Deny and Discover: Delaying Tactic or Going for WINNING

You can consider this an open letter to Bar Associations across the country who are accrediting Seminars for CLE credits. From what I have seen (by attending by myself), listened to (ordering the CD or DVD), and heard from dozens of lawyers attending other seminars regarding foreclosure defense, there is only one point of view that is being presented: the best you can do is to delay the proceedings and put off the “inevitable.” This is absurd.

There are three possible written instruments that might be “evidence of the loan” (i.e. the obligation to repay:

1. The closing agent’s instructions from the wire transfer receipt together with the written memo
2. The bond received by the creditor not signed by the borrower
3. The note possible signed by the borrower but refers to a monetary transaction that occurred between parties other than those named on the note

There is no doubt that neither the wire transfer instructions nor the bogus mortgage bond creates no lien and there is no”equitable lien” allowed in any state in the union as far as I know.

That leaves the note, in which the creditor is not identified and the terms of repayment (bond indenture) differ substantially from the note signed by the borrower. Why is it so hard to believe that these loans were botched and considering the source, they must have been botched intentionally for specific reason that I say amounts to fraud, a PONZI scheme, securities fraud, and over payment of the note potentially before the note was formerly issued by the borrower.

There is enough material in mainstream media and the public domain including decisions and opinions from trial courts, bankruptcy courts and appellate courts that the Bar associations and/or the presenters are ignoring the fact that there is at the very least a question about the mortgages and notes, and most probably a plausible attack on the perfection of the lien, the validity of the note and the status of the loan and any claimed defaults.

Bankruptcy lawyers are refusing to place the home on the schedule as an unsecured asset. This has occurred even in cases where the client states flatly that they never signed the deed of trust and that there is no such thing as an equitable lien.

Practically all lawyers start out with the premise that the obligation, note and mortgage (deed of trust) can be interchangeably used because the client did in fact receive the benefits of a loan and stopped paying the scheduled payments set forth in the note, which in nearly every case raises issues of fact that are insurmountable by the would-be foreclosers who neither funded nor purchased the loan.

If the obligation, note and mortgage could actually be used interchangeably (contrary to law in every state and federal court) then we would be acknowledging as fact something that is (a) not a fact and (b) untrue. think about it: why would all three terms be used for the same thing unless there WAS a difference?

And to make matters worse, the VERY lucrative cause of action for wrongful foreclosure is either handled dismissively or not mentioned at all when the facts point strongly toward the probability that the default notice was invalid, the foreclosure action was fraudulent, and the “credit bid” was accepted without any proof of claim by the “creditor.” All the training of lawyers goes out the window because they are assuming the validity of the loan documents and that their clients are in default — and thus assuming they are in the business of delaying the “inevitable.”

So I have switched strategies and I am forming alliances with lawyers and law firms that may be ripe for consolidation with the Garfield Firm at some time, but in the meanwhile they will get the guidance and strategic planing that I offer and some other lawyers have been using for years. Those lawyers understand that the client’s objective or expectation of “winning”the case on the first motion or two is unrealistic. Lawyers who are winning hearings using Deny and Discover or some version thereof understand that the objective is to get to the next hearing, survive motion practice and get the case moved onto the trial docket.

Once the case is on the trial docket the Judge will have no choice but to rule on your discovery requests and if you limit discovery to the case at hand, instead of vague allegations of conspiracy theory, the Judge has virtually no discretion in allowing the discovery and requiring the opposition to put up or shut up.

Once that order is entered, assuming you have asked for answers to appropriate questions and production of appropriate documents, the case is as good as settled with deep discounts on the “principal” due because there is no principal or interest due to the foreclosure stemming from the fact that the forecloser is not a creditor, is claiming ownership of a note that does not contain the identity of the creditor, and is not congruent with the terms of repayment from the group of creditors whose money was used to fund loans, purchase insurance, credit default swaps, and claims to the federal government for bailout or buyout.

As one lawyer said to a Judge who was clearly about to rubber stamp another foreclosure “Judge if you gave me a loan would you want YOUR name on the note and mortgage or someone else’s?”

These people in the claimed securitization chain didn’t do the right thing with the origination documents and assignments because they were dumping false, forged, fake paper all over unenforceable loan documents. If you are annoyed Judge don’t shoot the messenger. The borrower did not create the documents at closing and in fact didn’t even understand them. And the summaries required under Federal law were intentionally misleading.

All of these factors are routinely ignored by Bar accredited CLE courses, which is to say that Bar associations are allowing credits for seminars that leave out the entire dispute that is rampant across the country.

Nevada’s foreclosures dropped 71% simply because they passed a law that said there must be a settlement conference before the foreclosure can proceed — and at that settlement conference, there must be a person who is fully authorized to satisfy or alter the terms of the loan shown in the origination documents.

The simple truth is that no such person exists because the origination documents were invalid and unenforceable. So the forecloser walks away and leaves the home in limbo. The lawyer should be filing a quiet title action and wrongful foreclosure action against the law firm and the forecloser, but in nearly all cases refuses to do so or even advise the client of that opportunity.

Bar seminars are disseminating the wrong information, the wrong law, the wrong arguments and the wrong strategies. This is nothing short of bizarre. We already know about robo-signing, forgery, fabrication and dual tracking. We already know that the loan modification proposal is NOT being considered as required under HAMP and HARP because those proposals offer terms that vastly improve mitigation of damages over the proceeds of foreclosure. We already know that every agency regulating the banks administratively or through law enforcement has come to the conclusion that the participants in the securitization chain are simplifying about the status of the loan, the amount due and the identity of the creditor — even when they identify a “pool”into which the loan was assigned because, in simple terms, the assignment was never given, and in the few cases where an assignment pops up we already know it is a fabricated, forged, fraudulent documents requiring perjury to “authenticate” it.

Even the creditors cited by the foreclosers deny that the note and mortgage are enforceable, which is why they are suing the investment banks daily, and why the insurers, guarantors and agencies are suing the investment banks. The plain truth is that the money was diverted WAY from the REMIC and the origination documented were diverted AWAY from the REMIC. We know the terms of repayment on the note do not conform to the terms of repayment on the bond the investors received.

Just what part of Deny and Discover are you saying you can’t use? Why are you admitting that the obligation was documented with a note or bond? The only valid written item is the wire transfer instructions from which you will often be able to determine from the instructions to the closing agent, the source of funds and whose loan is it anyway. Why are you admitting the liability to forecloser? Why are you admitting the default?  And why do you complain when you lose after admitting or allowing without objection the loan documents and affidavits from the false creditor?

I mean for this article to be sent to every bar association to the CLE departments and to the committees on real property law, administrative law, business law, contracts etc.

Please help out and see that your Bar association in your state gets it along with any other comments you wish to make. The answer will be that the Bar is not endorsing one position or another when it grants CLE credits. But it is and when they approve CLE credits to seminars where the broader view of the entire transaction is not discussed, they are tacitly agreeing with the banks and servicers.

Consult with Neil F Garfield for One Hour WITH a Licensed Attorney on the Line

The consult frequently goes over one hour without charge and points the lawyer and client in the right direction with specificity. It helps if you have had the COMBO title and securitization report done either by us or someone else.

COMBO Title and Securitization Search

Tags: Bar Associations, CLE seminars
Posted in bubble, Corruption, Eviction, securities fraud |