Category Archives: BREAKING NEWS

5TH U.S. CIRCUIT MAKES IT CLEAR … NO FREE HOUSE! MERS RULES!

(BREAKING NEWS – OP-ED) — 

The author of this post is not an attorney and therefore cannot render legal advice.  However, he believes that everyone reading this post can clearly understand the intentions of the 5th U.S. Circuit Court of Appeals.  It doesn’t take an Einstein to figure out the blatant meaning behind the Circuit Court’s thinking here.  As an Op-Ed piece, I would think the Burke’s counsel needed to approach the assignment of deed of trust to Deutsche Bank (who I refer to hereinafter … and not lovingly … as Douche Bank) National Trust Company, as Trustee for a REMIC that was empty in the first place!  The courts still do not “get” this yet; thus, we have a ruling that is holding the lower court’s feet to the fire (the lower court may have gotten it right).  Here’s the case for your review:  DBNTC v Burke, 5th App Cir No 18-20026 (Sep 5, 2018)

NO ONE CHALLENGED FULLY CHALLENGED THE DOCUMENT! 

For a number of posts since the McGinnis case was brought up, I’ve been talking about the assignments. I am not totally sure that the Burke’s lawyer was up to speed on any of what I’ve been talking about, but if we were to look up the assignment in question, which the lower judge took issue with, we could pick it apart, piece by piece … and figure out how and why Douche Bank went to federal court to get the result it did, when home equity lines of credit in Texas start out as Rule 736 motions (the cheapest way for the lender’s servicer to steal the property in any Texas state court).  Once you’re done consuming the contents of the 6-page ruling, you can decide where the “manifest injustice” really is!

You see, the Burke’s probably had the funds to fight this the right way.  How and why they didn’t plead or properly attack the assignment is beyond me.  Why they didn’t attack MERS’s “beneficial” interest is beyond me too, because Restatement of Mortgages (Third) § 5.4 clearly does NOT fit Mortgage Electronic Registration Systems, Inc.

However, if you look at the bad case law set by the suit against MERSCORP in the Southern District of Texas, the Burke’s arguments fall short of a “win” (which is not what was desired here).  Instead, from all appearances, the lower court (Judge William Smith, U.S. District Court, Houston) justice got into a pissing contest with the 5th Circuit over the validity of the assignment.  In order to fully comprehend what’s happening there, you’d have to pull the law of the case on the subject (which I did) … see it below:

DBNTC v Burke, U.S. S.D. Tex No 4-11-CV-01658 (Sep 16, 2014)

If you notice the numbers on the case, it’s been going on since 2011.  I would suspect it’s been going on since the “suspect” assignment was recorded in Harris County, Texas and Douche Bank and Ocwen (who was the servicer in that case) “manufactured” the document with the intent to steal the property.  The problem is, the Burke’s put an Affidant forward to the Court from a “Chief Fraud Examiner” (Charles K. Lamm) … hmmm … who died and made him chief?   Mr. Lamm’s affidavit was excluded because he was NOT allowed to be an “expert witness” at trial.  Another presumptive mistake by the Burkes and their counsel.  Again, as I spoke of earlier in the articles GUTTING THE UNDERBELLY OF THE BEAST, the first mistake was allowing this case to proceed in federal court, where the homeowner and his attorney have minimal control over the foreclosure, especially where any form of “MERS” is brought up.  You also have to look at “the times” (the period in our history of litigating against any MERS entity) … that things have come about in a different way, which has resulted in virtual conflict among the States of the Union as to whether any MERS entity has any right to claim itself as anything, when Restatement of Agency (Third) was clearly brought into the equation.  I bring you the screen shot from the case to discuss the importance of understanding WHY I’m talking about what constitutes an “Expert Witness” and proper discovery to bring about the desired results within “the system of things”, even if it comes to an unfolding scenario in federal court (an obvious ongoing fight for what appears to be over 4 years):

NO EVIDENCE … NO RULING IN YOUR FAVOR! 

If you’ll notice in the foregoing screen shot WHAT the Court said is that there is NO SUPPORT FOR THE EVIDENCE SUBMITTED!  Further, the Court pointed out that NONE of Mr. Lamm’s documents were authenticated.  That, my friends, is sloppy lawyering.  This was typical for what was going on in the courts around this country (and probably still does occur) at the time because people still haven’t gotten past the emotional state of running into court and screaming “FRAUD!”, expecting to get results in their favor, with no discovery, no depositions and no live testimony from a proper expert witness.  What “personal knowledge” could be gleaned from Mr. Lamm, as all he did was examine documents he had nothing to do with creating.  Where were the depositions here?  I don’t see any mention of them anywhere within the 4-page Order of the lower court in 2014, do you?   What the hell were these litigants thinking?   The same thing many homeowners think when they see what they believe is a “suspect” document.  They hire some self-proclaimed “chieftain” to analyze their document and tell them what they want to hear, with no evidentiary support to back it up … and definitely … no personal knowledge of anything.  This pattern has followed many a homeowner through unsuccessful foreclosure processes all over the U.S.   I guess people have not awakened to the principles of the Rules of Evidence yet.

IN SOME STATES, GOING AFTER ANY FORM OF MERS IS A BIG WASTE OF TIME AND MONEY! 

Unless money grows on trees and you have such a tree growing in your yard, or you live in Tennessee (where the Ditto decision gutted MERS like a chicken), whatever State you happen to be in (in this case, Houston, Texas), the courts are split on what MERS is … and what MERS isn’t.  It isn’t just in the federal circuits … it’s in the state courts too.  A lot depends on what legislation was promulgated (and by whom) to get “nominees” into the mix within the county land records, which in turn decimated the county’s earnings directly because of HOW the MERS® System works.

The only way I see this coming to a finite end is to “gut the underbelly of the beast”, where the beast least expects it.  This case serves as an underlying reason why “the system of things” has to work the way it was designed to work, NOT the way you think it should.

This is done by going after the attorneys for the banks and their servicers and holding them liable for felony perjury on the court (which BTW can be exerted in either state or federal; however, there is no “money flow” from the federal side, only from the counties that are heavily insured or self-insured) by directly attacking the document(s) involved, which means you have to focus on those creating (manufacturing) them.  If you want to win, there is no getting around this.  If you want to take down MERS, you have to take them down in principle by going after the “users” of the MERS® System and NOT MERS DIRECTLY!  You see, the “users” are all trained liars!

For the rest of the story, see the upcoming post … GUTTING THE UNDERBELLY OF THE BEAST – PART 7.  In that segment, you can learn and differentiate when judges “do the right thing” versus when they don’t.  When they don’t do the right thing … is when the system of things kicks in!

 

 

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THE FHFA IS A CONSERVATOR … NOT A RECEIVER, COURT RULES!

(BREAKING NEWS, OP-ED) —

For those of you who might have missed this Memorandum and Order out of Rhode Island (whose courts typically favor the banks and their servicers), you may wish to read this 19-page ruling:

Sisti v FHFA et al, US D. R.I. No 17-005 (Aug 2, 2018)

The FHFA attempted to get a judgment on the pleadings, which the court denied!   While this isn’t much of a setback, it does make clear a few potential misconceptions about Fannie Mae, Freddie Mac, the FHFA, the FDIC and the mortgage loan servicers who deal with these entities:

THE BUCK STOPS WHERE?

(1) Following the subprime mortgage crisis, Congress passed the Housing and Economic Recovery Act, which created the FHFA (Federal Housing Finance Agency), giving it the power to supervise and regulate Fannie Mae and Freddie Mac (the government-sponsored entities, or GSEs). The FHFA pretty much has complete control over the activities of both GSEs, including their reorganization or rehabilitation.  In the fall of 2008, the director of the FHFA placed both GSEs into a CONSERVATORSHIP, NOT A RECEIVERSHIP!  The Director of the FHFA had a choice … he chose Conservatorship!

(2) There is no date set for when this conservatorship will end.  In the meantime, both GSEs are prohibited from paying any dividends to their common shareholders.

(3) The U.S. Government owns ALL of the senior preferred stock of BOTH GSEs. As a result, the U.S. Government gets perks that common stockholders don’t get.

(4) Both GSEs have received over $187-billion from the U.S. Treasury to maintain liquidity and have paid more than $249-billion in dividends back into the Treasury; however, the U.S. Government’s interest in the GSEs has not been diminished as a result.

HOMEOWNERS GOT SCREWED … AND SUED!

(1) Judith Sisti was foreclosed on by Nationstar Mortgage LLC, acting as an agent for Freddie Mac, where Freddie Mac was the high bidder and Nationstar signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Sisti.

(2) Cynthia Boss was foreclosed on by Santander Bank, acting as an agent for Fannie Mae, where Fannie Mae was the high bidder and Santander signed and recorded a foreclosure deed, all non-judicially, and then attempted to evict Ms. Boss.

(3) Neither homeowner had the opportunity to have an evidentiary hearing, to confront or cross examine witnesses, to present arguments and evidence, to be represented by counsel, or to have a neutral hearing officer adjudicate the matter, all allegedly in violation of their 5th Amendment, Constitutionally-protected rights to due process of law.  They filed suit against the Defendants and the cases, bearing many similarities, were consolidated into one case by the Court.  The FHFA, Fannie Mae and Freddie Mac all filed motions for judgment on the pleadings, claiming they were within their rights to screw both homeowners. DENIED!

THE COURT HELD THAT THE FHFA AND THE GSE ARE GOVERNMENT “ACTORS”, CONTRARY TO OTHER PREVIOUS RULINGS! 

(1) Despite all of the other case citations claimed by the Defendants in this case, THIS JUDGE held that none of the other citations were binding on this Circuit!  (We didn’t see that one coming!)

(2) The Court held under Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), that the Government created a corporation by special law; for the furtherance of governmental objectives; and retained for itself permanent authority to appoint a majority of the directors of that corporation, then the corporation is “part of the Government” for constitutional claims.  The rest of the citation contained further historical analysis.

(3) The government gave complete control of the GSEs to the FHFA, rendering said control effectively permanent, despite FHFA’s claims to the contrary (that this was only supposed to be temporary).  Well, we don’t see any “temporary”, do we?  It’s amazing how the FHFA (and its lawyers) can argue whatever suits them, whether it’s legitimate or not, huh?

(4) The Court stated that it “cannot defer to a congressional delegation that serves to disclaim the constitutional obligations of a government-created entity.”  So now there is a conflict over whether there is permanent control or temporary control.  The Court then continued to stick to its guns on the facts at hand … that the “unchecked control the government has over the duration of tis total takeover of the GSEs” is up to the discretion of the government, “in perpetuity, even though Congress authorized a facially temporary conservatorship.”

THE BEAUTY OF BEYOND END GAME STRATEGIES … 

Once you understand the elements of what the Court indicated on Page 14 of its ruling, you can see the differences between the FHFA as conservator and the FDIC as a receiver:

(1) The FHFA has complete power over the GSEs.

(2) The FDIC steps into the shoes of the failed financial institution, “as a private entity for state law tort claims”.   “Beyond End Game Strategies”, the new piece we recently put out, nailed that plan of attack.

(3) This would appear to indicate that going after the FHFA and the GSEs (in their present condition) would be more difficult than going after the FDIC (as the receiver for your failed banking entity that filed Chapter 11 bankruptcy).  Maybe not entirely (according to this court)!

(4) The most damning statement in the ruling is on Page 16: “Because only federal entities can waive sovereign immunity, it logically follows that FHFA-as-conservator is a government actor.”  For further research, see Brian Taylor Goldman, The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action, 17 J. Bus. & Sec. L. 11, 23 (2016).  Okay, whatever … I pulled it down for you … read it here:

The Indefinite Conservatorship of Fannie Mae and Freddie Mac is State-Action

(5) Conservators, unlike receivers, have a fiduciary duty running to the corporation itself (Goldman, p. 26).

And this ruling was from a federal judge that is typically NOT homeowner friendly! 

This case tells me that as a “beyond end game” plan of attack, once you learn the key differences between what a conservatorship is and what a receivership is, you’re at “Square One”!

I would recommend to all who attended BOTH Atlanta and Orlando workshops recently add the foregoing white paper to your arsenal of research involving a “plan of attack” under state tort claims laws, as described in the foregoing illustrated INSERT. Those of you who didn’t attend … darn.  You really missed out, given the holding in this case!  This is why what we’re teaching is so vital to your survival … and now I have case law to back it up!

 

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IF YOU FEEL LIKE YOU’RE ONLY GETTING HALF THE JUSTICE YOU DESERVE … YOU’RE NOT ALONE!

(BREAKING NEWS — OP-ED) — I have spent years doing research about the financial mess we have in America.  I first confronted this issue in the early 1990’s, when many of my friends (who were more creditworthy than I) would come to me, telling me they were “in over their heads” in credit card debt, on top of having to pay a mortgage loan.  In retrospect, my own personal situation wasn’t necessarily plagued by that same scenario.  Mine was figuring out a way to make an honest living by “working smart”.  People spend all their lives working hard, paying interest upon interest on a 30-year mortgage (mort = death; payments until death).  Now, student loans have taken the place of mortgages as the #1 stresser.  Why?  It may not be because we’re a nation of over achievers. It’s because we’ve been programmed by our parents who didn’t have it as good, wanting us to have it better than they did.  So what did they do?  Give us the ‘ol pep talk:  Go to school. Get good grades.  Graduate with a diploma.  Buy a car.  Go to college.  Graduate with a degree.  Get a good job.  Get married.  Buy a home.  Raise a family.  Work hard. Retire. Leave a legacy.

This all sounded well and good back then; however, the pep talk did NOT include financial education of the kind we’re used to.  Even today, what little financial education is taught in secondary and post-secondary education is severely limited.  They did not teach “CAR LOANS 101” in high school.  They did not teach “STUDENT LOANS 101” in high school.  They did not teach “MORTGAGE 101” in high school.  Hell, they didn’t even teach “CHECKBOOK 101” in high school.  Do they even teach this in college?  Not hardly.  Economics?   I had a Korean professor in college I could hardly understand, which made economics more boring than ever.  I still managed to learn something; but it wasn’t enough to sustain “real world living”.

Couple that with our national media and its advertising campaigns.  Look at what’s on TV today!  There’s more commercials for car loan financing, mortgage loan financing, buy now … pay later campaigns … than you can shake a stick at.  I know that sounds cliche, but have you ever actually watched these commercials and how you’re being baited?  Now imagine your kids are getting the same programming on prime time TV.  This is not only America’s problem.  This is a global problem.  It’s just that Americans have more disposable income than 90% of all the other countries in the world.  And what do Americans do?  Ask how many Americans how deep in debt they are and you’re just scratching the tip of what I call “the system of things”.

I will be discussing “the system of things” as part of my new, upcoming nationally-syndicated radio show:

After writing numerous books since 1995 (and having been exposed to radio since 1968), what else can I do to help make America a better place?   As with every endeavor, there are always going to be naysayers pointing fingers; however, the stuff that we will be talking about on THIS radio program is NOT intended to shock the conscience.  It is not “shock jock” radio.  These are 25-minute segments that discuss the very things that America is lacking, because 25 minutes is about all anyone can take because our “input stream” has been overloaded with indoctrinated “system diatribe” and developing this program was even a learning curve for me.  If you think this is going to be an Alex Jones-type program … sorry … I don’t make my life all about conspiracy theories, despite the fact that “the system of things” is full of them!  I do NOT support the Republican party.  I do NOT support the Democratic party.  It’s a single party system of oligarchs that control “the system of things” anyway.  Most of America just hasn’t noticed that yet.   Then there’s “deep state”.  Yes … that actually DOES EXIST!  It’s NOT a conspiracy.  It’s a bureaucracy.  It’s what is running this country, much of it unfettered and without immediate oversight or accountability.

To add to the dimensional quality of this program, I intend on taking up the online educational focus on chain of title issues through an 8-hour COTA Workshop.  I will share what research I have learned over the last 10+ years on my Clouded Titles website.  I know, it’s been long in coming … and I do not feel like conducting two-day events all over the U.S. that only produce a handful of Americans that have finally awakened to the truth about “the system of things”.   We have determined that two (2), four-hour teaching modules is what is necessary (with handouts delivered directly to you in your “inbox” in PDF format) can easily accommodate what many who have attended my previous classes call, “information overload”.  And we will make it affordable for everyone so that you can sit in the comfort of your home, on your computer, and get the real property portion of “the system of things” you didn’t get in high school (or even college).  And it won’t take up your whole weekend.  In other words, my 3-day COTA class will be streamlined into one day, because people have to work and support their families.   I will make this program available once every 3 months. These programs will not be all the same thing because “the system of things” changes from time to time … thus, there are updates to share, based on new research and case law.  I will have attorneys on the program from time to time because homeowners who are in trouble need perspective from a legal standpoint.  This is all part of the educational process.

Like credit reports, people need to check their public record files once every six (6) months to see what’s there.  Financial planning (PLAN B) is NOW required these days because we are headed for another cyclical recession despite what all of the talking heads on TV are telling us.  America has a Congress that is bipolar and self-serving.  You can’t run a country whose political hierarchy promotes “pushing back” (unintended consequences of violence) against others who believe differently than you about “the system of things”.  The “system of things” was created because Americans, as a whole, the body politic, ALLOWED IT to be created.   We worry about our toil and our last meal while our government tries to play “nanny state” games with us.  Why?  Because we’re not educated.  They are.  They think they’re better than us.  This is what an oligarchy is folks!  And we let them make us worry about what they’re doing when we should be concerned more about what we’re doing.  Our current behaviors are what is driving us into a “class war”.

Change starts at home.  Change filters out into your locale (be it unincorporated area, township, city, county, whatever ) because of the need to communicate with others besides those in your own household.  You have more control over your local government than you realize.  We spend so much time behind locked doors because our “pre-programmed condition of servitude” has caused us to hide in fear (and maybe even shame) because of what America has become.

If you think that complaining to the government will do you any good … you can forget that.  Government is too busy trying to figure out how to exist in such a way that you will be lulled into a false sense of security.  This is one of the reasons my new show is going to tackle both the legal and political angles, tying them together into social perspective so the average consumer will “get it”.

Justice begins at home.  It was handed down over centuries.  It’s called discipline.  If people were totally disciplined and walked in love, we wouldn’t need laws because everyone would be doing “the right thing”.  Because America is not a safe place to live anymore (don’t kid yourself if you think it is), Americans need to condition themselves to be more disciplined and that happens through education.  The betterment of our justice system begins with education.  Most Americans don’t even know what a “federal reserve note” is and what it represents.  Just ask any kid in high school if they know what it is.  You’d be surprised at what you’ll hear in response.  What’s in your wallet DRIVES the justice system (and we don’t even realize it).  That’s why we … as a collective body politic … need to get at the truth of what is going on and then deal with it in an appropriate, albeit civil manner.

The system revolves around the dollar … how it is made … and how it is spent.  Once you get a complete “handle” on that concept, your life will be easier and your “system of things” will change for the better.  Until then, the justice you think you deserve is like the glass half empty.   Every American is affected by it.   It’s a mindset that has to change if America is going to survive the recessions and political upsets of the future.

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WE SALUTE ANOTHER FALLEN COMRADE!

(BREAKING NEWS — CORAL GABLES, FL)

We have just learned of the untimely passing of attorney John Herrera, who diligently fought foreclosure actions in the courts in Broward and Miami-Dade Counties in South Florida.  I went to trial with John on two of his cases.  Magically, they both settled; however, it is unsettling that we lost a freedom fighter so young (aged 53, on August 3, 2018).

As you may remember, John received second and third degree burns to over 60% of his body some time ago in a barbecue grill gas explosion.   Afterwards, he went through multiple skin graft operations and walked with a cane afterwards and was never the same, health wise.  John graduated from St. Thomas University School of Law and was also in the U. S. Marine Corps.  I had the pleasure of hosting a COTA Workshop in his “war room” (where he conducted his depositions).  John was one of the few foreclosure defense attorneys who would speak up when a court judge attempted to help out the bank during a foreclosure trial (“Gee, your Honor, I’m glad I’m not litigating against YOU this afternoon.”).   Those who knew John know what a kind hearted man he was. He was a true fighter for the little guy.  He even twice lectured at our COTA Workshops in Orlando and was a pleasure to work with.  He was even more fun at dinner at Fleming’s, where he would made the chef do his steak blood rare, while imbibing in a single-malt McAllen Scotch.  John will be sorely missed.  Our condolences go out to his wife Anouk and his children during this hard time.

John will be sorely missed.  God Bless You, Mr. John Herrera.  You have crowns laid up for you in the big courtroom in the sky.

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WELLS FARGO GETS POUNDED BY U.S. GOVT FOR $2.09-BILLION … WITH A “B” … FINE!

(BREAKING NEWS / OP-ED) — 

Why are we not surprised?

Wells Fargo Bank, N.A. has agreed to pay the United States $2.09-billion for purposefully misrepresenting the quality of loans it sold to 118 individual REMIC trusts.

See the Settlement Agreement here: Wells Fargo RMBS Settlement Agreement (August 1, 2018)

We caution you that when checking into your particular REMIC, if in fact one of these named entities shows up in your chain of title, to have any related assignments reviewed by competent counsel (we have one if you don’t) who can testify as to the false and misleading statements contained within said assignment in court, should you be facing foreclosure.  Any bank attorney making oral misrepresentations and false statements in court regarding any one of the named REMIC’s (given the fact we don’t yet know if the actual investors are being reimbursed out of these settlement funds and to what extent) risks disciplinary action before their particular state bar.

As with the Bank of America Settlement Agreement, where 530+ REMICs were involved, put back has to be verified.  If investors received settlement money in exchange for dropping their claims, then WHO is attempting foreclosure in their name?   How were investors harmed if they settled?  This goes back to our intimation that the mortgage loan servicers are the actual parties foreclosing behind the scenes and that they should be taken to task for their misrepresentations, especially if assignments to REMICs are involved and MERS is involved.

Again, despite the intense discovery that would have to take place in order to prove such, limited discovery into the documents to demonstrate falsity or misrepresentation is a statutory offense in all 50 states.  Many states even offer civil conspiracy causes of action involving the creation of the assignments, including title companies and law firms whose names appear on the documents!  I don’t make these statements lightly.  However, given the nature of the last two workshops we conducted, you can bet the law firms for the banks should take a second look at what they’re pontificating in court, because things are about to get dicey!

For an explanation of the foregoing, please tune into City Spotlight-Special Edition on kdwradio.com this Friday night at 6:00 p.m. EDT to hear Dave Krieger and R.J. Malloy cover this scenario.  Click LISTEN NOW and wait for the program to start.  You might be either pleasantly surprised at what you hear … or in the alternative … totally shocked!

 

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