Tag Archives: jurisdiction

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.

4 Comments

Filed under OP-ED

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!!

 

 

8 Comments

Filed under OP-ED