on certain claims. By submission of complaints to the CFPB (TILA, RESPA, FDCPA etc) you are starting an administrative process. It might even be true that by submitting a QWR (under RESPA) or DVL (under FDCPA) you are starting an administrative process. One could argue that while you were in that process the statute of limitations on certain claims should be tolled. ============================== Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask

"True Lender" Lawsuits Causing Business and Legal Headaches for Banks

January 21, 2019

hat tip Bill Paatalo You can’t pick up one end of the stick without picking up the other end as well. Or, if you like, you can’t eat your cake and still have it. Banks used third party intermediaries all the time, and in non-mortgage loans they are considered as the real lender for purposes of being able to charge the interest rate stated in the consumer loan agreement. But the situation is quite different and maybe the reverse in most alleged mortgage loans for the past 20 years. Usually a non-bank funding source was using a third party intermediary

Solving the Puzzle: Settlements with Homeowners Are Rising

January 16, 2019

Hat tip Michael Bazemore It’s not easy to see but if you look at the court docket after a ruling against the parties designated as “foreclosing parties” you can see that these cases are often dismissed with reference to an agreement or settlement between the parties. The typical pleading asking the court to dismiss the case will read as follows: IT IS HEREBY STIPULATED by and between Plaintiff X and Defendant Y that pursuant to [Federal][State] Rule of Civil Procedure (41(a)(2) [Federal] this action and all causes of action contained therein shall be dismissed with prejudice. It is further Stipulated

Distilling the 20 Points of TILA Rescission: 9th Circuit Allows "Claim" for Rescission Under WA Statute of Limitations

January 14, 2019

I have distilled the legal points and procedure of TILA Rescission down to their essentials and specifics as you can see below. In the case presented the 9th Circuit ruled in favor of the homeowner but in so doing continued to violate the law of the land enunciated by the Supreme Court of the United States and Congress. Yes the homeowner should win but no, the homeowner should not be treated as having any burden of proof as to effectiveness of the TILA Rescission because the TILA Rescission statute is a self-executing statute that is effective by operation of law.

Using TILA Rescission as Jurisdictional Issue

December 19, 2018

I think TILA Rescission should be approached as a jurisdictional issue since it focuses on the procedural aspects of the TILA Rescission statute. In other words it should always be front and center. I think a problem with TILA Rescission is that not even borrowers understand that the rescission issue is over. By asking a court to make rescission effective you underline the correct premise that rescission has already occurred. All your pleadings after that should be based upon that premise or you undermine yourself. ============================== Let us help you plan for trial and draft your foreclosure defense strategy, discovery

How to Apply Federal TILA Rescission Rights

December 11, 2018

Bottom Line: TILA Rescission is looming as a major risk factor to banks and investors who were not informed about the risk of TILA Rescission. The oddity is that the investors were not purchasing the loans and in fact agreed to replace the income stream from borrowers with an income stream from a fake trust. Court decisions are inching closer to allowing the explicit language of the TILA Rescission Statute 15 U.S.C. §1635 to control situations like any other law passed by Congress and signed into law, with unanimous approval from the Supreme Court of the United States (SCOTUS). It

9th Circuit Creeps Up the Ladder in Hoang TILA Rescission Breakthrough

December 7, 2018

This case comes the closest yet to the truth about TILA Rescission. And it requires that TILA Rescission be applied — if there is an action to enforce within the statute of limitations covering contract actions in the state in which the property is located. The court’s conclusion that there must be a statute of limitations is derived from its erroneous assumption AGAIN that TILA rescission is a claim rather an event. Jill Smith has done an outstanding job of moving us toward the final step in TILA REscission, to wit: TILA Rescission is procedural and it is an event.

CURRENT STATUS OF TILA RESCISSION AND ITS APPLICATION TO PAST, PRESENT AND FUTURE FORECLOSURES

November 9, 2018

Ultimately there will be recognition that the courts are vetoing legislation passed by congress simply because the judges disagree or are afraid of the consequences if they were to apply the law. Congress wrote it, passed it, and it was signed into law. In a nation governed by the rule of law there can be no space for exceptions. This is a violation of the most basic tenet of the US Constitution — division of governance into three co-equal branches of government. The courts are required under law to follow the law. Eventually the chickens are going to come home.