Tag Archives: foreclosure defense attorneys

GUTTING THE UNDERBELLY OF THE BEAST – PART 7

(OP-ED, first posted: September 18, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

This is one of those sections which describes HOW “the system of things” is supposed to work.  We all know that it doesn’t always work the way it’s supposed to.  As a matter of fact, we know that in most instances, especially involving the prosecution of foreclosures, it hardly works the way it’s supposed to, especially if judges have “an agenda” or are “incentivized” to act in the best interests of the banks.  We simply can’t have the banks collapse now, can we?  It is this kind of fallacy that has screwed up our entire chains of title, as well as our legal system, with bad legislation and bad case law.

What I focus on in this segment is past cases that reflect the way things are supposed to work versus when they don’t.

“UNCLEAN HANDS” VERSUS “FRAUD ON THE COURT”

This is a slippery slope for not only foreclose mill attorneys but also the courts that hear their complaints.  The Appellate Courts of course can only rule on matters of error in the cases presented to them.  They cannot hear the entire case re-litigated again; in fact, they won’t stand for it.  Appellate Courts in Florida for example, especially the 3rd and 4th District Courts of Appeal, are famous for issuing “PCAs”, which basically means they are declining to hear the case and that the lower courts ruling stands as adjudicated.  This is one of the reasons why I bring this subject matter up now, which is due to the inept behavior of some judges in the lower courts to “clear their dockets” in the interest of justice, when in fact, many of these judges are “seniors”, already drawing a pension, that have nothing to lose by kicking you to the curb.  This is a serious false assumption on their part (the senior judges).  I don’t care whether these judges are drawing a pension or not … they are not protected by sovereign immunity (and neither is the county that they are acting as an employee of, within the course and scope of ruling on foreclosure cases), when they step “outside of the box” and appear as an accessory to something more sinister.  Sovereign immunity does not necessarily go away if an error is made.  However, if the court gets notice of statutory and ethical violations and does nothing to stop it, sovereign immunity goes away and liability for some sort of “wrong” kicks in.  Yet, no one is addressing this part of “the system of things” when in fact, it should rightfully be addressed and properly dealt with to the fullest extent of the law.

For the purposes of arguendo here, I focus on the state courts as well as the bankruptcy courts, because this is not something that can really apply to the extent that one would think in the federal court system because the federal judges are appointed for life.  One attorney in Hawaii, Gary Victor Dubin, has likened being in federal court to committing suicide.  I find no solace in federal court, given the dismal number of foreclosure cases successfully defended while bankrupting the debtors (borrowers of mortgage loans) who all came into the federal system seeking to “delay the inevitable”.  Only an egregious act by the bank would warrant sanctions and there is no singular case that I can reflect on in a U.S. District Court wherein the judge superbly did “the right thing” the first time, without having to be reprimanded for his abusive rulings by the Appellate Court.  Besides, federal courts do not like pro se litigants, as we discussed earlier.  So why are you thinking federal court?   While the FDCPA and FCRA take up a lot of the consumer-oriented litigation, it is safe to assume that these are mostly initiated in class-action form.

STATE COURT ACTIONS

JPMorgan Chase Bank NA v Pocopanni et al, 4th Jud Cir Ct No 16-2008CA-3989

In the foregoing case, the Hon. Jean Johnson did the right thing by calling the bank attorney’s behavior what it was … fraud on the court by Chase and Shapiro & Fishman.

US Bank NA v Harpster, Pasco Co Cir Ct No 51-2007-CA-6684 (Mar 25, 2010)

US Bank’s lawyers could not stand up to the scrutiny of an Affidavit submitted by the bonding company for Terry Rice, the employee who was notarizing documents within the David J. Stern law firm without having a valid commission by the Floria Secretary of State.  The documents he notarized would come back to haunt him years later in another case in Pinellas County, Florida.

M&T Bank v Lisa D. Smith, St. Johns County, FL No CA09-0418

This case was submitted by Attorney Lynn Szymoniak in her review of dozens of cases where fraud on the court was met by Circuit Judge J. Michael Traynor’s Order of an evidentiary hearing with overtones of sanctions for not one, but three separate violations of behavior by the then-Marshall C. Watson law firm.  The outcome is shown below:

M & T Bank v Smith_Order (Jun 10, 2010)

This is significant because Judge Traynor quoted Rule 4-3.3(a)(1) of the Rules Regulating the Florida Bar … “a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”  (Dismissed with prejudice!)

OneWest Bank FSB v Drayton, 2010 NY Slip Op 20429, Sup Ct Kings County (Oct 21, 2010)

The late judge Arthur Schack had seen enough banking malarkey to last him a lifetime, calling out robosigner Erica A. Johnson-Seck and demanding an affidavit under oath of her employment history for the past three years and why a conflict of interest doesn’t exit in this case involving being a signer for MERS, a VP of IndyMac Bank and a VP of OneWest Bank, all in one felled swoop, warning the bank’s counsel that: “… the new standard Court affirmation form states that “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.”

BANKRUPTCY COURT ACTIONS

Sadly, homeowners are put between a rock and a hard place when it comes to phony assignments.  Rather than believe the state court would entertain motions for fraud, which most homeowner litigants come running into court screaming, they think that filing bankruptcy will stop their foreclosure.  One thing is for certain, whether the homeowner wins or not, bankruptcy court judges especially do NOT like to be lied to or have facts that are fraudulent or misleading proffered into evidence, as you shall see below in three different cases.

In re Taylor_US Bkpt Ct E.D. Penn No 07-15385-DWS (Apr 15, 2009)

This Pennsylvania bankruptcy case revealed that Fidelity (LPS) had (at that time) 39 of the 50 major banking institutions’ business in formulating documents for bringing foreclosures against homeowners (and just when you thought title companies only handled closings).  Further, the Udren Law Firm got whacked for sanctions under Rule 9011 for attempting to “hide behind” LPS’s NewTrak computer system in processing HSBC’s proof of claim.  While this is a rather lengthy opinion, the conclusion is clear!

In Re Tarantola, US Bkpt Ct D. Ariz No 4-09-bk-09703 (Jul 29, 2010)

If anything can be more blatant, Judge Eileen Hollowell is not one to f**k with.  In one of several Memorandum Decisions, this case really “takes the cake” in the “movant filed its motion without evidentiary support of its claims, attempted to create such evidentiary support after the fact, and only disclosed its “real” evidence on the day of the final evidentiary hearing.” (Relief from stay DENIED!)  My understanding is that the court was packed with attorneys who got to witness Deutsche Bank’s counsel literally attempt to backpedal when cornered.  The judge had the goods on them (and their lawyers)!   I’m surprised that “the system of things” didn’t go further than it did and take them out of practice permanently.  Sadly, McCarthy-Holthus (or some form of them) still exists; however, Brice, Vander Linden * Wernick, PC dissolved right after they became aware of their repeated “mentions” for illicit behavior in the Williamson County Real Property Records Audit in January of 2013.  None of these attorneys were ever brought up on charges before their respective state bars and their E & O insurance policies still apparently exist.  In my book, Judge Hollowell was being too kind.

In re Wilson_Show Cause Order, US Bkpt Ct E.D. La. No 11862 (Apr 4, 2012)

IN RE WILSON_LOUISIANA BK13_MOTION FOR SANCTIONS

Again, in the foregoing case, Fidelity and the Boles Law Firm got waylaid by Judge Elizabeth Magner, who tagged Wells Fargo Bank with a $1.3-million sanction (because the loss of money is the only thing that seems to get a bank’s attention).  This case also illustrates how the major title companies are no friend of the homeowner.  Title companies have to answer to state authorities (State Insurance Commissioners) too!  Do you see where “the system of things” is going with this?

I realize I’m giving you a lot of reading to do in the foregoing scenarios … but I’m trying to illustrate how “the system of things” is supposed to work when the bank, through its attorneys, rely on phony documents that are manufactured to create standing to steal a home.

FORECLOSURE DEFENSE ATTORNEYS ARE SCARED OF THE JUDGE!  BOO!  (… and the attorney shits his shorts!) 

I wrote in the 40-page piece (in which the expert witness attorney concurred) that foreclosure defense attorneys face a real dilemma.  Like many foreclosure mill attorneys, they all have student loan debt into the tens, maybe even hundreds of thousands of dollars.  They got a 4-year degree in addition to 3+ years of law school, had to study and then sit for the state bar exam and face moral turpitude scrutiny in order to get a license to practice law from the state (what the state giveth, the state can taketh away)!

It’s no wonder they’re all scared.  They don’t want to face sanctions.  They want to be a friend to everybody, including the other side’s lawyers that are trying to steal their clients’ homes.  No attorney has the set of cajones to stand up to these shysters unless they have a snoot-full of evidence that can conclusively prove that the other side has come to court with unclean hands.  Which brings me to the HSBC v. Buset case:

HSBC Bank USA NA v Buset_Final Order Granting Mtn for Involuntary Dismis…

HSBC Bank USA NA et al v Buset et al, 3D16-1383 (Feb 7, 2018)

Sadly, Florida’s 3rd DCA reversed Judge Butchko’s ruling, to which Buset’s attorney, Bruce Jacobs told me, “This is war!”  (in other words, “this ain’t over yet”).

Part of the problem might be that the expert witness in this case was NOT an attorney with the capability of reporting the fraudulent and misrepresentative assignments to the Florida Bar.  Attacking an appellate court is virtually unheard of … that is, until we find out who cuts their paychecks and who bonds them.  Every judge is supposed to be bonded, even the senior “fossils” brought out of mothballs that have no problem throwing homeowners out of their homes because they can, without retribution (or so they think).  If the judge commits an illegal act, not only can he be removed from the bench, the county he serves as a judicial officer in can be held liable in certain cases!

We are not asking the homeowner’s attorney to stand up and be counted (challenging the other side’s credibility, screaming “fraud on the court”, etc.).  We let the expert witness attorney do that.  The bank’s lawyer has every opportunity to recant his testimony in both his pleadings and in his oral statements.  If he refuses to do so, then he can pay the price.  We just want the homeowner’s attorney to get the expert witness attorney on the stand and ask him a series of questions.  In other words, we just want the attorney for the homeowner to do his job!

In previous posts of this nature, we talked about the insurance factor.  The direct frauds promulgated by these law firms could have resulted in attacks against their E & O policies, but didn’t.  Any judge who didn’t do the right thing in running a proper tribunal could have faced a judicial review board and lost his bond because it would have been “attacked” and challenged as well.  If a law firm doesn’t get payment for legal fees when its lawyers face the music before their respective bar disciplinary panels, then they have to come up with that money out of their own pockets, which while not being a benefit to the homeowner, it is a bitter detriment to the lawyer, who now has to think about how he’s going to pay off that big student loan debt he’s got in addition to $10-$20K in legal fees incurred as the result of his disciplinary proceeding!

The judge who can’t “do the right thing” represents the county government’s judicial process and has the privilege of sovereign immunity, UNLESS he condones felony behavior in his court.  Then his sovereign immunity can not only be at risk, the county’s general treasury may be raided to pay for the damage he caused!  How’s THAT for justice!

But wait, there’s more … stay tuned!

 

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 6

(OP-ED, first posted: September 11, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

In my last episode (Part 5) of this series of posts, I talked about risk aversion and the creation of a paper trail.  In this episode, I cover the “why” this becomes necessary.

DOCUMENTATION IN SUPPORT OF A CLAIM

The very first thing I look at (as a title consultant) is the chain of title, especially the warranty or grant deed (proof of ownership), the mortgage (or deed of trust) and any subsequent assignments coming against the chain of title.  All of these documents (in certified form) become the initial evidence in support of any claim I may have against a law firm, a judge or any other party that put that false and misrepresentative information into the public record and then relied on it to steal my property.  After all, in judicial states, where I see most of the atrocities committed, the foreclosure mill attorneys are the ones attaching these documents in their pleadings, as exhibits, or in the alternative, making reference to said exhibits, to be used as evidence to support their complaints to justify the foreclosure.

The pleadings themselves (in original or amended form) also become part of the evidence package in support of my claim, because they contain the language that relies on the false and misrepresentative statements where an assignment was posited or referenced therein as evidence in support of their claim.  This package should include every single document placed within the court docket, including the index sheet … certified copies (and 1 plain copy for review). 

You’re probably asking yourself where the promissory note comes into play here, because judicial states mandate you have to have the original note in order to foreclose. In non-judicial states, possession of the note is not required to foreclose; thus, all foreclosures are assumed to be legal unless otherwise challenged.  This means that if you’re in one of the non-judicial states, you have to institute suit based on the chain of title you have, in order to start the paper trail.  Thus, non-judicial state property owners are at a distinct disadvantage because they must spend the money filing a lawsuit to stop the foreclosure and obtain a temporary restraining order (TRO) and they are limited at best as to what is provable and what isn’t because the other side has not responded to the suit.  You can’t make boisterous claims either, as you will be denied the TRO and that is what you’re seeking to shut down the foreclosure sale.   You see, until the other side responds, they’ve created no paper trail you can assert contains false and misrepresentative statements, which is why I like using a C & E (an acronym for Cancellation & Expungement Complaint) “right out of the gate” if I realize I might not be able to make my mortgage loan payments any more.  Waiting until the 11th hour to file one of these Complaints (in of itself) has been definitely proven to be a waste of time and financial resources.  Filing a wrongful foreclosure action (before the fact) is also a waste of time and financial resources because the foreclosure has not occurred yet (and this is supported by case law).  I mention all of this because your research becomes fundamental as part of creating the paper trail.

Any oral statements made in court have to be supported by some sort of record.  This is why we have court reporters.  Most pro se litigants and uneducated homeowners conveniently forget to retain a court reporter to document everything said in open court to their disadvantage. This means that with no court record, there’s nothing to take up on appeal or challenge because you’ve “stiffed” yourself out of a paper trail.  Besides, having a court reporter has been shown to keep the judge honest.  Don’t think that just because the county can afford to have its own court reporter there means you can simply rely on getting a copy of the transcript from the county’s court reporter.  They are backlogged with work and will take their time getting anything to you, at a time when having a transcript of the proceedings might be timely necessary.  This always works to the homeowner’s disadvantage.  That is deliberate!  Why?  Because the county is using its own court reporter to “cover its own ass” and you can bet stuff will be left out of the record.  Then it’s your word against the county’s.  So, tis better to get your own court reporter!  You need to create your own “timely paper trail” for future use and reference.  This is not a traffic ticket we’re talking about here!

Discovery is vital whether or not you are doing a C & E (which allows you to do discovery of the party executing the assignment and the notary who acknowledged the assignment) or a full-blown complaint to stop the foreclosure.  Discovery responses becomes part of your evidence package … and the “paper trail”!  If you don’t propound discovery on the other side or at least the relevant parties (the ones who created the assignment), you’re on a sinking ship.  All of the discovery (and the responses you get) become part of the paper trail.

Depositions are a must!  These are taken using a court reporter who writes down every single word that is spoken and many of them use video cameras (which is allowed) to take taped statements, which is even more intimidating.  I find that going after the creator of the document, the executor of the document and the notary who acknowledged the document are vital to creating a proper paper trail (not so much the creator of the document, unless you’re trying to solidify that the law firm or servicer was involved in a civil conspiracy with the agents who executed the assignment).  You’re only talking a minimum of TWO DEPOSITIONS here … the executor of the assignment and the notary who acknowledged it.  What authority did they have to execute the document?  Where is the notary’s bond?  Is there even a bond?  Can we attack the notary’s commission even though there is no bonding requirement?  YOU BET!  Attacking a notary’s bond (if there is one to go after) can be a source of cash flow to support your court fight. You can bet the other side will object to everything you ask for because they don’t want anything said on the record that can be used against them in court.

In all matters related to your case, PHONE CALLS DO NOT WORK!  You cannot take phone calls into court!  DO NOT CALL THE NOTARY!  Do not contact the notary by mail!  If you’re sending them a subpoena to appear at a deposition … their deposition … you do it through a process server … which is also a legitimate part of your paper trail!   I have people who have contacted me who do exactly what I just suggested NOT TO DO.  They scare the notary into hiding.  When it does come time to serve them with a subpoena, they can’t be found.  Duh!  And these people actually think they’re doing the right thing?  Seriously?  What part of desperation is incorporated into stupidity?  This is where you have to put your emotions aside and start thinking “common sense”.

THE EXPERT WITNESS AFFIDAVIT AND LIVE COURT TESTIMONY

I’m talking “expert witness attorney” here, not your average forensic loan or securitization auditor (who thinks they’re an expert witness).  Why an attorney for an expert witness?  Allow me to re-arrange your brain’s priorities through the following three reasons:

REASON #1: Litigation Consultant … your expert witness attorney can also serve as a litigation consultant to help you frame some damning discovery centered around statutory violations!  This is important because using the stuff I mentioned previously in The Quiet Title War Manual has nothing to do whether or not you can challenge assignments because you’re not a third-party beneficiary.  That is a bullshit banking argument that has nothing to do with the statute in question!  The statutes speak directly to the recording of documents known to contain false and misrepresentative information!  Separate the two distinctions in your mind because the borrower’s name is in the assignment; the borrower is a party to securitization (if that’s an issue) and because the document involves misrepresentations that may include “MERS” (in whatever form), which claim that Mortgage Electronic Registration Systems, Inc. had something to do with negotiating the instrument (the note), which runs contrary to what’s in the assignment, generally.

REASON #2: Personal Knowledge of the Facts … this happens when the expert witness attorney reviews all of your documents.  He can testify as to their factual basis AND render a legal opinion … BOTH under oath and under penalty of perjury as a lawyer!  This is way different than having a so-called “expert” that’s NOT an attorney testify as to anything factual … they can’t give legal opinions; otherwise, in doing so, their testimony could be impeached or effectively diluted under cross examination. Not only that … because the attorney who serves as your expert witness is sitting in the court (prior to giving his testimony), he actually gleans personal knowledge listening to the other side’s attorney further the false and misrepresentative information to the court … for which the damage is immediate (see In re Wilson, U.S. Bkpt Ct E.D. La No 07-11862, Memorandum of Law in Support of the United States Trustee’s Motion for Sanctions against Lender Processing Services, Inc. and the Boles Law Firm), which says:

“Untruthful statements made in bankruptcy proceedings undermine the integrity of the bankruptcy process. The bankruptcy system relies on the candor and accuracy of information presented by all parties, creditors and debtors alike. To ensure candor before this Court and to protect the integrity of the bankruptcy system, this Court should impose on Fidelity and Boles monetary sanctions and other non-monetary relief as this Court deems appropriate pursuant to its inherent authority to sanction abusive litigants coming before the Court, and pursuant to 11 U.S.C. § 105(a).”  And from the following footnote, No. 16):

“Rule 9011 provides a 20 day “safe harbor” in which a party may withdraw the challenged written representations, unless they are contained in the bankruptcy petition. If the challenged paper is withdrawn, it would not be considered by the court in its decision making process. However, there can be no safe harbor for untruthful statements made in open court, because the harm that results is likely to be immediate.”

(I just told you the Expert Witness Attorney would be there to hear all of the “immediate” misrepresentations.)  This is an actual case where Wells Fargo Bank got hit with a $1.3-million sanction!

This is an attorney, namely, the Bankruptcy Trustee, reporting misconduct! He is telling the other side (through his memorandum, they’ve been given fair warning to recant what they’ve placed into the court record).   If you didn’t catch that so far … let me make sure to clarify this in the following “reason”:

REASON #3: Rule 8.3 – Reporting Professional Misconduct … this is a mandated state bar rule (how many foreclosure defense attorneys actually follow it?)

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

The foregoing mandates (which is what “shall” means, not “may”) are put there to hold attorneys accountable to report misconduct. What forensic loan auditor or securitization auditor is mandated by the Bar’s own rules to to this?  Come on, think?  Where’s the mandate?

(long pause, heavy sigh)  Come up with one yet? Didn’t think so.

This means that when the expert witness comes into personal knowledge of the facts that the other side’s lawyer has committed felony perjury by making false and misrepresentative statements in open court, he has a mandated duty (for which the State Bar must listen) to report the other lawyer’s misconduct!

This also means that if the judge hearing your case doesn’t give a shit and let’s this scumbag attorney for the bank say whatever he wants and get away with it and hands your property over to the bank AFTER your expert witness attorney advises (through a legal opinion) that the other side’s lawyer, in both pleadings and exhibits and oral statements made, has committed misconduct, not only is the judge exposed and now at risk, but the county he is employed by may also be “on the hook”.

At least bankruptcy judges have the decency to “do the right thing”.  I recently noted the results of the Sundquist ruling in California.  Sundquist-Memo-Opinion

A lot of this depends on how “stacked” your paper trail is and what evidence of misconduct you were able to actually PROVE (not just assert).

EXPOSED RISK FACTORS 

BTW, for those of you “Patriots” out there … a majority of the judges’ oaths of office I’ve seen were actually recorded in the public record in the county they serve in!  This is important to recognize the WHY you’d want a certified copy of their oath of office.   THE PAPER TRAIL!   It’s proof he/she (as a judge) is serving IN THAT COUNTY!

Most counties are self-insured.  The county has either a County Executive or Risk Manager who handles their claims because of something an employee did wrong.  Who would think to tag a judge?   After all, aren’t the judges bonded?   What happens if the bond is attacked, challenged and successfully revoked?   The judge can’t sit on the bench, right?  He will probably be placed on administrative leave while the county investigates what happened.  But that’s not all the county has to worry about.

As a result of the trial or hearing (whether it be evidentiary or just one of those 5-minute “rocket docket” style pieces of crap), there are two other complaints that must be reported … a complaint on the lawyer to the State Bar that can discipline him … and a complaint on the judge to the appropriate judicial authority.  More paper trail to show the County … to give them fair warning that they need to step up or face the consequences!

ALL OF THIS HAS TO BE DONE BY THE EXPERT WITNESS ATTORNEY … WHO IS MANDATED TO “PULL THE TRIGGER”!   PRO SE LITIGANTS (who think they know more than the expert witness attorney) WILL ONLY F**K THIS UP IF THEY TRY TO DO IT THEMSELVES (calling into the county or the bar or the judicial review board and whining about their silly little issues, or filing crap judicial misconduct complaints, which is how the major insurance players in this game will view their cheap efforts to avoid having to pay for an expert witness attorney).  I put this part in the back end of this post as a caveat, because it’s the expert witness attorney who has the “big stick of dynamite with the short fuse” … NOT YOU! 

It gets better … stay tuned for another round of insight into the insurance game in the next segment! The title companies are also in this up to their ears (among other places)!

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GUTTING THE UNDERBELLY OF THE BEAST – PART 5

(OP-ED, first posted: September 7, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

Now comes the fun part!

It’s not the punch line … it’s the back end of the set-up!

This is where risk aversion and the filing of claims are twained!

JURISDICTION

When a real estate brokerage, title company, document mill or law firm is created, incorporated or organized by statute (an LLC, an LP, an LLP, a PA, a PC, etc.), these are statutory creatures of the state they are formed, organized or incorporated in.  This means the state has jurisdiction over the  “misbehaviors” of these entities and the agents-representatives-employees who represent them.  Someone has to answer to somebody for something!

In a law firm, there are named partners, of which one of them is a managing partner or supervising attorney.  That person generally is the contact person for not only service of process (can act as the Registered Agent or is in contact with the Registered Agent) but is also the individual that is named as the contact person for the firm’s errors and omissions (“E & O”) insurance.  Law firm E & O insurance costs are hefty, depending on the number of attorneys, partners, etc. to be insured.  It is implied here that each participating attorney has: (1) an education in law; (2) has passed the state bar exam; and (3) has applied for and received a license to practice law in that state for which he or she sat for the state bar in.  Whether the attorney is a novice or a seasoned veteran, each attorney has to pass muster for moral turpitude and character before getting licensed.  The state bars are generally the policing agency responsible for disciplining attorneys when they do something egregious or violate any of the Rules of Professional Conduct.  In short, everyone in the law firm, including the partners and the supervisory attorneys are liable and held responsible by the disciplinary agency that governs their behaviors, namely, the state bar’s disciplinary committee.  These committees are generally off-shoots of the judicial system of things in each state.   The behaviors of lawyers are regulated by the states they practice in, so each state’s Supreme Court decides whether they practice law in their respective states or not.  The supervising attorney is also responsible for the behaviors of all of the “non-lawyers” working in the firm.  The foregoing is a restatement for insurance purposes … we’ll get to that in a moment.

UPL: THE UNAUTHORIZED PRACTICE OF LAW

Each state bar also has an Unauthorized Practice of Law Committee, which generally is an organized group of “henchmen” that investigate matters of relevance when non-lawyers either: (a.) attempt to represent paying clients as attorneys or advocates; and (b.) practice law, which is a statutorily-prescribed and heavily-regulated profession.  Part of the problem with today’s society is that even though attorneys have to go through a lot of schooling and testing and licensing, a lot of the body politic doesn’t trust them.  There have been numerous instances where malpractice has been committed and thus, a lot of attorneys have made a bad name for the profession.  People don’t even trust the profession as a whole, because many state bar associations don’t discipline their misbehaving lawyers enough or to the degree that it satisfies the desires of the body politic.  This is why non-lawyers have jumped into the legal fray.  In real property law, lawyers are tasked with document review to make sure that everything contained within a document is legally sound.  Because of the unveiling of illegitimate processes conducted by servicers and their lackeys in creating phony documents, everyone thinks they know how to read, analyze, interpret and determine various causes of action that will fall right in line with getting a paycheck equal to or better than a practicing lawyer. Promoting oneself as having the ability to review documents and give opinions about what’s in them had better have been followed with “J.D.” and “Esq.” (yes, I know, it’s a title of nobility … let’s not go there!); otherwise, the UPL Committee steps in when they become aware of the practice.  You see, in the legal system, the UPL Committees were set up to protect the paychecks of attorneys and not the paychecks of non-lawyers!  Most non-lawyer violators (for UPL) get ONE warning.  If they keep doing what they were warned ONCE NOT TO DO, then felony charges are filed against them and they are prosecuted to the fullest extent of the law.  The foregoing is a restatement for insurance purposes … we’ll get to that in a moment.

FORECLOSURE COURT JUDGES

This body of “lawyers” have either been elected or appointed to serve on the bench because they have demonstrated the capacity in the understanding of the rules of civil procedure, the rules of criminal procedure, the rules of evidence and generally, the body of law that accompanies the field they serve as judges in.  For the purposes of this article, I focus on the state judges and NOT federal (as they are appointed for life) because state judges are generally elected and thus responsible to voters and constituents alike.  They are also responsible to the county they serve in while on the bench and hold themselves out as “employees” of the county, with the privilege of sovereign immunity from the decisions they make.  These judges also have a Code of Conduct (or Judicial Canons) which they must abide by.  In Florida, for example, when a judge is suspected of committing an infraction that harms the public or specific persons within the cases he or she rules upon in the process of presiding over a case, that judge can be brought up on disciplinary charges before the Judicial Qualifications Commission (the “JQC”).  Every state has some sort of judicial disciplinary committee, even though they may have different names.  The Supreme Courts of each state can also determine whether a judge remains on the bench, based on their behaviors or the lack thereof, albeit in their consideration of the recommendations of the judicial disciplinary committee.

EXPOSURE AND RISK

We now come to the part about how “state statutes” play into the mix.  Virtually every state has “fraudulent document statutes”.  Some have less severe penalties than others. I put them all into The Quiet Title War Manual under “state-specific resources”, which took up half the book, explaining in three paragraphs on actionable offenses in each state regarding the recording of false documents.

In Florida, for example, the state legislature enacted the Florida Criminal Code § 817.535, which makes it a third-degree felony to record a document known to contain false and misrepresentative statements for the purposes (intent) to steal the property (by and through the foreclosure process) … PLUS … a fine equal to the market value of the home!  Missouri just recently passed a similar statute, which also allows for doing a Cancellation & Expungement action to clear title of bogus assignments and other related documents.

Interestingly enough, the foregoing Florida statute also has a “civil component”.  This is equally important to understand, as the statute is interchangeable in concept, yet its meaning is clear … you record a phony document in order to create standing and further rely on it in court, you’re in trouble!  This puts everyone whose name appears in the recorded assignment at risk. The subsequent filing of foreclosure complaint pleadings, which rely on false and misrepresentative statements in order to claim the right to foreclose, put the actors within the document at legal risk.  Once the “assignment” itself (containing the false and misrepresentative information) is recorded, other documents can then be challenged based on the falsity of the information contained in the assignments, such as: (a.) Appointments of Substitute Trustee; (b.) Affidavits of Lost Note; and (c.) Notice of Default and Sale.  Post-foreclosure, any transfer in title through Trustee’s Deeds or Clerk’s Deeds can also be challenged, predicated on the falsity of the statements contained within the assignment that was manufactured in order to create standing.

The county clerks are immune from suits in the removal of phony documents, as they are generally mandated by statute to record what is given to them, as long as it contains all of the elements of a proper recording (according to statute).  Still, John O’Brien, the Register of Deeds from Southern Essex District in Massachusetts, will not record documents that contain the name of known robosigners.  Some states’ clerks will turn over suspicious documents to their local DA’s for review before recording.  This still does not absolve the wrongdoing if the documents contain false and misrepresentative information.

This is not the part where you read the foregoing and get mad.  This is the part where you get “clarity”.  It’s all about the assignments!   It’s always been about the assignments!  Any attorney, trustee, auctioneer or any law firm or title company attempting to transfer title as the result of either a judicial or non-judicial foreclosure has EXPOSURE and thus, inherent RISK of being attacked (“called on the carpet”) and held liable! These types of behaviors are what insurance companies are trying to avoid!

To finalize this section of my work, let’s posit for a moment that the attorney brought this assignment up in court (or attached it to his pleadings as an Exhibit) and got the court to rely on it’s validity, even though the other side brought in an expert witness attorney who testified as to the falsity of the document’s contents and the judge ignored the expert attorney’s testimony and awarded the property to the bank anyway.  Let’s also include that fact that most of the time, it’s the mortgage loan servicer that is claiming to have authority to foreclose on behalf of the lender, with no Limited Power of Attorney (“LPOA”) to show for it.  This document can also be challenged, because these documents are restrictive in nature and many times, there’s noting in the LPOA that allows the servicer to foreclose (but do everything else, which increases its exposure as well).

Everyone in the foregoing scenario has to answer to a higher authority   There are title companies out there who help the banks foreclose on real property and they get to answer to the State Department of Insurance.  Mortgage loan servicers have to be licensed and bonded and have to answer to the Department of Banking and Finance.  If this wasn’t so, Fidelity National Financial wouldn’t have been so quick to “spin off” Lender Processing Services when the SHTF post-financial collapse of 2008 and DOCX became a 3-ring media circus, resulting in the prosecution and imprisonment of Lorraine M. Brown, it’s principal.

It is at this point that we start to create the biggest, baddest paper trail imaginable … and I will explain that paper trail in my next segment … stay tuned!!

 

 

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STOP WALLOWING IN SELF-PITY AND START FIGHTING BACK!

Op-Ed — The author of this blog (Dave Krieger, not the same “Dave Krieger” that got fired from the Boulder Daily Camera for speaking out against the newspaper’s owner, a hedge fund that he claimed was the ruin of his daily newspaper, where he was an editorial columnist, against the orders of the publisher) has written four consumer-related books and four legally-related manuals on debt collection, credit restoration, foreclosure defense and “end game” strategies.  The purpose of this blog is to encourage activity through education and not to render legal advice. 

Woe is NOT me!

I write this post to convey a thought process that had not only entered my mind at a point in time back in late 2002, but I also had to consider that other American homeowners have also had this same thought process under similar circumstances as frequently as the moment you’re reading this post.  My intention here was not to write this in a demeaning way, for we are human and as humans, we make mistakes.  I wrote the book Clouded Titles because I made a mistake and I wanted to learn from it through research.  I self-published my first version of Clouded Titles in December of 2010 after two years worth of research into what in the hell was going on across America, partly because no one else was rising to the occasion and I saw a need for getting this research out there.  Someone had to say something … and no one was. Once I published that book, I was no longer a victim of that mistake.

I have been accused by some of being an opportunist.

If you think that selling copies of a self-published book is a way to get rich or was my only purpose for making money in handing out information … the real reason I did this was because time is money … and over time, I’d lost a lot of money.  Printing copies of the book cost money, which is why self-publishing is so expensive and many times will stop a person from publishing a book.

I further had to reflect on the ways that homeowners (as borrowers) became discouraged and then confused when they further wade out into the “river of cures” for their situations, only to find charlatans and thieves waiting to take their money and run. This includes foreclosure defense attorneys, many of whom have figured out “the delay game” and recklessly charge for that. While it is true that there are many attorneys who continue to educate themselves as to how to fight the banks and are successful in court, they are far and few between. Many of those attorneys who stand up and fight, get knocked down.  Some of them are disbarred for doing the right thing by their homeowner-client.

This is part of the confusion that the banks absolutely love, because they’ve already “gotten ahead of this” legal game they are fighting by having Congress and our state legislatures create laws to help banks and hinder homeowners.  Thus, when the confused homeowner finally realizes he’s been duped, he becomes angry and this is where the real problem begins because all rational logic and common sense about litigation goes out the window.  Now the angered homeowner “knows everything”, even though he didn’t go to law school.

They just want a “free house”, your Honor! 

This statement has been recited in open court tens of thousands of times by foreclosure mill attorneys, while the uneducated homeowner sits there with his thumb up his ass!  Why didn’t you or your attorney object?  Oh … you didn’t know you could do that?

I’ve discovered there were people who became “entitled”, thinking that all of the research I did should simply be handed to them for free because “they deserved it” and that if I really wanted to help homeowners, I would just hand out all my research for free.  THAT mindset is what got me into trouble in the first place.  That is part of the “self-pity” phase that will get you into trouble if you let it.  My first mistake was to put my first version of Clouded Titles out in pdf format, which was available for $19.95, which was subsequently purchased and downloaded all over the internet for free through the homeowner foreclosure networks.  My intention was to use the proceeds from the book to do a national tour, offering free, daily workshops for homeowners in 50 cities, but as a result of this “entitlement”, THAT didn’t happen. I learned NOT to make that same mistake again, because it costs for me to research and publish and my time is worth something. Your time is worth something too. Stop thinking it isn’t.  THAT thinking got YOU into trouble because it was at that point YOU became a victim and became discouraged.

I have been accused by some of giving false hope.

Albeit, God only helps those who helps themselves, but I liken this scenario to being slapped around for trying to do the right thing.  If you are facing foreclosure or are in the middle of it, then I have walked in your shoes and I do not deserve to be treated as if my voice should be silenced because I chose to stand up and fight.  I thought this was America and this is what Americans do when there is a wrong that affects the masses and Congress doesn’t want to listen.  Apparently, there are some out there that think I’m trying to get rich off of the backs of struggling homeowners and that was never my intention.  This is one of the reasons I volunteer at WKDW-FM Radio and have a consumerist show called City Spotlight – Special Edition, where I’ve spent over a year, discussing my research (along with my frequent co-host, R. J. Malloy, who is a retired attorney and former law clerk to a U.S. District Court judge) with listeners (and attorneys who listen to my show).  My show, which is 55 minutes in length, airs every Friday at 6 p.m. EDT and repeats every Monday at 2 p.m. EDT.  I have talked in greater detail about a lot of the stuff I teach at my workshops (chain of title, foreclosures, corruption in the court system, etc.). You can listen live just by going to the website and clicking LISTEN LIVE … for free!  (You get to pay for internet access, as NOTHING is for free!)   

I regularly donate money to keep this radio station going, as it is listener-supported community radio.  If I make anything off of my program, it will be because it may be syndicated in the future.  I will continue to donate part of those proceeds back to the station to keep it running.

BUT!  Why should I continue to do that if you don’t care?

I have had any credibility I sought to build (through my efforts to educate and speak out) attacked by MERS, the banks, law enforcement and the media. 

This goes to show you that in life … no pain, no gain.

Even if you have pain, the first thought entering your mind is to give up and run away.  Others have tried that and failed miserably.

I have learned that when you run … you fail!  Throughout history, Americans who ran from a fight ended up being taken prisoner and we have all been enslaved in debt in this country to one extent or another.

I became aware that as early as 2011, bank attorneys and information technology employees working for the banks and MERSCORP, Inc. nka MERSCORP Holdings, Inc. (and its wholly-owned subsidiary, Mortgage Electronic Registration Systems, Inc.) were monitoring my every activity, from radio shows to TV interviews to blog posts.  They do this for a reason. They want to know if authors like myself are saying anything defamatory about them or spreading false rumors about them.  They also wanted to monitor my “educational output” because they want to know HOW homeowners were being taught to fight back and what they could expect.  This further educated them as to HOW to counter attack homeowners in court.  This blog post and my radio show are not the only outlets being monitored either.

Because of my sharing of this research to the Texas Clerks’ Association, my team and I were retained by Nancy Rister, who is still the County Clerk of Williamson County, Texas, to conduct an audit of her records (see the link below):

WILLIAMSON COUNTY REAL PROPERTY RECORDS AUDIT_January 29, 2013

As a result of the release of that “Audit”, then-MERSCORP, Inc. CEO Bill Beckmann bought almost a full page ad in the Austin American-Statesman, on February 7, 2013, attempting to refute the contents of the 179-page report.  I knew for sure that this so-called “MERS”, by whatever definition, was watching the goings-on and the public reaction to my research and the results of the report.

As soon as the OSCEOLA COUNTY FORENSIC EXAMINATION was released to the public, the media outlets (who I suspect were spoon-fed information by the Osceola County Sheriff’s Department, in violation of F.S.A. § 400) proceeded to attack myself and Osceola County Clerk of the Circuit Court Armando Ramirez because of my “colored past”.  This is all part of the sacrifice I had to make … and some of the disgruntled homeowners, naysayers and gainsayers proceeded to jump on the bandwagon … people who I thought were fighting for homeowners … and attacked me as well by furthering the misrepresentations contained in the media news outlet reports.  You see, this is all part of a process known as “demonization”.  It’s what the “system” does to those who protest in order to “keep them in line”.

I do not care what some of these gainsayers have said (including referencing my “bolting from a news conference” I elected to speak at like “O.J. Simpson in a Hertz commercial”) because it became obvious to me that they were just out to get publicity for themselves at my expense.  Several attorneys who read the 758-page Forensic Examination wanted to sue the gainsayers for defamation, but I told them that what they did was part of the cost of “getting the word out”.  They can say all they want, but the truth is out there.  Bad press is still press.  So the next time you see those assholes, and you know who they are, thank them for the further misinformation and bad press, because it furthered my cause.

The banks and MERS reacted to it.  Law enforcement reacted to it.  The media was spoon-fed 20-year-old information so they could take up a political agenda against the Osceola County Clerk, Armando Ramirez.  Soon after the reporter wrote the scathing article, he quit the Orlando Sentinel.  The Osceola Sheriff whose detectives I suspect leaked the information to the media in violation of state law did not seek reelection.  What should that tell you?  It pays to fight!

Here’s the thing … we’re Americans.  A large number of us fought and died to preserve our rights under the law for the rest of us ever since the history of this great land of ours began.  Have we forgotten what history has taught us?

The world doesn’t end just because you got “served” with notice of foreclosure … so … I have to wonder why the percentage of homeowners who “run away” is so high.  

It does not matter whether you’re in a “deed of trust” or “mortgage” State, the bank (or its servicer) HAS TO serve you with notice that your home will be advertised and sold on the courthouse steps on a given date in time or in the alternative, if you don’t show up in court, you will be found in default and could lose your home anyway.  Sadly, 95% of Americans who get “served” with foreclosure notices pack up and move.  They run from a fight.  No matter what.  They too suffer the end result of 7 years of bad credit or continued attacks by third-party debt collectors who bought their deficiency judgments from the banks, post-sale because they chose to be a victim.

I refused to be a victim … and I changed my scenario! 

No bank can ever foreclose on me.  I live quite comfortably through my own efforts and not because I “fleeced” money out of disgruntled homeowners on a regular basis.  I pay for this website to post blogs.  I offer workshops that I have to charge for to cover the expense of bringing in attorneys to teach foreclosure defense information to struggling homeowners.  I only do this once a year, when and if the need arises. I saw the recent uptick in foreclosures announced by Black Knight Financial Services and THAT, my friends, precipitated my need to pay attention to trending activity on the part of the conniving megabanks banks who appear to be in control of Wall Street and the secondary mortgage market.

If the percentage of homeowners who ran away from their mortgages (and their homes) was only 25% (and not 95%) … and everyone knew the rules of evidence and civil procedure (as foreclosure mill attorneys do), then there would be no need for me to even continue this blog post, let alone host seminars. However, the uptick in foreclosures has regenerated the need to help homeowners again and this is why there was a need to set up a workshop.  The foreclosure activity against American homeowners will not stop until the banks and Congress have all turned us into a nation of renters and debt slaves who can be controlled by the hierarchy.  The league of those who believe that they know more than we do is called an oligarchy.  Frankly, this “league” is there because they’ve already figured out that if you have money (and lots of it), then they can be in control of not only their lives, but the lives of others also, including yours.

I am still “in the fight” and I am mortgage free, even with my “colored past”! 

You have to understand that at some point in time, through a decisive action plan of steps, you can finally see the “light at the end of the tunnel”.  If we were taught to live by example, then why weren’t we financially educated in high school?  Today’s financial education is still “missing” or “lacking”.  I believe this is deliberate.  Media advertising is still deceptive to a  degree because it lures people into using credit to “buy now and pay later (with interest)” for something they should have saved for all along.  It seems that no one saves anymore.  We are so conditioned to impulse spending we’ve forgotten that principle.  Having equity in a home is also a form of saving, but even equity is FAKE until its realized through the fruition of sale of the property.  THAT should have been the American Dream … but it wasn’t, was it?  Over half of America is NOT prepared for perceived “retirement”.  That’s sad, even though they could do something about it.

Most people who are debt free (or even mortgage free) might simply just ignore the plight of all others who face the perils of foreclosure. So why am I still here?  Perhaps my own personal experiences have been either by best friend or my worst enemy.  I am constantly continuing to research and learn lessons from all of this.

Whatever the case, if you don’t know your rights, you don’t have any!  I may be missing some of my rights, but you do not have to be placed in or succumb to the same situation.  Your first ambition (goal) should be to learn HOW you got into this mess … and then learn HOW to get yourself out of it WITH AS LITTLE FINANCIAL DAMAGE AS POSSIBLE and with as little of a financial risk as possible!

So quit with the “pity party” and start looking for right answers through right thinking … and stop thinking like a victim.

THAT’S STEP ONE! 

Stay tuned for STEP TWO! 

 

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