Watch out for the discrepancy between enforcement of a note and enforcement of an encumbrance. Enforcement of the note requires proof that the claimant is the owner of the debt, or has been authorized by the owner of the debt to enforce the note. Enforcement of the mortgage requires that the claimant be the owner of the debt.  Judgment on the note can be rendered based upon legal presumptions arising from the UCC as adopted […]

Tags: Article 3 UCC, article 9 UCC, DEED OF TRUST, Mortgage, negotiable instrument, note, presumptions
Posted in evidence, foreclosure defenses, legal standing, Pleading |

The lesson is keep your eye on the ball. The natural human reaction to an affidavit is to assume it is true. We assume that it would not be submitted if the lawyers knew it wasn’t true. And in most cases people don’t lie in affidavits. But they do mislead sometimes by leaving out context. […]

Tags: affidavits, Caliber, default, LSF9 Master Participation, Wells Fargo Bank
Posted in Corruption, discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Pleading, Servicer |

In an increasing number of foreclosure cases, homeowners are going head to head with the lawyers who file claims on behalf of entities on the basis of fabricated and/or forged instruments that in many cases were also recorded in county records. Lawyers like Dan Khwaja in Illinois are getting clearer and clearer about it. They […]

Tags: AIG, BEAR STEARNS, BoNY-MELLON, Dan Khwaja, Lehman Brothers, notes, original notes, transfer, Wells Fargo
Posted in Corruption, discovery, evidence, expert witness, Fabrication of documents, foreclosure defenses, legal standing, Pleading, Servicer |

It is universally accepted that a mortgage or deed of trust may not enforced except by the owner of the actual debt. The debt exists regardless of whether it is in writing or not. While a promissory note might be enforced by a party who does not own the debt (Article 3 UCC), forfeiture of a homestead requires that […]

Tags: enforceable, facially invalid, facially valid, prima facie case
Posted in discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Pleading |

The view proffered by the banks would require them to accept declarations of fact from potential borrowers without any indicia of truth or reliability. It is opposite to the manner in which they do business. Currently they have it both ways, to wit: for purposes of borrowing you must submit documents that are facially valid […]

Tags: BEAR STEARNS, BoNY-MELLON, facial validity, grantee, grantor, JPMorgan Chase, recording, Structured Asset Mortgage Investment
Posted in Corruption, discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Modification, Pleading, securities fraud, Servicer |

Bottom Line: Failure to attack the facial validity of the documents is virtually hanging the homeowner letting him/her twist in the wind. Without such a relentless attack based upon scrutiny of the exact wording on documents revealing that nobody is actually identified as a real party in interest, you will be trapped by an endless […]

Tags: acknowledgement, bankruptcy, BKR schedules, debt, mortgage modification, statute of limitations
Posted in Corruption, discovery, evidence, foreclosure defenses, legal standing, Modification, Pleading, Servicer |

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 […]

Tags: discovery, holder in due course, investment bank, owner of the debt, REAL PARTY IN INTEREST, table funded loan, TILA
Posted in Corruption, discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Modification, Pleading, Servicer |

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 […]

Tags: AG Complaints, CFPB Complaint, FDCPA, realignment of parties, recoupment, RESPA, TILA, unconstitutional application of statute
Posted in evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Modification, Pleading |

Without a contract in writing executed with the formalities required for transfer of interests in real property, it is highly probable that any instrument executed on behalf of MERS means nothing without the necessity of drilling into the authority or knowledge of the signor. In fact, it might just be that the execution of an […]

Tags: agency, agent, MERS, naked nominee, Power of Attorney
Posted in Corruption, discovery, evidence, Fabrication of documents, foreclosure defenses, foreclosure mill, legal standing, Motions, Pleading, Servicer |

Thursdays LIVE! Click in to the Neil Garfield Show Tonight’s Show Hosted by Charles Marshall, Esq. Call in at (347) 850-1260, 6pm Eastern Thursdays   One of the things that irritates most homeowners and lawyers for foreclosure defense is how “evidence” is admitted that “proves” a fact that doesn’t exist. One of the tools for doing that […]

Tags: credibility, judicial notice
Posted in evidence, foreclosure defenses, foreclosure mill, legal standing, Motions, Pleading |