Tag Archives: MERS

Foreclosure and your civil rights: A judge rules against you in spite of questionable land record documents … what to do next? (PART II)

(OP-ED) — This overview of cases involving civil rights abuses are the author’s opinions based on his legal research and are for educational purposes only and should not constitute any rendering of legal advice or seek to draw any conclusions of law. This is the second discussion of three parts.

THE RULES OF THE GAME HAVE BEEN CHANGED

The issue of police brutality all boils down to the issue of perception of what law enforcement stands for … from both sides of the coin. When police make an arrest, they do so based on material facts surrounding probable cause. The behavior and demeanor of the accused and their right to justice is largely determined by the answers they give and the way they react to questioning by the arresting officers. We spend an inordinate amount of time watching television, where police officers are displayed as being the saviors against the wicked. Yet, in order for a criminal case to proceed, the evidence has to stack up against the accused. The evidence cannot be controverted or subverted with lies and deceit.

“We have repeatedly held, therefore, that an officer violates the Fourth Amendment by omission only if ‘it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination. A warrant request violates the Fourth Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements in requesting the warrant and the false statements were necessary to the determination that a warrant should issue.’”

— Cited in Rainsberger v. Benner, 7th App. Cir. No. 17-2521 (Jan. 15, 2019)

And what does this have to do with civil rights, you ask yourself?

Because the Rainsberger case turned on the evidence, when it was discovered that the detective investigating the case (Benner) omitted exculpatory evidence and fabricated evidence wherein the probable cause affidavit was riddled with lies, undercut with the omissions that would have kept Rainsberger from being arrested in the first place … the outcome was that Detective Benner’s sovereign immunity privileges were stripped away by the Court because of his actions. That’s how this argument relates to foreclosures when brought into the civil realm.

The entire foreclosure scenario also deals with material fact, which is why the author brought the arguments within the Rainsberger case into this discussion. When material facts are distorted, manufactured or omitted, causing the homeowner to be unfairly prosecuted as to his right to be secure in his “persons and papers” as guaranteed under the Constitution, someone must be held accountable.

Since the 2008 financial collapse, numerous discoveries have been disclosed to the consuming public of deceitful acts committed by the banks and their servicers and third-party document mills. Unfortunately, with the changing of the rules in the way the “game is played”, moving cases to federal court have been reformed to the point that simply stating that “a person created a phony document used to steal my house” just doesn’t work anymore with the Supreme Court rulings in the Twombly and Iqbal cases. The author has included the following research for your education and understanding, as having proper knowledge of what to expect on the federal level, which should be put in the forefront in any anticipated civil rights actions that follow a foreclosure:

WITHOUT FORETHOUGHT: SUE! SUE! SUE!

It is problematic that over 90% of Americans do not understand their system of laws. In fact, criminals understand the legal system better than their enfranchised counterparts. When faced with legal action, the defendant homeowner either becomes despondent or angry. There is no in between.

The first objective is to lash out against every person or idea that contradicts one’s belief system, as flawed as it may be. The “entitled” believe they should stay in the house for free … that all of the foreclosure accusations are really the bank’s fault … yet the borrower obligated himself when he signed the mortgage documents, thus, creating a legal “can of worms” for himself. The finality of truth brings with it a reality check.

All semblance of logic goes right out the window in favor of emotion. This is one major reason this author created the Clouded Titles website and wrote the book by the same name back in 2009-2010 (officially released in December of 2010). In order to get in this game and play it well, emotion must be replaced with legal logic and right thinking.

If you’re like most Americans, you place blame on others for your own shortcomings. Shortcomings however do not replace mistakes. But what if you’ve been blindsided with facts you know not to be true? How do you cope then? Most Americans would let their emotions “out of check” upon realizing that the banks messed up their own paperwork and that now they (the homeowners) are paying for it!

CHAINS OF TITLE TELL STORIES … STORIES THAT DON’T LIE!

Without a doubt, the author’s previous PART I post disclosed that two independent examinations of the land records in Texas and Florida demonstrated the rampant use of false documents, one of which came to light in the U.S. Bank, N.A. v. Harpster case in Florida:

And this is not the only case either. In another Florida case, the bank’s attorneys came into court with not one but three different versions of what they claimed was the “new and improved” promissory note:

And on the witness stand, in another Florida case, Erica A. Johnson-Seck admitted to be a “robosigner”:

And the foregoing case found its way into a New York State foreclosure decision!

Sadly, a lot of homeowners run to bankruptcy court, thinking they can stave off a foreclosure. All this does is kill their credit scores to the tune of 450 points for up to 10 years! Even the federal Office of the Comptroller of the Currency calls bankruptcy “a stall tactic”. But what happens when the bank runs into bankruptcy court and lies about its “position” in the chain of title:

STEALING PEOPLES’ HOMES FOR FUN AND PROFIT!

The foregoing headline was spouted by a foreclosure defense attorney in Texas during a discussion of a workshop he attended that was held by foreclosure mill attorneys. One of the attendees, whose name repeatedly surfaced in the Williamson County, Texas Real Property Records Audit, Stephen C. Porter, appeared nervous because after the audit was released, he was exposed to the world as a “robosigning attorney”. This is where things get dicey for Mr. Porter, because this author looked up Mr. Porter’s Texas Deed of Trust and compared the signatures of the robosigned documents to those of Mr. Porter’s own mortgage note and they were unbelievably different from each other. In fact, it appeared as if the signatures may have been put there by his notary!

All of this of course, leads up to the discussion of the intent to defraud … the homeowner, the land records and the judge. This author believes that all foreclosure victims deserve their rights to due process and that any “officer” of the court, which an attorney is, should lose their “sovereign immunity” if they omit, lie or cheat their way through a foreclosure and steal someone’s homes using false documents which they themselves may have had a hand in!

It’s just that when homeowners win, they become like electricity, seeking the path of least resistance and crawling back into their comfort zone. They have no interest in follow-through to see that the party or parties creating the phony documents, which still continue to litter their chain of title like a hooker with AIDS, are brought to justice.

The time to attack these phony documents is BEFORE the foreclosure starts, not AFTER! In the Harpster case, the attorney at least had the gumption to research the assignment and talk to the bonding agent and obtain an affidavit which stated the notary did not have a valid commission at the time David J. Stern’s own secretary (Cheryl Samons) executed the assignment.

ALL IS NOT LOST IF YOU CHOOSE FOLLOW-THROUGH … WIN OR LOSE!

In a recent foreclosure case decided in a Mississippi Chancery Court, the judge, who is covered by the State’s risk pool as to her liability, gave the defendant homeowner 7-1/2 minutes to present his case and despite the best evidence presented in that amount of time by the homeowner:

  1. The judge decided he’d had enough time because (as she previously announced to the court) the judge had to leave to go to her daughter’s volleyball game;
  2. After making her ruling, the judge commented that it must be rough “looking through rose-colored glasses, having lived in a $274,000 home for free for over 5 years.” This clearly indicates bias;
  3. The other side’s attorney’s complaint was deficient, partly due to mismarked and improper exhibits that the judge refused to allow to be stricken from the record when objected to; and
  4. Given the judge’s social calendar, it’s obvious she cared more about not being in court versus simply making snide remarks when the evidence presented supported the case actually going to trial.

This is where the system of things HAS TO “kick into high gear”.

After seeing and hearing the results of this case … and here goes the “if it was me” diatribe, the author would:

  1. File a complaint with the Mississippi Judicial Review Board against the judge.
  2. File bar complaints against the three attorneys who “touched” the case, because they inadvertently and purposefully omitted evidence which would have pointed a finger directly at law firm involvement in the manufacture of an assignment used to give the plaintiff (LSF9) standing.
  3. File a Motion for Reconsideration in a timely manner (10 days), citing those things that the judge failed to take into account before making her decision (all administrative appeals and alternative moves must be taken before proceeding to filing a State Tort Claims Act action).
  4. The timetable for the due process violation (under the McDonough v. Smith case), according to the U.S. Supreme Court decision, begins to run when the final adjudication has taken place.

Could the homeowner have won his case (or in the alternative got his matter set for trial) had he retained counsel to defend his home? Maybe. That is a story for another day because it involves unwrapping the mindset of why homeowners (and the public at large) don’t trust attorneys.

There is some room for argument here that the damage would actually occur when the home is sold and the homeowner is evicted, but my non-lawyer take here is that the judge’s ruling set the clock in motion because it represents a final decision for which other actions (eviction) could follow.

AS TO THE JUSTICE SYSTEM, JUDGES SHOULD PAY FOR MAKING BAD DECISIONS RESULTING IN CIVIL RIGHTS VIOLATIONS!

Attorneys have errors and omissions policies. Robosigners are supposed to be bonded and have errors and omissions insurance naming them as a “covered party” in order to be a robosigner for MERS. Judges have bonds. Some judges have bonds with their own respective counties. Other state’s judges are paid by the state to be a judge, which means the State’s own “risk pool” (a big pile of money which pays out damages for provable civil rights violations) is ripe for the picking. Those who have the fortitude to file a 42 USC § 1983/1985 action may have the opportunity to realize justice when it’s used to get an attorney disbarred, get a document manufacturer prosecuted or get a judge tossed off the bench for aiding and abetting felony perjury.

The proof must come “in the pudding”. One cannot simply wave an alleged phony document around in front of the judge without implicating the parties that were involved in creating it. Justice is never served unless you can reach into the pudding, the likes of the Harpster case or better, and bring up the evidence required to show you were deprived of your due process rights by the Court and its officers. In the Harpster case, the judge who ruled in favor of the homeowner (Hon. Lynn Tepper, the author believes) was driven or “persuaded” to leave the bench by the political judicial hierarchy, because she was a fair judge and recognized fraud on the court for what it was. This judge did not simply take the bank’s word for anything, given the proof that was provided … stuff that this author has been sharing from an investigative standpoint for years.

This shows you how much “control” the banks have over the court systems in this country and why it’s likely a judge may be the culpable party in siding with lies by the attorney for the servicer. No one likes a liar. Liars deserve to go to jail if they participate in the thievery of stealing someone’s home using evidence that is manufactured or conveniently altered or omitted in what appears to be the commission of a crime.

And THAT is where the criminal justice system intertwines with the civil justice system. And if anything, police brutality should be the least of our concerns when “the system of things” is tainted with bias.

And this is exactly the reason WHY the author elected to do an online Foreclosure Defense 101 Workshop … because right thinking is called for here.

Stay tuned for PART III

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Foreclosure and your civil rights: A judge rules against you in spite of questionable land record documents … what to do next? (PART I)

(OP-ED) — This overview of cases involving civil rights abuses are the author’s opinions based on his legal research and are for educational purposes only and should not constitute any rendering of legal advice or seek to draw any conclusions of law. The first five points are discussed below:

The time at which a § 1983 claim accrues “is a question of federal law,” “conforming in general to common-law tort principles,” and is presumptively–but not always–“when the plaintiff has ‘a complete and present cause of action.'” Wallace v. Kato, 549 U.S. 384, 388 (2007); Manuel v. Joliet, U.S. Sup. Ct. No. 14-9496 (2017).

— As cited in McDonough v. Smith, U.S. Sup. Ct. No. 18-485 (2019)

This post is circumspect as to the discussion of the items postulated within the land record audit and forensics investigation conducted by the author and his team of researchers in Williamson County, Texas (2012-2013) and Osceola County, Florida (2013-2014), respectively. Anyone who has read through these 179-page and 758-page reports will realize that they are just that … the means to call out an injustice that should have come to light, but never did, during the period following the 2008 financial collapse. Over 10-million homes were taken through both judicial and non-judicial means … and this case, coupled with several others discussed in this post, culminate into what the author has determined is a potentially valid 42 USC § 1983 civil rights claim, which must be filed in federal court in a timely manner.

FALSE AND MISREPRESENTATIVE STATEMENTS

As both of the foregoing reports concluded, documents numbering into the tens of thousands poured into the land records of all 3,041 counties and boroughs across America, each containing false and misrepresentative statements that predicated the actions taken by the banks’ servicers. These documents were generally created under the orders of the servicers themselves and were generally executed by the servicers’ employees, posing as Assistant Secretaries, Vice Presidents or other “loan documentation” employees of the servicer, posing as representatives of the alleged Lenders “in an official capacity”, when in fact, many of these signers were $10/hour paid flunkies who sat around in cubicles and signing rooms, affixing their signatures and notarial seals by the hundreds … per hour, without reading or knowing of the contents contained within the documents as to their validity!

Better than 99% of these documents continue to litter these same land records to this very day and only about .001% of Americans are the wiser.

POINT #1: When the alleged civil rights infraction has occurred

In the McDonough v. Smith case, which was based on a New York State criminal action, the action came to rest in the hands of the United States Supreme Court, which decided on June 20, 2019, in a very narrow opinion, that the action taken by elected official McDonough against prosecutor Smith was untimely. The allegations were based on the alleged manufacture of evidence against McDonough by Smith, not once, but twice. Due to this prosecution (by Smith), McDonough was deprived of his liberty (put in jail) due to this allegedly manufactured evidence. From the foregoing statement that is highlighted in bold-faced type, you can clearly ascertain WHEN you get to file a civil rights-based lawsuit … AFTER your foreclosure has been completed against you and you’ve lost your property at sale.

POINT #2: It is assumed that you are taking notice of the offenders

In order to make this case in point, the author is relying on the assumption that anyone reading the audit and forensic examination will come to realize that not all is copacetic in assignment-land. It is the assignment of the mortgage or deed of trust that is posited here as “manufactured evidence”, to be relied upon for a “conviction”, even though the intended venue is the civil realm and not the criminal. However, the alleged criminal activity involving the manufacture of the documents, which generally appear years after the alleged transfer of notes into REMIC trusts or some other junk debt pool, which says it’s a trust but in reality is nothing more than a third-party debt buyer deceiving both the land recorders and the civil judges alike, is at stake here due to the reliance of its validity.

It is further assumed that every party involved with or “touching” that assignment from its inception to its recorded form and relying upon it thereafter in the taking of your home, knowing the statements contained within said assignment were false and misrepresentative, is McDonough in the civil realm. The documents predated a civil prosecution (foreclosure) and were manufactured as part of a suspected criminal act.

To make it more plain and simple, YOU, the homeowner, did not deceive the land record, the servicers’ employees did. Maybe the law firm acting on behalf of the servicer did by furthering the lie. Maybe the judge knew or should have known that the documents in the case in chief contained questionable statements; however, chose to ignore them for the sake of convenience in clearing off a packed court docket without giving the homeowner (or his attorney) a chance to prove that the prosecution’s case was based on false evidence.

POINT #3: The aspects of perjury and the subornation thereof

18 USC § 1621 (in pertinent part): “Whoever–having taken an oath before a competent tribunal, officer or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contract to such oath states or subscribes any material matter which he does not believe to be true … is guilty of perjury and shall … be fined under this title or imprisoned not more than five years, or both.”

18 USC § 1622 (in pertinent part): “a person convicted of subornation of perjury may be fined $2,000 and sentenced to up to five years in prison.”

Under the latter, there are five elements which must be proven: (1) that the defendant make an agreement with the person to testify falsely; (2) that the perjury was in fact committed by the offender; (3) the false statements of the perjurer were material to the outcome of the case; (4) that the statements were made knowing of their falsity; and (5) there must be proof that the procurer had knowledge that the perjurer’s statements were false.

This is one of the key issues presenting itself as to the “further than arm’s length transactions” involved in foreclosure so as to create plausible deniability on the part of the perpetrators. Much of this can be ferreted out in depositions, which California attorney Al West has seen first hand.

POINT #4: The recorded alleged false statements in the land record

From the fact patterns discussed in the two foregoing reports, which are shown here for your review (if you so choose) …

… it became obvious to the author (in compiling the data shown in each of the reports) that a fact pattern involving timely suspect behavior occurred at about the time of the prosecution of the foreclosure, despite the fact the alleged information contained within the assignments that showed up in the land records just prior to (or in some cases AFTER the foreclosure action was started) the foreclosure case had indeed occurred.

It should also be noted here that these reports were not indictments, but merely “call outs” to alleged misbehavior on the part of third-party document mills or deceitful acts authorized or carried out by the mortgage loan servicers themselves. In March of 2012, the servicers collectively told the states and the federal government they wouldn’t create suspect documents and record them in the land records anymore, but as history shows (as demonstrated by the audit and forensic examination), no sooner was the ink dry on that agreement, it was back to business as usual.

Thus, the chains of title have been presumedly corrupted by this behavior, which of late, has gotten more sinister in nature, covered up by recorded powers of attorney that appear to grant some sort of authority to misbehave in the drafting of such documents, with no one the wiser.

POINT #5: The statements made within the foreclosure process itself

The next set of documents that appear suspect in the prosecution of the actual foreclosure itself are shown to be that of the “affidavits” or “declarations” made by the servicer’s employee, attached in similar form to both judicial and non-judicial actions. The difference here is that the non-judicial action contains a recorded statement known similarly as “Notice of Default and Election to Sell” and “Notice of Trustee’s Sale”. In both instances, these recorded notices contain the alleged suspect statements, predicated by the suspect assignment, then followed by the alleged “Appointment of Substitute Trustee”, which is not “neutral” by any means.

The judicial aspect involves the filing of a foreclosure complaint and the sworn declaration that accompanies the complaint filing, assumedly from the lender’s representative, when in fact, it’s the servicer’s employee making the statements. These statements then find their way into the initial court case filing.

The second “whammy” is when the servicer’s employee, who has been assumedly “coached” as to how to testify, many times in mock trials at the servicer’s headquarters so that their testimony is groomed to become so believable that the homeowner’s attorney swears the employee is telling the truth, that this is where the suspect “open court subornation of perjury” indeed occurs because: (1) the person testifying has been educated by the servicer to become a professional liar; and (2) the person testifying is relying on the suspect manufactured documents created by others and recorded in the land records of the county the subject property is located in.

HOMEOWNERS CAUGHT UNAWARES

As history has shown us, when the foreclosure debacle first started to litter the courts with cases, 97% of the noticed homeowners “cut and ran” without even entertaining the options. Their “Come to Jesus” meetings were based on fear of a bad result, predicated by a string of unfortunate events, which forced them to simply pack up and flee. The banks and their servicers were counting on this … and they succeeded admirably.

The other 3% of homeowners attempted to retain unlearned attorneys, who were naive as to the trickery committed not only in the land records, but through the MERS® System of things and the illicit behavior of the foreclosure mills … and bad case law affecting homeowners. It took awhile for these defense attorneys to come to grips with what was actually going on … and by then, even the judges were led to believe that what they were doing was above board, when in fact, it was based on manufactured evidence that should have been brought to light beforehand.

And this is why the author and California Attorney Al West created:

The C & E on Steroids!

… because these declaratory relief actions should predicate the foreclosure action, not only creating delays, but to serve as a warning to those who would involve themselves in the chain of deceit involving the taking of a person’s property.

Sadly, 99.9% of all homeowners fail to understand this strategy, which could force a court to quiet title to any given piece of affected property and potentially cause a criminal action to be pursued against those committing perjury and suborning perjury in their sworn statements of record.

What most foreclosure victims also don’t understand is that the application of a civil rights action is also predicated on the denial of declaratory relief, which is the basis for the Cancellation & Expungement (C & E) Action.

Everything that the author has discussed in PART I is the “set-up” to what liability could be ascertained throughout the foreclosure case itself, which a person with some skill and knowledge could do the research on to identify the most likely culpable targets therein.

IN PART II the author will discuss the pertinent parts of various cases in which the courts have identified these misrepresentations and what part of “all is not lost” applies to you, even if you lose on appeal. Yes, there are administrative remedies which have to be exhausted if one is going to go after an attorney, a judge and/or the county that pays them … and how the counties insure themselves against liability … out of a self-insured risk pool.

IN PART III … the author will discuss the attack strategy in the realm of 42 USC § 1983 and 42 USC § 1985, focusing not just on the perpetrators of the phony documents, but also at the attorneys involved in the prosecution of the foreclosures and the judges and the counties that employ them when the judges make bad decisions (like Al West says the judges say to him when approached about the documents, “What else ya got?”), which could make them accomplices to perjury and the subornation thereof.

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Letting the banks “get away with it” …

(BREAKING NEWS, OP-ED) — Part of what we’ll be discussing in the upcoming Foreclosure Defense 101 Workshop on Saturday, October 24th between 10:00 a.m. and 2:00 p.m. (EDT) is affidavits … in general … and specifically regarding lost notes and assignments.

To further this discussion, I did some heavy research after seeing a Law.com post about a Pennsylvania “lost note affidavit” case and upon review, found what I was looking for … and the results were shocking!

On Page 2 of this 12-page opinion, the borrower (Rao) mortgaged the property and gave MERS nominee status on behalf of SunTrust Mortgage, Inc. That was in early 2006. Notice the following sentence … “On or around April 22, 2013, SunTrust discovered the note was missing from their vault and David Aken, Vice President, executed a Lost Note Affidavit.” Two years later MERS, assigned the mortgage to MB Financial.

Without looking at the assignment, I’ll bet you the servicer’s employees drafted and executed that assignment and it all followed Rao’s alleged “default” on his mortgage (March 1, 2011). That means it took SunTrust two years (April 22, 2013) to discover it didn’t have a “note” in its vault. Could it be that the note was shredded after it was uploaded into the MERS® System? At the bottom of page 2, MB Financial claimed it was in possession, either “directly or through an agent” of a “Lost Note Affidavit”, maintaining it had the right to foreclose on the mortgage.

Now we go to court … MB Financial’s attorney brought in a witness from SunTrust’s “default” department, attesting to the fact that a “Lost Note Affidavit” existed with a “copy” of the note, which contained no endorsement page. Gee, the author wonders how they got a “copy” of the Note if it was lost … Hmmm. Did anyone bother to ask why that was so? How can you negotiate a “note” if only a “copy” exists?

The bank also submitted a certified copy of the Assignment of Mortgage, assumedly drafted and executed by SunTrust to MB Financial. The trial court sustained Mr. Rao’s objection to the Lost Note Affidavit based on hearsay and refused to allow it into evidence, in addition to the admission of the Limited Power of Attorney.

The confusion begins where Mr. Rao (assumedly through his attorney) first made an oral motion for a Nonsuit and discussing with the judge the difference between a Nonsuit and a Directed Verdict, which the Court then entered on behalf of the homeowner. The Directed Verdict was later changed to a Nonsuit in favor of the homeowner after the bank filed a Post-Trial Motion. The next paragraphs … read them carefully because they contain the “nuggets”, in which the objections were sustained in favor of the homeowner.

Understand that was this entire matter was over was the differences between a nonsuit and a directed verdict and what the evidence could otherwise prove or show. Because the Trial Court precluded the Lost Note Affidavit from evidence, MB Financial couldn’t prove “possession” of the Note. But could it “prove” its case anyway if it only had a “copy”?

This is where it helps to know local court rules (or at best, state rules).

What you’re seeing in this case is the roundabout, typical argument that banks always use in getting their lost notes “re-established” to make them “stick” as evidence at trial. Why then, did it take SunTrust so long to discover it had no note? Was it because it wasn’t until after 2011 that Rao didn’t pay his mortgage loan and someone went looking for the documentation? Why did it take so long to discover the original note wasn’t part of the collateral loan file? The Superior Court ruled that as long as the witness can “provide sufficient information relating to the preparation and maintenance of the records” to justify their trustworthiness, they should be allowed into evidence as business records.

However, there is no mention of proof of the default. Since MERS was involved, the note had to have been securitized into a REMIC trust, which was commonplace during that time. The author sees no evidence of any default argument here, but rather, a business records exception argument.

Also notice that the Court declined to analyze whether the contents of the Lost Note Affidavit complied with the statutory “sufficiency requirements” and reversed and remanded the case for a new trial. That means MB Financial “gets another bite at the apple”.

And this is why we’re going to cover the affidavits per se in our upcoming workshop. The basis for creating an affidavit is personal knowledge and how and when “things” got lost, stolen, misplaced … or even created in the first place!

You can sign up for the workshop on the Clouded Titles website!

The author of this post is not an attorney and offers this constructive analysis for educational purposes only.

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MERS RULES IN THE FIRST U.S. CIRCUIT COURT OF APPEALS; SCREWS 2 HOMEOWNERS

(BREAKING NEWS – OP-ED) — The attached cases were argued by the same attorney for the homeowners. Different attorneys for the foreclosure mill, pro-bank law firm of K&L Gates argued for the banks.  This is provided for your educational purposes only and to warn you of the dangers of litigating anywhere within the First U.S. Circuit Court of Appeal’s jurisdiction. My opinions of MERS and what it stands for are my own and do not constitute legal advice.  After all, MERS would like to put a bullet in my head. 

Believe it or not, the U.S. Circuit Courts of Appeal are still in operation despite the corona-crisis.  Last Friday, the appellate panel screwed two homeowners in REMIC foreclosure cases.  Worse yet, one case relied on the outcome of the other case to make the ruling finite. When you have to go into this particular federal appellate court, remember who has set more favorable case law here: Mortgage Electronic Registration Systems, Inc. (“MERS”: now owned by the same bunch that owns the New York Stock Exchange).

Here’s the first case, that the appellate panel used to set the standard for the second case:

Dyer v Wells Fargo Bank NA, 1st App Cir No 15-2421 (Apr 17. 2020)

From the outset of this ruling, it looks as if “Dreamhouse” didn’t do the Plaintiff any favors by including MERS as a nominee within her mortgage.  After all, Dreamhouse appears to have been a corresponding lender who got its money for this loan from an investor pool.

Remember, you’re in the first circuit here.  MERS rules!  MERS gets to do anything it wants.  Assign mortgages.  Publish confirmatory assignments.  I’m so convinced that MERS (through K&L Gates’ attorneys) gets to control the entire narrative in court arguments I could just spit fire.  Even though the mortgage document doesn’t specifically say that MERS can “assign” anything, MERS got out in front of the mortgage foreclosure crisis and pre-established the narrative, so it could come in in subsequent cases and argue that narrative and win every time.

All the same arguments we’ve heard before (specifically in Culhane v Aurora Loan Svcs_021513-1) that MERS can do anything it wants to. However, the narrative is controlled by what MERS can do or not do.  No one is pointing to the actual parties acting in MERS’s name. What this appears to be is just another redux of Culhane.  MERS’s attorneys can argue that MERS is both a nominee (agent) for the Lender and has all of the power of the Lender, especially in THIS Circuit … and get away with it.  This is why I don’t like federal court for litigating foreclosure cases. This is why banks love federal court to argue foreclosure cases … because they win 99.9% of the time!

Old arguments aren’t working anymore.  We need new ammunition, given the fact the second case ruling was predicated on the first one:

Hayden v HSBC Bank USA NA, 1st App Cir N0 16-2274 (Apr 17, 2020)

SAME ‘OL … SAME ‘OL … 

By now, if you’re reading your own MERS-originated mortgages, you can plainly see how you’ve F**KED yourself!  You gave MERS the “official” and “contractual” right to F**K you.  They can foreclose and sell your home.  They can rape your bank account in the name of preset case law they set in their favor.  They can release and cancel anything.  They can do anything your lender does … and can even come into court and act as your lender. Let me put it bluntly here … MERS is a disguise worn by the servicer.  It’s the servicer that’s actually doing the sodomizing here.

In this case, the Haydens filed multiple bankruptcy cases over time, delaying their foreclosure (and screwing up their credit) until 2026.

Again … as you can see on Page 3 of this ruling … MERS can do anything it wants … including telling the First Circuit to “get on its knees and bark like a dog”!  Again … old argument from the banks … borrowers do not have standing to challenge a mortgage assignment based on a PSA violation!  Again … the banks and MERS are controlling the narrative.  Old hat.  Doesn’t work.  Still being plied upon the courts and borrowers are paying for an attorney to argue the same old hat stuff … and losing.  Statute of limitations arguments … still old hat.  Not working anymore.  Hasn’t worked since 2o15 yet is still being argued.  Borrowers are still paying attorneys to argue the same things that don’t work.  The First Circuit isn’t buying any of it. It’s not having much better luck in any of the other circuits that have had the same ‘ol, same ‘ol garbage pleadings tossed at them.

Oh … and the PSA … that’s the banks’ narrative.  My narrative is the entire 424(b)(5) Prospectus.  It’s used as evidence in the C&E to establish fact.  You have to pick your battles carefully.  Each battle costs money.  After this corona-crisis is over … foreclosures will cost money. Money that hasn’t been there because half of the economy was shut down versus going in and letting “herd immunity” prevail.

YOU’RE DAMNED IF YOU DO AND DAMNED IF YOU DON’T! 

President Trump can’t do anything without being criticized for it.  He shuts down the economy and the public for its own protection and everyone on “the other side” bitches because he either didn’t do it soon enough or it wasn’t the right move in the first place.  You can’t win with these people.  We know the virus started in Wuhan, China.  But as soon as the President references it as the Chinese virus … now he’s a racist.  His opponents don’t know when to quit.  Sometimes, keeping your political trap shut can work in your favor.  They’re making a mockery of everything the President does, yet most of them have had several decades of serving in Washington to “get things done”, but we’re no better off with them than without them.  This is politics folks. If you don’t like the way things are, change them.  But remember …

The President is the head of the Executive Branch, the branch that enforces the laws.  The President is tasked with running the country … not the person that makes the laws in the first place!  He’s a CEO, not a politician, which is why his opponents hate him so much. He won’t play in their “sandbox”.  Boo frickety hoo!

Congress makes the laws (in the form of bills).  When Congress introduces a “bill” … that “bill” costs money to make it work. Taxpayer money. Someone has to pay for it and it sure ain’t Congress!  This latest stimulus package again demonstrates how much pork Congress got away with spending … and the economy that has been doing so well (that all these lame-brained politicians are trying to take credit for) is now stagnating.

The Courts decide whether the laws are constitutional, are properly enforced and/or whether Congress overstepped its bounds when it enacted a law.  Today’s courts like to issue very narrow rulings, which is why you have cases like these being decided against homeowners.

This is our system of checks and balances folks.  It’s what the will of the people created. Deal with it!

And what the hell does this have to do with foreclosures?

This is why the Dyer ruling was 12 pages and the Hayden ruling only 5 pages.  Because the Dyer ruling says enough to where it doesn’t have to be repeated ad infinitum, ad nauseam in the Hayden ruling.  It has everything to do with the atrocities that banks are allowed to get away with, using MERS as a disguise for the real truth.

Everything in these two cases affects every ruling that comes out of the U.S. First Circuit Court of Appeals.  Other federal circuits may choose not to rely on these two cases … or Culhane for that matter.  But it clearly shows circuit split when it comes to how the courts treat MERS and what they will let MERS get away with.  If you don’t know what to plead … how can you expect to win your foreclosure case?

THE CANCELLATION & EXPUNGEMENT ACTION (The “C & E”) …

Because we’re seeing results with using the C & E, it goes without saying that I’d talk about it again.  Neither of these two cases discussed anything within the contents of the document that made sense other than the date and time of the event and the claims the assignments made violated the PSA.  That moves the argument into the bank’s narrative.   To argue the bank’s narrative is to liken that strategy with the comment Robert Stack made in the comedy movie Airplane: “That’s just what they’d be expecting us to do!”

The C & E does just the opposite as it moves the narrative in a different direction … one “they won’t be expecting”:

  1. Virtually all 50 states have common law rights to cancel written instruments. That includes bogus assignments!
  2. Virtually all 50 states have penal codes that prohibit the recording of false utterances in the public record!
  3. Virtually all 50 states have a consumer protection act that can be tied to the recording of the false utterance!

The C & E is postured within a declaratory relief action that can be utilized while the banks aren’t foreclosing … hint, hint:

  1. The declaratory relief action is discretionary in federal courts, which is why we like to use it in state courts!
  2. The declaratory relief action can be accompanied by a notice of lis pendens, which can be effective in stopping title closings in foreclosure cases!
  3. The declaratory relief action in many state courts can ask for a ruling on a document to be applied to the entire chain of title as a precursor to filing a quiet title action.

The C & E costs less money to effectuate than most foreclosure defense actions yet still is able to achieve a timed delay:

  1. Investors use C & E’s to buy time.  Time is of the essence no matter what battle you pick. This can buy more time if used correctly in both deed of trust and mortgage states!
  2. We are now seeing that filing corresponding criminal complaints with local law enforcement is “shaking things up” in the civil realm when it comes to litigating false utterances!
  3. Many times, the criminal intent contained within the false utterance can be used to put a court on notice that someone is trying to “protect the sanctity and decorum of the court” by keeping the judge from becoming an accessory to the criminal acts committed by the servicers’ employees, acting in the name of MERS!

You still have time to factor in a positive outcome.  There is still time to get your 2-day training session (with materials) on DVD (8 discs) and train yourself and your attorney to fight the good fight because the foreclosure moratorium is still in play here for most of you. Visit the Clouded Titles website for more information.  Supplies are limited so order yours now!

As a special added bonus … your order includes a 30-minute consultation session with the author! 

 

 

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WILL THERE BE AN UPTICK IN FORECLOSURES ONCE THE CORONA-CRISIS IS OVER?

(OP-ED) — The author of this post is a consultant to attorneys on foreclosure and chain of title matters and none of the following opinions should be constituted as legal advice or seek to guarantee a legal outcome. It posits what this author sees as what is to come.  It may not be the “whole new way of life” everyone thinks is going to take place due to this pandemic. 

This post is not for the faint of heart nor is it designed to make you more paranoid than most of you probably already are.  It is designed to impart some common sense rationality into dealing with the post-traumatic issues of what we collectively are all perceiving as a “crisis”.

Some of us think this whole thing is overblown.  The majority however have unknowingly allowed the “crisis” to replace common sense with survival fear … and rightly so.  It’s one thing to think that the coronavirus was just going to stay put in China when in fact, we have such an upwardly mobile society that everyone has been instilled with traveling to different parts of the world, be it on a plane, on a cruise, whatever … no one expected this would hit America and I believe we were all duped as to the “numbers” and the “purpose” for COVID-19.

Here are some interesting “takes” I’ve picked up on over the last couple of weeks …

  1. Chinese-Americans who are loyal to this country have stated to me that China well understated the numbers of dead and infected as the result of the viral spread there.
  2. The understatement was intentional, to lull us all (and I mean the World Health Organization (WHO) and the countries affected by the virus, including America) into a false sense of security so we would continue to go on about our daily lives as if this virus really didn’t matter.
  3. Knowing that we were already embroiled in political turmoil in this country, we’ve been “played” by the Chinese in a further effort to destroy the credibility of many of our elected leaders and further create political dissension in our every day lives.
  4. Most of the world was not medically ready for another pandemic.  If WHO was really concerned with the spread of this virus, it should have reacted more quickly when it was observed that the virus was spreading outside of China’s borders.
  5. We can all point fingers at our government for being “reactive”, because that is how our government has always been … reactive instead of proactive.  We weren’t ready for the virus when it hit our shores and we sure as hell aren’t ready for it now.
  6. Our medical systems in this country rely too much on non-essential and boutique surgeries and were not ready to deal with massive shortages in critical care supplies and labor.
  7. Our government’s medical “advisories” and social “responsibilities” were lacking in keeping its undisciplined citizenry safe from each other, allowing for Darwinistic opportunities to avail themselves upon an unsuspecting public.
  8. Instead of heading off the pandemic “at the pass”, state and local governments were slow to react to contain the virus and identify the “vectors”, which is what South Korea did when it first became aware of the invasion of the virus.
  9. The saving grace was that most state governments went above and beyond the federal measures enacted to stop evictions and foreclosures during the coronavirus outbreak.
  10. The not-so-saving grace is what happens after the fallout rears its ugly head, the supply chain breaks down in certain quarters and the economy can’t put enough people back to work fast enough to recover from the shock the country took in the 30-60 “stay in place” periods.

This is where thinks get “quirky”.

As was explained in some “insider” memorandums which I managed to retrieve through my back channels, the mortgage loan servicers (especially on these MERS-originated mortgages) have to pay advances on the distribution dates to the investors who funded the loans through the various REMICs (Real Estate Mortgage Investment Conduits).

There were (at last count) roughly 6.6-million people that applied for unemployment benefits, despite the economic “stimulus” package.  In my twisted mind, this is like getting a hand job by a hooker, wherein the “wham bam” happens and then you realize the relief was only temporary and you’re right back at the stress level you started from before “the act” happened.

The mortgage loan servicers who handle the payments to the REMICs (the advance payments of principal and interest on every securitized loan) every month on the distribution date, have to pay those advance payments whether borrowers make those payments or not.  I hope you got that.  No matter (during this crisis) whether you made your monthly mortgage payment or not, you are NOT in default because the servicer has been making your payments anyway.  They just won’t tell you that.

The problem becomes worse however when the servicers have to make these payments regularly over time, believing that they can collect the the past due payments from the borrowers (who are out of work or close to being out of work or short on funds) who are wanting a forbearance on their mortgage loans.  This means the servicers would have to consider putting the payments (including interest) on the back end of the loan.  This means that for those of you who (for example) were on “Payment 22” of your amortization chart on a 30-year fixed rate loan, you’re asking for Payments 22, 23 and 24 (plus interest) to be put on the back end of your loan, which is compounding interest upon principal upon interest.  Let’s face it, most Americans do NOT have the reserves to make the mortgage payments past one month, which is why they had to borrow the money to buy the home in the first place.

Now the mortgage loan servicers are stressed financially because the payments have to be paid into the securitized trust pool every month, regardless of the borrowers’ circumstances.  The servicers may be forced into “having to rob Peter to pay Paul”, which means the servicers will borrow from escrow accounts all over their servicing network of mortgages, in the hopes that they’ll be able to repay those escrow accounts back over time.  The problem is, when that doesn’t happen (and even at the time funds were borrowed from escrows), there is still a shortage in the escrow accounts that the servicers borrowed from to pay the REMICs their monthly payments to.  A prolonged period of these payments (6-9 months; if this crisis were to continue) would put the servicers in jeopardy.

Fast forward to the end of the corona-crisis … 

The mortgage loan servicers are out of pocket all of the advance payments they had to pay during the crisis, which means they’re going to be on an all-out campaign to try and recover as much of the shortfalls as possible to reimburse all of the escrows they borrowed from to keep everything looking “current” on the books (this is why servicers get in trouble).  This is one of the reasons why Ocwen got into trouble and ended up having to sell $600-million in securities to bolster its “advance” payment funds to investors.  That’s like chasing a large, lump-sum credit card payment, making minimum payments every month.  The debts just never seem to get paid off.  Most borrowers can understand that.  Now, factor that into a much larger scale.

By now, you’re beginning to see the “crisis” occurring within the ranks of the mortgage loan servicers.  They will be reluctant to do loan mods because that means more perks for the borrowers. Extensions the servicers really aren’t interested in “affording” because they’re already swimming in borrowed time.

Couple that with the borrower’s payment history of already-missed payments BEFORE the crisis was declared and you’ve just dumped gasoline on the already burning flame.  My suggestions here, which are simple to ascertain and follow:

  1. During the crisis, check your land records EVERY WEEK to see whether or not the servicer has “manufactured” any assignments using MERS (Mortgage Electronic Registration Systems, Inc.) as a means to assign, transfer or convey a mortgage loan into a REMIC trust in anticipation of having to do a foreclosure.
  2. If the assignment was done BEFORE the foreclosure and you’ve already become aware of it, use this opportunity to research your chain of title and see whether or not the information contained within the assignment is false and misrepresentative.
  3. Look up the state statutes to see what felonies were committed by asserting the false and misrepresentative information into the assignment, which was subsequently recorded into the public record and begin to document all aspects of it (who created the assignment, who executed the assignment, who notarized the assignment, who are the parties named in the assignment, who caused it to be recorded, etc.) for reference.
  4. DO NOT attempt to contact any of the parties creating the allegedly-bogus assignment. This is like tipping your hand in a high-stakes poker game.  I cannot stress that enough (as a consultant to foreclosure cases).  Telling the other side of your game plan is going to jeopardize your chances for recovery down the road.  What is important is to gather as much information as possible about all of the parties mentioned within the assignment without contacting them directly.  (There will be plenty of time for that in court-controlled discovery).
  5. Obtain a certified copy of your REMIC from the United States Securities and Exchange Commission while the ink is still fresh and you can take advantage of the time lapse created by the corona-crisis which allows you some advantage in preparing a suit for cancelling and expunging the suspect assignment.

For those of you that don’t get the “gist” of attacking documents, I have a kit available (in limited supply) online at CloudedTitles.com/shopThe C&E on Steroids!   This will give you a blueprint as to how to successfully challenge the phony documents in the land records.   It’s an 8-DVD video set plus a book containing the information you’ll need to arm yourself for the upcoming “fight” I think many of you are going to be involved in.

Why is this important?   If you’re facing foreclosure, even before the crisis, this moratorium will give you time to: (a.) think about Plan B; and (b.) act on that plan.  Even the 60-day window, which has already started ticking (courtesy of the federal government and extended by various state governments) will give you enough time to get your case files together, analyze them and more forward with retaining counsel (if you haven’t already) to “fight the good fight” because the corona-crisis itself was just not enough … we’ll be seeing another wave of foreclosures when it’s over because when it comes to reimbursement of an already-depleted money supply, the servicers (who are tasked with stealing the home) will stop at nothing to take your home away from you … and sadly, the government won’t be there to bail you out.

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