Category: trial strategy

How Foreclosure Mills Win by Misusing "Judicial Notice"

February 10, 2023

Hat tip to summer chic Judicial Notice is a rule of evidence in which the court receives a written request to accept a document into evidence as proof of the truth of the matter asserted. In Foreclosures, the truth of the matter asserted is that there is an unpaid loan account, and the named plaintiff or beneficiary has the right to administer, collect and enforce it. If that is alleged in a form that is allowed by law, and proven in the manner allowed by law, the foreclosure will be granted. I might add, that it should be granted to

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

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

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

What Happened With Your "Loan" — By admitting that you received a loan you lose.

December 16, 2020

The plain truth is that homeowners are losing their cases through assymetry of information. They think they understand when they do not have a clue. They are admitting the obvious, which turns out to wholly untrue. In so doing they give the court no choice but to enter judgment aganst them. ApplicationForLoanProcessAndFundingOfServiceFees I am experimenting with new ways to present this. If you click on the above chart you will see that the application process is actually a dead end. Nobody actually agrees to lend any money. Nobody does lend money. Money arrives later at the “closing” table but unknown

After Complaints to AG and CFPB Follow UP!

December 1, 2020

If you are not going to follow up on complaints to your attorney general or the CFPB, then you shouldn’t have filed the complaint in the first place. If you are not going to follow up on demand for discovery, don’t bother filing them. The simple truth is that they never answer the question. They simply use the opportunity to propagate the lie that a loan was securitized when in fact no sale of the loan ever occurred. Most people and many lawyers fail to recognize a simple legal strategy that is available to them, to whit: that the failure

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

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

What to do if the foreclosure mill refuses to give you an answer about ownership of the "loan"

October 24, 2020

Summer Chic write me an interesting email and I wrote back. She poses a question that summarizes the entire situation: She wrote: Example: PennyMac claimed that they PURCHASED my loan on May 2, 2019 from someone whom they cannot identify. The financial statements from a non-identified company show that somebody “established a NEW loan” on May 9, 2019. Not a single word about the sale Here is what I wrote back: * As unusual PennyMac (or Ocwen or whoever) claims that it purchased a specific loan (usually in bulk). So we all know that a claim is good for pleading

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

Processing Fees are more than illegal — by adding them to balance due, the default letter is defective.

September 2, 2020

This is simple logic. If illegal processing fees were greedily added to the “loan accounts” falsely asserted to exist, then the amount demanded from “borrowers” was incorrect. That would make the statements sent to borrowers part of a fraudulent scheme through US Mails which would be mail fraud. And it would make the notices of delinquency and notice of default and notices of default defective and perhaps fatally defective because they were seeking to enforce an amount not due. And it would make foreclosure judgments and sales based upon such demands potentially voidable. see https://spotonflorida.com/southeast-florida/1835819/ocwen-phh-corp-pay-125-million-settlement.html CLICK HERE ORDER ADMINISTRATIVE STRATEGY,

There is no valid cause of action for foreclosure arising from the Uniform Commercial Code. There is a cause of action under common law contract — but nobody has alleged that in claims or defenses.

July 20, 2020

The only way that enforceability of the homeowner transaction can be preserved is through common law contract, in which UCC presumptions would probably not apply I recently received a question from a paralegal asking a question I constantly receive — where do I find my loan. Or more specifically how to find out which trust owns my loan. the answer is that (a) you are asking the wrong questions and (b) you are admitting that the loan is actually in a trust. That simply is not true. Here is my reply: I appreciate the work you are doing. I think

How did Wall Street make all that money on "securitization."

July 13, 2020

Servicers did not make any advances. They never did and they never will. They said they did but they didn’t. If you read the prospectus carefully you will see that the money from investors is divided into three parts. * The first part is the purchase of a certificate that promises payments to the investor based upon a formula that is independent of any homeowner debt, note or mortgage. It does not commit the Investment Bank to using the funds in any particular way. But the payments are partially indexed on the performance of an arbitrarily chosen group of loans

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,

How to Deal with Motion for Substitution of Plaintiff in Foreclosure Actions

May 26, 2020

The single basic tool of the investment banks, who are secretly running the whole foreclosure show, is musical chairs. By rotating the players they can successfully bar the courts and the litigants from knowing or pinning down who is real and what is real. All of that ends if you sue the investment bank. Look at any foreclosure in which claims of securitization are known or suspected and you will find “rotation”. In nonjudicial states it starts with “Substitution of Trustee” on the deed of trust which can be done without any motion. Before or after that there is a

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

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

Don't Admit Anything About the Servicers Either — It's All a Lie

September 10, 2019

Want to know why this site is called LivingLies? Read on Homeowners often challenged the authority of the named claimant while skipping over the actual party who is supporting the claim — the alleged servicer. You might also want to challenge or at least question their authority to be a servicer. The fact that someone appointed them to be a servicer does not make them a servicer. Calling themselves a “servicer” does not constitute authority to administer or even meddle in your loan account. As you will see below the entire purpose of subservicers is to create the illusion of a “Business records” exception

Jurisdictional Defense —- Certificate Holders vs Trust

August 28, 2019

Litigators often miss the point that the foreclosure is brought on behalf of certificate holders who have no right, title or interest in the debt, note or mortgage — and there is no assertion, allegation or exhibit that says otherwise. ======================================= GET FREE HELP: Just click here and submit the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case. Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment

Tonight! Why the Bankruptcies of DiTech and Aurora Matters! Neil Garfield Show 6PM EDT

July 25, 2019

Thursdays LIVE! The Neil Garfield Show — WEST COAST with CHARLES MARSHALL AND BILL PAATALO or prior episodes Or call in at (347) 850-1260, 6pm Eastern Thursdays ******************************* I get that the complexity of securitization and foreclosure litigation can be mind-numbing even to an experienced litigator. But once you start winning you get a rush. Tonight we talk about making some of the more tedious aspects of examination of the case productive for the lawyer and for the homeowner. The continued appearance of DiTech and or Aurora is actually a sparkling example of arrogance emanating from the investment banks that too often

How to Put Leverage Back Into the Hands of Homeowners

July 22, 2019

You had the ultimate leverage when they needed your signature to start the loan agreement. Now you have the ultimate leverage if you can properly plead and become a credible threat based upon wrongful foreclosure. If a trust is named or implied as mortgagee or beneficiary you are not just threatening the one case of foreclosure filed against you, but all foreclosures initiated in the name of that trust. Once faced with that threat the rule, contrary to general misconceptions, is that the homeowner will always receive offers of settlement that grant favorable terms. How beneficial? It depends upon the

The Big Hoax: Are "Sales" of "Loans" and "Servicing" Real?

May 14, 2019

References to sales of loans and servicing rights are usually merely false assertions to distract homeowners and lawyers from looking at what is really happened. By accepting the premise that the loan was sold you are accepting that the loan was (a) real and (b) owned by the party who was designated to appear as a “Seller.” By accepting the premise that the servicing data and documents were transferred you are accepting that the transferor had the correct data and documents and that the designated servicer is actually in position to represent the accounting records of the party whose name

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