Tag Archives: diversity jurisdiction

2020 FORECLOSURES BACK IN FULL SWING!

(BREAKING NEWS, OP-ED) — The author of this post carefully posits this article for your educational benefit and any information shared here should not be construed to be legal advice. 

Anyone familiar with this online blog is probably fully well aware that the content shared on this site has a lot of legal undertones, so much so, that many people are apt to misinterpret what’s being said in reality, replacing their thought processes with directives shared as “suggestions” on this site (hence the need for the disclaimer).

The state bar associations are starting to find themselves in a real dilemma.  Three states (Washington, Utah and Arizona) have already initiated non-lawyer “paraprofessional” objectives to allow more folks to have access to the justice system.  This comes at a time when eviction moratoriums have pretty much been lifted and the “man behind the curtain” jumps out and reveals himself  in the form of service of process.

This author is getting closer to deciding a date for when another Foreclosure Defense 101 class should be held.  Of course, with no one willing to fly anywhere, this will probably be held online in webinar format, where you get to ask questions via the chat box.

The thing about foreclosures … statistically, 97% or better of those receiving service of process (notice from the bank via physical delivery via a knock on the door, certified mail, notice of publication, door hanger, etc.) will ultimately decide to pack their belongings and bug out, if what happened after the 2008 financial collapse is any indication.  Maybe we have more liquidity than we did before, maybe we don’t.  If we don’t have the resources to fight, it’s because we’re fighting the urge to resist identifying where those resources are.  The author describes those resources more fully in his book Clouded Titles.

If there was a way you could fight a foreclosure and stay in your home for over two years, would the information in a webinar workshop be worth it to you to have in your arsenal of legal tools?

Then … prepare yourself for the fight (not of your life) that generally sickens most people.  Prepare yourself mentally NOT to do stupid stuff (like give in so quickly).

The legal system has provided us with so many stall tactics (NO! Bankruptcy is NOT one of them!) it’s a wonder more people haven’t stopped to “catch on”.  They just want off the merry-go-round because that’s pretty much what you’ll feel like you’re on when you engage in fighting the foreclosure; however, the merry-go-round is not spinning at 3 miles an hour … it’s spinning at more like 60 miles an hour!  The closer you get to your court date, the faster the merry-go-round speeds up.

If you’ve ever been to a “rocket docket”, like this author has multiple times … it’s a scary thought … watching a judge clear a courtroom of homeowners being foreclosed on in 3 hours or less (just in time for lunch), with their actual case hearings lasting two minutes or less.  It’s amazing how many homeowners complain that they have no access to “justice” when in fact, the legal system has never been more “giving”.  The information highway is chuck full of data if you know where to look.

Planning Your Strategy … in 5 steps! 

#1:

Remember the Harry Potter movie where Hagrid (while strolling down Diagon Alley) tells Harry, “If you know where to go …”?   Half your battle is in research.  If you don’t check your chain of title, you’ll end up choking your chicken in frustration.  (The author doesn’t mince words here.)  This is THE MOST important point in the entire schematic of foreclosure defense, especially when it comes to playing the delay game and playing it well.  If you don’t understand the chain of title, the author’s website offers a COTA Workshop that you can get via download in (4) 4-hour sessions and listen, watch and study what’s necessary to get through from Point A to Point B.

Once you’ve looked at your chain of title, the next fundamental issue in your quest to research details is getting at the truth.  The “truth” the way banks see things and the way YOU should see things all has to do with perception of what the documents in your chain of title say.  The chain of title is like an electric schematic, which tells you HOW things are connected in the series of conveyances, claims of lien and security instruments, which are designed as the hinge pin in claiming ownership of your collateral (your home).  Once you understand how all of this is postured, it makes things a lot clearer in your understanding of HOW to proceed.

#2:

Get copies of every document in the chain of title and examine each one that is relevant to your current situation, especially the assignments (of mortgage or deed of trust).  These little minuscule pages are where the devil is in the details.  A single-page assignment that contains all sorts of false and misrepresentative statements can be the bank’s undoing, at least in the short term.  Filing a quiet title action is NOT what you’re going to pursue in your research.  You’re not ready for that yet.

History has taught us that anyone running into court trying to quiet their title when it’s littered with all sorts of bullshit assignments is not only a big waste of your time and the court’s time, your foreclosure mill attorney will immediately pick up on your strategy and counterpunch you with motions to dismiss.  Quiet title works when there’s nothing left in the chain of title other than a lingering deed of trust or mortgage that’s not connected to anyone and the originating lender is defunct and can’t be found.  The idea here is to attack the assignments head on through a C & E action.  C & E is an acronym for Cancellation and Expungement action, which means you’re filing a declaratory relief action wherein you’re asking the court to examine a document for false statements and to cancel the document and order the clerk or recorder to remove the document completely from the land records in your county so the document has no legal force and effect against your property any longer.   This is what Al West and I developed into a workshop called The C & E on Steroids!, also available in DVD video/book combo form!  There’s nearly 14 hours of really good educational information packed into this kit.  This is the ammo one would use to fight those pesky assignments.  Here’s an idea! Once you’ve done it, make your investment back by helping others achieve success in this realm.

#3:

Knowing where to find the petitions and responsive pleadings is your next research step. There are websites that are devoted to supplying this kind of information if you don’t have time to wait for a pleadings and procedures book for your specific state. You can find these types of books in law libraries and they aren’t voluminous and most of them are self-explanatory.  It’s easy to simply make copies from the book on the pleadings you need (or buy the book online from a legal bookstore).  This author has spend hundreds of hours in the law library “chasing cases” because foreclosure mill attorneys are famous for throwing them around in their pleadings in an attempt to make their point tot the court about how they’re right and you’re wrong.  Many times however, these attorneys throw cases in there that are NOT applicable at all to the scenario you’re dealing with and you have every opportunity to thwart their moves (like one big, giant chess match).

Foreclosure mill lawyers have their own set of schematics too.  They know them well, like a flow chart of procedures.  This is what they get paid for … to execute on that flow chart every time they get a case.  They eat, breathe and shit this stuff on a daily basis and thus, THAT mindset is what you’re up against when you face these shysters in court.  You have the right to be treated as an equal by the court if you can’t afford representation, which means if the attorney says you want a “free house”, you get to stand up, object on the grounds that, “My worthy opponent is at his best when not inhibited by the facts, your Honor!”  In other words, you just matched wits with this lawyer by eloquently calling him a goddamned liar!

This is where research will help you become equally prepared to challenge his or her legal acumen because they will use every dirty trick in the book (like they’ve used on other unsuspecting victims of foreclosure). Facing off in court is not for the faint of heart either … and neither is being unprepared for the battle for the judge’s mind.

#4:

Framing your arguments is probably the biggest mess that a homeowner (or their attorney) can create, especially when it comes to beer belly budgets.  Most attorneys went to law school and learned what California attorney Al West calls, the “shotgun approach”.  This means (in short) … sue as many people as you can for everything under the sun and see what sticks.  Unfortunately, what most pissed-off homeowners don’t realize is that naming multiple defendants costs money: (a.) in developing the case against each defendant and the allegations against them; (b.) in the time it takes to complete the pleadings preparation; (c.) in filing and servicing costs ($300-$400 in filing fees and $60.00 per defendant served); (d.) in responsive pleadings to each defendant (after they file their answer to your complaint); and (e.) case management.  Each defendant will cost an average of $3,000 in legal fees, not counting discovery (via a deposition) which adds another $3,000 in approximate costs for each defendant deposed.  To make the math more simple, let’s say you have an attorney that wants to sue 5 defendants and wants advance testimony from each of them. Without even batting an eye, you’re up to roughly $30,700 and the judge hasn’t even reviewed your case yet.  Until you start evaluating your arguments, you have no idea what a lawsuit (or counterclaim) against a foreclosure is going to cost you.

While an answer to a judicial action can be a simple process, compulsory counterclaims aren’t.  If you’re trying to buy time, filing an answer in a judicial proceeding will buy you an average of 60 days, or until a court date is set and you get notice of it.

And all of the arguments in the world won’t help if you can’t keep track of timelines.  One of the biggest mistakes pro se litigants make is not keeping an eye on the court docket once a foreclosure proceeding has been commenced and the battle begins.  Not keeping track of the timelines and what the Rules of Civil Procedure mandates you must do in order to stay in the game successfully can kill a case with one missed filing or one missed hearing.  The other side will use their arsenal of tricks to up-end your best laid plans, especially when it comes to beating you on civil procedure.

#5:

With judicial process, you at least get your day in court, yet most homeowners don’t take advantage of that because they’re too busy running scared. Now imagine being in the middle of a perceived pandemic and facing a banking tyrant and its attorney head-on when all you can think about is how to avoid a potential brush with death.

With a non-judicial process, locking horns with the lender in court is the only way you’re going to stop this kind of foreclosure because the lender has resorted to advertising and selling your property on the courthouse steps instead and if you’re like the author, you’d want your day in court and the only way to get it is to file a lawsuit against the servicer and any parties coming against you that have made themselves “relevant” parties.

One would at least want to find at least one defendant in-state.  This is how diversity jurisdiction is defeated because lenders will quickly remove cases to federal court because the amount in controversy exceeds $75,000 and the plaintiff lives in one state, while the defendant lives in another state.  In-state defendants could include: (a.) document manufacturing plant employees; (b.) local law firms bringing the foreclosure action; and (c.) lenders whose headquarters are domiciled in whatever state you are filing the action in.  This won’t work if the bank is just a branch of a main bank headquartered outside of your state.  Most people don’t sue the trustee, unless the trustee (named within the deed of trust or substituted into it using a Substitution of Trustee document that follows a bogus assignment).  Then … it’s open season on the trustee.  Attorneys will give you a lot of push back on this because they don’t like suing within their own profession nor do they especially like suing trustees.  The trustee  is supposed to be a neutral party; however, when they do something totally egregious, there is established case law in most states that can wield an axe in the form of liability.

Again, the biggest issue is picking a fight with the wrong party.  Generally, rampant emotions cause bad decision making and that is another fine line item that gets homeowners in trouble.  If you’re going to litigate, let logic replace emotion.  You’ll need logic along for the ride.  There’s plenty of time for celebration later when you’ve effectuated your “Plan B” all the while holding the lender at bay.

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Filed under BREAKING NEWS, OP-ED

DEFEATING DIVERSITY IN FORECLOSURE ACTIONS

(BREAKING NEWS — OP-ED) — The author of this post is the author of Clouded Titles, The Quiet Title War Manual, The C & E on Steroids!, The FDCPA, Debt Collection & Foreclosures, The Credit Restoration Primer, End Game Strategies, Beyond End Game Strategies and host of The Krieger Files.  The opinions expressed herein are that of the author and should not be construed as legal advice.  For legal advice, seek competent counsel that clearly understands what constitutes diversity jurisdiction.

Even in its most liberal stature, the U.S. 9th Circuit Court of Appeals has again, redefined and re-explained that REMIC trusts can end up costing you lots of money in litigation, fighting a losing battle in federal court by re-constituting an opinion of what constitutes diversity jurisdiction.  See the link below to the 17-page ruling:

Demarest v HSBC Bank USA NA, 9th App Cir No 17-56432 (Apr 8, 2019)

You’ll readily notice in the caption on Page 1 that HSBC and MERS were “incorrectly sued”, which would indicate to me they were sued in the wrong name, as indicated in the caption.

Part of the problem here is that the trustee was also sued (Western Progressive, LLC) and the trustee was also out-of-state as to its “headquarters”, which put all of the Defendants, coupled with the $75,000 required for complete diversity jurisdiction, squarely in federal court.

Again, Hawaii Attorney Gary Victor Dubin, who is again in the crosshairs of the Hawaii Bar (thanks to the banks and their attorneys who don’t like lawyers who beat them in court), likens being in federal court to suicide, which he has succinctly stated that it (suicide) is better than being in federal court.  Yet, a lot of people end up becoming victims within the federal system because of improper and incomplete pleadings.   Couple that with WHO you sue and the numbers of removed cases rise exponentially.

Why sue MERS?

This entity is the “bastard child” of MERSCORP Holdings, Inc., which is now owned by Intercontinental Exchange, Inc. (which also owns the New York Stock Exchange).  This newly-acquired entity has the backing of Wall Street.  The ownership of MERS may have changed, but the stupidity of the courts in relying on every tenet of MERS’s flawed business model incorporated within the “MERS® System”, has caused nothing but utter conflict among the state courts and federal circuit courts.

Like MERS says or intimates in its pleadings (among some of the third-person, schizophrenic quotations from its collective counsel and others), “We didn’t do anything wrong!”  “We want to be all things to all people!”  “We are the God of Securitization!”  (sic)  “We are everyone’s beneficiary that names us in their mortgages and deeds of trust!”  “We can be a nominee (agent) and beneficiary at the same time!”  “We can do anything we want, because we’re MERS!”  “We can remove you to federal court because we know your pleadings lack sufficiency and we can get them dismissed!”  “We can be in multiple states at any given moment and the federal judges will do what we say because we own them!” (that’s what they think, seriously).

Knowing you’re dealing with such a filthy, stinking rich entity that kowtows to Wall Street, why in bloody hell would you name them in anything?  Do you seriously have deep pockets?

You’re dealing with a multi-billion-dollar-a-year company here.   Here are some facts you should face:

  1. You signed the mortgage (or deed of trust).  No one held a gun to your head.  You could have walked away from the closing, but you didn’t.
  2. You could have read the entire agreement, asked questions; and when you didn’t get sufficient answers, you could have put off the closing until you got clarification, but you didn’t.
  3. You had no idea that the closing agent and the entity that agent represented knew (or should have known) WHERE the funds were coming from; how the funds were getting to the escrow account that was wiring your funds to the closing agent; and all of the details regarding the validity of the “lender” and “mortgagee of record”.
  4. You had no idea what the acronym “MIN” meant … nor had you any idea of the 18-digit number following that acronym.
  5. You had no idea your loan was being securitized through a Real Estate Mortgage Investment Conduit (REMIC) on Wall Street.
  6. You had no idea that your home loan was being funded by investors unknown to you.

Yet, you got hoodwinked into signing your life away to a life of potential PTFD (Post-Traumatic Foreclosure Disorder), should you fail to make your monthly mortgage payments!

What constitutes diversity jurisdiction?

In order to be able to remove a lawsuit to federal court (which is a court of limited jurisdiction), two things have to occur:

  1. The Plaintiff is a resident of State “A”, while the Defendant(s) are known to be residents of State “B”.
  2. The amount in controversy must exceed $75,000.

Gee … I wonder what would happen if the homeowner showed the caption as:

Joan Demarest and the Registered Holders of Nomura Home Equity Loan, Inc., Asset-Backed Certificates, Series 2006-HE2 … as joint petitioners … with NO defendants listed … and asked for a declaratory judgment ruling on the merits of WHO got screwed in this deal?  Where’s the controversy then?  (you attorneys can chime in here)

In order to have justiciable controversy (the makings of a proper lawsuit that a court can claim jurisdiction to rule on), you have to have a Plaintiff and a Defendant(s).  If you have “joint petitioners” and NO defendants, how can there be a “controversy” if both joint petitioners agree on the same thing?  Despite the fact that the certificate holders are from all over the world, some of them (To Be Determined) may be in the state you’re residing in (State “A”).   If there’s no State “B”, then why list DOES 1-10, inclusive, like this case did?    I actually litigated a case (while out of state) through the mail, with a co-party, as joint petitioners, and got my ruling from a court in Missouri!  Does that surprise you?

Diversity FAILS if … 

  1. There is no amount in controversy (which is what you have in a declaratory relief case, like a cancellation and expungement action (C&E) over a bogus document in the land records; and
  2. You aren’t naming out-of-state defendants until the in-state defendants respond and lock the case up in state court.

Does this make any legal sense to you?

This is part of what we taught in the C&E Workshop in Las Vegas April 6th and 7th. 

America’s land records are a “crime scene”!

MERS’s flawed business model helped make it that way.  Over 80-million homeowners who unknowingly borrowed investor money through securitized mortgages did the rest of the damage.  It was “intentional” on MERS’s part.   It was ‘unintentional” on the homeowners’ part.

Despite the fact you can beat diversity, certain entities will remove the case to federal court anyway, just to F**K with you and your pocketbook!  MERS is one of those entities.

There is a right way and a wrong way to approach this scenario.  What Joan Demarest did in her case was the wrong way.

The “trustee” is a necessary party in Deed of Trust states!

You should know that if you name the trustee in your lawsuit, it’s likely that the trustee is “headquartered” out-of-state.   The trustee (in this case) was declared by the 9th Circuit panel to be a “real party to the controversy for purposes of diversity jurisdiction when he possess certain customary powers to hold, manage, and dispose of assets for the benefit of others”.

This case was filed in Los Angeles County Superior Court on May 27, 2016.  You would think that by then, anyone involved in this case could have figured out what the “end result” could be … but NO!  We have attorneys out there that like to use the “shotgun approach” instead of the “sniper approach”.  This is why California Attorney Al West and I put together “The C & E on Steroids!”   It’s a sniper approach to cleaning up the “crime scene”.   If you clean up the “crime scene”, then what evidence is there that a crime occurred?  What evidence is there that a party has standing to foreclose when the intended “consequence” of an assignment is declared void, cancelled and expunged from the land records?

This is why we found instructional appellate case law to support our research and methodology for doing these types of “sniper approach” end game strategies.  Everyone wants an “end game”.  Getting to that point is why people run into trouble having their dirty laundry removed to federal court where it’s likely to get dismissed on a 12(b)(6) motion.  And the foreclosure happens anyway, because “we’re too pissed to think straight!”

Watch the movie “American Sniper”.  Then, liken that mindset to your approach.  Knowing WHEN, WHERE, HOW and WHY you need to “take out” a target makes all the difference in the world.

Look for The C & E on Steroids!, along with the DVD training video kit, available in early May, only on CloudedTitles.com!

Sniper training at your fingertips!

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