Tag Archives: foreclosures

SCOTUS DECIDES TO ENTERTAIN CIRCUIT SPLIT ON FDCPA CREDITOR-DEBT COLLECTOR ISSUE!

BREAKING NEWS — (DC) 

The U.S. Supreme Court appears to have granted a Writ of Certiorari to petitioner Ricky Henson, et al in his case versus Santander Consumer USA, Inc. coming out of the nation’s Fourth Circuit Court of Appeals.  There have been numerous disagreements among the circuits as to what constitutes a “creditor” by definition versus what constitutes a “debt collector” by definition, within the Fair Debt Collection Practices Act (15 U.S.C. 1692a et seq).   More about these definitions are specifically noted through the new book FDCPA, Debt Collection and Foreclosures (by the author of this post), anticipated to be released in its first 256-page first edition, sometime around the end of this month (January, 2017).

There is evidence of deeply-entrenched conflict among the circuits, which involves the definition of a “creditor”, which is succinctly defined within the FDCPA as: (a.) any person who offers or extends credit (thereby creating a debt to the borrower); and (b.) any person to whom a debt is owed … and that of a “debt collector”, also succinctly defined as: (a.) any person whose principal purpose is to collect debts; (b.) any person who regularly collects debts owed to another; and (c.) any person who collects its own debts, using a name other than its own.  You can see where these so-called variance opinions have formed as cases involving FDCPA complaints have worked their way through each of the federal circuits.

The hinge pin here however, is that the FDCPA also states that a person is NOT a “creditor” if that person “receives an assignment or transfer of a debt in default solely for the purpose of facilitating collect of such debt for another.”  That, by definition, would make most mortgage servicers “debt collectors”, which consumers, as mortgagors, now find useful to wage war in federal court by using FDCPA actions!   This is one of the reasons this author did the research of over 400 FDCPA actions, some successful and others not successful, for the purposes of illustrating not only the circuit split in definitions, but also because the only way circuit splits can be resolved in finality is by a Supreme Court decision on the valid merits of the case.

OP-ED

The key word here is “default”.  The Federal Trade Commission and the Consumer Financial Protection Bureau both concur that the default status of a debt at the time it was acquired determines the status as to whether the entity is a “creditor” or “debt collector”.  The CFPB used this model in an action against a large bank, finding the bank violated the FDCPA by failing to send validation notices on student loan accounts there were in default at the time they were acquired from another bank.  This puts student loan borrowers in a very interesting litigation posture when debts get “assigned” to entities like Pioneer Credit Recovery, Inc., Van Ru Credit Corporation, The CBE Group and Immediate Credit Recovery, Inc. (to name a few) to collect, which comprise the larger number of entities assigned to collect student loan debt on behalf of the U. S. Department of Education, which is the alleged “guarantor” (which cannot be sued, so don’t even try it).  Every case the the author has reviewed involving a state-based corporation designed to monitor the accounts of student loan borrowers and the Department of Education, wherein the Plaintiff borrower sued them for alleged FDCPA violations, got tossed out.  The smarter consumers appear to be going after the actual debt collection agencies that have been assigned to collect the debt.

When a debt is in default and has been assigned or transferred to another entity who then attempts to collect the debt, here’s where the splits stack up:

The 4th, 9th and 11th Circuits have held that a person is not a “debt collector” unless its principal purpose is to collect a debt, regularly in the business of collecting debts owed to another, or collecting a debt using a name other than its own.  The 11th Circuit has come out with some very pro-consumer decisions (like Reese v. Ellis) that have helped homeowners fighting foreclosures in going after the law firms trying to collect a debt (NOT enforcing a security instrument … there is a difference) using a different name than the one it operates under as a creditor.  These three “tests” must be met, in addition to the court’s determination that the debt was indeed in default at the time it was acquired by the person claiming the right to collect it.  These three Circuits also rejected the argument that any person taking assignment of defaulted debts is regularly collecting debts owed to another because the debts were owed to a different creditor at the time of default.  You can plainly see where the banks and their servicers (as creditors and quasi-debt collectors) want to confuse the issue, which, it appears they have done, over time.  Now the Supreme Court gets to interpret what the FDCPA means and what it doesn’t mean when it comes to these definitions.

The 3rd, 6th and 7th Circuit decisions in conflict with the foregoing Circuits have focused predominantly on the exclusions from the definitions of “creditor” and “debt collector”, declaring that any person who takes an assignment of a debt in default is a debt collector, while a person who takes assignment of a debt that is NOT in default is a “creditor”, because they actually BOUGHT the debt.  The 7th Circuit went further in explaining that any person acquiring a debt stands in the shoes of that creditor and acts similarly, as opposed to simply acquiring the debt for collection, wherein it acts more like a debt collector, by the strictest defined sense of the FDCPA.

Additionally, Also, both the CFPB and the FTC have adopted the view that the default status of the debt at the time of acquisition determines whether the entity is a “creditor” or a “debt collector.” The CFPB took this approach in a recent consent order with a large bank, finding that the bank violated the FDCPA by failing to send validation notices on student loan accounts that were in default at the time they were acquired from another bank.

VALIDATION OF STUDENT LOAN DEBTS

The CFPB just recently reported that a larger number of student loan debts have afflicted those aged 62 and older to the tune of $66.7-billion!  That’s pretty scary, considering many of these debtors are co-signers for their children’s (and grandchildren’s) education.

It is seriously implied here that in addition to mortgage loans, student loans (car loans and credit cards), have also be securitized on Wall Street into “common law trusts”.  Mortgage loans get securitized into REMICs (which stands for Real Estate Mortgage Investment Conduits), while other securitized trusts are listed as to their designed use.

To make things a little more “interesting” … here is one sample debt validation response sent to a debt collector, who sent an “initial communication” to a student loan borrower in an attempt to collect a debt (the names of the borrower and debt collector have been purposefully changed to protect their identities):

Certified Mail, Return Receipt Requested Number:

 

Date of Debt Validation Correspondence
Name and address of Debt Collector

 

Re: Your Unsigned Debt Collection Letter, dated ______, 2017.

To Whom It May Concern:

I am in receipt of a PAST DUE NOTICE, dated “______, 2017” and am responding accordingly. I choose to respond point for point to what I allege is in fact, an initial communication letter from your debt collection agency.

This is to inform you that I am a “consumer” as defined under 15 U.S.C. 1692a(3).  Further, I deem you as a debt collector, subject to the Fair Debt Collection Practices Act, which I have a copy of, under 15 U.S.C. 1692a(5).

First, you have provided me with no written proof of any of the claims you have made in this letter.  You have listed debt collection account reference numbers that I am not personally knowledgeable of.

There is no proof provided in the initial communication I received as to who purchased any alleged student loans under any guarantee agreement bearing my name and personal identifying information.  You also failed to provide me with a copy of the guarantee agreement or any of the loan paperwork that you allege or claim I owe you that is in default.   Therefore, I am disputing the entire balance of what you claim I owe you and further require that you provide me with following:

(a.) Proof of all indebtedness, including copies of any alleged loan paperwork you have in your possession, on which you base your alleged claim of default;

(b.) Proof of the entire chain of custody of each promissory note you claim that the entity you are collecting for was “required to purchase”, including but not limited to, copies of the “guarantee agreement” for each of the alleged loans contained within your initial communication to me;

(c.) Please send me a full accounting of ALL sums due that have been applied to this alleged loan balance, including alleged default insurance payments, credit default swap payments and any other insurance that was purchased to cover the entirety of the loan should an alleged default occur, including correspondence showing the payout dates of these alleged policies;

(d.) If this loan was securitized, along with other student loans, please provide me with the name of the trust and location of its trustee, including the its full contact information and telephone number;

(e.) Since you have threatened me with the garnishment of my wages, and based on the United States Code section shown below, I demand to be provided an opportunity to view all my purported loan documents and a hearing at a location close to my home;

31 U.S.C. § 3720D: US Code – Section 3720D: Garnishment

(3) The individual shall be provided an opportunity to inspect and copy records relating to the debt.

(5) The individual shall be provided an opportunity for a hearing in accordance with subsection (c) on the determination of the head of the executive, judicial, or legislative agency concerning –

(A) the existence or the amount of the debt, and

(B) in the case of an individual whose repayment schedule is established other than by a written agreement pursuant to paragraph (4), the terms of the repayment schedule.

Please be advised that I am responding with the above verbiage as you have indicated in your letter that you may utilize additional collection efforts, including an administrative wage garnishment, tax offset or assigning these alleged loans to the U. S. Department of Education, who, unless you can provide me with proof to the contrary, guaranteed these alleged loans in the first place;

(f.) Please provide me with the Name and Address of the Original Lender / Creditor and all correspondence you have in your possession related to these alleged loans.

(g.) Please provide me with the exact location of my purported loan documents, signed by me, including a direct phone number; and

(h.) Please provide me with copies of all correspondence between your agency and the U. S. Department of Education, including all loan documents, and any documents you have in your possession, bearing my legitimate signature, that prove you have the right to collect this alleged debt, including any agreements signed between you and the alleged creditor you claim to be representing in your initial communication to me.

Please be advised that, in providing the above response, John Q. Consumer is not limiting or waiving any rights or remedies he may now or hereafter have, whether arising under your purported loan documents at law or in equity, all of which rights and remedies are expressly reserved.

Further, since I cannot take your telephone calls into court, this is a demand upon you that you are restricted from contacting me at my home, on my cellular phone or at my workplace regarding the collection of any of the foregoing, until you can fully satisfy the demands set forth in this letter.

Failure to completely respond will also result in an FDCPA action being filed against your company in the appropriate forum.

All further correspondence (including your answer and supporting documentation) may be sent to the address shown below.  I expect to hear from you in short order, as this letter is intended to give you notice that I am disputing the entirety of this debt in full.

Sincerely,
John Q. Consumer (address)

Enclosure: Copy of Debt Collection Letter

Again, I managed to acquire this from a “consumer”, who sent a variation of this letter, regarding a student loan debt.  This letter is a SAMPLE and does NOT constitute the rendering of legal advice for your particular situation and may not draw any conclusions of law or guarantee any legal outcome.  If you intend on using any form of this for your own personal use, you should be aware that you do so at your own risk.  After reading this letter, I was tempted to contact “John Q. Consumer” to see if the debt collector ever responded.  It would seem to appear that when the issue of securitization is brought up, this may create a real dilemma, because the student loan itself may have already been paid in full upon the default of the borrower!  Entire of tranches of student loans may have been paid off over time!

I just thought I’d let you, the blog subscriber, know that student loan borrowers are also using similar tactics, more of which are in the new book on the FDCPA, coming out shortly, which you can pre-order on the Clouded Titles website. The book also goes into detail about how debtors have used FDCPA actions to repeatedly sue debt collectors in order to make a part-time income!  It is fascinating to see what the mind can achieve and the human condition to accomplish!  I’ve actually included an “exploded” view of an FDCPA lawsuit, both applied individually and as a class action, so you can compare notes!  I think you’ll find the 256 pages worthy of your time and consideration.

Just because SCOTUS is deciding this narrow issue does not mean that FDCPA actions will be put “on hold” either.  The definitions of the FDCPA do merit clarification by the nation’s highest court, so the lower circuits will (once and for all) STOP QUIBBLING over what the terms really mean.  This is why it pays to know the FDCPA and get an education in debt collection before getting yourself into debt!

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TIPS ON SPOTTING FDCPA – TCPA VIOLATIONS

Consumers generally ignore a lot of debt collection activity because it invades and disrupts their comfort zones.  Since the new FDCPA book is coming out shortly, I’d thought I’d share several of the most commonly-ignored FDCPA and TCPA violations that would give rise to litigation (a smattering of what’s in the new book).

Problems with initial communication … 

You receive an initial communication (letter in the mail) from a debt collector.  There is specific language in the debt collection letter that says: (a.) that the communication is from a debt collector; (b.) you have 30 days to dispute the validity or any portion thereof; and (c.) if you dispute the letter, within a certain timeframe, the debt collector must provide you with proof (judgment or other paperwork) identifying the validity of a debt (or the portion you are disputing).  Before the 30 days are up, your phone starts ringing and the debt collectors begin hounding you for payment.

Problems with threats of litigation … 

You have an overdue bill of $74.00.  A debt collection agency sends you a letter stating that if you don’t pay it, they’ll take you to court.  Debt collectors can’t threaten to take legal action that they don’t intend on taking in the first place.  The bill is too small to waste time paying attorney’s fees and costs of suit (which would exceed the amount of the bill itself).

Problems with misrepresentation of the character and status of a debt …

The most commonly complained about violations occur when a debt collector informs you that: (a.) it is not a debt collector, when in fact, it is; (b.) it is attempting to collect a legally unenforceable debt without disclosing that the statute of limitations has expired on the collection of it;  (c.) you receive various letters from the same debt collection outfit indicating amounts that are grossly exaggerated in each letter; or (d.) there is an indication that attorney’s fees have been added to the debt when in fact, no attorney was retained to collect the debt.

Problems with follow-up communication … 

You get repeated phone calls or texts, many times a day, from the same debt collector about the same debt, hounding you for payment.

The debt collector leaves a blatant debt collection message on your answering machine, which unauthorized third parties can hear if they happen to be around when you play your messages back.

The texts the debt collector leaves on your phone incur a fee every time they text you.

The debt collector manages to reach you and calls you names or uses other defamatory language.

The debt collector calls you at work, talks to one of your co-workers and tells them you’re a deadbeat, asking if they can relay a message to have you call the debt collector back.

Third-party junk debt buyers are more likely to commit these infractions than most debt collectors; however, ALL debt collectors have one thing in common: Their activities are all covered under the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act!  Many homeowners are even using these laws to stop foreclosures!  Find out how they’re doing it in this book! 

There are many more of these types of violations specifically listed in the new book by Dave Krieger entitled,  FDCPA, Debt Collection and Foreclosures … which is at the press and will be released before the end of January!   Order your 256-page copy now!   This new book contains:

  • The latest version of the FDCPA!
  • The latest version of the TCPA!
  • Detailed explanations of how to spot debt collection violations!
  • A compendium of federal district, appellate and Supreme Court case citations, FDCPA-related references and research tools for case development!
  • PLUS … detailed FDCPA-related pleadings used by attorneys in both individual and class action lawsuits to formulate federal complaints!

… all in large, 14-point print for easy reading!

Visit the Clouded Titles website and order your copy today before the first run is all gone!  It will be shipped to you (USPS Priority Mail) as soon as it comes off the press!

 

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FLORIDA SUPREME COURT SAYS “STICK BARTRAM WHERE THE SUNSHINE NEVER SHINES”!

OP-ED!

(Tallahassee, Florida) — Florida homeowners have been politely told to “stick it” by their state’s Supreme Court when it comes to statutes of limitations issues involving mortgage loans.  Frankly, given the joke that was the Beauvais decision in the Third DCA, I can’t much say that the arguments in Bartram were posited any better because any time you bring up a jurisdictional argument, the courts are going to jump all over it in favor of the banks.  When you have a Republican administration running things, it should be common knowledge to everyone that it’s “status quo” in favor of the banks.  So then, why do business with them?  The way things are all screwed up in the land records all over Florida, how do you even know WHO owns your loan with the right to enforce it?   By claiming a party is barred due to statute of limitations (according to Bob Janes, J.D.’s past teachings) issues, you are signaling to the Court hearing your case that the other party has a right to dispute those allegations.  So why plead them?  Because someone thought they should have a free house, they let the banks have another “bite at the apple”.  This is bad case law for Florida homeowners who think they should rely on this strategy ad infinitum, ad nauseum.  So what if I’m not an attorney, I can read the pleadings below, just like you can.  You read them.  Then you be the judge.

See the Florida Supreme Court ruling here: bartram-v-us-bank-na-et-al-fl-sup-ct-no-sc-14-1265-nov-3-2016

This case does NOTHING for standing however!  By showing the other side doesn’t have standing to be in the courtroom, you don’t need to rely on statute of limitations issues in the first place!   That works in every state of the union the last time I checked!

All one has to do is look at the case in chief on Page 3 (of the 35-page ruling) to see that Bertram didn’t dispute that he stopped making his mortgage payments and why, or if he even stopped making them.  Also notice that the Court “rephrased” the question brought before it … just because it was a “matter of good public policy”.   The bottom line is … YOU DON’T GET A FREE HOUSE, no matter how badly you think the bank screwed you over, or for whatever reasoning you may believe it was okay to stop making mortgage payments.  Given this “policy decision”, wouldn’t it be a novel idea if every homeowner in Florida just stopped paying their mortgage just to see what would happen and then challenge everything BUT statute of limitations?  I believe over half of them would win … and a move like that would effectively SHUT DOWN the entire court system in Florida!  With “policy” like this, the banks can just keep coming in over and over and getting more than just one bite at the apple.

Let this also signal to those of you contemplating a purchase of real estate in Florida, especially you foreign investors who have been told that the Sunshine State is “ripe for the picking”:  You’ll get screwed by Florida Courts as much as people who live here full time are!  If you don’t have the money to fight a protracted court battle, the first sign of financial trouble you have while living here or renting your property here, don’t be surprised if some bank doesn’t just pop it’s head out of nowhere and announce it’s foreclosing on your property!  That’s the way things are here in Florida I guess, because most homeowners I’ve talked to about their real estate dilemmas in Florida that have been to the Circuit Courts of this State felt abused by the courts.  After all, Florida judges have to pay for their homes too, with those retirement pensions vested in the very RMBS securities that caused the financial collapse in 2008 … so why shouldn’t you lose your home too?   All semblance of logic in the judge’s brain generally goes out the window when the banks’ attorneys say, “They just want a free house, your honor!”  This is why you have to be prepared to appeal.

Read the first paragraph on Page 4 of this ruling … where it says “dismissal of the foreclosure action against the mortgagor (that would be YOU, the Borrower) has the effect of returning the parties to their pre-foreclosure complaint status.  That means that the lender, without further adieu, can come in and keep repeatedly foreclosing, unless you can get a dismissal based on fraud on the Court, dismissed with prejudice, with sanctions in the form of the house (see U.S. Bank v Harpster for example).  In this case, the David J. Stern law firm secretary, Cheryl Samons, a law firm robosigner, affixed her signature to a document as Assistant Secretary of MERS and caused it to be backdated to before the notary’s commission was valid, thus, negating the assignment based on fraud.  Then-Pasco County Judge Lynn Tepper was not amused by the revelation of facts in that instance.

When securitization is involved, STANDING … and NOT statute of limitations … wins cases!  None of the indorsements on the banks’ notes are dated so there’s no effective proof of WHEN the transfer actually occurred.  Even if you do get your attorney’s fees back from the bank, this case just gives the banks (whether you argue statute of limitations issues or not) the opportunity to come right back in and attempt the same foreclosure all over again.

Let’s take another look at your security instrument, shall we?

The entire security instrument (in Florida, that would be your mortgage paperwork) should be recorded in the public record in the county where the subject Property is situated in.  The security instrument has all the terms and conditions contained in it.  It’s a contract between you and the bank that leaves you with little to NO ROOM at all if you can’t make your payments, from losing your property.

Most homeowners didn’t even read the mortgage before they signed it.  They just wanted the fricking keys to the house and then worry about making the payments later.  There is no deception here folks.  No one held a gun to your head.  Now we have “rephrased” case law that says the lenders can come in and outspend and outsource you until you cry “uncle”, so what’s the point of owning real estate in Florida?  If you can’t pay cash and own the property outright, you risk being foreclosed on AT ANY POINT IN THE OWNERSHIP GAME!

We have had cases where all-cash-paying homeowners in Florida ended up facing attempted foreclosures by the banks who claimed to hold a mortgage on their properties!  That shouldn’t surprise you, should it?

It’s a proverbial “cloud” over the Sunshine State!  But wait … this happens in every State in the Union because the banks aren’t really punished for their screw-ups.  The U. S. Government has legislated a deal to protect the banks (Title 12, U.S.C.A.) and set up a whole bunch of regulatory agencies to interfere with any homeowner trying to get a “leg up” to save their home.  Despite Bertram’s filing a quiet title action, he argued the note. That’s fatal mistake #1!  Title is title and note is note.  At best, the note would have been unsecured if Bartram would have been successful in expunging the mortgage.  But that’s not what happened here when the smoke cleared.

We’re not even talking about standing in this case, right?  It’s all about statute of limitations on debt collection, which Florida’s highest court has succinctly “rephrased” to fit public policy.  So far, there have been a lot of “take-aways” from this case.  Here are some links to thoughts from others (NOTE: Links may not work indefinitely.):

FROM THE BANKING SIDE:

http://www.bakerdonelson.com/Bartram-Affirmed-Florida-Supreme-Court-Provides-Guidance-For-Filing-a-Successive-Foreclosure-Action-Post-Dismissal-11-03-2016/

http://www.dailybusinessreview.com/home/id=1202771518004/Fla-Supreme-Court-Rules-for-Lenders-in-Landmark-Foreclosure-Decision?mcode=1394650389919&curindex=1&slreturn=20161005084547

http://www.lexology.com/library/detail.aspx?g=8f31a6c4-1a12-48b6-9acb-832d62806948&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2016-11-07&utm_term=

FROM THE HOMEOWNER SIDE:

http://bobhurt.blogspot.com

http://southfloridalawblog.com/breaking-news-florida-supreme-court-rules-on-statute-of-limitations-in-foreclosures/

While the legal implications are narrow, statute of limitations on debt collection in Florida might as well be chucked out the window as a winnable court argument if your home is in question because we all know who runs this government … the banks, right?  Seriously?

Most attorneys I’ve talked to say that the lack of standing is the key to getting your win in Florida (and elsewhere) because the courts have no jurisdiction to rule on anything when the bank doesn’t have a right to  bring a foreclosure action.

The problem is however, that:

  1. The banks have more money than you do and can outspend and outsource you (and your attorney) if the home is worth enough to them to steal (foreclose on using fraudulent documents);
  2. The banks still rely on messed up paperwork, so between the foreclosing law firm and the servicer, stuff is still getting “created out of thin air” to give the bank standing to foreclose; and
  3. The banks coming into court are generally, in reality, represented by their servicers, not knowing that they (the banks) are actually the named Plaintiff in the action, which is servicer fraud.  This has been ongoing for over a decade!

So the answer here is to:

  1. Stick to your guns regarding standing and show up in court and allege the lack thereof;
  2. If you’re going to retain counsel, get an attorney that really knows about foreclosure defense and is up on current case law; and
  3. Have an “end game” (Plan B) in case you run out of money.  This doesn’t apply to the 95% of you that run away at the first sign of trouble.

So be it.  I doubt this will be appealed to the U.S. Supreme Court, so it looks as if Florida is stuck with this decision.

 

 

 

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ONE OF OUR GREATEST JUSTICES, ARTHUR SCHACK, HAS PASSED AWAY!

Hon. Arthur Schack

BREAKING NEWS!

It is with great sadness that I report to you that Kings County, New York Judge Arthur Schack has died at age 71.  He was a champion of the truth and will be notably remembered for being reversed in the HSBC BANK USA NA v Taher case because the higher courts did not like his ruling (which I believe was for political reasons). You can read the latest article on Judge Schack here: Beloved Bay Ridge Justice Arthur Schack dies at 71 | Brooklyn Daily Eagle   My condolences go out to his family.

This is not the news I was expecting in my inbox this morning, given the number of foreclosures that are now being filed in all of the New York boroughs right now.  In fact, due to the downturn in certain areas of the economy (which Wall Street and its pundits claim is on the rebound), various sectors of wage-earning workers are finding themselves unemployed (e.g., Lorain County, Ohio) and when people are unemployed, mortgages don’t get paid and foreclosures start back up again.

When we lose a justice like Judge Arthur Schack, the economy suffers because the banks have one less “hurdle” to face in court, which gets them closer to a win, especially in light of the apparent and continued use of illicitly-manufactured documents, supervised by the foreclosure mill law firms and manufactured by the servicers bringing the foreclosure actions on behalf of REMICs that have been paid off multiple times over!

As I stated in a previous blog post, the belief of many in my network is that the investment trusts set up in New York and Delaware (in most cases) have absolutely no idea that they have filed a lawsuit against a homeowner because, as was stated in a U.S. Bank brochure previously, the trust has no idea when someone is in default.  On Day 91 of the default is when the REMIC gets paid from the insurance policies and credit default swaps, so the sponsoring bank, who has little no skin in the game on these side bets and policies, is made whole (unjustly placed knowing the homeowner’s loan would fail).  I believe that Judge Schack was getting closer to the truth than most of us know.  Those close to him that I know of had told me previously that he was in ill health.

America has lost one of its greatest judicial heroes.  If I was flying a flag today, it would be at half staff.

For those of you looking for technical information on foreclosures and chain of title, I will be in New York a month from now (June 3-5, 2016) conducting a Chain of Title Assessment (COTA) Workshop.  This is the first time I have been to New York and seating for this event is limited, given the presenters in this workshop.  For more information, visit the Clouded Titles website or download the pertinent information here:

COTA FLYER NEW YORK_2016

COTA WORKSHOP_NEW YORK 2016_REGISTRATION FORM

 

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LABOR DAY = SLAVES TO THE RHYTHM!

Another Labor Day is quickly passing us by … I opened my email and saw a posting by Rodney Johnson, Senior Editor, Economy & Markets, which I’d like to take the opportunity to quote and expound upon.  What you take away from this is entirely up to you …

Rodney’s Take: 

“Contrary to what we see on television, the Internet, and in newspapers, Labor Day wasn’t created to increase the consumption of beer and barbeque, or to generate more sales at department stores. It’s not called Redneck Hangout Day (which I, for one, would be glad to celebrate) or Consumption Day. It’s Labor Day, a time for recognizing the contribution made by laborers to the success of the nation.  Most everyone I know works at something, but this day was specifically designated to separate the owners of capital and managers, who aren’t celebrated, from those earning hourly wages.

When it began in the 1800’s, it was a time of Robber Barons, Industrialists, and Scientific Management Experts who did their best to squeeze greater efficiencies out of workers.  The unions were pushing back. Demanding a holiday in honor of workers was a logical way to raise awareness of how much the nation relies on this group.

I agree. I also think that managers and working owners of capital bring a lot to the table as well. But there’s a fundamental choice made before any of this celebration can occur. People choose to work.  More specifically, we get to choose to work. Our labor is of our own accord. While many people might not like their jobs, or aspects of their employment, they still have the right to show up or not.  For millions of people, this isn’t the case. Today there are between 27 million and 36 million slaves on the planet.  In 1860, at the height of the slave population in the U.S., there were four million.”

My Pontifications:

I can’t help but reflect on the reasons for the first Civil War in America.  Slavery may have been at the heart of the matter, but state’s rights were equally as controversial; but a “free America” evolved from a history that began much earlier.

Americans got themselves worked up over a 3% tea tax, which led to the start of the Revolutionary War.

Since then, taxes have crept into our lives in many ways, stealing from our pocketbooks so nonchalantly, yet today we turn a blind eye to the fact that the government is taking from the “sweat of our brows” and the Robber Barons are still at work, robbing us of our wealth, through pretentious, deceitful, unilateral adhesion contracts.  Today, more than 150-million Americans are “slaves to debt”.   Many of them have lost hope in themselves as well as what this country has become.  While I respect Mr. Johnson’s views (as he works with Harry Dent’s group), I think Mr. Johnson missed this point because he generally only looks at the productivity levels of Wall Street.

While, cynically, I can cite Labor Day as a means to “appease the peasants”, this does nothing for those who have been ejected from their homes by parties that have absolutely no interest whatsoever in what they stole.  For this citation, I will probably be castigated to my grave, as if I have been made out to be someone who gives Americans “false hope”.   I say, watch the trailer to the upcoming movie, “99 Homes” (which premieres September 25th) and see if you agree that in order to survive in America, you have to have hope in spite of all setbacks.

I have to tell you, every time I watch this trailer, tears stream from my face.   If you’ve ever lost a home through foreclosure, you may share my feelings when you watch this.  I will go see the movie.  I have to see the movie.  Americans who were not affected by foreclosure need to see this movie, even if they don’t come away with much.

When people have no “hope”, they get mad.  They become violent.  It’s not about loss of pride anymore.  It’s about the loss of caring.  It’s about the sense of responsibility that we as Americans have been bestowed with that doesn’t seem to matter anymore.  Civil Wars get started over issues like this.  Sadly, I see this again in America’s future.   I only have to point to the senseless killing of the Virginia news reporter and her cameraman and countless police officers who have been recently gunned down for snubbed for no reason as just a few examples.

Ah, but you think I’m mad?  The self-centered naysayers who have taken issue with my beliefs will come out of the woodwork (if they haven’t already), yet I ask them, “You were given the opportunity to contribute a meaningful verse in history.  What fundamental and meaningful verse did you contribute?   Did America benefit from it or were they hurt by it?   Were your contributions motivated by greed or by self-gratification?”

Mine weren’t.  You don’t get rich writing books, especially ones that espouse controversial subject matter … subject matter that is relatively misconstrued and misunderstood.   Unless you’ve made the New York Times Bestseller List, you’re lucky to survive.  And this serves as the fodder for my foe?  LOL

We seem to lose the meaning of the fact that the Bible clearly indicates (in Proverbs at Chapter 22, Verse 7):  “The rich ruleth the poor.  The borrower is servant to the lender.”   This is what America has really become, a nation of slaves to the lenders that hung us out to dry with these self-serving contracts.

I have been mortgage free.   I walked away from my home in 2003.   I wrote about that in my book, Clouded Titles, my penance to America (if you will).  I made mistakes for which I owe no one an apology.   We all make mistakes.   We learn from our mistakes and move forward in the hope that we will succeed.  Getting involved in a mortgage contract you can’t get out of successfully is one of those mistakes, which I deem is NOT entirely your fault.  True, no one held a gun to your head at the closing table; but in a land that lacks financial education, “dangling the carrot” meant some sort of “perk” that fueled the Age of Entitlement.  Remember former President Bill Clinton saying, “Everyone in America deserves to own a home!” ????

There was too much available credit and too many people willing to listen.  Yet, there was a hope involved that we could be “movin’ on up” (please don’t start singing the theme song from The Jeffersons, because that’s NOT what I had in mind here!)  But reflecting on that television show brings hope for those who were trying to rise up, even if it meant losing it all in the end.  We applied the sweat of our brows to attempt to rise to the occasion, but instead we learned that we bit off more than we could chew.  That my friends is a lesson in reality that has made us all “slaves” to an uncaring government that did little to punish the banks for their continued wrongdoing.  The banks have us all convinced that we cannot live without them, or their credit.  I say, unequivocally, that is a false assumption.

Anyone who reads the OSCEOLA COUNTY FORENSIC EXAMINATION will clearly understand what scenarios developed that caused the current financial crisis.  This crisis is still ongoing and hundreds of millions of dollars in HELOCs are about to reset themselves over the next four years, which will restart foreclosure clocks all over America.   Each state has dealt with the foreclosure crisis differently; however, there is one common denominator: Most of this country’s judicial system has sided with the banks, whether or not the Borrower’s brought legitimate claims or not.  These judges were fooled into believing that their retirement pensions were going to be affected by ruling against the banks, when that was the farthest thing from the truth.  In reality, these judges will die someday and their estates will be negatively affected by their misguided rulings.

You see, it’s not just the foreclosed homeowners that are affected here.  Foreclosures bring down property values everywhere, including the value of the judge’s homes.  We have found time and again that many judges hearing foreclosure cases have MERS-originated Mortgages.  Any foreclosure defense attorney or pro se homeowners that try to point this out in court gets a proverbial ass-chewing by a “judge with an agenda”.  This is why we have appellate courts folks … some of them are starting to make a difference (South Florida’s 4th DCA, for example).

Is this a sign that I am pontificating “false hope”?   This is case law that no one can argue with, not even the naysayers who think I haven’t beaten myself up enough.  I am not Martin Luther, the reformationist who flogged himself daily with a cat-o-nine-tails, because he felt he needed more self-abatement.  Those who have lost their homes do not need to continue to “beat themselves up” any longer either, because the naysayers have made it clear they don’t care what happens to these people.  They seem to think that these homeowners did this to themselves and that they deserve what’s coming to them and that they should GIVE UP ALL HOPE!

Remember what made America great?  Hope.

True, Mr. Johnson points to certain elements in American history that have shaped this country into what it is today (this is where YOU get to come in and evaluate what you have contributed to history).  However, Mr. Johnson’s diatribe only covers Labor Day in its basic historical context.  Labor is labor, if you choose to contribute a verse.  If the fruits of your labor were illegally stolen from you, you have a right to be upset.  How you vent and direct your anger is what defines who you are.

Yesterday, I talked to a fellow that told me he had moved out of his house three years ago.  His name is still on title to the property. Vandals have broken into the place and looted it for anything of value.  He eventually let people stay in the home that needed a place to stay (for nothing), while he rented a place.  He had a Countrywide loan.  It was adjustable rate mortgage.  It would take $40,000 to fix the place up even if he could come up with the money to “cure an alleged default”.    I see this scenario replayed over and over again all over America.

Like Joe the Plumber, this guy worked like a dog to support his family.  He was working when I met him.  He must still have hope, huh?

If you filed a lawsuit to defend your home, it became part of the Article One contractual realm, and it indeed made history, despite what others may tell you.  You filed the lawsuit because you had some sort of “hope” that you would win, even though in the back of your mind, you may have realistically thought that you were right, but your odds of winning were 50-50.

Those who have no hope will have nothing to live for.  Today, pray that they may have hope, otherwise, they’re liable to go out and shoot someone who they believe caused their problem.  I’m sure the naysayers that bask in their self-indulgent glory will delight in this!  Misery loves company.  YOU cannot be a part of that!  I’m still here, despite all outcomes.

My voice represents millions of pissed-off Americans but there’s a right way and a wrong way to fix this national tragedy.  Keep working for an answer.  It will come to you at some point.  THAT is what I believe Labor Day is all about!  HOPE!

Dave Krieger is the author of the book Clouded Titles.  Mr. Krieger hosts Chain of Title Assessment (COTA) and Quiet Title Workshops and is still consulting with attorneys on foreclosure cases across America.  See the details about the upcoming COTA Workshop on the website.

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