Dec 18, 2020
I am writing a template petition for filing in the Supreme Court of each state to change the rules and the preapproved form pleadings. The one glaring omission (because it was never necessary before) is to allege and prove loss.
Folks, I am doing this work on my own and I need help from you to get this done without going completely broke. So I implore you to send donations.
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The current rules and preapproved form pleadings for foreclosure were created before the era of false claims of securitization. this is the principal reason that for 20 years Wall Street banks, acting through intermediaries have been getting enforcement of false claims in court. I intend to file petitions one each of the 50 states and to get involved in meeting with rules committees of each bar association. It is a massive undertaking.
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If we get this done, the number of court filings for foreclosure will drop to nearly zero. The Wall Street brokerage firms that call themselves banks or investment banks will be required to file a different type of action entirely asking for the reformation of what is clearly an unenforceable obligation. Reformation will require an assessment of how much the homeowner should have been paid for signing documents that launched each securities scheme. The baseline for the presumed correct amount of compensation due to homeowners should be the amount paid to homeowners at closing.
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I need your help and your contributions of ideas and money.
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Feel free to suggest additional or amended rule changes by return email. So far I have these:
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- In judicial states, the Plaintiff must assert and submit a sworn certification that it has suffered an economic loss proximately caused by the homeowner’s nonpayment.
- In nonjudicial states, the beneficiary must answer the homeowner’s petition for TRO with a sworn statement that it has suffered an economic loss proximately caused by the homeowner’s nonpayment.
- Every statement of loss must be solely related to losses attributed to the claimant’s prior acquisition of the underlying obligation — i.e. economic loss from failure to earn profits through securitization or enforcement shall not be a basis for asserting economic loss.
- Discovery demands related to the existence, ownership, and authority to administer the underlying obligation must be answered within the time limits required by the rules of procedure. Such responses should come from existing information and documents available before the filing of a foreclosure complaint, a substitution of trustee, or notice of default, or a notice of sale. Failure to respond shall be subject to automatic sanctions without filing a motion to compel upon an affidavit from the homeowner or counsel for the homeowner that such responses have not occurred. Sanctions shall include, but not be limited to
- A negative inference that the claimed underlying obligation does not exist.
- A negative inference that there is no loan account receivable on the ledgers of the claimant or anyone represented by the claimant.
- A negative inference that the named claimant is not the owner of the underlying obligation.
- A negative inference that the attorney who participates in the filing of the claim does not represent a real party in interest.
- A negative inference that the named servicer is not the agent for a creditor who owns the underlying obligation.
- Monetary sanctions including attorneys fees, costs, and court fines assessed against both the foreclosure attorney and the named claimant.
- Such other and further relief as the court may deem just and proper.
- If exhibits refer to Power of Attorney (POA), it must be filed with a complaint.
- If no POA is attached or recorded in public records, then the document is to be treated as not facially valid no legal presumptions apply.
- Required: Specific allegation of compliance with condition precedent stated in Article 9 §203 UCC.
- The foreclosure attorney must certify he/she is employed by Plaintiff or beneficiary.
- The name of the Plaintiff or beneficiary must be clarified and stated with specificity. Example: U.S. bank not on its own behalf but rather on behalf of certificates or certificate holders of XYZ trust does not tell us the identity of the real party in interest who is alleged to have a claim.
- Trust must be identified as to the place of origination and the jurisdiction in which it is doing business.
- If a trust is identified as the claimant the claimant must identify the date and parties in the transaction in which the subject transaction (loan) was purchased by the trustor or in which a settlor or trustor entrusted the transaction obligations to the named trustee to be administered by the trustee for the benefit of beneficiaries.
- If certificates are identified is identified as the claimant, or in any way related to the claim, then the certificates must (a) be identified and (b) an abstract of the certificate must be attached establishing a conveyance of ownership in the underlying debt from a party who is certified by counsel to have owned the underlying obligation.
- If the claimant is not asserting existence and ownership of the underlying obligation through securitization it must state that and allege the date and parties to the transaction in which the claimant purchased the underlying obligation for value.
- If the holders of certificates (i.e. mortgage-backed securities) are identified as the rue claimant, plaintiff, or beneficiary, they must be identified.
- The court must find a lack of jurisdiction over the parties and the subject matter in the event of a lack of clear identification of the party bringing the claim.
- The clearly identified claimant must execute and file a sworn acknowledgment of the allegations of the complaint or the assertion of substitution of trustee, a notice of default, a notice of sale, and auction sale.
Folks, I am doing this work on my own and I need help from you to get this done without going completely broke. So I implore you to send donations:
Please Donate to Support Neil Garfield’s Efforts to stop Foreclosure Fraud.
Click here to donate
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.


