Two 9th Circuit opinions crush Commie/Dem Gun Law Insanity

Duncan V Becerra

November 2016 - Idiot Californians approved the Proposition 63 1 July 2017 ban on high-capacity magazines (more than 10 rounds), adding to California's already oppressive and convoluted gun laws.  The proposition, citing certain exceptions, requires owners of high capacity magazines to surrender the magazines for destruction, remove hem from the state, or sell them.

May 2017- Virginia Duncan and a handful of other plaintiffs sued the California Attorney General Becerra in California Southern District USDC in May 2017, seeking an injunction against enforcement of the ban on high-capacity magazines, maintaining that it violated the 2nd Amendment and the 5th Amendment's Takings Clause.  Judge Roger Benitez ruled against the state and for the gun owners, granting the preliminary injunction. See Duncan v. Becerra, 265 F. Supp. 3d 1106 - Dist. Court, SD California 2017.  The court acknowledged as follows (p 1116):

"The Supreme Court also recognizes that the Second Amendment guarantee includes firearms that have "some reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, 307 U.S. at 178, 59 S.Ct. 816. Millerimplies that possession by a law-abiding citizen of a weapon that could be part of the ordinary military equipment for a militia member, or that would contribute to the common defense, is protected by the Second Amendment.^[7] Concluding that magazines holding more than 10 rounds might be found among today's ordinary military equipment or that such magazines would contribute to the common defense, requires only a modest finding."

17 July 2018 - Virginia Duncan v. Calif. A.G. Becerra - 9th Circuit panel affirmed the opinion of USDC SDCA Judge Roger Benitez, allowing the injunction against Proposition 63's ban of high-capacity gun magazines, saying Benitez did not abuse his discretion in ruling against the state because the magazine surrender, removal, or sale provisions of Section 32310 infringed on the core of the Second Amendment right and violated the 5th Amendment's Takings Clause ("private property [shall not] be taken for public use, without just compensation.").  One of the three judges, Wallace, pedantically dissented in a long-winded, irrational diatribe, attempting to substitute his own discretion for the trial judge's. See Duncan v. Becerra, Court of Appeals, 9th Circuit 2018.

We can expect more litigation on this issue as the plaintiffs seek a full ruling that Prop 63 is unconstitutional.

Young v Hawaii

12 June 2012 George Young sued the County and State of Hawaii in Hawaii USDC 42 USC 1983 for violating his 2nd Amendment rights by denying his application for a permit openly to carry a firearm.  Judge Helen Gillmor granted motions to dismiss under the doctrine of sovereign immunity and sent George off to sulk.    See Young v. Hawaii, 911 F. Supp. 2d 972 - Dist. Court, D. Hawaii 2012.

12 Feb 2018 George Young appealed the adverse ruling to the 9th Circuit.  The panel reversed as to the County, dismissed as to the state, and remanded for further proceedings consistent with its opinion that the Second Amendment protects a right to carry a firearm in public for self-defense.  See Young v. Hawaii, Court of Appeals, 9th Circuit 2018.

ASUS Puts Shoddy Design/Components in MX279H Display

The ASUS MX279H Display is a thing of beauty.  27 inches diagonal, small bezel, built in speakers, dual HDMI, and tiny control buttons that respond to your touch for various settings.  I bought it in 2013.  It came with a 3 year warranty.

NOBODY who buys a computer monitor expects it to last only 3 years.  So, most people ignore the warranty period.

Now, in July 2018 some might think I've had fair use out of the monitor, but I expected it to last at least 10 years.  It didn't.  Last month it began shutting down automatically after 5 to 15 minutes of operation.  I unplugged the power from the power adapter, waited half a minute or so, plugged it back in, and the monitor came on and worked fine for another 5 to 15 minutes, then shut down again.  If I touch the power button on the monitor, the monitor shuts off.  After 20 or 30 seconds I touch it again and it turns on.  But that became tedious.

I read at a YOUTUBE video that a piece of tape covered the control button pc board inside the monitor, and that removing it would let the monitor work without spuriously shutting off.  I opened the monitor and saw no tape.

So, I called ASUS Support to see about getting the unit repaired.

The tech quoted me $35 diagnosis fee and $224 repair charge.  Of course, I'd have to pay shipping of $50.  I paid just over $300 for the monitor.  No way will I pay the charges.

This monitor goes to the scrap heap, and I never buy another ASUS product.

Sorry, ASUS, but your monitor has an engineering/design problem, wrong component selection, or over working an underrated component.  I won't support such shoddy design with my money ever again.  You, ASUS, cannot be trusted.  You should have recalled the monitors and fixed them free.

The MX279H was nice while it lasted.  But it didn't last long enough.

Bob Hurt
Clearwater, FL

Ken Ditkowsi on illegal immigration

The Chan case is of particular interest today.   Many well meaning people are upset by the media blitz concerning the separation of children from their mothers.   The hue and cry was virtually zero up until the media found that the Trump Administration *****.    

I am not arguing for any policy, except equal protection under the law.   Equal protection of the law is a hallmark of America that the Political Elite from time to time ignore to foster political expediency.  

The DEMAGOGUES have staked a position fueled by half truths and deception.    People who resort to this type of tactic are a clear and present danger to democracy and follow the tenets of our enemies.

The Obama administration placed children in cages not because they were monsters or precursors of the Trump Administration - they were following the law.    The law as written is indeed harsh, and was engaged by congress.   Congress when it enacted the law thought it was acting in good faith and indeed most of the good people who address this charged political situation agreed.   Only the hypocrites and demagogues  have closed minds.

The law separating children from the parents accused by our society of committing crimes has its origins in parents patrie.   It is cruel and unusual punishment to submit a child to prison because the parent has been charged with a crime.   The harsh conditions of prison were deemed not appropriate for children, ergo children are relegated to the care of close relatives or government protected facilities.    The law is generic and makes no exception for people illegally trying to enter the United States.

The ploy of seeking amnesty/Asylum is in most situations exactly that.  Under Law Asylum is not an option, unless it is Mexico (i.e. the country of origin)  that is threatening the life of the applicant.  Indeed, you and I have had experience with Amnesty/asylum .

Chan, was an engineer by trade living in China.    The Red Guard went on a government sponsored rampage and killed all of his family except his grandmother and he.    He was shipped to a camp for retraining.   When he returned he returned to his job as an Engineer; however, it was not long and the Red Guard became active again.   This time they killed grandmother and Chan barely escaped with his life to Hong Kong.

For a finite period of time Chan resided in Hong Kong; however, with the Red Guard sentence of death it was not long before his life once again was in clear and imminent danger.    The family arranged for Chan to obtain employment on a Ship (as a seaman) and to travel to the United States.    When the Ship arrived in the US, Chan slipped over the side and began his new life.   He sought employment in his engineering trade.

As the US takes a dim view ASIAN illegal entry, INS 7 years later seized Chan, he was arrested and charged with the crime of making an illegal entry into the United States.   Chan was ordered deported but before this could occur the family arranged for him to come to Chicago.   In Chicago the family made the rounds of the immigration bar in anticipation that Chan would be rounded up again.   The Bar told the family that Chan was "dead meat" and would be going back to his DEATH in China via Hong Kong.    

When Chan was arrested he was immediately prepared to be expelled from the US.    I was retained and I filed a petition in the Administrative Court provided by INS.    I asked for suspension of the deportation order based upon the fact that Chan's life was forfeit the second that he arrived in the orient.   

The ASA, and the Judge were amused by my petition.    The judge ridiculed me by asking me if I knew something that he did not know.   I informed him that indeed I did, but assured him that he also knew things I did not know.   The Judge then asked me if there was a foreign relations problem with Britain that he had not heard of informing me that the last conflict we had was in 1812.   Under the law to be entitled to HC or amnesty Chan would have to prove that the elements required were all in play NOW!   The amnesty/protection would then be afforded Chan as they related to the country that he was going to be deported to!    In other words - the fact that China would kill Chan on sight, he was not going to be deported to China - he was going to be deported to Hong Kong -  Hong Kong was administered to by England.   As we had no current problem with England and England was not a danger to Chan my plea was 180 degrees wrong.    My petition was to be denied.    CHAN WAS GUILTY OF A SERIOUS CRIME - i.e. entry into the United STates illegally - he could either be sentenced to jail or deported.  The government chose to deport him.  (I recall that Chan had married and had a young child - however, this issue was not raised or considered  - Chan would have been separated from his child under our law.   If Mrs. Chan was illegal both would have been separated  = the child is a CITIZEN and cannot be removed without the consent of his parents.   The family would be reunited when returned to the country of origin)

With hat in hand I asked for 24 hours to amend my petition.    I read the statute word by word and was confronted with the proposition that Chan having been in the United STates and acting as good person was eligible to a hardship consideration.   I presented a "hardship" petition.    It was granted and Chan was given a priority admission to the United States from Toronto - Canada.

As you are aware, I was delighted and spraining my arm patting myself on the back when I realized that to get in Canada Chan needed PAPERS.    I tried the Chinese-- they invited Chan and me to the consulate to talk   - I knew that Chan once in the consulate would be a prisoner, so I declined.   The US government refused to grant me any considerations and in fact I was told:  "If you don't know what you are doing, you should not do it"    I had on the surface no way to get into Canada.   The smart ass ASA suggested that I sneak Chan into Canada.

I did not sneak Chan into Canada.   As you recall I complied with Canadian Law and accomplished my goal.   (I called the Canadian immigration and arranged for an exclusion hearing for Chan - the hearing was scheduled for late in the afternoon so that it had to be adjourned until the next day.)    Mr. Chan was paroled into my custody and we went to the American consulate, picked up the papers required for the priority entry, returned to the Court, agreed to the exclusion and Chan was deported to the United States complete with the documents necessary to complete a priority LEGAL admission.

Chan has since become a citizen of the United States of America.

The pictures of caged children and the wild allegations of the demagogues are all political deceptions calculated to advance the political adventures of dishonorable members of the Political Elite and no friends of the proposed immigrants.    The hate mongering and intolerance is deplorable and the concern for the immigrants is an oxymoron.   If the demagogues had a scintilla of humanity in them, they would address the problem honestly and directly - however, they do not want to do so.   

As an example, the demagogues could propose a bill in congress to exempt the immigration scenario from the parens patrie separation of children from their families!    Watch - not one of these miscreants will join in proposing legislation or passing such legislation -- it is easier and more profitable to continue their policy of deception and fraud.    

Ken Ditkowsky  

Ken Ditkowsky

www.ditkowskylawoffice.com

Eugenics, Race, and ...

Want to know what the Celestials think of Eugenics and Race on our world?

Read this.

Bob Hurt

727 669 5511

Winston Shrout Sentencing Delayed again. He must be CRAZY.

Arch Scammer Winston Shrout's defense team is just Full of tricks, getting the sentencing postponed again.  A grand jury indicted him, the Oregon USDC tried him, a jury of his peers convicted him, and he has skillfully avoided sentencing for over a year. 

Anna Reizinger, Pope of Cow Plop, your future is calling.

04/21/2017	109	Jury Verdict as to Winston Shrout regarding Winston Shrout (1) Guilty on Count 1s-7s,8s-10s,11s-13s,14s-19s. (bp) (Entered: 04/24/2017)

Here are the most recent docket entries, showing an effort to get him declared mentally incompetent.  He must be crazy to spread cow plop regarding paying debts and taxes with international bills of exchange and harvesting unwarranted tax refunds through the 1099-OID scam. 

01/23/2018	126	ORDER by Judge Robert E. Jones Granting 123 Third Motion to Continue Sentencing Hearing Date as to Winston Shrout (1) for the compelling reasons submitted in defense counsel's materials. The Court advises there will be no further extensions for any reason. Sentencing is set for 5/17/2018 at 10:00AM in Portland Courtroom 10A before Judge Robert E. Jones. Sentencing set for 2/20/2018 at 11AM is STRICKEN. (bp) (Entered: 01/23/2018)
03/07/2018	127	Unopposed Motion for Authorization to Travel by Defendant Winston Shrout. (Iniguez, Ruben) (Entered: 03/07/2018)
03/08/2018	128	AMENDED ORDER by Judge Robert E. Jones Granting 127 Motion for Authorization as to Winston Shrout (1) to travel per request in the defendant's motion and return before his scheduled sentencing on May 17, 2018. ORDER allowing Pretrial Services to return the defendant's passport and defendant to return the passport within 72 hours of his return. (bp) Modified on 3/12/2018 regarding passport (bp). (Entered: 03/08/2018)
04/16/2018	129	Motion for Hearing To Determine Mental Competency by Defendant Winston Shrout. (Iniguez, Ruben) (Entered: 04/16/2018)
04/16/2018	130	Motion For Order To Seal by Defendant Winston Shrout. (Iniguez, Ruben) (Entered: 04/16/2018)
04/19/2018	131	Motion Motion to File Government's Response Under Seal filed by USA as to Defendant Winston Shrout. (Attachments: # 1 Proposed Order) (Langston, Lee) (Entered: 04/19/2018)
04/19/2018	132	ORDER Granting 130 Motion for Leave to File Declaration of Counsel and Exhibit Under Seal as to Winston Shrout (1). Signed on 4/19/2018 by Judge Robert E. Jones. (sss) (Entered: 04/20/2018)
04/23/2018	134	ORDER Granting 131 Motion to File Government's Response Under Seal as to Winston Shrout (1) Signed on 4/23/2018 by Judge Robert E. Jones. (sss) (Entered: 04/23/2018)
04/25/2018	136	Motion For Leave To File Reply Memorandum In Support of Motion for Hearing To Determine Mental Competency Under Seal by Defendant Winston Shrout. (Iniguez, Ruben) (Entered: 04/25/2018)
04/25/2018	137	ORDER by Judge Robert E. Jones Granting 136 Motion For Leave To File Reply Memorandum In Support of Motion for Hearing To Determine Mental Competency Under Seal as to Winston Shrout (1). (bp) (Entered: 04/25/2018)
04/26/2018	139	Scheduling Order by Judge Robert E. Jones as to Winston Shrout. Oral Argument is set for 5/7/2018 at 11:00AM before Judge Robert E. Jones in Portland Courtroom 10A. (bp) (Entered: 04/26/2018)
05/07/2018	141	Minutes of Proceedings: Granting 129 Motion for Hearing as to Winston Shrout (1). A hearing will be set after the expert witnesses are available for a hearing. Motion Hearing before Judge Robert E. Jones as to Winston Shrout held on 5/7/2018. Sentencing hearing set for 5/17/2018 at 10AM is STRICKEN and will be reset at a competency hearing. ORDER: The court is ordering a competency evaluation by Dr. Lopez at OHSU with a report due no later than 6/29/2018. A competency hearing will be set in July after the evaluation has been completed. ORDER: Defense counsel will submit an unredacted copy of Dr. Martin's report to the Court. Stuart A. Wexler, Lee Langston present as counsel for plaintiff(s). Ruben L. Iniguez present as counsel for defendant(s). (Court Reporter Jill Jessup.) (bp) (Entered: 05/07/2018)

New Entry at end of September 2018:

Minutes of Proceedings: Competency Hearing before Judge Robert E. Jones as to Winston Shrout. Two witnesses sworn and evidence adduced. The Court finds the defendant competent to proceed to sentencing. Sentencing is schedule for October 22, 2018 at 10:00AM before Judge Robert E. Jones. (Note: Sentencing is scheduled for two hours.)Counsel Present for Plaintiff: Stuart Wexler, Lee Langston. Counsel Present for Defendant: Ruben L. Iniguez. (USPO Present: Chris Song, PreTrial) (Court Reporter Jill Jessup) (bp) (Entered: 09/27/2018)

Neil Garfield Says Warning: Conduct your Due Diligence on ANY Attorney you Hire

Attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield

Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first.   A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help Neil Garfield spread the word.  Here's a little information on Neil himself:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD  MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: [...]

• Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

 

Frivolous Filings and Bogus Legal Theories

Neil Garfield's frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit's dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

• 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans

05/12/2016	Affirmed ­ Per Curiam Affirmed
05/12/2016	Order Granting Attorney Fees­Unconditionally	ORDERED that the appellee Embrace Home Loans Inc.'s September 2, 2015 motion for attorney's fees is granted. On remand, the trial court shall set the amount of the attorney's fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016	Order Granting Attorney Fees­Unconditionally	ORDERED that the appellee Wells Fargo Home Mortgage's September 3, 2015 motion for attorneys' fees is granted. On remand, the trial court shall set the amount of the attorneys' fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy.  Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted.  Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA.  Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman's case.  Thus, Neil Garfield's incompetent advice, had Newman heeded it, would have caused Newman expense and  embarrassment through a frivolous, failing TILA rescission effort.


----------------------  Garfield's Expensive Report to Newman -----------------

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:
DATE: February 8, 2016
RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments --- which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don't know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the "investor" from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE's (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The "hidden" REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects --- the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a "drive by" service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as "servicer advances."

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their "servicer advances." However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.
 
17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be "assigned" immediately after, or even before the apparent "closing."

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the "Chain" had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding "holder" of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking "equity" out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the "borrower."

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don't think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

SpeakWrite
www.speakwrite.com
Job Number: 16039-001
Custom Filename: Newman
Date: 02/08/2016
Billed Words: 2069

SCOTUS: NO 3-year right of rescission without a TILA violation - Eat Crow, Garfield

Dear Neil Garfield:

You'll find a serving serving of crow in the 8th Circuit's post-Jesinoski Keiran v Home Capital, Inc., F. 3d 1127 opinion.  After reading it, I imagine you will craft a huge apology to your LivingLies blog readers for misleading them for years about the proper understanding of TILA rescission AND of the Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 opinion.

Keirans propounded the same lame excuse as the Jesinoskis.  They signed an acknowledgment of receipt of Right to Cancel disclosures, and later gave the court an affidavit claiming they only received one copy, instead of two, each.  They appealed the judgment against them to the 8th circuit, then to SCOTUS which granted cert and remanded for consideration in light of Jesinoski.  After trial and appeal, the 8th circuit affirmed the trial court's denial of rescission and damages. 

Keiran relied on the same false legal theory that you have espoused for years about TILA rescission, and yet, in the wake of Jesinoski, SCOTUS, the 8th Circuit, and USDC all agree that TILA rescission does NOT work the way you wish it did.  The borrow gets NO 3-year right of rescission UNLESS a TILA violation occurred.

The SCOTUS instructs you from the Jesinoski opinion:

"The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses."

There you have the question before the court: does conditional TILA rescission written notice or notice plus lawsuit within 3 years after consummation?  Now the fun part, where SCOTUS explains TILA's extended, conditional right to rescind requiring a TILA violation:

"Congress passed the Truth in Lending Act, 82 Stat. 146, as amended, to help consumers "avoid the uninformed use of 792*792 credit, and to protect the consumer against inaccurate and unfair credit billing." 15 U.S.C. § 1601(a). To this end, the Act grants borrowers the right to rescind a loan "until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later, by notifying the creditor, in accordance with regulations of the [Federal Reserve] Board, of his intention to do so." § 1635(a) (2006 ed.).^[*] This regime grants borrowers an unconditional right to rescind for three days, after which they may rescind only if the lender failed to satisfy the Act's disclosure requirements. But this conditional right to rescind does not last forever. Even if a lender never makes the required disclosures, the "right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first." § 1635(f)."

My point:  you have bloviated that SCOTUS, when it gets a case like Jesinoski back, will agree with YOUR interpretation of TILA rescission law, that a TILA violation is not a condition of the extended right to rescind.  Well, SCOTUS did get precisely such a case in 2015 (Keiran), and the justices and the 8th Circuit panel made it clear that NO 3- year right of rescission exists in the absence of a TILA violation.

But who needs the Keiran opinion when Justice Scalia explained conditional TILA rescission PERFECTLY in the Jesinoski opinion?

Eat some crow.  I'll do you good.

--

⚓ Robert Hurt    ✉ Email     📞 (727) 669-5511 ☕ 2460 Persian Drive #70 ✈ Clearwater, FL 33763 USA 🔨 Learn How to Win in Court ⚡   Beat the Bank at Mortgage Attack

 

Open Letter to Gun Control Advocates - I hope the terrorists come for you first

Dear Authors of Senseless (is there any other kind?) Gun Control Articles:

Why don't our federal and state governments allow citizens to prevail in law suits against law enforcers for failing to protect the citizens?

First of all, governments claim sovereign immunity to lawsuits they don't want to entertain.  Courts have ruled that the First Amendment right to petition for redress does not require government to redress or even to read or listen to the petition.

Second, when two parties have a dispute, an intervenor on the scene has no way of determining who is right or wrong, or to what extent.  The rules of evidence and of civil and appellate procedure allow the courts (judges and juries) to determine the facts and governing laws in any dispute.  But many judicial activities are hopelessly crooked.

For supporting considerations read Criminal Law 2.0, 9th Circuit Judge Alex Kozinski's 2015 preface to the Georgetown Law Journal.  He shows how flawed evidence gets through the holes in the criminal justice system, crooked prosecutors corrupt due process by manipulating grand juries and intimidating innocent defendants into pleading guilty, and police lie incessantly.  Then he makes many suggestions for improving justice.  He wouldn't have done that but for the corruption and criminality of the criminal justice system actors.  We simply cannot trust them

Now, then, why doesn't government have the right to restrain the public from owning and possessing, and carrying dangerous arms (guns, knives, clubs, etc)?

First of all, the 2nd Amendment prohibits such restraint and acknowledges that militias require armed members and ONLY militias and armed individuals can repel tyrants, thugs, invaders, insurrectors, rapists, murderers, psychopaths, and sundry bad guys of any and all sorts.

Second, the people cannot trust Government to protect them from malicious treatment by foreign and domestic enemies; only fools think the law requires police to protect them.  In fact, the people know that police don't care who starts an armed dispute, for they will arrest both the non-government aggressor and the defender, and let the court sort it out.  Law enforcers, of course, will not arrest government operative aggressors, and the citizen will just become a victim of that aggression unless he has sufficient arms to repel the aggressor and law enforcers. 

You see the point here, right?  NOTHING but the citizens' arms and their indomitable will to use them stands between them and aggressors of all sorts.  Any adult who has paid attention to news stories knows that many government operatives are just badged criminals intent upon abusing whomever they wish, without probable cause, often upon fabricated evidence.

I hope you will keep the foregoing realities in mind before penning further gun control advocacy pulp fiction. 

Yes, crazy people can grab an AR15 sporting rifle, shoot up a school, and slaughter students and teachers while the FBI sleeps on complaints about the shooters and cops run for cover outside.  You well know that gun control won't solve that problem, for determined assailants can always find weapons for killing unsuspecting people. 

But better arming and training for teachers and administrators, and better security procedures at schools, churches, and other public facilities can prevent such incidents.  Crazed assailants usually duck and run when defenders start shooting back at them.

Yes, determined and clever aggressors can wear body armor or attack from long distances with bombs or sniper rifles. If they annoy government enough, government will go after them.  But the people have no guarantee of it. That just means the citizenry and its militias need ever-more advanced weapons, technology, and means to track the aggressors to their source and eliminate them.

I predict that in due course Islamic Jihadis will perpetrate ever more devastating terrorist acts against the people of the USA.  That means the Americanist citizenry must become ever more vigiliant, prepared, armed, and DANGEROUS to violent aggressors through its militias. 

There is "no free lunch" when it comes to defending the homeland and its citizens against determined terrorists.  I hate thinking of anybody becoming victim of them, but when terrorists come, I hope they come for you first.  At least they'll know that you don't have any dangerous firearms to ward them off. And we'll have lost an idiot who wants government to take away our automatic weapons and other means of defending ourselves, our families, our homes, and our communities.

--

⚓ Bob Hurt ⚡ Mortgage Attack Maven ✉ Email     📞 (727) 669-5511 ☕ 2460 Persian Drive #70 ✈ Clearwater, FL 33763 USA ＄ Donate  to Law Scholarship ✔  Subscribe to Lawmen E-Letter 🔨 Learn How to Win in Court 👓 Blog 1 2   f   t

 

Florida lawmakers refuse to ban assault weapons

http://www.breitbart.com/big-government/2018/02/27/florida-lawmakers-reject-assault-weapons-ban/

The Florida Legislature prudently disagrees with the utterly stupid and Communist idea of banning assault weapons. Here's a good reason: An AR15 is a semi-automatic rifle that can hold a 10, 15, 20, or 30-round magazine. That does not make it an assault rifle. An assault rifle like the M4 Carbine has a switch for selecting safe, semi-automatic, or either fully automatic (M4A1, see photo) or 3-round burst mode (M4). The automatic and burst modes are for target practice and and killing people, not game animals.

But more importantly, the individual responsible adult citizen has the constitutionally guaranteed right AND the DUTY as a local militia member to own and possess small arms as functional and effective as the best small arms the military provides to its soldiers. Dude. Yes. We should have fully automatic weapons suitable for slaughtering the enemy in a pitched or emergency battle, including individual or groups of thugs attempting or threatening to mug, rob, rape, pillage, or plunder.

Military service is not intended to pussify recruits into fearing dangerous firearms in the hands of responsible citizens. It is intended to turn recruits into disciplined combatants who can go into warrior mode and become intensely and lethally dangerous to a foreign or domestic enemy when the need arises.

Why does individual lethality become so important?

Because we, the people, cannot EVER depend upon Government's military, sheriffs, or police to protect us from invasion, insurrection, or random criminal activity. In fact, the Supreme Court ruled in 2005 that police have no legal duty to protect people, not even under an injunction. See https://en.wikipedia.org/wiki/Town_of_Castle_Rock_v._Gonzales.

The US Constitution's 2nd Amendment provides this:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

I don't believe I have read a clearer, more concise provision in the Constitution than the 2nd Amendment.  It acknowledges that the people must have combat weapons (arms) to function as soldiers in a militia, and that they must have those arms available at all times for defense of their persons, family, home, property, community, and other rights, including hunting, target practice, and drilling, maneuvering, and bivouacking with the militia.  One armed citizen standing guard against rioters at the community entrance can constitute a militia.

People learn quickly in life how dangerous government can and does become through its laws, its armed investigators, its secret agents, its police and code enforcers, its courts and sheriffs, and its military.  People intuitively know that the Constitution is just a piece of paper with no means of enforcing its provisions. 

How then do those provisions get enforced?  They get enforced through the collective will of an armed populace, most especially through the militia.  The militia IS the local, militant force of the people of the several states.

Federal law provides for a militia in the form of the National Guard of the United States and separate National Guards of the several states.  The President runs the US National Guard, and the Governors run their state National Guards.  The Constitution requires Congress and the States to organize, arm, train, and provide leadership for the militia. 

But what happens when the people and the governments operate at cross purposes, or when the government fails in its duty?

Only one force stands between the people and an abusive, tyrannical government, or individual tyrants in government:  the local militia organized, armed, trained, and led by the local citizenry.  In case you haven't stopped to notice, governments have sneakily, nastily encroached on numerous constitutional rights, especially the right to keep and bear arms, and the people have done nothing about it because we have no organized militia.  If this bothers you, get busy organizing and joining a local militia today.  And POUND on your legislators to remove restriction on the right to keep and bear arms.

Take note that school teachers should demand for the schools or the local militia to arm and train them so that they can shoot and kill malefactors who threaten to hurt them or their wards.

For more on the profound meaning of the 2nd Amendment guarantee of the right to keep and bear arms and the militia, particularly in light of popular gun control fantasies, read Dr. Edwin Vieira's enlightening 8-part series "THE MILITIA OF THE SEVERAL STATES" GUARANTEE THE RIGHT TO KEEP AND BEAR ARMS here: http://www.edwinvieira.com/edwin16.htm

--

⚓ Robert Hurt    ✉ Email     📞 (727) 669-5511 ☕ 2460 Persian Drive #70 ✈ Clearwater, FL 33763 USA ₿ Build your Fortune at CryptoWizmo 🔨 Learn How to Win in Court ⚡   Beat the Bank at Mortgage Attack