Tag Archives: Fair Debt Collection Practices Act

DO YOU HAVE SELECT PORTFOLIO SERVICING AS A SERVICER? READ THIS!

(BREAKING NEWS, OP-ED) — The author posts this for your educational purposes only and information sharing about a class action lawsuit that was filed against SPS for alleged violations of the Fair Debt Collection Practices Act (FDCPA).

Frankly, this is one of the better lawsuits I’ve seen filed.  A great example of good lawyering … now let’s hope it goes somewhere besides File 13.

Fleming v SPS Inc, U.S. N.D. ILL No 1-19-cv-08487 (Dec 30, 2019)

While this was just shared through the Academia website, it should be noted that anyone that claimed SPS in bankruptcy proceedings may be eligible to be a part of the putative class.  Read for further illumination as to whether you’re a candidate.

In the meantime, we are putting together materials for the upcoming Foreclosure Defense 1o1 Workshop, which will be held online (on a Saturday) late in October.  More details are forthcoming.  Interested in attending the webinar, email us at cloudedtitles@gmail.com for a Registration Form.

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LSF9 GETS CHUCKED ON PROCEDURE … PLUS BONUS CASES AND EVICTION NEWS!

(BREAKING NEWS, OP-ED) — The author posts two new cases this month worthy of your attention, as most homeowners contemplating foreclosure defense should understand that perseverance and attentiveness can win out.  None of the information discussed here should be considered legal advice nor guarantee any legal outcome.  It is for your educational benefit, given that the foreclosure and eviction moratoriums are being lifted across the country soon.

JUNK LOAN POOL AND ITS TRUSTEE GET TOSSED IN MAINE CASE

Due to multiple errors in civil procedure, the Maine Supreme Judicial Court has affirmed the judgment of the lower courts that LSF9 Master Participation Trust, the infamous junk pool run by the minions at Caliber Home Loans, acting under the orders of U.S. Bank who claims to be the loan pool’s “trustee”, had no standing to proceed against a Maine homeowner (James D. Keefe) in a foreclosure action.  Because this junk debt pool (of allegedly defaulted loans) generally misrepresents the fact they’re a true REMIC, the author refers to them as the LSF9 Masturbatory Participation Trust.

READ THE CASE HERE: US Bank Trust NA v Keefe, 2020 ME 104 (Aug 13, 2020)

The first apparent mistake U.S. Bank’s attorneys made (if you can believe U.S. Bank actually retained the attorneys in the first place … probably NOT) is relying on an erroneous fee figure published in the Maine Judicial Branch materials, remitted an insufficient filing fee with its notice of appeal in trying to reverse the lower court’s judgment in favor of Keefe.   Because the court Clerk refused to accept the filing, procedurally, when the attorneys figured out they’d screwed up, they failed to file a motion to the trial court seeking an extension of time to file the appeal and thus, their filing was outside the 21-day window for filing the appeal.

This is a key reason WHY it’s so important to focus on what just what you’re doing, but what the other side ISN’T DOING.  If you’re going to win a case, you have to pay attention to the bigger picture, which operates much like a chess game.  Plan on the other side’s arrogance in attempting to ballyhoo the court with bullshit and file documents out of time, thinking it can get away with a simple apology while asking the court’s indulgence to let the foreclosure appeal proceed.  You can bet if it was on you to adhere to the filing deadlines, your opponent would hold you to it. Turnabout is fair play.  This 6-page case talks all about the rules of appellate procedure, which you have to study (in your case) and be prepared to act on, just as you would if the foreclosure filing in the lower court was insufficient.

Lesson learned …

Examine what the other side has done in filing a foreclosure action against you, starting with the chain of title and moving forward through the rules of civil procedure, which includes how much of a fee was paid to file.  Also look to see if the document (deed of trust or mortgage) they’re trying to enforce was legitimately recorded (meaning all of the required transfer and intangibles taxes were paid at the time of recording), because THAT ANGLE has also been tried in the courts successfully (in failing to pay the required taxes, rendering the document void because the taxes were somehow NOT paid at the time of recording).

BONUS CASE #1:

The debacle over student loans continues to play out in the courts with this latest precedential ruling out of the U.S. Third Circuit Court of Appeals:

READ THE CASE HERE: In re Natl Collegiate Student Loan Trusts, 3rd App Cir No 18-3327 (Aug 19, 2020)

As the Court explains in a “Reader’s Digest” view, it becomes easy to understand HOW student loans are securitized.  What?  You didn’t know that student loans are securitized?  Geez.  I thought you did.  For those in the know, so are car loans, credit cards … everything but the weather can be securitized as long as investors are willing to take a gamble.   Before you get too excited, read the last paragraph (on Page 6) before you get to the Factual Background.  Notice the court made reference to “self-dealing”?   This is probably the BEST CASE (in the author’s humble non-lawyer opinion) to cut your teeth on how student loans are securitized and how to spot the flaws in the debt collection processes.

BONUS CASE #2: 

And just when you thought that U. S. District Court judges deemed themselves infallible (again) by ruling against Plaintiffs in FDCPA cases … think again.  This case is all about “DEFINITIONS” in contract law:

READ THE CASE HERE: Calogero et al v Shows, Cali & Walsh et al, 5th App Cir No 19-30558 (Aug 17, 2020)

This case further demonstrates the bias in the lower federal district courts and why appeals are necessary.  For those trying to cut their teeth on HOW the Fair Debt Collection Practices Act operates, look at the definitions within the statute itself and understand that ALL definitions apply, including what defines a “transaction”, a “contract”, an “obligation” … and a “debt”. You’ll find most of the “red meat” in the “Discussion” section.  And weirdly, this case revolves around a scenario arising out of Hurricanes Katrina and Rita in 2005!  While upfront, the case looks like it favors the Plaintiff, look more at the Definitions as a learning curve.

AND IN OTHER NEWS … 

The eviction moratorium has ended in California, post-lawsuit! 

READ THE STORY HERE: (hat tip to “Epoch Times”)

Sadly, many tenants are now going to be facing “UD” (unlawful detainer) actions.  No more free rent.  No more “entitled living”.  But, but, but …

This means the courts are going to be jammed with thousands of cases and judges are going to be quickly moving things along to clear their dockets.  This is a dangerous issue especially if everything operates virtually over Zoom or some other device that makes it difficult to get a word in edgewise.  If it’s a foreclosure issue, you have to be especially careful of the documents that were recorded in the land records and how you posture your response to the pleadings.  In California, you can attempt to demur the Plaintiff’s pleadings if you can show there’s no basis in fact for the eviction, based on evidence you’ve uncovered with suspect public record documents. The Courts may ignore you too.  This of course will probably only apply to roughly 3% of those who care to do their research.  Like the foreclosure crisis of 2008, the other 97% will just cut and run like they did when the foreclosures began.  It is unknown HOW MANY detainer actions are going to clog the Courts in California yet.

Let the games begin.

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LESSONS LEARNED … INTER ALIA

(BREAKING NEWS — OP-ED) — The poster of this blog is not an attorney and thus, the items proffered on this post should be taken in context as court rulings and should be further interpreted by bar-licensed attorneys (past the point of your personal discretion).  The commentary posted here is not legal advice but is for your educational value only. 

The month of March certainly roared in like a lion when it comes to court cases.  There are 3 of them which are integral to learning about foreclosure defense as to the “what to do” and “what not to do”, or in the alternative, what to “take away” from the herein discussed cases versus “what is irrelevant” and unimportant in them.

FEDERAL CASE: FDCPA

The attached case is a precedent setter out of the Third U.S. Circuit Court of Appeals:

Riccio et al v Sentry Credit Inc, 3rd App Cir No 18-1463 (Mar 30, 2020)_Precedential

If anything could work to your benefit, the Appellant’s attorney’s contact information is listed within the ruling.  This case involves abusive debt collection practices prohibited under the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq.

This case appears to work to your advantage in the event some snarky foreclosure mill lawyer attempts to remove your case from state court to federal court, which allows you to amend your declaratory relief action to include “debt validation” because this case smacks in that direction, the requirements of a validation notice under the Act.  The questions in this case concerns whether “oral disputes” are also covered under the Act.

This is one of the key reasons I keep telling people, when it comes to debt collectors, you can’t take phone calls into court … or can you?

15 U.S.C. § 1692g(b) specifically demands that the debt collector needs to be notified “in writing” within the 30-day dispute period, demanding validation of the debt. This is the very issue that the Third Appellate Court appears to have considered.

This case clearly involves a third-party debt collector, whom we all hate, right?  Because the defendant (Sentry Credit, Inc.) (a.) was out of state; and (b.) involved a federal question (FDCPA), this case definitely belonged in federal district court (see my book FDCPA, Debt Collection and Foreclosures for further explanation).

The thing is … the defendant did indeed require a response from the Plaintiff in writing; however, it also provided her with “multiple options”, including calling them on the phone.  Debt collectors just love it when you call them because they can use their “power over” tactics on you to verbally beat you into submission and get you to pay.  This is why I’ve always said, “put it in writing”, no matter what.

Page 10 of this ruling clearly indicates the Court deemed that “intra-section variation strongly signals that § 1692g permits oral disputes.”   Page 11 also indicates that if you call up and dispute the validity of the debt, without putting it in writing, the debt collector can continue its collection efforts. Putting the dispute in writing (and sending it certified mail, return receipt requested) puts the debt collector on official notice and starts the clock ticking, wherein a response is due immediately.   Pages 12 and 13 bring to bear the “that dog won’t hunt” argument against overreaching in an interpretation of the law to get it to mean what you want it to mean.

Frankly, when debt collectors used to call me … I knew what my rights were and I pinned their ears back with FDCPA and challenged them on everything they said, telling them to “put it in writing” so I have something to take them to court on.  Arguing over the phone is like electricity, the path of least resistance, especially when it comes to enforcing your rights under the law.  There is no easy way out.  If you want debt collectors to do anything, maintaining your right to engage them on the phone is just as good as doing it in right because it saves you time and a stamp … well, now it appears you’re grasping at straws.

More importantly, the Third Circuit didn’t want to upstage Congressional intent when it wrote the language into the law by attempting to “correct a congressional error” and make its own law out of what Congress intended, thus “rescuing Congress from its drafting errors”.

Even more importantly, the Third Circuit also delineated the difference between a “panel ruling” and the effectiveness and superior trait of an “en banc” ruling (the entire appellate court).  It’s important to really get into those pages (18-21) and the discussion involving the differences in opinions (a real educational plus).  Stare decisis is also covered within this discussion, which, if nothing more, is good in of itself for educational enlightenment. Not only that, the Third Circuit overturned one of its previous decisions as to “oral disputes” based on the lack of FDCPA language!

In issuing the ruling, the Third Circuit clearly made it plain and simple that if you want the FDCPA to work in your favor with “no legal impediments” … then stop being lazy, quit arguing with the debt collector over the phone … and put your demands in writing so the law will firmly support you when you file an FDCPA suit!

INVESTOR WINS HOA FORECLOSURE SALE SUIT IN NEVADA!  

There’s no doubt that homeowners associations wield a lot of power.  In some states, like Nevada, after a period of time with no challenge, the parties purchasing HOA-foreclosed properties can wipe out a debt without it being considered “super priority” lien status.  Such was the case here:

Berberich v Bank of America et al, 136 Nev 10 (Mar 26, 2020)

I just love the way the Nevada Supreme Court writes its opinions … short and sweet and easy to understand.  Thus, I’m not going to be verbose here.  What this boils down to is why we have appellate and supreme courts … district court judges are always “looking out for the banks” and have a tendency to “err on the side of … ”  (I didn’t say “caution”).

What this all boils down to is chain of title.  The possessor of the property held it in title for nearly 6-1/2 years and sought declaratory relief to extinguish the deed of trust which secured a prior owner’s mortgage (if you need a full-blown course on cancellation and expungement actions, you can get it HERE!) loan.

The Plaintiff even sued MERS (which I wouldn’t have done … but) because it was a MERS-originated deed of trust.  Bank of America, N.A., which appears to have little regard for quiet title actions, especially when it comes to their alleged “skin in the game”, argued the Plaintiff’s complaint was untimely.  The Plaintiff filed a motion for summary judgment (meaning no triable issues of fact) and the District Court (looking out for the banks like these judges always do), ruled against the Plaintiff, who timely appealed.  Like the previous case I discussed here … again, relevance to prior case law comes up as to actions to quiet title and considering the statute’s “plain meaning”.  The importance of the plain language is clearly clarified in this ruling:

“Now taking a closer look at the statutes plain language, we clarify that the limitations period provided by NRS 11.080 only starts to run when the plaintiff has been deprived of ownership or possession of the property.

Thus, considering the statutory text as a whole, we conclude the limitations period in NRS 11.080 does not run against a plaintiff seeking to quiet title while still seized or possessed of the property.4 See Kerr, 74 Nev. at 272-73, 329 P.2d at 281 (indicating in dicta that NRS 11.080 did not apply where the plaintiff was in joint possession of the property “up to the very time when he commenced his action” to set aside a deed based on fraud and failure of consideration).

Consistent with this understanding of NRS 11.080, the limitations period is triggered when the plaintiff is ejected from the property or has had the validity or legality of his or her ownership orpossession of the property called into question. See, e.g., Salazar v. Thomas, 186 Cal. Rptr. 3d 689, 695 (Ct. App. 2015) (discussing the general rule in California, which has a statute almost identical to NRS 11.080, see Cal. Civ. Proc. Code § 318, that “whether a statute of limitations bars an action to quiet title may turn on whether the plaintiff is in undisturbed possession of the lane (quoting Mayer v. L&B Real Estate, 185 P.3d 43, 46 (Cal. 2008))).

“[M] ere notice of an adverse claim is not enough to commence the owner’s statute of limitations.”

Thus, Nevada’s highest court found that the statute does not bar a property owner who is in possession of a piece of property from bringing a quiet title action; however, the statute of limitations begins to run once the owner has notice of disturbed possession.  Since that wasn’t established (as to disturbed possession), the en banc high court reversed and remanded the case back to the district court with instructions!

U.S. BANK SCREWS MAINE HOMEOWNER … BUT WERE ALL THE DUCKS IN A ROW?

The State of Maine’s Supreme Court has come out with some pretty damning case law against the banks, especially when MERS is involved.  I will cite the most important “take aways” from this case and also get into the real “red meat” that appeared to have been missed.  Read the case first:

US Bank NA v Gordon, 2020 ME 33 (Mar 17, 2020)

First, since a REMIC was involved, no one bothered to question whether the assignment was bogus. No one questioned as to whether the appellant-homeowner was really in default, as there is enough language out there (in the mortgage loan community) to indicate that on the 25th day (or so) of every month, the servicer makes advance payments to the investors through the Trustee.  So then, the question becomes, who was harmed?  The borrower didn’t have a contract with the servicer.

No one bothered to challenge the endorsement either. As always is a precursor in the First Circuit, most court cases discuss MERS “nominee” status in the recording of the mortgage (as if MERS has some glorious, all-powerful rights vested in it because it’s an “agent”).  It also appears that the servicer may have executed a phony “ratification of assignment”, which memorialized the previous 2009 assignment.  This of course, happened RIGHT BEFORE foreclosure proceedings were commenced.  The Borrower of course, challenged standing based on his claim that the ratification was “inadmissible hearsay” and that even if admissible, it was insufficient to prove U.S. Bank’s ownership interest in the mortgage.

Page 3 clearly explains the effects of a recorded document under subheading “A”.  Not once did I see (and you can fact check me if you want to) an attempt to do a C&E on either the assignment or the ratification that was used to give more “legal effect” to the first bogus act (in 2009).  Gordon had plenty of opportunity to challenge the validity of these documents under M.R.S. Title 17A, Ch. 29. Nor did Gordon attempt to destroy the validity of these documents by civilly putting forth a cause of action under the Maine Unfair Trade Practices Act (Title 5 §§ 207 and 213). Maine has existing case law that allows for documents to be challenged, cancelled and expunged … Abbott v. Treat, 78 ME 121 (1886) … and that is an OLD, WELL-ESTABLISHED CASE!

Once these two documents were challenged, Greenleaf and Saunders, Maine’s two infamous anti-MERS cases, could have then come into play here.

In other words, you can’t create and record one phony document to give the first phony document more legal force and effect when the first phony document was full of false and misrepresentative statements (constituting perjury on the land record).

There was no discussion on the authority of the MERS (potential) “robosigner” on the first 2009 assignment of mortgage.  Despite all of the colorful “resolutions” that MERS puts out into the marketplace in an attempt to give its “agency” status some sort of God-complex-like authority, its “Certifying Officers” have to have a fidelity bond and an errors and omissions insurance policy, naming them as insured.  Lacking this, the signers lack authority to do anything, except to go into a closet and play with themselves.

It also further appears that Gordon had a “legal aid” attorney representing him, which is another reason the attorney probably wasn’t aware of document challenges, which this case appears to have been totally ripe for challenging.  This ruling came out on St. Patrick’s Day … definitely NOT the pot of gold at the end of the rainbow.

INTER ALIA … (the Latin term for “among other things”) …

There are other valuable lessons we’re learned through time and that is how the United States (and its individual states) respond to a crisis … like the crisis we’re currently facing.  Despite the fact that this coronavirus has not taken the toll of the Swine Flu, the Avian Flu or most certainly the Spanish Flu, it still shows us that our medical response-ability in this country is sorely lacking.

In Florida, 170 people are now dead as of the 6:00 p.m. count, with 1,334 admitted to hospitals (figure a 50% mortality rate) and 10,268 total cases opened of which 9,925 have tested positive for COVID-19 (figure a 30-40% mortality rate), so we’re looking at over 1,000 dead (just in Florida) before this is all over and we’ve not hit our “apex” yet.  There’s no flattening of any curve (and certainly not our tummies from all of the unhealthy junk food we’ll be consuming the next 30 days) any time soon.  This 30-40% of the cases reported at present (up to 3,200) are at risk of expiring on a ventilator, that they may not get to be put onto because we lack them too.  So now I’m projecting our death toll at well into the thousands before this ends.  The U.S. toll will be much worse, especially in areas of dense populations (Detroit, New Orleans, Chicago, Miami) because … well … that’s just the way things are among the “entitled”. 

The State of Florida goes into a “safer-at-home” mode statewide as of midnight tonight (the 2nd). That does not however mean, that Floridians are going to absolutely “heed” the warnings and stay put.  They’re too used to partying.  I mean, with many in the Sunshine State claiming “retired status”, what else is there to do besides having back yard parties, formal and informal get togethers, golf and boating outings, fishing excursions and hanging out in bars listening to live music, getting hammered on happy hour pricing … along with going out to eat  … Floridians’ favorite pastime and going shopping.

It was obvious we didn’t learn the meaning of social distancing, so the “nanny state” has to kick in and do its thing to remind us we need to be more responsible to each other if we’re going to continue to survive, even in the future as to further pandemics.  And I’ll concede here the Governor’s order was late in coming, but will it have any real impact if peoples’ attitudes remain the same (as if the order hadn’t come at all)?  I’m not faulting the Governor’s delayed reactions.  None of us were prepared for this eventuality and we should have been.

We still lack masks, gowns and respirators.  We still lack toilet paper (because someone out there is wiping their ass a 1,000 times a day) due to hoarding, as well as hand sanitizer (despite reports that it may not be that “sanitary” to use as a foolproof guard (like Lysol) for NOT killing the coronavirus.

I am going to go to the store and buy one bar of Castille Soap (x 4 for 4 bathrooms in my house) and no more, so that I am sure when I wash my hands, ALL of the germs are getting wiped out, as there are questions of whether the “antibacterial” soap, which is supposed to get rid of “bacteria”, which viruses are NOT, is as effective as “they” say.

Among other things, join R.J. Malloy and me on City Spotlight-Special Edition on WKDW-FM this coming Monday at 2 P.M. EDT … click HERE to get online and then click LISTEN NOW to join the broadcast (at 4 minutes past the hour).

Stay safe and stay healthy (I’m still doing the Allimax thing and I’m feeling great! allimax.us).

A BIT DISCONCERTING UPDATE … 

Stuff has been circulating about that is a bit inflammatory and disconcerting as to some folks’ deep-seated feelings about Americans (click the photo to enlarge it and click the back button to return to the article):

I can safely say that not all of the Chinese feel this way. There is a certain segment of any population that has deep-seated resentment for someone or some group of people. Take for instance, the polarization that has occurred within the two-party system in this country. Why does it occur?  Because the media and the political pundits have been successful in pushing peoples’ hot buttons. It has forced societal upheaval that will compound the issues surrounding this pandemic.

I have not heard the latest socio-economic data on the “end result” this pandemic could have on America, but if people do not become united in the effort to “stay at home” and slow down the spread of COVID-19, this pandemic will take more lives than the Civil War (1861-65) did.  For those feeling “entitled” … you are “entitled” to your opinion … and you are “entitled” to stay home and be safe as well.  Again, the larger the population center, the more likely the spread of the virus because people feel the need to be around other people.

“Gee, I just found out I have the coronavirus.  I think I’ll go visit Grandma and give it to her. Then I’ll go visit my sister and give it to her and her kids. Then I’ll go to the local shopping mall and cough all over the place and give it to as many people as I can, because I have little regard for anyone else’s life if I’m on my way out the door!”

The foregoing paragraph may sound sarcastic; however, history has shown us that there are people out there in society who behave this way.  Bottom line … if you treat the situation as that everyone you know has it … you are only safe at home.  Like Dorothy said when she clicked her heels together 3 times … “There’s no place like home.”

 

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FDCPA CAN STILL APPLY TO NON-JUDICIAL FORECLOSURES!

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

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

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

What Congress intended … 

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

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

If you have a case … you have a case … 

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

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

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

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

Champagne budget … Beer Belly Pocketbook! 

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

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

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

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AN EXAMPLE OF HOW A C & E FITS INTO THE SYSTEM OF THINGS!

(NOT-SO-BREAKING-NEWS — OP-ED) — The poster of this blog is NOT an attorney; however, he works with attorneys to achieve positive results in creating potential legal scenarios that could stop foreclosures dead in their tracks! 

There are times when the legal system “pats itself on the back” and times when it pauses to reflect on past issues.  The party discussed in this case happens to be one Jorge Porter, a gentleman I was introduced to long ago by the late Coral Gables, Florida foreclosure defense attorney John Herrera, who sadly passed away long before his time.   It never ceases to amaze me that “the system of things” that runs the legal profession and the manner in which case law is established and made available to the public comes at a time when it’s convenient for the banking industry and not for consumers.

Such is the case here, where it’s taken several months for a Third DCA Florida case to reveal itself:

CitiMortgage, Inc v Jorge Porter et al, 3D17-2469 (Dec 19, 2018)

Bogus documents?  You bet!  Suspect criminal behavior?  You bet.  The Appellate Court even used the term “criminal” in its ruling!   There are some great Florida cases cited in this ruling, which reflect on past cases where fraudulent documents were introduced into the case, relied upon, to the detriment of the parties bringing these suspect documents into court!

Then surprisingly, months later, the legal profession decided to approach this subject matter, with a blog posting:

Lexology Article on Porter Case (Mar 21, 2019)

When one reads the court’s order … and then reads the Lexology post, it pins the misbehavior directly on the borrower, Jorge Porter!  This also goes to show you that “two wrongs don’t make a right”!  Filing administrative crap in the land records like Deeds of Reconveyance, Substitutions of Trustee, Satisfactions of Mortgage, Land Patents, U.C.C.-1 Financing Statements and the like is NOT the way to solve your problems if you’re facing foreclosure or even default.  Because the Florida Third DCA pointed it out, the appellates did it for a reason.  You cannot file bogus crap in the land records to defeat a lien interest yourself!  We have a process to legally deal with the system of things when bogus documents are suspect.

It’s called a cancellation and expungement action (C & E)!

We wrote a book about it (see below).  No one else has done this because no one has really come up with any viable solution to challenge these documents even though state statutes allow for it.  Not only that, we’ve figured out a way to “make it personal”, which means we’ve figured out a way to by-pass the Fair Debt Collection Practices Act and go after the lawyers, document mills, notaries and title companies who caused this bogus crap to be recorded in the land records in the first place!  All one has to do is go searching in the land records for assignments and I will prove my point 9 times out of 10!   You see, the recent Obduskey decision by the United States Supreme Court doesn’t address ethical violations committed by attorneys for the banks when they rely on bogus, criminally-conspired-and-drafted, fraudulently-recorded documents!  The Obduskey case also does NOT protect the robosigners and notaries whose names appear on these fraudulent documents!

Thus, California attorney Al West and I put together an intensive, two-day class to educate you as to HOW a C & E action is created, researched, analyzed, drafted, filed and executed on!

I’ve blogged about it before, but this case just got under my craw (Jorge Porter should have known better) and I had to share it because when “something is rotten in Denmark” and there are 500-million-plus suspect bogus documents in the land records THAT ARE STILL THERE and STILL CONTINUE TO BE THERE, even AFTER the foreclosure has taken place (some are actually recorded AFTER the foreclosure has taken place … by the very banks doing the foreclosing) … don’t you think you owe it to yourself to research what the “mongoose is to the snake”?

DETAILS ON THE WORKSHOP:

The host hotel has extended the registration deadline until

Friday, March 29th

for those of you wishing to reserve a sleeping room for the event.

The downloadable forms you need to attend are right here:

 LAS VEGAS FORECLOSURE DEFENSE WORKSHOP INFORMATION

Simply book your sleeping room for this event by clicking on this link:

 http://group.doubletree.com/ForeclosureDefense

We got a really great room rate and FREE breakfast buffet!

FREE airport shuttle service to and from Las Vegas McCarran Airport (LAS)!

Seating is limited! (and we mean “limited”)

We have millionaire investors … attorneys … homeowners in litigation …

trusts and LLCs in litigation … real estate agents and brokers … paralegals …

ALL REGISTERED TO ATTEND!

The best part is … DIRTY DOCUMENTS apply to all their cases!

You can pay for your attendance fees by visiting THIS LINK!

Once you’ve paid your attendance fee, click here:

FDW REGISTRATION FORM_LAS VEGAS_2019

to download your Registration Form!

Fill it out, scan it and email it HERE!

Make sure you pay attention to all pull-down menus and

related cart processing information!

We have a secure website and we do not store cardholder information!

Everyone attending gets handouts and a copy of the brand new book:

You don’t have much time though.  

The date of this workshop is fast approaching! 

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