Category Archives: BREAKING NEWS

May 19, 2022 · 9:41 AM

Winning an FCRA case on the back end of a foreclosure … on appeal in the 9th Circuit

gross-v-citimortgage-inc-et-al-9th-app-cir-no-20-17160-may-16-2022Download

(BREAKING NEWS, OP-ED)– The author of this post is a paralegal and consultant to attorneys on foreclosure defense and consumer issues. The case posited above is for your educational benefit only and any commentary presented here does not portend to convey any legal advise whatsoever.

The U.S. District Courts never cease to amaze this author given the blatant facts and allegations presented by the Plaintiff (Gross) in his FCRA case against CitiMortgage, Inc. The lower court justices nearly always rule for the banks no matter what. Could it be because the federal judges are vested in these banks and are conflicted out? This is why Judicial Watch puts out a list of financial records (those that have been obtained) of the federal court system’s judges’ for all to see and review (at the following link): https://www.judicialwatch.org/judge . And the cause and effect situation expressed here is exactly why we have appellate courts. The downside to this equation is the amount of money the Plaintiff had to spend litigating it before the Ninth U.S. Circuit Court of Appeals.

CASE NOTES

Understand that Gross (the Plaintiff) lost his home to foreclosure and to add insult to injury, Defendant CitiMortgage, Inc. (as the second lien holder in a deed of trust state) used the three major credit bureaus as a punching bag against Gross, tagging his credit reports with erroneous, derogatory trade line items showing Gross being multiple times delinquent when in fact, the second mortgage was extinguished in the foreclosure under Arizona law. Gross challenged Citi’s behavior after disputing it with the three credit bureaus, all of which supported Citi’s continued erroneous reporting of derogatory information on Gross’s credit reports. The lower court dismissed all other defendants from the suit except Citi and then ruled in Citi’s favor. Gross then appealed the matter to the Ninth Circuit.

This 13-page ruling goes into great detail on the purpose of the Fair Credit Reporting Act and what it allows a consumer to do in the way of litigation. The author found this case useful in providing enough detail to overcome a 12(b)(6) dismissal in the way that prima facie evidence is discovered or provided at the onset of the case. The case was reversed and remanded back for a jury trial. Thus, the U.S. District Court judge in this case (Roslyn O. Silver) is going to have to deal with it the way it should have been done in the first place.

AUTHOR’S COMMENTARY

The author specifically wrote a book called The Credit Restoration Primer (now in its 5th Edition) for a reason. It is still highly likely that 85% of information being reported on a consumer’s credit report is erroneous and disputable under the law. This is why the author also included all of the dispute letters he used to rid his credit file of unwanted and erroneous information so as to further his future exploits.

It is sad that the banks and third-party debt collectors continue to beat up on consumers like they do, given the fact America is facing a “social credit scoring system” if the current powers that be continue to push their liberal, leftist, Marxist policies. Italy is already in the process of implementing such a system and this will not bode well for those under its iron fist.

Given the current scenarios, it would be wise to check on your credit reports often (pull them twice a year) and make sure that all negative information is disputed, especially if it’s erroneous. In Gross’s case, he was trying to get another mortgage and Citi’s erroneous and derogatory information plagued any attempts by him to “move forward” after the loss of his property. While this case certainly serves as a learning curve, it also presents a sad history of how the banks continually screw consumers at every turn, when “we” all just want to “get ahead in life”.

On another note, according to recent reports, GenZ’ers are getting themselves into a lot of credit card debt, all this in the face of not wanting to work and live at home with their parents. This author could only wonder what mommy and daddy would say when the dunning phone calls start coming during the dinner hour about junior’s delinquent credit card bills. With the rising cost of homeownership and rising mortgage interest rates, this stupid reliance on credit cards to finance these impudent pups’ spending habits are likely to implode and wreak future havoc on American society. No pot to piss in and yet they all vote for politicians that give them handouts from a government that was not designed to give handouts.

The author is a nationally-syndicated talk show host on The Power Hour. See him live at the Clay Clark’s Reawaken America Tour in Myrtle Beach, SC by clicking on this link!

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March 14, 2022 · 6:23 AM

Uptick In Foreclosures? Fraudulent Transfers?

(BREAKING NEWS) — The author of this post posits the following information for educational purposes only and any information contained herein should not be construed to be the rendering of legal advice. For legal advice, you should consult with an attorney that has won several foreclosure cases. NOTE: There are a lot of attorneys out there that think they can defeat a foreclosure; however, these people simply see a monthly annuity and have figured out a way to stall the inevitable.

Years ago, when this author wrote Clouded Titles (his second work, which followed The Credit Restoration Primer, now in its 5th edition), now in its Mayday Edition, he set up an alert in his Google system settings to detect any reference to the phrase Mortgage Electronic Registration Systems, Inc.

The reason for this is because back in 2007, while doing research on chains of title in his local land records, he discovered the widespread appearance of this electronic database throughout his local public record and this was the start of a 2-year quest into researching the sum, substance and function of what most in the legal profession refer to as MERS. After filling up 4 file drawers full of printed material from various articles, court cases and public records (including his own public record filings), this author decided that since there were no actual books out there describing the chicanery on Wall Street and how MERS was involved in it all, that the public needed to know the truth … and this is how Clouded Titles was born.

Thanks to the “alerts” set up in the Google search system, this author is able to monitor perceived upticks in the foreclosure markets, based on what is happening throughout the U.S. and the notices posted in various newspapers’ legal sections throughout the country.

What the author of this post has also noticed is that because the economy is stagnating, people are without incomes. As a result, the propensity to commit crimes against property by filing documents that purport to transfer title into the name of the perpetrator so the property could be listed and sold through nefarious means is also on the rise. Once the property is sold, the foreclosure starts. The author has seen evidence of an uptick in this area as well.

This is why it’s a good idea to check up on your public records involving your property every 3 months, just like you would check up on your credit reports to make sure they’re accurately being reported. County Clerks are paid to assist you in looking up your records if you don’t know how to do it. Many of the databases are online, so they are easily traceable via the county’s search engine. When you conduct a search, you need to be especially aware of any “assignments” of not only mortgages (or deeds of trust) that have been recorded in the public record that transfer an interest in any loan taken out against the property or to detect the insidious crime of property theft by fraudulent deed transfer.

If you suspect you’ve been “taken” in such a manner, the first thing you should do is to go to the County Clerk’s (Recorder, Register of Deeds, Auditor, etc.) office and obtain a certified copy of the suspect document. The second thing you should do is to take that suspect document to your county sheriff and file a formal criminal complaint against the party or parties allegedly effectuating the transfer.

Part of the problem with fraudulent transfers and assignments however, is that the goings-on behind the scenes within law enforcement appears well above the pay grade of the detectives working in the crimes against property unit. This was evidenced in the follow-up meeting with Osceola County, Florida detectives in 2015 (along with the County Attorney, who was obviously “in on it” with them), who couldn’t find any evidence of wrongdoing in the Report this author spent five months working on … and instead, chose to “shoot the messenger” instead. The County Attorney then proceeded to inquire who the forensic team members were that gleaned the public record looking for suspect documents. The information was not required to be provided under the Open Records Act laws, thus, the County Attorney came away from the meeting empty-handed. The detectives however, wanted to know who certified all of the 17 banker’s boxes of suspect documents delivered to the States’ Attorney in Florida’s 9th Circuit, who saw the files and the report as a “political hot potato” and wanted nothing to do with them. Law enforcement in Osceola County, Florida then began to harass and surveil a known member of the forensic team who lived in the county and who was an outspoken critic of the illicit foreclosures taking place in his county. A family member of the forensic team’s liaison was tasered and arrested as he was walking onto his front porch at 3:00 a.m. after being out with his cousin, was not drunk and was not disrespectful or disorderly against the arresting deputies (who were surveilling the home). The charges were eventually dropped. This is just one scenario that happens when one “tries to do the right thing”.

This presents us with another known problem with law enforcement: corruption. Unless your county sheriff is a “constitutional sheriff”, don’t expect your complaint or any potential investigation to go anywhere, especially after having researched the campaign donors to your local district attorney in the last election. This author would encourage you to research CSPOA.org and become a member and get the information necessary to further your campaign in either getting the sheriff on board or finding ways to get him/her ousted from public office.

This author also reminds you (at this juncture) that county sheriffs are bonded. Without a bond (due to forfeiture), they can’t hold office as a sheriff. This is why counties have Risk Managers. A Risk Manager is another word for “damage control”. This individual gets more crap thrown at them from both consumers and county officials as a result of their positions. This is why it’s become harder to find competent people willing to undertake the honest task of “doing the right thing” and getting consumers the information on who the agent is for the bond, along with their address, phone # and policy number.

If the county’s risk manager refuses to give you that information, send an Open Records Act Request under state statutes and demand the information. Once obtained, you may wish to consider filing a complaint against the bond of the individual that failed to do their constitutional duty to protect your rights under the law.

NOTE: This procedure can also be used against school boards as well (that treat parents like domestic terrorists for speaking out at school board meetings); however, that’s not the subject matter of this article so this author won’t dwell on that scenario at this time.

In closing, a genuine foreclosure has to be treated differently. This author would encourage the use of a Qualified Written Request (QWR) under RESPA § 6. Do not ask for originals of any documents because it’s highly likely they don’t exist. Ask for copies of the note and mortgage (or deed of trust); ask for all information contained in your collateral file; ask for copies of your escrow statements and pay histories. Space out your requests (don’t ask for all of it at once). Request it in two or three certified letters to the servicer’s specific QWR address. You might be surprised to learn that mortgage loan servicer error was responsible for the initiation of the foreclosure to begin with.

NOTE: A QWR is not discovery. A QWR is what this author would be doing if he found out every time that his mortgage loan had been transferred or sold. A QWR response can be used to custom-tailor litigation against the servicer and its employees. Above all, remember that the public record may contain damning information in the form of assignments that can be used to help custom-tailor a QWR request. QWR requests from subsequent servicers can also reveal missing documents that were never transferred to the new servicer in the collateral loan file.

Dave Krieger is a nationally-syndicated talk show host on The Power Hour, heard Monday-Friday from 11:00 a.m. to 1:00 Central Time; on AM and FM stations across the U.S. and on 7.490 mHz on the shortwave band worldwide. He also consults with attorneys and homeowners on foreclosure cases.

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February 5, 2022 · 3:15 AM

The FDCPA, Debt Collection and Bona Fide Errors

(BREAKING NEWS) — The author of this post is a paralegal and consultant to attorneys regarding real property, foreclosure and consumer issues. The concepts contained within this post are for educational and research purposes only and should not be construed as legal advice. In the event one should find this material useful, it is highly recommended that one consult with an attorney who is not only well versed in these matters, but with an attorney who has a winning track record on debt collection issues, like the cases discussed herein.

Every so often, a debt collection case comes across my desk that contains multiple plaintiffs and thus warrants attention, especially because the federal appellate circuit reversed and remanded the cases back to the district courts from whence they came because the panel agreed that the federal district court erred in its 16-page ruling on particular facets of the cases in chief.

This particular case centers around what is termed “bona fide error” caused by the debt collector and/or its attorney(s). See the case below:

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In this particular case, both Plaintiffs decisions were rendered by judges within the same division of the same district … the Southern District of Indiana, Indianapolis Division (including the Chief Judge). The cases were merged because of their similarities in arguments. Both cases were argued before the 7th Appellate Circuit Court of Appeals on December 14, 2021 and the ruling was issued on February 2, 2022. The backgrounds in each case are pretty self-explanatory.

In Ewing’s case, it took the debt collector two years to acknowledge that the alleged debtor disputed the debt collection claim. When Ewing looked at her credit report and saw the alleged debt was misrepresented, she decided that the misrepresentation of the debt under 15 U.S.C. § 1692e(8) was violated by the debt collector and filed suit. In Ewing’s case, as typical, the federal district judge ruled for the debt collector, who claimed that the error was unintentional, thus invoking the bona fide error as its affirmative defense.

In Webster’s case, she discovered an error on her credit report she did not believed she owed. Through counsel, a dispute notice was faxed to the debt collector. However, the dispute notice was faxed to a number the attorney thought was a viable fax number, which turned out not to be the case because the debt collector, on its own volition, decided to remove the fax number from its website and stopped checking its inbox for new disputes. Webster sued because the debt collector misrepresented the fact her account was in dispute, which in turn harmed her credit score. The debt collector of course, claimed it was excused from 15 U.S.C. 1692k(c) because of a bone fide error as its affirmative defense.

Both cases involved negative reporting by each debt collector on the consumer’s credit bureau reports, which was part of the issue discussed in both cases because each had a “published injury” (misrepresentation of the actual facts of the matter).

Significantly, both debt collectors raised a “standing issue” argument. Both claimed there was not sufficient enough of a “concrete injury in fact” (as outlined within the U.S Supreme Court) and alleged there was no case or controversy for the court to rule on.

The appellate court discussed the issue of what constitutes “a concrete injury”, bringing to bear several U.S. Supreme Court issues, including Spokeo, Inc. v. Robins, which this author brought forward to some degree in his FDCPA book (see the website for details by clicking this link). While the nation’s highest court generally rules within very narrow margins, the discussions within this case are quite lengthy in explaining the various “harms” and whether they constitute an injury in fact, a requirement for any federally-based debt collection action, whether tangible or intangible.

The cases then turned on the key issue here of “bona fide defense”, citing multiple cases, including the infamous Jerman v. Carlisle case (cited within). As the cases drew to their conclusions, the appellate court determined that the errors in both instances could have been avoided if reasonable procedures had been in place and thus disclosed and identified by the parties as reasonable. Such was not the case in either instance according to what this paralegal read (see Pages 15 and 16 of the ruling for the double whammy on both debt collectors).

And this is why we have appellate courts (because the district courts have a propensity to misinterpret the law as it is written, in this case, the Fair Debt Collection Practices Act. What most folks don’t realize when initiating these suits, are the following takeaways:

  1. A person filing an FDCPA suit has to have a legitimate “injury-in-fact”, whether tangible or intangible, that can easily be interpreted by the court;
  2. The injury-in-fact must be “concrete, particularized and actual or imminent” in order to stick;
  3. When examining case law, especially regarding the FDCPA, understand that these suits are normally brought in U.S. District Court in the district in which the Plaintiff resides because cases in controversy (many times) cross state lines;
  4. That an attorney bringing these claims needs to fully understand the principles discussed within the cited cases in this instance, which is why this author decided to bring this case forward for further discussion;
  5. There was no evidence that any state-based claims were brought forward in either instance, because the Plaintiffs’ attorneys knew that the debt collectors were out of state; thus, both claims were federal matters; and
  6. As noted in cases like Jerman, this author constantly sees the application of the bona fide error defense used affirmatively by debt collectors whenever possible because of the narrow ruling by the U.S. Supreme Court “walks a fine line” in the district courts, where district and circuit judges (like those judges in foreclosure cases) in most instances, rule on behalf of the defendant debt collector (bank, alleged lender) a majority of the time, which requires an appeal.

Despite the fact appeals can be costly, they are more effective in setting good case law, which is why this author chose to post THIS case to enhance one’s “learning curve” when it comes to understanding and recognizing when one has a case versus when one doesn’t.

As a footnote, one should be prepared to litigate this case to its final conclusion; thus, cases like this, which can turn on a dime, are not for the faint of heart and those without the budget to do so.

Listen to Dave Krieger on The Power Hour, Monday-Friday from 11:00 a.m – 1:00 p.m. Central Time.

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June 12, 2021 · 9:10 AM

When Justice Vindicates …

(BREAKING NEWS) — The author of this post is a paralegal, investigative journalist and radio talk show host and thus, the viewpoints in this post should not be construed as the rendering of legal advice nor guaranteeing a positive outcome in your particular case.

Score a move forward for Miami-Dade foreclosure defense lawyer Bruce Jacobs.

An Ackerman foreclosure mill attorney and his clients are in hot water with Miami-Dade Circuit Court Judge Beatrice Butchko (you can read the article here):

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The exhibits spoken of in the article can be found here:

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To add to the previous article posted on this blog about REMICs … certain amounts of them, which appear to hold true in this case, were settled with investors for a sum certain; thus, the question remains: How were the investors harmed financially if they settled with the REMIC’s servicer?

What’s worse, the attorney for the Master Servicer lied to the Court and got caught. Here, we have a reasonable judge that has seen phony document after phony document come before her Court as part of an exhibit pool, only to have the bank’s attorney attempt to squelch the truth by misrepresenting the true nature of who the plaintiff is and how they were harmed.

The bigger picture here is that the mortgage loan in question is secured by a contract and that the borrowers never agreed to make their contract part of a bigger picture in the world of secondary market financing. Or did they? We don’t know because the foreclosure defense world of attorneys hasn’t gotten to approach that aspect yet. If they did, it went unnoticed by the judge because the banks’ lawyers tied up the testimony in knots and simply labeled the borrowers as deadbeats.

When facts don’t work, use emotional tactics and piss off the judge.

In this case, none of those strategies appears to have worked. Instead, the facts of the case bear out the following:

  1. There appears to have been phony documentation submitted to the Court;
  2. The Court appears to have taken full notice of it;
  3. A forensic examiner provided enough worded evidence to show that the bank’s attorney lied and the clients perjured themselves in their evidentiary testimony; and
  4. The judge set a show-cause hearing to determine whether or not they all should be punished.

As this author has intimated all along, the land records don’t lie, which is why the C & E is important!

If homeowners would pay enough attention to the land records when they get notifications from their mortgage loan servicers that there was a change in servicers on their loan, they would see servicer-manufactured documents that have absolutely nothing to do with the real lender in interest and they could attack in advance, rather than sit on their laurels and wait out the inevitable foreclosure attempt by the servicer. This is where American homeowners can strike back. It’s not the easy way out either; however, as evidenced here, a little prudence not only goes a long way, it has vindicated this author’s research which is constantly being used against him by homeowners and their attorneys all over America.

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