August 20, 2021 · 6:36 AM

QUESTIONS WE SHOULD BE ASKING

(OP-ED) — The author of this post (Dave Krieger) in the near future, is slated to take over as the permanent talk show host for the nationally-syndicated program called The Power Hour (a 2-hour program that airs from 11 a.m. to 1 p.m. Central Time). This is slated to happen near the beginning of the 4th quarter of this year. (FYI: We will be having foreclosure defense attorneys on as guests … just in time for the end of the moratorium illegally set by the current “administration” if that’s what you call it!)

CAVEAT AND DISCLAIMER: The contents of this post are based on paralegal level research and are not intended to represent legal advice. The value of the research is intended for educational purposes only.

THE VALUE OF THE LAND RECORDS

Many homeowners who really understand what’s in the county land records (previously discussed in other articles on this blog) “get” the fact that checking these records often is like checking your credit history often by ordering credit reports and looking to see what’s posted there in the trade line items. This author has put together a book on the subject (The Credit Restoration Primer), which goes into detail about how to request and analyze the information contained within your credit report, based on paralegal level research and the advice given to this author by expert attorneys who developed this program, which this author expanded and further expounded on.

The land records provide more than just a modicum of detail about your future as a homeowner. They contain every document in your chain of title that has been legally recorded. There is a difference between the word “filed”, which is used to refer to the act of initiating a lawsuit in a court or law or equity, versus the term “recorded”, which implies a public record that is handed to a Clerk, a Register of Deeds, a Recorder, an Auditor (and the like) and summarily archived in a “book” and “page” in either electronic or hard copy form. Smaller counties in America will have hard copy files (if they’re smart). The bigger counties with larger populations have resorted to digital recording of these documents through the scanning process. The originals and then sent back to the person initiating the recording of the documents.

As you may have noticed, this author used the word “legally” recorded. He did NOT say “lawfully” recorded. In other words, if a document contains false and misrepresentative information, it represents a “stain” against your property’s land record. This “stain” is commonly referred to as a “cloud on title”. A “cloud on title” basically means that there is something that is “blocking” the marketability and vendibility of the property, which means you can’t sell something that has blemishes on it because the prudent buyer that knows his stuff will not purchase something that a title company is going to “gloss over”. The title companies take these recordings at their word … if it’s recorded in the land records … it must be true (whether it is or not).

The land records are your only means of exposing these blemishes. If it’s not recorded, it means nothing in the “official realm”. In the last post, the author reflected that the 3,041 land records that exist in America are tainted with all sorts of shit documents, suspect because of (a) how they were created; (b) who created them; (c) when they were created; and (d) for what purpose were they created.

THE PATTERN OF BEHAVIOR

In the Williamson County Land Record Audit and the Osceola County Forensic Examination of the Land Records, both of these reports showed a suspect pattern of behavior in the manner in which certain documents were created, executed and recorded.

The pattern that developed and was demonstrated throughout both reports exhibited that the propensity to create these trash documents fell on the mortgage loan servicers and the foreclosure mill law firms who represent them in the theft of peoples’ homes. This is why there was a list (in the Osceola County, FL report) of the suspects, both representing mortgage loan servicers and law firms, one of which, the Gilbert Garcia Law Firm, who bitched at the Osceola County Clerk in writing, threatening a defamation suit if he didn’t remove the report from his website (nothing ever came of it). The little twits at that law firm seemed to forget that if they did file suit, the Clerk not only gets his day in Court, he also gets “discovery”, a damning tool that can be used to unearth all sorts of information involving the law firm’s participation in the creation of trash documents.

The problem with most homeowners (and many of their foreclosure defense attorneys who are feeding off their bank accounts) is that they don’t recognize the importance of discovery and how to get it.

I drafted an 11-page lawsuit in Lee County, Florida for an attorney under the direction of her investor client. It was framed as a counterclaim to a foreclosure action in which a trash assignment had been created by a mortgage loan servicer’s 3 employees. I did not name the servicer in the lawsuit. I named the 3 employees in their official capacities. I itemized every single thing they did in creating, executing and notarizing the document that was eventually recorded in the land records, calling them out on all of the “issues” that were present as misrepresented within the document.

As soon as the attorney for the investor FILED the counterclaim and started pushing for depositions of the 3 defendant employees of the mortgage loan servicer … ALL OF A SUDDEN NOW THEY WANT TO SETTLE! Why?

We collectively “hit a nerve”!

Maybe it was because we were making the right assertions in the lawsuit and attaching the Florida Criminal Code to those assertions, directing the judge to order the Clerk of the Circuit Court to produce a certified copy of the trash document and to turn it over to the State’s Attorney for further investigation. Do you think that the servicer wanted their employees to testify in a deposition? Not likely. Why? Because they would have spilled the beans on the entire operation in order to save their own asses from criminal prosecution, that’s why!

This is one way this author discovered that the pattern of behavior in the land record examinations was true. If the mortgage loan servicer didn’t have a nexus with the law firm (the servicers are the real parties retaining the law firms, not the alleged “lenders”) in initiating foreclosures, the law firm would not have acted the way it did (in the Florida case), trying to stop the depositions of the servicer’s employees. As I told John Healey (the Fort Bend County, TX D.A.), “It only takes one prosecution of a robosigner and all those who conspired with them to ‘send a message’ to the rest of these scumbags.”

Seriously, look at what happened when Las Vegas notary Tracy Lawrence testified before a grand jury about the thousands of default and sale notices she signed her boss’s name to and then notarized those same documents under the direction of her “bosses”. She ended up dead. Think about the means by which the banking, servicing and title companies operate and understand how “complex” things could get the more they are challenged as to the patterns of behavior exposed in these two land record reports … and how they can “reach out and touch someone”. Lawrence died of a 3-drug cocktail, which was found in her toxicology report (… “worst case of suicide I ever saw”). Why a cocktail? Because most women kill themselves by overdosing on something and this story would be “plausible” to investigators, who ruled it a suicide rather than what most of us probably think really happened. Think Marilyn Monroe.

Again, I must remind the readers that these are “reports”, not indictments. And, yes, this author has had numerous conversations with attorneys all across the country who have read these reports and have reached out to him to discuss the reports’ contents and the similarities they possess to the cases these attorneys are working on.

THE “RED MEAT” OF THE MATTER

By this time, you’re chomping at the bit to discover the line of questioning this author might have in mind, right?

If the author were the homeowner, he would first want to know:

  1. In a Qualified Written Request to the mortgage loan servicer under RESPA § 6:

(a.) the name of the alleged current holder of the note with the right to enforce it; and

(b.) do they have a copy of the note and mortgage or deed of trust they can send with their response?

COMMENT: Everyone shoots themselves in the foot by asking 50 questions in a voluminous request right up front instead of spacing out their requests … and the other mistake is … they don’t send it certified, return receipt requested to the servicer’s QWR address (they do have one)! The longer you can drag out a QWR, the longer it takes to get a foreclosure accomplished. I’ve seen at least 9 QWR requests in one case and it took the servicer nearly 3 years to answer all of them before they could even proceed with the foreclosure!

2. Research the assignment. This is where a subscription to “Been Verified” or use of a private investigator can really be of benefit to case development. Research every name, address and phone number on it. Identify each party and their location. This will tell you the “WHO” that is involved in your scenario. Research their backgrounds. If a law firm is mentioned anywhere on the assignment, such as “Prepared by” or “After recording, return to”, you can bet the law firm involved in the case (or retained at arm’s length by the law firm coming after you in foreclosure court) is behind the creation and manufacture of the document. The law firm (generally local, sometimes) can be tied to the pattern and thus, now you have suspects in your case development as to “WHAT” each knew and “HOW” they participated in the creation of the trash document(s). Sometimes, multiple assignments pop up in rapid succession and this should also send out warning alarms. DO NOT CONTACT THE TARGETS, DAMMIT! You’ll tip them off as to your intentions and suddenly (as has happened in some cases) … they disappear and you can’t depose them because they’re in hiding! Why does this author say that? Because people have called up the robosigners and the notaries and then they wonder why their cases are falling apart. Stupid is as stupid does.

3. Develop a list of unanswered questions for each deponent (the people you will depose). Understand that the minimum cost to depose someone starts at $3,000. You need to be careful about picking your targets.

COMMENT: A lot of this information is available in The C&E on Steroids! training kit, which has a training manual and 13 hours of DVD material covered by myself and California attorney Al West (including sample pleadings).

4. Your target is assumed to have valuable information useful to your case. Mortgage loan servicers often show up claiming to represent the REMIC trust. They are not paid by the REMIC. They are not REMIC employees. They are paid by the servicers. They are trained in mock trial courts to be “convincing” so they pass muster in court in their phony testimony. (You’re probably wondering how this author knows those mock trial courts exist, right?) Think about it. How could the servicers’ employees be so “skilled” at answering and rebutting questions asked during cross examination if they weren’t educated? Understand WHO you’re dealing with here. Deposing a REMIC is futile because by the time the case gets to you and your home, that REMIC is closed and long gone. Sending correspondence to the REMIC is also futile. If they’re closed they can’t answer, right?

5. You need to discover whether you’re dealing with a “trust” or a “pretend trust”. There is a difference. Some of these “pretend trusts” are junk debt pools whose employees manufactured the assignments with the intent to claim standing in court to foreclose. Assume the foreclosure judge doesn’t care about the assignments. This is why we file C&E’s BEFORE the foreclosure, to tie off documents before a judge who isn’t handling foreclosures. We want them thrown out so a foreclosure judge can’t proceed against us! This is the value of declaratory relief. If you wait until your foreclosure is in motion, it’s likely your judge will merge your suit into the foreclosure and toss your claim against the document the other side is using to steal your home! Timing is everything. Discovery is necessary to find out WHO you’re dealing with here.

6. If you are dealing with a REMIC, you need to obtain a copy of the 424(b)(5) Prospectus (not the FWP). In it, you will find the ADVANCES section. You may also find a section entitled, “The Credit Risk Manager”. If you are fortunate enough to have THAT party named in your prospectus … these people monitor the activities of the mortgage loan servicers dealing with the REMIC and they’ve got troves of information and should be considered a primary target for deposition and production of documents. They should be able to tell you whether or not and how long the advances were paid to the certificate holders, who are assumedly in court claiming they’ve been damaged, when in fact, they’ve been paid all along or have been made whole through the default payouts described in my last article after DAY 91.

7. You’ll need to investigate DAY 91 and what happened then. Asking questions relevant to the insurance payouts, credit default swap payouts, title insurance payouts and PMI/LPMI/MIP payouts, etc. could put a “feather in your cap” in demonstrating to the court that the real party in interest isn’t present in the courtroom. If you follow the money trail, you’ll expose mounds of information that was as useful in the Buffington case in Arizona against U.S. Bank.

buffington-et-al-v-us-bank-et-al_mtd-denied-_fdcpa_usdc-azDownload

You’ll notice the Court only threw out one of the causes of action … the one for FRAUD. This should send a message to you … a clear one … because 99.9% of litigants go into court screaming “Fraud!” WRONG! You don’t have enough evidence to prove that, so get that shit out of your head right now! Until you’re done with discovery, or your case proceeds to the point where the true evidence emerges in the case to actually ask the court to amend your complaint to include “Fraud”, “Conspiracy” and “RICO”, DON’T LEAD WITH THAT! By doing so, you’ve just added about $5000-$10000 to your legal bills. Duh. If you had that kind of money, you wouldn’t be in foreclosure in the first place!

And don’t let your attorney plead FRAUD either! He’s doing that because he doesn’t know any better. He was trained in law school to plead “shotgun style”, like the spaghetti noodle theory … throw shit at a wall and see what sticks. In this day and age, judges don’t appreciate that. It’s a great way to posture yourself in a negative light before the court. The way this author sees things (after having been in trial court with attorneys on numerous foreclosure cases), the judge is already against you when you walk into court. Why make things worse?

The idea here is “wise as serpents, harmless as doves.”

IDENTIFYING SERVICERS

By looking at the complaints or recorded documents and looking at the “WHOs” in the document and tracing their employment, you’ll easily find out WHO the robosigners work for. Any robosigner or notary in California has to keep a journal with thumb prints and signatures in them. Bet they won’t have those when you request Production of Documents and call them on it. I love deposing notaries, even if they no longer have commissions. Notaries can be your best friend in a deposition (and not beforehand).

Once you’ve identified the servicers, go back into the REMIC documents (if a REMIC is involved) and look at the Servicers that are named in the REMIC prospectus. Research each one and you’ll probably find multiple assignments and transfers of the collateral files, where stuff can go missing or be falsely duplicated. You’ll want to get at that collateral file, but QWR’s will only give you limited discovery in advance. You’ll need to target the collateral file in the Request for Production. That’s how the author would do it if he were the victim here.

Again, this isn’t legal advice. It’s just the means to be able to get a judge to ask the other side’s lawyer who he’s really representing, so you can tell the court you have no contract with the mortgage loan servicer … so why are they there instead of the REMIC? Most people don’t get that far because they’re not forward thinking. They’re so tied up in emotional knots they can’t think straight. They just want to lash out and then wonder why they end up homeless and living in a tent city (or worse, with relatives).

You can also build a case against the mortgage loan servicer when they don’t respond to your QWR requests (either at all or in an untimely manner). The author would suggest you look up the Real Estate Settlement Procedures Act § 6 and thoroughly read that BEFORE engaging in your research quest. Understand that there are statute of limitations on many things involving your case. Identify what those are and avoid challenging areas where the court is likely to toss your claims. It’s another waste of money.

ONCE YOU GET TO THE SERVICER, YOU CAN EXPOSE THE LAW FIRM

In the Carrsow-Franklin case in New York, Wells Fargo’s robosigning behaviors were exposed by New York bankruptcy attorney Linda Tirelli. The use of MERS in a lot of these documents can also work in your favor, even though MERS is now hiding behind the same bunch that owns the New York Stock Exchange.

in-re-carrsow-franklin_memorandumDownload

You’ll find the use of MERS (Mortgage Electronic Registration Systems, Inc.) shows up in all REMIC-related cases. If MERS is involved, you can bet your loan was securitized into the secondary mortgage markets.

And don’t sue MERS … you’re throwing money away again. They have very good hiding places that will cost you millions of dollars to find … if you get my drift. And you don’t have millions of dollars to spend; otherwise, you wouldn’t be in the foreclosure mess you’re in, right?

Some folks have amended their foreclosure complaints to include the law firm involved in the processing of the documents because it localizes their cases and keeps them in state court instead of getting thrown into the federal realm, where litigation costs are exponential and the banks’ attorneys have an edge. The local law firm suing you can be especially vulnerable if the law firm’s employees were involved in the direct manufacture and robosigning and notarizing of the documents. Surprisingly, many of the law firms involved in the National Default Exchange (NDEX; a national network of foreclosure mills) are directly involved in processing trash documents. Research those networks and what you find may surprise you, especially when you discover what “servicing platforms” they used (Vendorscape, Servicelink, etc.) and what discoverable information you can get from that.

If the law firm was directly involved in “doing the dirty”, now the State Bar can get involved … if you get my drift.

RESEARCH THE JUDGE!

Assume all of them are bought and paid for by the banks! That way, you’ll know who you’re dealing with. Research their political campaigns and who donated to them (betcha never heard that angle before). It’s a great way to get them to recuse themselves from your case, especially if the mortgage loan servicer or law firm that’s trying to foreclose on you donated to the judge’s campaign.

judicialwatch.org/judge and therobingroom.com are great tools to explore the way federal judges rule and to look up their declared financial records. You might find a conflict of interest. One such case in Florida opened up a can of worms when the homeowner discovered that one of the federal judge’s law clerks worked for a former foreclosure mill that litigated against the homeowner in the lower courts! Talk about conflict of interest!

For state judges, you’ll have to do more digging, which is the subject of another article.

Keep your friends close and your enemies closer.

As a closing note, if you have to educate your attorney on discovery and how to read a prospectus and understand securitization, you need to find another attorney who you don’t have to spend money to educate. Avoid attorneys with big egos and attorneys who make promises that “you’ve got a great case”; otherwise, you’ll be bent over a screwed again in the end … if you get my drift.

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August 9, 2021 · 8:50 AM

3,041 CRIME SCENES

(OP-ED)– The author of this post is the author of the book Clouded Titles (among numerous others) and proffers this message for educational purposes only and in no way should this be construed as legal advice.

Why the foregoing number?

That’s how many counties, boroughs and townships there are in America that contain public land records.

I recently received a video interview which contains the commentary of John O’Brien (Southern Essex MA Register of Deeds) and Jeff Thigpen (Guilford County NC Register of Deeds), both of whom I know and respect. Both share the commonality with some not-so-notoriously known elected officials (Armando Ramirez (Osceola County FL Circuit Clerk) and Nancy Rister (Williamson County TX County Clerk) who, having audited their public records echoed similar sentiments.

“When I saw the results of the audit we did in Williamson County, Texas, I was overcome with the same level of feeling as if I found out my husband was cheating on me,” said Clerk Rister, who was re-elected to her position the following term with strong approval ratings from her constituents.

Another commonality these four public officials shared is that their grievances are all the same … their public land records have been trashed by robosigned documents, millions of them, just in those four counties.

I gave two separate, one-hour lectures to two sessions of the Texas Clerks’ School back in January of 2012. In those two sessions, I asked a simple question … “How many of you in this room have heard of MERS?”

Only a few hands went up. I was in shock. I knew at that very moment that I was going to have to do everything in my power to sound the alarm, through workshops, seminars and in the promotion of my reading materials. Having conducted forensic examinations of two separate land records, I have come to the conclusion that even today, the land records continue to be littered with these trash documents, executed by second and third-tier parties who have no knowledge whatsoever about the validity of their contents. What’s worse … law firms involved in the pursuit of foreclosures are directing the production of these documents, which are then used as evidence in the public record to facilitate foreclosures on unsuspecting homeowners.

I have been through this diatribe before. This isn’t the first time I’ve spoken up about what constitutes “trash” documents. I spoke briefly with two different Clerks of public records in Missouri and Texas, they were so frustrated with everything they’d seen in their land records (as to these types of “assignments”) that they simply chose NOT to run again for another term and quietly faded into the landscape, knowing the evils and pitfalls that would continue to affect borrowers who continue to stupidly take on securitized mortgages, thinking they “got a deal”, when in fact, they have absolutely no idea WHO actually owns their mortgages or what condition these mortgages are in (financially).

DAY 91

This is a significant day in the history of mortgage repayment histories. Many a borrower has been told that in order to do a loan modification, they have to be 90 days late on their payments. There is an underlying reason for this.

On Day 91 is when the REMIC and its servicer get to “cash in on the chips”.

On average, a $500,000 mortgage loan will net the REMIC and its servicer $7,000,000 after Day 91. How’s that possible?

Credit default swap payouts. Default insurance payouts. Defective title insurance payouts. PMI, LPMI and MIP payouts. And then, the servicer, who has been dutifully paying the certificate holders (investors) of these REMICs every month gets more gravy by foreclosing on the house, alleging default on the part of the borrower when they know in fact, they told the borrower to stop making the mortgage payments … or, even in light of that … made the mortgage payments (principal and interest) to the investors … so they were never in default in the first place!

In order to stop the foreclosure (or at least put the brakes on it for awhile), the homeowner has to either respond to the lawsuit (mortgage states) or initiate a suit (deed of trust states). Sadly, dating as far back as 2009 when the first wave of foreclosures hit, 97.5% of all homeowners served with process packed up and moved out of their homes. Abandonment constitutes possession based on the mortgage contract.

LACK OF ENFORCEMENT

Who would have thought that by taking out a mortgage loan that the borrower would end up out on the street? This is only one minute reason for the homeless population being what it is today, especially in areas of the country where taxes and regulations (and more corrupt court systems) reign.

When I met with John Healey, the Fort Bend, Texas District Attorney way back in 2012, I showed him a stack of documents I had pulled from his county’s land records. I showed him samples of robosigning. I showed him samples of notary fraud. I showed him incomplete documents (that were neither signed nor notarized) that were still allowed to be recorded in the land records (all this in front of a red-faced Clerk, Dianne Wilson, PhD, who could not believe any of these documents got past her deputy clerks) and his response was, “we don’t have the white collar division necessary to investigate any of these matters”.

I plainly stated, “John, it only takes one prosecution to send a message. I’ll even help your department with the investigation to dig up solid evidence”. He would have none of it. The banks are just too powerful and his political ass was more important than standing up for what was right.

It will be a sad day in hell … even after it “freezes over” … that you’ll get any prosecutorial arm to lift a finger to help consumers out of this dilemma.

This is a battle that must be fought by the 2.5% of those homeowners who want “justice”. Is that what you call it these days?

Statistically, 1 out of 100 cases brought before the lower court systems in this country go anywhere. 99 out of 100 cases (which is why they called the movie 99 Homes) end up getting tossed out (dismissed) because all of the foreclosure defense attorneys who handle these types of cases are out for the buck or in the alternative, are overwhelmed and uneducated when it comes to dealing with the actual working elements of a foreclosure case.

The government hasn’t helped either. Thanks to the convenience of a bioweapon virus, most of the courts in this country have been shuttered out of fear. In fact, moratorium after moratorium has extended the foreclosure process out even further, leaving families who were without income during this alleged pandemic in a state of limbo, not knowing when the “knock at the door” would come and a sheriff’s deputy or process server would be standing there with papers. The government has made it all too easy to streamline foreclosures, so those that have limited means to fight stand little chance of winning even more time to stay in their homes.

APATHY HAS BECOME AMERICA

It is said to think that the majority of families who haven’t paid rent during the entire economic shutdown are continuing to live off the fat of their landlords, who have been forced into destitution themselves because of having to pay on their mortgage loans when there’s no subsistence whatsoever from their tenants. Maybe we should blame the landlords for taking on too much loan burden. Maybe we shouldn’t. After all, investing in real estate was supposed to be the American Dream, right? What on earth changed all that?

Most of America was locked inside their homes and programmed purposefully by the mainstream media to be fearful of a disease whose numbers have been constantly manipulated to serve the political interests and agendas of politicians who seek to control John Q. Public (that would be all of us) by enslaving us into taking injections that are only for emergency use only. It isn’t enough that the shots themselves are killing Americans, the loss of loved ones due to the jab is also being covered up and this leaves the family unit in shambles. How are people supposed to fight when they remain in a state of confusion?

This is the type of programmable conditioning that George Orwell wrote about in his book 1984.

Clerks Rister and Thigpen both became directly involved in lawsuits to try to stem the tide of phony documents. Both were shut down in the civil courts as the judges stated the Clerks had no private right of action. When you don’t have an actual harm, how can you proceed as a plaintiff? That’s basic Justice 101.

TURN THE TABLES

Understand that “default” has to be proven. It never is. In fact, it’s admitted to by homeowner’s attorneys more than not. Once the judge hears (or questions) “When’s the last time you made a mortgage payment?” (the judge is prosecuting the case for the bank), it’s game over.

Foreclosure defense attorneys would do well to understand that it’s not the REMIC (lender) coming to court to collect on the booty (the gravy from the sale of the house) … it’s the mortgage loan servicer that’s doing the dirty work. Getting the bank’s attorney to admit who he’s actually representing is the first battle. Getting to the issue of how much money the REMIC and the certificate holders made off of DAY 91 is yet another battle that must be fought. Again, the certificate holders have to show they were “harmed” too … if they can’t show harm, it’s game over for them too.

How simple is discovery? Getting the plain statements out on paper is half the battle (the homeowners could do it themselves). But … we have become a society of “doers”. We do what we are told. If the people do not rise up, they will be defeated and the BlackRocks of the world will move in, buy up their foreclosed homes in bulk and turn America into a nation of renters. While the government will attempt to play itself as the hero, the government has made things worse by driving inflation through the roof.

It’s one giant squeeze play on America and the smart homeowners have already figured out Plan B.

Past DAY 91, the mindset should be, seek alternative, less-expensive housing. Downsize. Research. Fight back to stay in your home as long as you can. Use cash for keys as a last option (not a first). Make the bank spend a bunch of money by answering your lawsuits or initiating them. Homeowners have private rights of action when it comes to trash documents littering their chains of titles. This is where “the stand” begins.

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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):

akerman-broward-partner-his-clients-in-hot-water-for-alleged-perjured-testimony-_-daily-business-reviewDownload

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

ex-aDownload
ex-bDownload

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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June 3, 2021 · 11:56 AM

Lessons Learned from Spokeo v Robins

NOTE: The author of this blog post is a paralegal who has committed a great portion of his life to helping homeowners in defense of their homes in cases of attempted foreclosure with research and educational outlets and information. The information posited here does not (for obvious reasons) constitute legal advice but rather the opinions expressed by the author.

The whole idea behind the ruling in Spokeo was narrow in nature. The U.S. Supreme Court (May 16, 2016) was asked whether Robins (the consumer bringing suit against the people search engine Spokeo) had standing to maintain an action in federal court under the Fair Credit Reporting Act.

The author is attaching the U.S. Supreme Court opinion for your thorough study and review.

spokeo-inc.-v-robins-et-al_

Suits involving any federal statute are supposed to be filed in U.S. District Court in the jurisdiction where the consumer lives. There is no doubt that Robins did in fact file the suit in the appropriate jurisdiction; however, the U.S. District Court dismissed his complaint for lack of standing. Robins tried to file this as a class action, claiming that Spokeo did this “damage” not only to himself, but to others similarly situated. The “damage” was listing personal information on Spokeo’s search engine that exposed Robins’ personal information to the general public.

The nation’s highest Court opined that the “injury-in-fact requirement” mandates that a plaintiff has to allege an injury that is both “concrete and particularized”, citing Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000). Thus, since the turn of the century, any plaintiff bringing an action in federal court should have known that if they could not demonstrate a specific and actual injury-in-fact, their suit wasn’t going anywhere.

APPLICATION OF SPOKEO TO REMIC FORECLOSURES

Now we examine the issues involving a trustee for a Real Estate Mortgage Investment Conduit (REMIC) bringing a foreclosure action against a consumer/homeowner under the same pretext. Assuming that the U.S. Supreme Court’s ruling is far superior to that of a state court judge, the REMIC would then need to bring an action that demonstrates specific and concrete injury based on a “particularized” set of facts.

The REMIC’s trustee comes into the foreclosure action claiming the following:

  1. The homeowner/borrower entered into a contract (mortgage or deed of trust);
  2. The homeowner/borrower failed to make his payments;
  3. The homeowner/borrower is in default; and
  4. As a result, the certificate holders that the trustee is representing have been financially harmed.

Here’s where things get a bit dicey.

True, the homeowner/borrower did in fact sign a contract (mortgage or deed of trust) … ADMITTED. However, who actually funded the loan hasn’t been fully proven, due to the “table-funded” aspects of securitization.

False, despite the homeowner making his payments, the investors still got paid every month, thanks to the Advances section of the REMIC’s own governing document [the 424(b)(5) Prospectus], which is available through either sec.gov or secinfo.com. Every REMIC has conditions whereby if the borrower fails to make the payment, the servicer (or subservicer) shall make the payments for them. Thus, whether or not the borrower failed to make their payments under #2 of the foregoing, someone, namely the servicer (or subservicer) was making the payments to the certificate holders within the REMIC every month as required under the Advances section of the Prospectus.

You see, investors who bought into this line of crap (in many instances) got stung when the markets collapsed in 2007-2008. Many investors sued under the claim that the lenders did not adhere to their own documents when they allegedly made “qualified loans” to borrowers who had the ability to repay those loans. Insurance companies filed suits against the REMICs and their sponsors because the lenders filed false applications for default insurance, knowing full well that the borrowers who got the loan proceeds didn’t have the ability to repay, when on the insurance applications, the applicants stated the insurance would cover defaulted loans after Day 91. Many insurance companies were on the hook and paid out beaucoup bucks to these financial institutions for loans, multiple times over, before realizing they were snookered into paying on claims that were based on false information.

So here you have a REMIC, allegedly coming into court, asking a state judge to grant foreclosure (or in the deed of trust scenario) filing “suspect” documents in the land records and subsequently selling the homeowner/borrower’s property on the courthouse steps at a prescribed date and time. In order to stop a deed of trust from being foreclosed on, the homeowner/borrower has to file a suit in court, generally in U.S. District Court, because the lender claiming to have the right to foreclose is in another state from where the property is situated.

The problem is … the REMIC’s attorneys are claiming that #3 and #4 (of the foregoing itemized sentences) are in fact true, when they know otherwise.

If the Advances section of the REMIC trust’s own Prospectus says the servicer (Master Servicer or subservicer) shall pay the certificate holders the principle and interest payments every month whether the borrower pays or not, then where is the actual “injury in fact” for which the trustee is bringing the action? Where is the specific dollar lost wherein the certificate holders were harmed?

When a judge asks the homeowner/borrower in court, “When’s the last time you made a payment on your mortgage loan?” They are representing the REMIC from the bench. Homeowners and their attorneys of course, don’t know how to respond without pissing off the judge. One would think the proper answer would be, “I cannot recollect when I made the last mortgage payment, your Honor; however, the payments to the claimed injured parties have been paid every month according to the Plaintiff’s own documents.” However, unless the homeowner/borrower actually had the knowledge in order to properly respond, citing Spokeo v Robins as the reason for their response, the court is going to treat them like a deadbeat.

Further, when most attorneys for the homeowner/borrower answer the complaints or initiate suit, they virtually admit that their client is in default, when they should have known otherwise. This is due to the nature of the laziness of most attorneys to do their homework and understand the real issues within the gravamen of the suit.

Even further than that, the plaintiff’s attorneys bringing the foreclosure claim, stating that the borrowers are in default, are in essence, lying to the court … and getting away with it. So what the hell is going on here? Either there is a concrete injury-in-fact under Spokeo or there isn’t, right? The right to challenge standing based on the concrete injury-in-fact works both ways, not just to the detriment of the bank.

The real truth probably lies in WHO retained the foreclosure mill attorney to bring the action in the first place.

One look at the supporting documents will probably tell the homeowner/borrower that the real party in interest here is the servicer or Master Servicer (or the subservicer), who is lying to the Court, claiming they have the right to be there, representing the interests of the REMIC, claiming the borrower is a deadbeat, knowing full well that they (the servicer) have been paying the certificate holders all along; thus, the parties in interest really haven’t been harmed, have they?

Do you (as the homeowner/borrower) actually have a signed contract with the servicer? (Didn’t think so.)

So it appears that the servicer’s own employees “manufactured” the assignments that are “suspect”, which are then recorded in the land records in the county where the property is located … and then using their own phony documents in reliance of their planned foreclosure actions against the property. In the case of a second mortgage loan lender, its servicers are doing the same thing, knowing that when they foreclose, they get to pay off the first mortgage a negotiated sum and then sell the property for well more than the equity share held by the homeowner and pocket the difference, many times splitting the ill-gotten gains with the law firms doing the dirty work.

The U.S. Supreme Court clearly outlined the parameters in Spokeo:

  1. The Plaintiff must have suffered an injury-in-fact;
  2. … that is fairly traceable to the challenged conduct of the defendant; and
  3. … that is likely to be redressed by a favorable judicial decision.

Thus, if no concrete injury-in-fact can be proven, that the Certificateholders weren’t damaged because they were being paid every month by the servicer, then neither the Trustee nor the claimed injured parties have any standing to pursue the foreclosure in the first place. If #1 of the foregoing can be demonstrated to the court hearing the matter that there’s no real injury-in-fact, then #2 and #3 can’t be approached because the Plaintiff lacks standing to even be there in the first place!

Thus, the lessons learned from the foregoing are:

  • Discovery should be utilized to make the “plaintiff” produce payment records of all payments made to the certificate holders; thus, demonstrating that the certificate holders weren’t harmed;
  • Spokeo’s very finite determinations supersede any state or federal district court ruling;
  • If the Plaintiff’s allegations claim the homeowner/borrower is in default, then all of the phony documents recorded in the land records were “created” as part of a criminal scheme to defraud the homeowner/borrower of their property;
  • The court should be asking the plaintiff’s attorney WHO actually retained them to represent the REMIC; and
  • The real truth should then be exposed, based on the court’s new understanding of what’s actually going on here, in order to facilitate a challenge to all of the phony documents recorded in the county land records through a C & E action.

If you haven’t been on the Clouded Titles website lately, perhaps you should check out the latest information available. In addition, check out the archived broadcasts from Clouded Titles author Dave Krieger, in interviews with Dr. Judy Mikovits and Dr. Carrie Madej about what’s really going on with the jabs.

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