Monthly Archives: May 2019

THE C&E, ASSIGNMENTS … AND YOUR RIGHT TO CHALLENGE THEM (PART 1) …

(OP-ED) — The author of this post is a consultant to attorneys on quiet title and cancellation and expungement actions and thus, not an attorney who can give legal advice.  This overview, with its suggestive commentary, is for your educational entertainment only. 

Scenario … “The Set-Up”

You want to buy a home.  You don’t have much money, but credit is plentiful, as long as you can “fog up a mirror”.  You’re the “party of the first part” because you’re willing to take a gamble that if you can get a loan, you’ll be able to pay it back, with interest.

However, you’re not “Party A” (the party of the second part).  Party A” is a corresponding lender. That means it’s highly likely your loan is going to be securitized, which means it’s going to be put into the MERS® System, which is now owned by the same company that owns the New York Stock Exchange.

But of course, you’re ignorant of all of the shenanigans going on behind the scenes because you just want the keys to the house.

Meet “Party B” … not Cardi B; Cardi B has lots of money and she can probably pay cash for a house).

Party B is more than likely the sponsor-seller (the interim funding lender in the deal).  Party B figured out how to make a puttload of money doing securitization, so Party B hooked up with some attorneys who all engaged in “pure intellectual masturbation” together to create a “sales pitch”, known to investors as a 424(b)(5) Prospectus.  This document was drafted and signed under penalty of perjury under the Sarbanes-Oxley Act.  But that wouldn’t really matter to you, because you just wanted the keys to the house, right?

Meet “Party C” … the Depositor.  This entity is never a “member”, “user” or “subscriber” of the MERS® System; however, the Depositor plays an important role in securitization because it has to accumulate all of the documents (mortgages and notes funded by the REMIC) together by the specified “Cut-Off Date”, which is shown in the Prospectus (the sales pitch), which has to be done by a date certain (not 5 or 7 years down the road) or else the transfer of the loan into the REMIC would be void.  Party C is one of those parties that is a necessary party to securitization, so without it being named in the chain of transfers from Party A to Party B to Party C to “Party D” (the Trustee for the REMIC trust), as specified in the Prospectus, by the specified date, then it creates all sorts of legal challenges down the road, for both borrowers and investors alike.

To make even more money on the deal, Party B goes out and makes applications all over town for default insurance, while placing side bets (credit default swaps) on the performance of the certificates issued to the investors who have no idea what’s coming.

Now that all the side bets are in place and the loans have all been funded, the loan you got through Party A (the corresponding lender who only put up 5% of the deal) just closed and Party A got reimbursed by Party B, who actually funded the loan!

Later you find out the truth … but wait … if Party B was actually footing the bill with investor money it got through securitization, shouldn’t Party B be named the lender on the mortgage or deed of trust?  You’d think so.  But nope!  That puts Party B too close to the action on the assignment that’s supposed to be recorded in the land records where your house is … but somehow … Party B and its corresponding lenders are having too much fun giving loans to people they knew couldn’t repay them … so they forget about recording the required assignments altogether.

Ha! Ha! Ha!  Not!

The sponsor-seller knows what’s coming, because it’s holding all the Aces and it knows that over time … the house of cards will fall because all the loans in the pool are set to “reset” themselves within a certain period of time, causing the entire REMICs value to collapse.  I call it “Day 91”.  That’s the day the sponsor-seller gets to cash in on all of the insurance policies and credit default swaps.  The sponsor-seller can take a $500,000 loan and make $7.5-million off of the deal!

And here you are, swimming in debt, trying to figure out how to pay that mortgage that just reset itself through that adjustable rate BS you obligated yourself for.  But there’s more month at the end of the money.  You stop paying.  Party B is counting on it!  Party B set the whole thing up (using the MERS® System) to obfuscate the chain of title so it can create assignments of mortgage and deeds of trust to record in the land records vis a vis the mortgage loan servicer, who is tasked with taking your payment every month.

At least that’s what the mortgage loan servicer wants you to think when it sends you the default notice!  But alas … another lie.

The mortgage loan servicer is required to pay your principal and interest payments on your mortgage loan to the investors whether you pay them or not!   It’s called an “Advance”.  That too, is in the Prospectus … (not in the PSA)!   Simply put … are you really in default when the alleged REMIC moves to foreclose on you?   If someone is paying the investors every month, then how can they claim you’re in default.  Because they have a contract with you?   The originating lender (Party A) was paid off at closing by Party B (who used investor money to fund the loan) … this is what we call “table-funded lending”.

I’m trying to tell a story here, because this is the part where the rubber meets the road! 

Until you default (when the servicer declares you aren’t making your payments anymore) … you’ll never see an assignment recorded in the land records (99% of the time).  You have no contract with the servicer (Party E, for Empty Pockets).  Servicers have been known to “rob Peter’s account to pay Paul’s account” all the time, like Ocwen, which is why servicers are sloppy with handling money and shitty record-keeping.  But the servicer has another angle … it uses its employees to create assignments of mortgage and deeds of trust using MERS to cover up the missing links in the chain of title and conveys the title from Party A to Party D, without any recollection or mention of Parties B or C!   So who is it really coming into court to foreclose?

If you said Party E, you’re right!   These days, servicers are being even more brash, claiming they have a power of attorney from Party D (the Trustee for the REMIC) to foreclose on behalf of Certificateholders of some REMIC “series number”, claiming the certificate holders have been “harmed”, when in fact, the servicer is just trying to reimburse itself for all the defaulted payments it kept making on your behalf.   Now it’s using phony documentation to claim the note and mortgage were transferred to Party D, many years later.  The REMICs only stay open a year, so none of that makes any sense.  So the mortgage loan servicer retains the law firm to foreclose on your house … let the lying, cheating and stealing begin!   All on behalf of Party F (the investors).  I use Party “F” because in this scenario, the investors get “F**ked” in the end because the money made by stealing your house using phony assignments created by the mortgage loan servicer and its employees goes into their pockets and not those of the investors.

The attorneys continue the lie by claiming you’re not a third-party beneficiary to the assignment!   

And the judges buy into that crap hook, line and sinker!  It shows their ignorance! 

There are a lot of problems with these foreclosure mill lawyers using that falsehood.  In fact, the very pleadings or responses they file in lawsuits brought by the homeowner in deed of trust states to stop the foreclosure, or in the pleadings they put into the court record in mortgage states, contain misstatements in of themselves … and even more so when they have to rely on the recorded documents that the mortgage loan servicers put into the land records, in violation of statutes and penal codes, that contain false and misrepresentative information.

And the borrower and the attorney for the borrower run into court and wave the assignment around, telling the judge it’s a fraudulent document.  The judge of course (after hearing the attorney say you can’t challenge the assignment because you’re not a third-party beneficiary to the assignment) goes along with the bank’s argument … just because it seems to make sense.  However, there is a problem with that scenario.

Check back for PART 2 … where we discuss the bank’s flawed argument … and what homeowners are countering that flawed argument with!

HINT: Are the investors really third-party beneficiaries?  (think about it seriously, really).

Why should that affect you?

Look at your assignment!

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THE C & E DVD KIT IS HERE!

BREAKING NEWS — 

The C & E (cancellation and expungement action) kit is finally here and ready to ship, insured, to your door!

America’s land records are a crime scene!  

Everybody wants an “end game”, right?   Part of the problem is, most Americans facing foreclosure don’t know where to start in their fight against these banks and their unscrupulous, lying mortgage loan servicers and their document mills!  By the time they get done surfing the internet, they’re convinced they want to sue everyone for everything (not to mention they think they should get a free house) and this costs gobs of money most Americans neither have nor budgeted for.  In other words, without the right tools, foreclosure litigation can be quite expensive and potentially unsuccessful!

Sadly, there are over 500-million of these bogus documents in the real property records … all across America!  However …

Finally … (but seriously overlooked) … there’s a means to challenge these documents!

Here’s what you get:

  1. The 357-page book by Dave Krieger and Al West, Esq. … The C & E on Steroids!
  2. An 8-DVD educational video set of the most recent workshop we held in Las Vegas in early April, 2019!
  3. An instructional insert on how to get the most out of your educational training in doing a cancellation and expungement action!
  4. UP TO 30 MINUTES OF FREE CONSULTATION with Clouded Titles author Dave Krieger as to the posturing and review of your C&E action (after you’ve ordered and watched the DDVDs and read the book)!

These DVD sets were ordered in limited quantity …

Order yours today before they’re gone! 

The special offer on this educational DVD-Book kit will expire on June 30, 2019!

In this book and instructional DVD video kit, you’ll learn:

  1. How to examine a document for securitization issues for the purposes of case development!
  2. New strategies in foreclosure defense involving cancellation and expungement actions!
  3. The basics of cancellation and expungement (C & E) actions, including sample pleadings that worked!
  4. Two full educational modules on assignments of mortgage and deed of trust and how to spot issues!
  5. HOA Foreclosure Defense!  (Investors will love this … post-homeowners’ association foreclosure sale purchases)!
  6. Attacking notaries (… as a business model)!  Seriously?  Many notaries are bonded! (If I was a notary, I’d be paranoid!)
  7. How to analyze and implement penal codes and statutory violations within your pleadings!
  8. Analyzing targets (and taking out multiple targets, if necessary) … including notaries, robosigners, MERS robosigners, law firms handing foreclosures and other parties involved in document creation!
  9. When and how to make use of expert witness attorneys!  … and …
  10. How to keep your case from being removed to federal court!

… and we’ll even show you HOW two mortgage loan servicers, their document mills and two foreclosure mill law firms STOLE a Florida home using bogus documents … many of the issues we’re talking about here are apparent felonies you might consider citing in your C & E action!   Judges will HAVE TO pay attention or be held as accomplices for aiding and abetting felony perjury!

The kit is recommended for you and your attorney to watch! 

“By the time you get done watching these videos and reading this book, you’ll know more than your attorney does!”

— Al West, Esq. (C&E and Quiet Title Attorney who has done hundreds of these actions!)

ORDER YOURS NOW!

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FDCPA CAN STILL APPLY TO NON-JUDICIAL FORECLOSURES!

(OP-ED) — The author of this post is the author of The FDCPA, Debt Collection and Foreclosures … and posits the following for educational purposes and for your consideration in the paradigm shift that has now become the focus of thousands of consumers.

I’ve noticed an uptick in the number of pro-bank/pro-debt collector law firm postings regarding the U.S. Supreme Court’s latest narrow ruling in the Obduskey case (out of the 10th Circuit Court of Appeals).  I love how these folks like to “pat themselves on the back” for their observations that non-judicial foreclosure proceedings can still be business as usual, despite the caveats their posts now contain.  Why on earth would they post “caveats” to the debt collection industry (which includes law firms like the one Dennis Obduskey filed an FDCPA action against) if they were so sure of themselves in being able to just walk all over borrowers they claim are in default?

Despite the fact the nation’s highest court resolved the federal circuit split on whether non-judicial foreclosures can continue as “business as usual”, the ruling was “narrow in scope” regarding the enforcement of security interests as defined under 15 USC § 1692f(6), which is what the Court focused on in its decision: Obduskey v McCarthy & Holthus LLP, 586 U.S. ___ (2019)

What Congress intended … 

Creditors used to love the idea that they could open up a can of “whoop ass” on debtors any time they felt like it, even late-night, repetitive or threatening phone calls (“I know where you live” and “your mommy’s going to jail” and “we’re going to sue you if you don’t pay” or “we’re going to bomb your office building if you don’t come down here and pay this bill” or “you !@)#(%^!”.)  The caveats I’m seeing in these law blog posts still make reference to the fact that the latest FDCPA-related ruling DOESN’T mean “business as usual”.  It simply means that debt collectors trying to enforce deeds of trusts have to be extra careful NOT to step over that well-defined line of intended “abuses” that do in fact, fall under the FDCPA!

Enforcing a recorded security interest (deed of trust, security deed, HELOC, etc.) in a non-judicial state means just that.  If a third party (the trustee, NOT MERS) intends on using the terms of the security instrument to act as the third party in taking back collateral, the collection activity has to specifically and purely involve that process.  The narrow ruling still prohibits abusive debt collection practices, whether or not a non-judicial foreclosure is still the intended outcome.  The abusive debt collection practices fall under 15 USC 1692d and 15 USC 1692e, as well as portions of 15 USC 1692f (1) through (5) and (6)(B)(C) and (7) and (8).  See here for clarification: FAIR DEBT COLLECTION PRACTICES ACT 09-1996

If you have a case … you have a case … 

Every time the debt collection industry scores a narrow victory, they pontificate their accomplishments as soon as humanly possible, almost to the point of bragging rights (see, I told you so … lemme rub your nose in it) kind of stuff.  This is typical of the legal profession, especially the kind that can operate unchecked when it comes to carrying out enforcement actions.

One of the more remarkable things I find is that all non-judicial foreclosures are assumed to be legal unless otherwise challenged.  One of the things I put forward in the book (mentioned above) is that careful analysis of the debt collection laws needs to be strictly adhered to (the letter of the law), which you are attempting to assert was violated.

How the “chain of title” points to potential suspect violations of 15 USC 1692e(5) … 

Here’s where the latest ammo we’ve been sharing on the C&E comes into play.  Cancellation and expungement (C&E) actions are used to disable and destroy the authority these debt collectors rely on to even enforce a security instrument.  Under “False or misleading representations” (§ 807 of the FDCPA), section 5 prohibits false, deceptive or misleading representation in threatening “to take any action that cannot legally be taken” … which would mean to me that if you could strip away the lies contained within the assignments that generally precede the initiation of a non-judicial foreclosure action through a C&E, the authority of the debt collector would be void and the debt collector’s representations would then be false and misleading, which IS a violation of the FDCPA!

Champagne budget … Beer Belly Pocketbook! 

A C&E action is definitely a cheaper way to wage war on an unsuspecting servicer (who is really behind the scenes of the debt collection/non-judicial enforcement proceeding), stripping away whatever rights it thinks it has to steal your house on behalf of party or parties unknown (which could be Fannie Mae or Freddie Mac, lest we hold the GSEs unaccountable in the end) than waging an all-out FDCPA battle in federal court, which costs substantially more money.  Try to keep the emotions in check for the moment while I finish.

The document the servicers are creating is the assignment of deed of trust (much like the assignment of mortgage), which they claim gives them the authority (on behalf of the alleged “lender”) to appoint a substitute trustee to initiate a non-judicial foreclosure.  Do you have a contract with the mortgage loan servicer?   (Didn’t think so.)  However, servicers have Limited Powers of Attorney, which they claim give them the authority to do whatever they want, including wading into the shark-infested waters of violations created under the FDCPA.  Strip away their authority under the assignment as void … they’re like “chum in the water”.

This is why I’m releasing a two-day training video DVD set with the latest book by attorney Al West and myself, The C&E on Steroids! in very short order.  What better a way to deal with America’s tainted real property records than to fight the good fight head-on in state court, rather than wage a flimsy, unsupported war in federal court without first demonstrating the ultra vires behavior of the trustee thanks to a phony assignment, which you’ve knocked out FIRST in a C&E action!

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