Tag Archives: foreclosure

THE ARROGANCE OF BANKS!?

(OP-ED) — The author of this post is not an attorney and none of this should be construed as legal advice but is put forward for educational purposes only. 

No matter what defensive (or offensive) strategy is seemingly employed by homeowners (as borrowers), not only do we still get the same ‘ol, same ‘ol from bank attorneys (who actually represent the mortgage loan servicer and not the owner of the note themselves) as to their defamatory conjecture from “Your Honor, they (meaning the borrower) just want a free house!” … we still get the continued misrepresentation of the facts in a foreclosure action, whether it be judicial or non-judicial in nature.

In a judicial scenario, the arrogance is blatant. The attorney files the foreclosure action (generally employed by a foreclosure mill that gets paid a low winning bid dollar amount) and puts all of the same, standard “trash talk” about the homeowner (as the borrower), claiming the borrower is in default and that it (the client) is entitled to enforce the security instrument.  This isn’t personal really.  It’s a numbers game and if you’re a borrower who hasn’t made his payments in ages, it does not necessary mean that the burden of proof shifts to you, just because it’s your home and you’ve been served with papers which, nine times out of ten, contain pleadings that have notably false and misrepresentative statements contained within them.  In a judicial state, it’s still up to the alleged claimant-Plaintiff to prove its case or go home. This is why the banks want everything changed to non-judicial in nature, so they don’t have to work so hard to steal people’s homes.

Instead, the borrower opts to defend his position by putting forward an answer and affirmative defenses to the Plaintiff’s assertions.  The very act of this filing and anticipated response immediately gives the court jurisdiction to hear the matter before it (with an assigned case number and recorded lis pendens).  At the point of the recording of the lis pendens, the borrower’s title is slandered (not the filing of the case with the applicable court).  It is the notice of lis pendens that gives the world constructive notice of the proceedings against the property because it is the security instrument that the Plaintiff seeks to enforce.  However, in a judicial state, the Plaintiff must possess the Note, or in the alternative, sufficiently demonstrate that it had the note, but lost it, and made every effort to find it, but couldn’t.  Instead of looking for the note (or dummying one up out of nowhere like we know they do) and presenting a complete case, the arrogant bank and its lawyer press forward anyway and prey on the emotion of the court, backed by the reasoning that since they filed a complaint to foreclose, they must be the lender, right?

Generally, when the Plaintiff can’t produce the note, it produces an assignment of mortgage, which is generally “manufactured” by the mortgage loan servicer’s employees in favor of the servicer.  Half the time, the assignment includes the language “together with the note”, which, if MERS is involved, is a physical impossibility because MERS cannot transfer something it does not own.  This makes the assignment false and misrepresentative.  Instead of questioning the tactics of the servicer, on many an occasion, the banks’ own attorneys just take it and run with it, or even worse, are complicit in its manufacture!  This makes it even worse because the bank’s attorney (and law firm) would be suborning perjury, which, the last time I checked, was a felony.  It’s even worse when they try to rely on the assignment to steal the house.  It is the INTENT that is made known when the misrepresentations within the assignment are orally pontificated upon the court by the bank’s attorney in his arguments … thus, the arrogance of the bank is transferred to its lawyer, who can then claim reliance on the document because the attorney (or the “cover lawyer”, different from the attorney who filed the original pleadings) is now at greater than “arm’s length”position from the transaction and thus will claim plausible deniability (as in “I had no idea, Your Honor.”)

In a non-judicial setting, the scenario is much more deceitful.  If the borrower doesn’t stop the proceeding with something factual that can be proven in court, followed by a temporary restraining order, it is assumed that whoever commences a foreclosure action against the property is going to get their wish because going to court is not required in deed of trust states, except in certain cases, which is why the arrogant banks keep trying to lobby legislatures to change their method of enforcing security instruments to non-judicial, because all non-judicial actions do not require a court’s approval and thus all foreclosure actions are deemed legal unless proven otherwise.  This too is a numbers game of greater proportions because most homeowners in deed of trust states do not have access to competent foreclosure defense attorneys because “the system of things” does not warrant a board specialized attorney (in real property law or foreclosure defense) to come forward and shut the door on the foreclosure.  Most attorneys in deed of trust states really don’t know how to defend against foreclosures but they sure know how to structure a business model to take a retainer, followed by monthly payments, making their newly-found client their newly-created annuity payment.  This is great for business because it boosts cash flow.  But, it doesn’t nothing for the homeowner (as the borrower) unless the homeowner has something in the chain of title worth arguing.

Such is the case in South Carolina, where a MERSCORP attorney has allegedly testified under oath (in a deposition) that MERS cannot act for a “non-functional entity” (which means an entity that has gone out of business and years later, all of a sudden uses MERS (through the actions of the servicer’s own employees or another third party) to cover up the chain of title and bring the note and mortgage or deed of trust from the originating, out-of-business lender, to the present tense, in an attempt to allow whatever party comes in with a claim against the property, to foreclose on it.  Apparently, this same testimony allegedly worked on  a case in New Mexico as well, allegedly.  I use the word “allegedly” here because there’s no attached “oral transcript” or “order” from either court to validate the claims made by attorney Jeff Barnes, who goes into court pro hac vice (a guest of the court, using the resident attorney’s bar license) to help the homeowner (who is paying major dollars to both Barnes and the resident lawyer) get out of their foreclosure jam.

I find it odd that a post, dated October 29, 2018, on Barnes’s website, would make such statements without completing the grandstanding against MERS by actually including “hard evidence” in the form of a transcript or order, don’t you think?  In the New Mexico case, it wasn’t a slam dunk, however, it appears, without verification, that most of the borrower’s affirmative defenses would be sustained based on this new admission of MERSCORP’s own lawyer.  If one wanted to really make themselves appear “credible” with their “victory lap”, don’t you think one should brandish the sword they used as the weapon of choice?  (I put this in here for you Game Of Thrones fans!)  But, seriously, wouldn’t that make logical sense?   So we could read HOW the defeat occurred?

But wait, that would make the grandstanding (to get more business obviously) more plausible and less arrogant, right?  We can’t have THAT now, can we?  We need to further our business model and leave borrowers in the dark, only to surmise that somewhere out there, a MERSCORP attorney was indeed deposed and testified that his client has no right to transfer the note (something I’ve been saying for years) because MERS has no interest in it.  Factually, even if such an order or transcript WERE included, do you really think most borrowers would know HOW to take what they’ve learned from it and apply it to their own scenario?  Not hardly.  Not in today’s court systems.

It should be noted that the claim was made (in Barnes’s website post) that a deposition was taken, which means the only way you’re going to get damning information to shut down the banks’ arrogance, it to get damning information by conducting a deposition.  This is where the rubber meets the road with foreclosure defense attorneys because great discovery wins cases and if your attorney is “lacking” when it comes to getting the right set of facts out of a deposition, you’ve lost not only your home but all those financial resources you could have used to move onto PLAN B. Pro se litigants rarely, if ever, conduct a deposition, let alone a proper and complete one.

In sum, you’re either going to fight the bank’s arrogance with provable facts or you’re not.  The system of things supports more than just an affirmative defense against the bank’s lawyer because of the misrepresentations in his pleadings.  It supports a bar complaint.  I don’t see too many foreclosure defense lawyers putting forward bar complaints based on false and misrepresentative pleadings from foreclosure mill attorneys, do you?  (This is why we focus more these days on “the system of things” and how that plays out!) 

And somehow, the good ‘ol boy network seemingly continues to survive.

NOTE: If you want to hear multiple scenarios explained about why our voting system may be all f**ked up (especially in Florida with the recent negative spotlight put on it), listen to Dave Krieger tonight (6 p.m. EST) on WKDW-FM’s City Spotlight – Special Edition, just by clicking on this link and then clicking on LISTEN NOW!  Joining Dave and co-host R.J. Malloy as their guests are North Port, Florida City Commissioner Jill Luke and outgoing City Commissioner Linda Yates.

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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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GUTTING THE UNDERBELLY OF THE BEAST – PART 1

(OP-ED, first posted: August 25, 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. 

Everything these days revolves around insurance of some sort.  The credibility of some professions is backed up with insurance or bonding to guarantee against losses incurred by inadvertent or blatant illicit behaviors of those insured or bonded.  The system of things revolves around the dollar.  People have put their faith in the dollar, whether it has any backing or not.  As long as people (the body politic) can be fooled into a perception of believing that this so-called “legal tender” can still be used to pay debts “public or private”, the system will continue to flourish, whether “in the red” or “in the black”.

REALITY CHECK

Look how many times you purchase insurance in your life and for what purposes (CYA).

Virtually all 50 states require some sort of minimum liability auto insurance, through a policy that guarantees the insurance company will cover a loss if a claim is filed against the policy.  Many folks just get a liability policy if they’re driving a car that has no lien against it; however, an auto loan on a vehicle will require that you have full coverage.  Based on your driving record and your credit score, full coverage insurance can rape your monthly income, denying you of even basic needs just because you need to get to work and a means of insurable transportation to get you there.

Throughout the last decade of this dismal fight to keep Americans in health insurance, we’ve been forced to buy health insurance coverage through some sort of program connected with the Affordable Care Act.  Seniors over 65 are forced to buy Medicare.  That too comes with a price tag.  Part B is $134 a month, no matter WHO you go through to get insurance.  Any supplement insurance (which is highly recommended by agents these days), adds another $80-$100 a month on top of the $134 you pay every month just to avoid a financial catastrophe due to health issues.

You can’t get a mortgage loan without insuring the property with hazard insurance. When homeowners get into trouble, the first thing to be neglected is the hazard insurance payment.  Then the property taxes.  The lender (or its servicer) then has to cover any claimed losses by putting forced placed insurance on the property because the property owner failed to do so.  This process, which I call a “cheap date”, is used in part to prove that the servicer, acting on behalf of the lender, has some sort of interest to protect in the property, especially when it comes time to foreclose on said property.

If you own a business, most if not all responsible business owners carry a general liability insurance policy.  These policies generally start at $350 a year, which is no big deal. However, given any type of special insurance coverage, you’ll find that the more “risk averse” an insurer has to weigh in on a given situation, the more expensive the policy. For example, if your business deals in a product or service that comes with a higher risk than most of injuring the general public, this forces the premiums to go up.

Because many Americans are not well-funded and are deep in debt, the last type of insurance policy they encounter is a life insurance policy, to make sure that if something happens to them, their loved ones at least have some minimal nest egg to keep them going. This is where a majority of Americans put the least amount of dollars. Most of us are underinsured in this category.  I’ve heard a lot of folks say that “you’re making a bet with the insurance company that you’re going to live so long before they have to pay out”.  This is true, which is why I buy 10 to 15-year term insurance.  If I live past 80, I’m lucky.  Good luck getting insurance past 85, because virtually all insurance companies will deny coverage past that age because they know what the odds are of a quick payout.

By the time you’re 80 (if you live that long), you should have some sort of an “estate” to leave behind that’s worth something.  Most Americans however don’t even have $50,000 in savings they can fall back on if, God forbid, something goes wrong.  In fact, the number of consumer bankruptcies, especially those over age 65, is on the upswing. Student loans, mortgages and consumer debt are driving the bankruptcy filings, statistically well ahead of medical catastrophes.  However, I would proffer that “debt stress” would cater to certain medical issues at some point.

A NECESSARY EVIL

There’s insurance coverage out there for virtually every kind of behavior, including liability for actions taken against you that could be deemed illegal.  This is why we have “bonds” in place for judges, clerks, virtually all elected officials, notaries and credit repair people, to name a few.  Most counties in America are “self-insured”.  Most states have what is known as an “insurance risk pool” or a back-up fund of money to pay for damages that the state or its actors might cause against its citizens.

Law firms and real estate brokerages have what is known as “E & O” policies (or should) in order to exist.  “E & O” stands for Errors & Omissions (policies).  These types of policies generally pay out for legal services in case the insured comes under fire for erroneous or negligent behavior.  It’s a “knew or should have known better” scenario.  So the E & O primarily covers legal fees for representing the insured and/or paying out claims against the insured’s policy.

If there wasn’t an insurance policy covering something somewhere, our litigious society would drive this country into a financial meltdown sooner than later.  The only way that a meltdown would occur sooner than later is if the “perception” of the masses were to dynamically change to reflect an understanding that “insurance” supports the “underbelly of the beast.”   This is why I wrote the “Beyond End Game Strategies” supplement.  The concepts expressed here go beyond the traditional thoughts of most Americans. Insurance companies are “risk averse” … and their “end game” is to deny claims whenever possible due to exceptional or non-covered acts of the insured.  This is why insurance companies file more declaratory relief actions than most any other entity in America … to have a court determine whether they’re responsible to pay a claim on behalf of the insured.

Do you see where my thought processes are going?  There is a method to the madness and the “beast” is the system of things.

And … at some point … a meltdown in America is likely.

Stay tuned for Part 2.  It gets better! 

 

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WE SALUTE ANOTHER FALLEN COMRADE!

(BREAKING NEWS — CORAL GABLES, FL)

We have just learned of the untimely passing of attorney John Herrera, who diligently fought foreclosure actions in the courts in Broward and Miami-Dade Counties in South Florida.  I went to trial with John on two of his cases.  Magically, they both settled; however, it is unsettling that we lost a freedom fighter so young (aged 53, on August 3, 2018).

As you may remember, John received second and third degree burns to over 60% of his body some time ago in a barbecue grill gas explosion.   Afterwards, he went through multiple skin graft operations and walked with a cane afterwards and was never the same, health wise.  John graduated from St. Thomas University School of Law and was also in the U. S. Marine Corps.  I had the pleasure of hosting a COTA Workshop in his “war room” (where he conducted his depositions).  John was one of the few foreclosure defense attorneys who would speak up when a court judge attempted to help out the bank during a foreclosure trial (“Gee, your Honor, I’m glad I’m not litigating against YOU this afternoon.”).   Those who knew John know what a kind hearted man he was. He was a true fighter for the little guy.  He even twice lectured at our COTA Workshops in Orlando and was a pleasure to work with.  He was even more fun at dinner at Fleming’s, where he would made the chef do his steak blood rare, while imbibing in a single-malt McAllen Scotch.  John will be sorely missed.  Our condolences go out to his wife Anouk and his children during this hard time.

John will be sorely missed.  God Bless You, Mr. John Herrera.  You have crowns laid up for you in the big courtroom in the sky.

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