Monday, April 27, 2015
Sunday, April 26, 2015
Heed me now as I warn the nation that its citizens desperately need an amendment activity to correct the great wrongs Congress and the State Legislatures did in that once great document of responsible liberty.
To put it plainly, certain amendments now comprise a framework for destroying the nation by destroyed the responsibility prerequisite to liberty. I enumerate them as follows:
Sunday, April 19, 2015
DO NOT WASTE YOUR MONEY ON GARFIELD's RESCISSION PACKAGE.
This Jesinoski opinion dealt only with the right to effect the rescission subsequent to 3 years after the borrower provided notice of TILA rescission within 3 years after receiving the loan. We should all remember that in a rescission, both parties must return one another's money.
No one should doubt the bank's ability to tender. But everyone has reason to doubt the typical borrower's ability to tender. Any lender who believes the borrower will not tender has good reason to balk at returning the borrower's money, especially in the case of an underwater loan or failure to make timely mortgage payments.
Thus, mutual "TENDER" controls every rescission. Lender can tender, but not hand off the money to the borrower till borrower tenders. Once both have tendered, they hand off. But borrowers seldom have that ability to tender. This borrower failure explains why lenders do nothing till the borrower sues or offers rescission as an affirmative defense in a foreclosure action.
I have made the point that the court has a duty to get to the bottom of the issue and do what's right, whether creditor forecloses or borrower sues for TILA rescission. The court will NOT order rescission unless:
1. The borrower proves creditor violations justify TILA rescission within the scope of the law.
2. The borrower can tender what the court's arithmetic shows necessary to settle the debt.
TILA rescision applies to only a minuscule percentage of borrowers because:
1. They did not timely serve notice,
2. They borrowed to purchase rather than to refinance,
3. They cannot prove the lender violated TILA,
4. They cannot tender payment according to court arithmetic.
So, here I provide the most important issue to readers:
The court will not exonerate the borrower from all or part of the debt the debt UNLESS the borrower can prove that one of these parties injured the borrower at the inception of the loan or during its term:
3. mortgage broker,
4 title company,
8. servicer, or
9. some other party.
Once the reader comes to grips with the above realities, the reader becomes qualified to ignore the ravings of Garfield and his minions, and focus on attacking the loan and its perpetrators for injuries at the inception.
Because statistically, YOU CANNOT DEFEAT FORECLOSURE OF A VALID NOTE THE BORROWER BREACHED. Nearly every dismissal for lack of standing results in refiling, appeal, and win for the creditor, nationwide. Courts do NOT like to give borrowers a free house because that would simply amount to government-assisted thievery.
The incessant effort of Garfield to focus on everything but the above list of injurors explains why his law firm and all of his club of lawyers who "get it" merely bilk their clients for the privilege of losing their realty to foreclosure, short sale, deed-in-lieu, or an onerous loan mod (which mostly end in foreclosure), and why they don't win damages for their foreclosure victim clients.
Visit http://MortgageAttack.com to see proof of what works.
Friday, April 17, 2015
Roy Diaz's above-linked article could generate more readership for you if you allowed people to register and comment. I submit these comments because the topic needs discussion. The point Roy makes, that courts merely want to enforce a contract, while true, simply does not address two serious, glaring problems: 1. The Legislature provided a foreclosure limitation of Five years. That constitutes more than ample time to sue for foreclosure of a mortgage loan in default. Acceleration constitutes an arbitrary but binding and optional change of the terms of the note from a monthly payment scheme till maturity into an immediate payment of the entire balance plus accrued escrow, interest, and legal fees. Thus, at acceleration, the plaintiff has a full 5 years to sue for foreclosure sale of the mortgaged property, even though the loan balance, etc., remains collectable for 20 years. 2. The vast majority of mortgage notes lack validity because of appraisal fraud, mortgage broker fraud, and a variety of other injuries to the borrower perpetrated at the inception of the loan or during servicing of the loan. Unfortunately, Roy did not address point 2 at all, but he should have. Mortgagors in foreclosure hire an attorney to help them defeat the foreclosure. Attorneys know they deal with a contract dispute, and they know that government and lenders colluded in a nationwide predatory lending scheme that collapsed the economy and destroyed homeowner equities, driving many into job loss and foreclosure. But they don't attack the predatory team members, such as the lender who underwrote the bad loan, or the appraiser, mortgage broker, title company, realtor, and lawyers who facilitated it. Instead, they tell the feckless mortgagor that they'll drag out the foreclosure as long as possible, and they often don't even bother showing up at the summary judgment hearing. And such dilatory efforts violate the rules regulating the Florida Bar, and the Bar should discipline such attorneys who engage in them. In other words, no defense will prevail against foreclosure of a valid mortgage note, but a mortgage loan that lacks validity constitutes fair, juicy game for an aggressive contract breach and tort attorney.
The point Roy makes, that courts merely want to enforce a contract, while true, simply does not address two serious, glaring problems:
1. The Legislature provided a foreclosure limitation of Five years. That constitutes more than ample time to sue for foreclosure of a mortgage loan in default. Acceleration constitutes an arbitrary but binding and optional change of the terms of the note from a monthly payment scheme till maturity into an immediate payment of the entire balance plus accrued escrow, interest, and legal fees. Thus, at acceleration, the plaintiff has a full 5 years to sue for foreclosure sale of the mortgaged property, even though the loan balance, etc., remains collectable for 20 years.
2. The vast majority of mortgage notes lack validity because of appraisal fraud, mortgage broker fraud, and a variety of other injuries to the borrower perpetrated at the inception of the loan or during servicing of the loan.
Unfortunately, Roy did not address point 2 at all, but he should have.
Mortgagors in foreclosure hire an attorney to help them defeat the foreclosure. Attorneys know they deal with a contract dispute, and they know that government and lenders colluded in a nationwide predatory lending scheme that collapsed the economy and destroyed homeowner equities, driving many into job loss and foreclosure. But they don't attack the predatory team members, such as the lender who underwrote the bad loan, or the appraiser, mortgage broker, title company, realtor, and lawyers who facilitated it. Instead, they tell the feckless mortgagor that they'll drag out the foreclosure as long as possible, and they often don't even bother showing up at the summary judgment hearing. And such dilatory efforts violate the rules regulating the Florida Bar, and the Bar should discipline such attorneys who engage in them.
In other words, no defense will prevail against foreclosure of a valid mortgage note, but a mortgage loan that lacks validity constitutes fair, juicy game for an aggressive contract breach and tort attorney.
Because they follow a different business model, one recommended by arch Kool-Aid Drinker Neil Garfield. The vast majority, or maybe ALL, of foreclosure defense attorneys in Florida charge their foreclosure victim clients $1000 to $20,000 down and $300, $500, or $1000 per month (whatever they think they can get) to file cookie-cutter or copy-machine pleadings and then abandon the client at the last minute, OR earn a fat commission for setting up a loan mod or short sale. They don't examine the mortgage for evidence of injuries, and they don't mount an attack for the injuries they discovered because it takes way too much work, resources, and skill to do it properly.
With the failing, flailing foreclosure defense model they use, they might handle 200 clients at a time and make $20,000 to $50,000 each. By contrast, they could only handle 5 or 10 clients in a full-bore mortgage attack action, and in most cases they would have to finance the action because most foreclosure victims, though badly injured, do not have the up-front money to fight a legal battle.Thus, the dispute and debate over the statute of limitation constitutes a smoke screen that obscures the real issue - foreclosure victims have kool-aid-drinkers for their attorneys - lawyers who know they cannot save the house from foreclosure but who bilk their clients for a sideshow that inevitably leads the client to loss of the house. Meanwhile, most of those clients suffered real injuries at the inception of the loan, and the lawyers' legal malpractice will leave the injuries undiscovered while the client loses the house.
A mortgage examination by a competent professional could provide those attorneys with proof of injuries to the client. In my opinion, an attorney's failure to get the mortgage examined constitutes legal malpractice because I know, and every attorney should know, that numerous causes of action underlie most mortgage loans of the past 15 years. Litigation consultant Storm Bradford, the nation's premier mortgage examiner knows this from personal experience, and he shared his view of the issue with me today:
"We have done well over a thousand mortgage examinations since 2007. In every exam we have ever done there was at least something that could be negotiated with the bank or used in a lawsuit against the injurious parties."I personally believe judges have a duty to "do the right thing" in equity proceedings like foreclosures. Even so, the Legislature, not the judiciary, has the authority to make the law, and the law (Florida Statute chapter 96) provides 5 years for commencement of a foreclosure action.
Storm Bradford, Mortgage Fraud Examiners.
95.11 Limitations other than for the recovery of real property.—
(2) WITHIN FIVE YEARS.—Actions other than for recovery of real property shall be commenced as follows:
Plaintiffs nearly always come forward with an action within 5 years after breach of the note. But when they do a bad job with the complaint, the court dismisses the action with prejudice. Any more recent breach restarts the Limitation clock. If the Plaintiff does not file a new action within 5 years of the most recent breach, the Statute of Limitations prohibits the court from hearing the case.
Plaintiffs have argued that even though they accelerated the note properly, making the full balance due and payable at once, the originally scheduled payment stream also remains due, and that extends their window of opportunity to 5 years after the term of the note. Their opponents argue that acceleration slams that window of opportunity shut because it converts the original schedule of, for example, 360 monthly payments into a single payment due immediately. But they argue that it remains due immediately forever, until the court orders a final judgment of foreclosure.
This has become a sticky mess. I believe government precipitated it by requiring lenders to drag out foreclosures through offering loan modifications, and Plaintiffs made foreclosures even worse by failing to show up with the real person entitled to enforce the note, having the actual, correctly indorsed note, in-hand. That opened the door for foreclosure defendants to demand dismissal of the case for lack of standing. And all of that backed up the courts and the plaintiffs in a very messy snarl of litigation.
The Florida Supreme Court does have to sort out this mess. But the fact remains that borrowers should attack the lenders, appraisers, mortgage brokers, title companies, and others who injured them at the inception of the loan. THAT, Mortgage Attack, constitutes the best defense against foreclosure, and it moots the issue now before the Supreme Court.
727 669 55511
Wednesday, April 15, 2015
How to Get the Benefits of a Securitization Audit FREE
Shocking Decline in Securitization Audits… Learn why below
Background: Why I Write this Article
Judges and Lawyers Declare the Securitization Audit CROOKED
"Frankly, the Court is astonished by…Plaintiff's attempt to incorporate such an 'audit,' which is more than likely the product of "charlatans who prey upon people in economically dire situation."
· "… Most 'securitization audits' that I have reviewed are inadmissible in a court of law; they contain a mere opinion of a layman without personal knowledge (direct experience) as to what happened with a particular mortgage note after closing. Why pay a securitization auditor when you can have your grandmother provide an opinion as to what happened with the note and have her sign an 'audit report'? In reality, in about 95% of all cases, the information supplied by a 'securitization audit' is either already publically available, or it is unavailable to either the homeowner or the auditor. Thus, where a homeowner genuinely lacks this information, an outsider's opinion (in contrast to the bank's admission) is unlikely to help."
· "Mortgage Loan Securitization Audits ARE A CRIME! … THAT INFORMATION IS USELESS IF IT IS NOT ADMISSABLE IN COURT! … So I issue the challenge once again….WILL ANY SO CALLED SECURITIZATION EXPERT PLEASE STAND UP? PLEASE, SHARE WITH ME ADMISSABLE EVIDENCE OF SUCCESS IN ANY FORECLOSURE OR BANKRUPTCY CASE!"
Why A Borrower Defaulting a Valid Loan Cannot Beat Foreclosure
Foreclosure Deals with Breach of Contract
You Lose the House if You Breached the Note
Why Not Ask the Servicer and Complain to the CFPB?
Why You Have No Standing in PSA or Note Assignment Disputes
"Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process."
About Blank Indorsements of the Note
§ 3-205. SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT.
(a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a "special indorsement." When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 3-110 apply to special indorsements.
(b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement." When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.
(c) The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.
(d) "Anomalous indorsement" means an indorsement made by a person who is not the holder of the instrument. An anomalous indorsement does not affect the manner in which the instrument may be negotiated.
Who May Enforce the Note, Even if Lost, Stolen, or Destroyed
§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
"Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.
(a) A person not in possession of an instrument is entitled to enforce the instrument if:
(1) the person seeking to enforce the instrument(A) was entitled to enforce it the instrument when loss of possession occurred, or(B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;(2) the loss of possession was not the result of a transfer by the person or a lawful seizure; and(3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
In view of these laws, the Trustees and Courts do not require the PETE to present the original note in order to foreclose. Some states, like Florida, which require the original and will not admit into evidence a copy of a negotiable instrument, provide a law allowing a creditor to reestablish a lost, stolen, or destroyed instrument, and thereby effectively to create a new, legal "original." See Florida Statutes, Chapter 71, http://goo.gl/hrB9bY.
The ONLY Reliable Basis for Battling the Creditor and Associates
Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20.
Why Mortgage Borrowers Need a Professional Mortgage Examination
How to Discover Who Owns Your Mortgage Note: Ask the Servicer
How to Avoid Paying the Wrong Party
Federal Law Helps You Find the Owner of the Note
(f) Treatment of servicer(1) In generalA servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as an assignee of such obligation for purposes of this section unless the servicer is or was the owner of the obligation.(2) Servicer not treated as owner on basis of assignment for administrative convenienceA servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as the owner of the obligation for purposes of this section on the basis of an assignment of the obligation from the creditor or another assignee to the servicer solely for the administrative convenience of the servicer in servicing the obligation. Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.
See, 15 USC 1641(g)
(g) Notice of new creditor(1) In generalIn addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—(A) the identity, address, telephone number of the new creditor;(B) the date of transfer;(C) how to reach an agent or party having authority to act on behalf of the new creditor;(D) the location of the place where transfer of ownership of the debt is recorded; and(E) any other relevant information regarding the new creditor.(2) DefinitionAs used in this subsection, the term "mortgage loan" means any consumer credit transaction that is secured by the principal dwelling of a consumer.
Get Help from the Consumer Financial Protection Bureau
Sue the Creditor and/or Servicer
§1640. Civil liability(a) Individual or class action for damages; amount of award; factors determining amount of awardExcept as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part, including any requirement under section 1635 of this title, subsection (f) or (g) of section 1641 of this title, or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—(1) any actual damage sustained by such person as a result of the failure;(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $200 nor greater than $2,000, (iii) in the case of an individual action relating to an open end consumer credit plan that is not secured by real property or a dwelling, twice the amount of any finance charge in connection with the transaction, with a minimum of $500 and a maximum of $5,000, or such higher amount as may be appropriate in the case of an established pattern or practice of such failures; 1 or (iv) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $400 or greater than $4,000; or
(B) in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $1,000,000 or 1 per centum of the net worth of the creditor;(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635 or 1638(e)(7) of this title, the costs of the action, together with a reasonable attorney's fee as determined by the court; and(4) in the case of a failure to comply with any requirement under section 1639 of this title, paragraph (1) or (2) of section 1639b(c) of this title, or section 1639c(a) of this title, an amount equal to the sum of all finance charges and fees paid by the consumer, unless the creditor demonstrates that the failure to comply is not material…
The SEC Web Site
Thus, You Need NO Securitization Audit to Receive its Alleged Benefits
Save Your Money for a Professional Mortgage Examination