Friday, April 26, 2013

Do US Courts See Neil Garfield As Expert or BOZO?

Neil Garfield - Expert or Bozo?

I know many people love Neil Garfield because on his LivingLies blog, he acts like the champion of foreclosure victims.  But check out just two of the cases where the court denounces Garfield's pleadings and "expertise," and those relying on Garfiels LOSE BIG.  The courts RIP Garfield's tactics to SHREDS. See attached opinions:

  • Connelly v USBNA, US Bankruptcy Ct, AZ;
  • Salazar v Indybank, USDC New Mexico, attached.

Neil Garfield might have the intention of helping foreclosure victims, but he actually hurts them.  He sells them useless securitization audits and "expert" affidavits and provides an utterly bogus foreclosure defense template here:

He totally ignores the indisputable, undeniable facts of virtually every foreclosure:

  1. The borrower signed the note and mortgage
  2. The borrower defaulted on the loan by not making timely payments, thereby injuring the note holder.
  3. The mortgagee/holder files a foreclosure action in order to force a sale of the mortgaged property to recover the loss
  4. The public trustee or the courts MUST give redress to the injured party and MUST NOT impair the obligations of the contracts.

Excerpt of note:

Plaintiff solely relies on his expert's assertion that he possesses "knowledge of the actual intents, purposes, meanings and effect of the 1999 amendments [to the] Uniform Commercial Code.... Article 9 applies to the sale of promissory notes." Garfield Aff. 9:9-12.
        Even if this opinion testimony by a witness who has not been qualified as an expert could be considered by the Court, it would be rejected because it directly contradicts Veal. This Court follows the decisions of the Ninth Circuit BAP, and accordingly, Plaintiff's argument that only Article 9 applies to the transfer of the Note fails.

Look at this footnote from the Salazar case, showing an array of victims of Garfield's nonsensical "expertise":

     "   4. For other examples of cases in which these general complaints contain information supplied by Mr. Garfield, see Maixner v. BAC Home Loans Servicing, LP, Civ. No. 10-3037-CL, 2011 WL 7153929, 3 (D.Or. Oct. 26, 2011) ("Maixner also offers as fact extended excerpts from a Securitization Research Commentary' ('SRC') obtained through LuminaQ and authored by Neil Garfield, an attorney licensed to practice in Florida who Maixner asserts is a 'nationally recognized expert in mortgage securitization.' (Id., ¶¶ 14-22 & Ex. I). A review of the SRC reveals that this document consists primarily of a general commentary regarding the practice of mortgage securitization accompanied by Garfield's opinion 'as an expert in securitization' regarding the significance of these practices with respect to the Maixners' mortgage loan, not of which are properly offered as fact" and dismissing with prejudice the plaintiffs claims seeking an "order holding the mortgage on their property to be void and unenforceable, the pending non-judicial foreclosure proceeding unlawful, and seeking damages for violations of, among others, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and the Truth in Lending Act ("TILA") 15 U.S.C. § 1601 et seq.)"); Sainte v. Suntrust Mortg., Inc., No. 1:10-CV-1637-TWT-WEJ, 2010 WL 4639242, *1 (N.D.Ga. Sept. 15, 2010) (recommending dismissal of case after noting that, as alleged in the Salazar's case, "Plaintiff further alleges that the securitization of his mortgage loan exposes him to liability to 'potentially dozens or even thousands of third parties [that] could come forward claiming an unsatisfied interest in the promissory note.' ( Id. ¶ 7.) As a result of plaintiff's inability to establish chain of title to his property, he 'is left in the position of being in an adversary proceeding with ghosts.' (Id. ¶ 13.) Plaintiff alleges violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq., the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and a state law claim for quiet title. (Pet.¶¶ 17-43.)" and noting that, "[i]n its discussion of shotgun pleadings, the Court observed that plaintiff filed a pro forma complaint that is widely available on the internet, see, e.g., http://mariokenny.wordpress. com/category/nature-of-the-action-by-neil-garfield/, and frequently filed in this Court. See, e.g., Dan v. Bank of America, No. 1:10-cv581-CAP (N.D. Ga. filed Mar. 1, 2010); Myers v. Countrywide Home Loans, No. 1:10-cv-0536-JEC (N.D. Ga. filed Feb. 25, 2010); Clark v. Wells Fargo Bank N.A., No. 1:09-cv-2742-CAP (N.D. Ga. filed Oct. 2, 2009); McGrue v. Wells Fargo Bank N.A., No. 1:09-cv-2733-CAP (N.D. Ga. filed Oct. 2, 2009)"); Straker v. Deutsche Bank Nat Trust, No. 3:CV-09-0338, 2010 WL 500412, 1 (M.D.Pa. Feb. 5, 2010) (noting that "[a] significant portion of the body of Plaintiff's Complaint can be found in Nature of the Action by Neil Garfield. Accordingly, there are only a handful of statements included in Plaintiff's Complaint that are personal to her claim and not pulled directly from the above-posted source" and dismissing claims "alleging violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; the Home Ownership Equity Protection Act ("HOEPA"), 15 U.S.C. § 1639; the Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601; and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681. (Comp., Dkt.1.) . . . and claims of fraudulent misrepresentation, unjust enrichment, civil conspiracy, civil RICO, quiet title, and usury" as improperly pleaded against all Defendants)."

Look at this from the Connelly case:

"Defendant is entitled to summary judgment because Plaintiff's opposition consisted of unpersuasive conclusory statements which ignored Ninth Circuit law, the Bankruptcy Rules, the Local Rules, and the Conversion Order. Plaintiff's pleadings are filled with inapposite legal theories unsupported by facts or law. For example, in the Response's discussion of how UCC Articles 3 and 9 affect the PSA and MLPA, Plaintiff never acknowledges that he is not a party to those contracts and fails to cite a single case from the Ninth Circuit to support his arguments. Notably, Plaintiff neglects to cite or adhere to recent Arizona and Ninth Circuit cases which address how a creditor may enforce its rights under a promissory note and deed of trust."


All of this brings me to ask:

Is Neil Garfield an expert or a bozo?

Let me make this point by asking another question:

If you were a lawyer and a client came to you for help dealing with a notice of foreclosure or a foreclosure complaint for breach of contract, which of these would you do:

  1. Allege that the bank didn't lend real money or that the securitization trust receipts paid off the loan or the holder of the note has no standing?
  2. Examine the mortgage for evidence of prior torts, breaches, or error by the lender or lender's agents?

Now, ponder these additional questions:

  1. Doesn't it go without saying that the foreclosure becomes INEVITABLE if the foreclosure victim cannot deny the essential facts outlined in 1-4 above?
  2. Doesn't a foreclosure defender attorney commit legal malpractice by doing #1 immediately above and ignoring #2?
  3. Doesn't it seem obvious that one can defeat foreclosure ONLY by proving a prior breach, tort, or error underlying the mortgage so as to give the court justification for declaring the mortgage void, invalid, or defective?
My central point...  If you took out a mortgage in the past 10 or 12 years, you have a 90% chance that the lender or lender's agents cheated you.  If you don't believe this, read the summary at the front of the Financial Crisis Inquiry Commission Report.  It essentially ignores Wall Street fraud, but it shows that government and the finance industry colluded in the predatory lending that caused massive job loss and collapsed homeowner equities nationwide.

What does "predatory lending" mean?  It means lender knew the borrower could not afford payments or the appraiser overvalued the house, or the mortgage broker or lender charged excessive fees, or the lender or lender's agents made false representations to the borrower, or  somehow cheated the borrower, and DID SO KNOWINGLY.  They did this to obtain unjust enrichment and set up the borrower for foreclosure.

In order to prove an injury, the borrower must hire a professional to perform a comprehensive mortgage examination to find all the causes of action (reasons to sue) underlying the mortgage.  If the examination report reveals causes of action, the borrower can obtain legal counsel to demand and negotiate a settlement offer or sue the  original lender in a new action or as a cross claim for those causes of action.

Neil Garfield STUDIOUSLY refuses to tell his readers this reality, but the comprehensive mortgage examination provides the ONLY WAY a mortgage victim or foreclosure victim can get the house free and clear or obtain financial compensation for suffering the injuries from the lender or lender's agents. 

There is NO other way, as the attached court cases point out here in Connelly:

"...the Court finds that Defendant is a holder of the Note entitled to enforce it because Defendant is the bearer of the Note properly indorsed in blank."

-->How could the judge have stated it with greater clarity and simplicity?  What does Neil Garfield FAIL TO UNDERSTAND about this?  Everything, apparently.

You see the two possible scenarios? 

Scenario 1.  By attacking the lender for mortgage torts, breaches, or errors, the borrower can win the house free and clear or financial compensation AND legal fees because the lender or agents injured the borrower. 

Scenario 2.  But by attacking the foreclosure, the borrower can at best win temporary dismissal without prejudice on some standing issue, and the lender will refile and the borrower will lose the house and all the fees paid to the attorney, because the borrower injured the lender by defaulting on the mortgage.

Neil Garfield thrives on  and promotes Scenario 2.  Instead of performing comprehensive professional mortgage examinations, Garfield contents himself with hawking securitization and loan audits that do absolutely no good because they aim mostly at arguing over the foreclosure rather than attacking the original lender for causes of action underlying the mortgage.  And the statute of limitations has expired on most of the TILA/HOEPA/RESPA violations he might find, so they provide no basis for a lawsuit.

Let me clarify:  ONLY a comprehensive professional mortgage examination, combing through ALL of the documents related to the mortgage and foreclosure in the context of the borrower's observations and experiences can provide a basis for settling with or suing the lender.  And such a settlement/suit will stop a foreclosure dead in its tracks.  It can result in the borrower getting the house free and clear, all legal fees and costs paid, and punitive damages.  Want Proof?  Read these stories and see what a SENSIBLE, COMPETENT attorney can do with a proper professional mortgage examination:

[Note that these stellar examples exist only because the lender or lender's counsel was an idiot for not settling early - all settlements include non disclosure agreements to hush up the mortgage victim]

  1. House free and clear, legal fees/costs paid, $2.1 million in punitive damages -

  2. Wells Fargo lied on the loan application - $250K compensation, $1 million punitive -^1681713

  3. Ocwen lied to borrower who missed loan payment - $10 million actual damages, $1.5 million mental anguish and economic damage -

  4. 8th USCCA W. Mo. reinstated $6 million punitive damage arbitration award against servicer (Stark v. Sandperg, Phoenix & von Gontard, et al.) -

If you have a mortgage, particularly if you have an under-water loan (you owe more than the value of the house), you NEED a professional mortgage examination to prove any causes of action underlying that mortgage.  If  you want such a mortgage examination, call me right now for help.  I'll explain the solution strategy and connect you to a professional mortgage examiner who can provide you with a full examination report within 7 business days.

Bob Hurt
727 669 5511  - Call Now.  I charge no fee

(Yes, you may distribute this article far and wide, if you really want to help people)

Bob Hurt         Blog 1 2 3   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
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