(OP-ED) — The author of this post (Dave Krieger) in the near future, is slated to take over as the permanent talk show host for the nationally-syndicated program called The Power Hour (a 2-hour program that airs from 11 a.m. to 1 p.m. Central Time). This is slated to happen near the beginning of the 4th quarter of this year. (FYI: We will be having foreclosure defense attorneys on as guests … just in time for the end of the moratorium illegally set by the current “administration” if that’s what you call it!)
CAVEAT AND DISCLAIMER: The contents of this post are based on paralegal level research and are not intended to represent legal advice. The value of the research is intended for educational purposes only.
THE VALUE OF THE LAND RECORDS
Many homeowners who really understand what’s in the county land records (previously discussed in other articles on this blog) “get” the fact that checking these records often is like checking your credit history often by ordering credit reports and looking to see what’s posted there in the trade line items. This author has put together a book on the subject (The Credit Restoration Primer), which goes into detail about how to request and analyze the information contained within your credit report, based on paralegal level research and the advice given to this author by expert attorneys who developed this program, which this author expanded and further expounded on.
The land records provide more than just a modicum of detail about your future as a homeowner. They contain every document in your chain of title that has been legally recorded. There is a difference between the word “filed”, which is used to refer to the act of initiating a lawsuit in a court or law or equity, versus the term “recorded”, which implies a public record that is handed to a Clerk, a Register of Deeds, a Recorder, an Auditor (and the like) and summarily archived in a “book” and “page” in either electronic or hard copy form. Smaller counties in America will have hard copy files (if they’re smart). The bigger counties with larger populations have resorted to digital recording of these documents through the scanning process. The originals and then sent back to the person initiating the recording of the documents.
As you may have noticed, this author used the word “legally” recorded. He did NOT say “lawfully” recorded. In other words, if a document contains false and misrepresentative information, it represents a “stain” against your property’s land record. This “stain” is commonly referred to as a “cloud on title”. A “cloud on title” basically means that there is something that is “blocking” the marketability and vendibility of the property, which means you can’t sell something that has blemishes on it because the prudent buyer that knows his stuff will not purchase something that a title company is going to “gloss over”. The title companies take these recordings at their word … if it’s recorded in the land records … it must be true (whether it is or not).
The land records are your only means of exposing these blemishes. If it’s not recorded, it means nothing in the “official realm”. In the last post, the author reflected that the 3,041 land records that exist in America are tainted with all sorts of shit documents, suspect because of (a) how they were created; (b) who created them; (c) when they were created; and (d) for what purpose were they created.
THE PATTERN OF BEHAVIOR
In the Williamson County Land Record Audit and the Osceola County Forensic Examination of the Land Records, both of these reports showed a suspect pattern of behavior in the manner in which certain documents were created, executed and recorded.
The pattern that developed and was demonstrated throughout both reports exhibited that the propensity to create these trash documents fell on the mortgage loan servicers and the foreclosure mill law firms who represent them in the theft of peoples’ homes. This is why there was a list (in the Osceola County, FL report) of the suspects, both representing mortgage loan servicers and law firms, one of which, the Gilbert Garcia Law Firm, who bitched at the Osceola County Clerk in writing, threatening a defamation suit if he didn’t remove the report from his website (nothing ever came of it). The little twits at that law firm seemed to forget that if they did file suit, the Clerk not only gets his day in Court, he also gets “discovery”, a damning tool that can be used to unearth all sorts of information involving the law firm’s participation in the creation of trash documents.
The problem with most homeowners (and many of their foreclosure defense attorneys who are feeding off their bank accounts) is that they don’t recognize the importance of discovery and how to get it.
I drafted an 11-page lawsuit in Lee County, Florida for an attorney under the direction of her investor client. It was framed as a counterclaim to a foreclosure action in which a trash assignment had been created by a mortgage loan servicer’s 3 employees. I did not name the servicer in the lawsuit. I named the 3 employees in their official capacities. I itemized every single thing they did in creating, executing and notarizing the document that was eventually recorded in the land records, calling them out on all of the “issues” that were present as misrepresented within the document.
As soon as the attorney for the investor FILED the counterclaim and started pushing for depositions of the 3 defendant employees of the mortgage loan servicer … ALL OF A SUDDEN NOW THEY WANT TO SETTLE! Why?
We collectively “hit a nerve”!
Maybe it was because we were making the right assertions in the lawsuit and attaching the Florida Criminal Code to those assertions, directing the judge to order the Clerk of the Circuit Court to produce a certified copy of the trash document and to turn it over to the State’s Attorney for further investigation. Do you think that the servicer wanted their employees to testify in a deposition? Not likely. Why? Because they would have spilled the beans on the entire operation in order to save their own asses from criminal prosecution, that’s why!
This is one way this author discovered that the pattern of behavior in the land record examinations was true. If the mortgage loan servicer didn’t have a nexus with the law firm (the servicers are the real parties retaining the law firms, not the alleged “lenders”) in initiating foreclosures, the law firm would not have acted the way it did (in the Florida case), trying to stop the depositions of the servicer’s employees. As I told John Healey (the Fort Bend County, TX D.A.), “It only takes one prosecution of a robosigner and all those who conspired with them to ‘send a message’ to the rest of these scumbags.”
Seriously, look at what happened when Las Vegas notary Tracy Lawrence testified before a grand jury about the thousands of default and sale notices she signed her boss’s name to and then notarized those same documents under the direction of her “bosses”. She ended up dead. Think about the means by which the banking, servicing and title companies operate and understand how “complex” things could get the more they are challenged as to the patterns of behavior exposed in these two land record reports … and how they can “reach out and touch someone”. Lawrence died of a 3-drug cocktail, which was found in her toxicology report (… “worst case of suicide I ever saw”). Why a cocktail? Because most women kill themselves by overdosing on something and this story would be “plausible” to investigators, who ruled it a suicide rather than what most of us probably think really happened. Think Marilyn Monroe.
Again, I must remind the readers that these are “reports”, not indictments. And, yes, this author has had numerous conversations with attorneys all across the country who have read these reports and have reached out to him to discuss the reports’ contents and the similarities they possess to the cases these attorneys are working on.
THE “RED MEAT” OF THE MATTER
By this time, you’re chomping at the bit to discover the line of questioning this author might have in mind, right?
If the author were the homeowner, he would first want to know:
- In a Qualified Written Request to the mortgage loan servicer under RESPA § 6:
(a.) the name of the alleged current holder of the note with the right to enforce it; and
(b.) do they have a copy of the note and mortgage or deed of trust they can send with their response?
COMMENT: Everyone shoots themselves in the foot by asking 50 questions in a voluminous request right up front instead of spacing out their requests … and the other mistake is … they don’t send it certified, return receipt requested to the servicer’s QWR address (they do have one)! The longer you can drag out a QWR, the longer it takes to get a foreclosure accomplished. I’ve seen at least 9 QWR requests in one case and it took the servicer nearly 3 years to answer all of them before they could even proceed with the foreclosure!
2. Research the assignment. This is where a subscription to “Been Verified” or use of a private investigator can really be of benefit to case development. Research every name, address and phone number on it. Identify each party and their location. This will tell you the “WHO” that is involved in your scenario. Research their backgrounds. If a law firm is mentioned anywhere on the assignment, such as “Prepared by” or “After recording, return to”, you can bet the law firm involved in the case (or retained at arm’s length by the law firm coming after you in foreclosure court) is behind the creation and manufacture of the document. The law firm (generally local, sometimes) can be tied to the pattern and thus, now you have suspects in your case development as to “WHAT” each knew and “HOW” they participated in the creation of the trash document(s). Sometimes, multiple assignments pop up in rapid succession and this should also send out warning alarms. DO NOT CONTACT THE TARGETS, DAMMIT! You’ll tip them off as to your intentions and suddenly (as has happened in some cases) … they disappear and you can’t depose them because they’re in hiding! Why does this author say that? Because people have called up the robosigners and the notaries and then they wonder why their cases are falling apart. Stupid is as stupid does.
3. Develop a list of unanswered questions for each deponent (the people you will depose). Understand that the minimum cost to depose someone starts at $3,000. You need to be careful about picking your targets.
COMMENT: A lot of this information is available in The C&E on Steroids! training kit, which has a training manual and 13 hours of DVD material covered by myself and California attorney Al West (including sample pleadings).
4. Your target is assumed to have valuable information useful to your case. Mortgage loan servicers often show up claiming to represent the REMIC trust. They are not paid by the REMIC. They are not REMIC employees. They are paid by the servicers. They are trained in mock trial courts to be “convincing” so they pass muster in court in their phony testimony. (You’re probably wondering how this author knows those mock trial courts exist, right?) Think about it. How could the servicers’ employees be so “skilled” at answering and rebutting questions asked during cross examination if they weren’t educated? Understand WHO you’re dealing with here. Deposing a REMIC is futile because by the time the case gets to you and your home, that REMIC is closed and long gone. Sending correspondence to the REMIC is also futile. If they’re closed they can’t answer, right?
5. You need to discover whether you’re dealing with a “trust” or a “pretend trust”. There is a difference. Some of these “pretend trusts” are junk debt pools whose employees manufactured the assignments with the intent to claim standing in court to foreclose. Assume the foreclosure judge doesn’t care about the assignments. This is why we file C&E’s BEFORE the foreclosure, to tie off documents before a judge who isn’t handling foreclosures. We want them thrown out so a foreclosure judge can’t proceed against us! This is the value of declaratory relief. If you wait until your foreclosure is in motion, it’s likely your judge will merge your suit into the foreclosure and toss your claim against the document the other side is using to steal your home! Timing is everything. Discovery is necessary to find out WHO you’re dealing with here.
6. If you are dealing with a REMIC, you need to obtain a copy of the 424(b)(5) Prospectus (not the FWP). In it, you will find the ADVANCES section. You may also find a section entitled, “The Credit Risk Manager”. If you are fortunate enough to have THAT party named in your prospectus … these people monitor the activities of the mortgage loan servicers dealing with the REMIC and they’ve got troves of information and should be considered a primary target for deposition and production of documents. They should be able to tell you whether or not and how long the advances were paid to the certificate holders, who are assumedly in court claiming they’ve been damaged, when in fact, they’ve been paid all along or have been made whole through the default payouts described in my last article after DAY 91.
7. You’ll need to investigate DAY 91 and what happened then. Asking questions relevant to the insurance payouts, credit default swap payouts, title insurance payouts and PMI/LPMI/MIP payouts, etc. could put a “feather in your cap” in demonstrating to the court that the real party in interest isn’t present in the courtroom. If you follow the money trail, you’ll expose mounds of information that was as useful in the Buffington case in Arizona against U.S. Bank.
You’ll notice the Court only threw out one of the causes of action … the one for FRAUD. This should send a message to you … a clear one … because 99.9% of litigants go into court screaming “Fraud!” WRONG! You don’t have enough evidence to prove that, so get that shit out of your head right now! Until you’re done with discovery, or your case proceeds to the point where the true evidence emerges in the case to actually ask the court to amend your complaint to include “Fraud”, “Conspiracy” and “RICO”, DON’T LEAD WITH THAT! By doing so, you’ve just added about $5000-$10000 to your legal bills. Duh. If you had that kind of money, you wouldn’t be in foreclosure in the first place!
And don’t let your attorney plead FRAUD either! He’s doing that because he doesn’t know any better. He was trained in law school to plead “shotgun style”, like the spaghetti noodle theory … throw shit at a wall and see what sticks. In this day and age, judges don’t appreciate that. It’s a great way to posture yourself in a negative light before the court. The way this author sees things (after having been in trial court with attorneys on numerous foreclosure cases), the judge is already against you when you walk into court. Why make things worse?
The idea here is “wise as serpents, harmless as doves.”
IDENTIFYING SERVICERS
By looking at the complaints or recorded documents and looking at the “WHOs” in the document and tracing their employment, you’ll easily find out WHO the robosigners work for. Any robosigner or notary in California has to keep a journal with thumb prints and signatures in them. Bet they won’t have those when you request Production of Documents and call them on it. I love deposing notaries, even if they no longer have commissions. Notaries can be your best friend in a deposition (and not beforehand).
Once you’ve identified the servicers, go back into the REMIC documents (if a REMIC is involved) and look at the Servicers that are named in the REMIC prospectus. Research each one and you’ll probably find multiple assignments and transfers of the collateral files, where stuff can go missing or be falsely duplicated. You’ll want to get at that collateral file, but QWR’s will only give you limited discovery in advance. You’ll need to target the collateral file in the Request for Production. That’s how the author would do it if he were the victim here.
Again, this isn’t legal advice. It’s just the means to be able to get a judge to ask the other side’s lawyer who he’s really representing, so you can tell the court you have no contract with the mortgage loan servicer … so why are they there instead of the REMIC? Most people don’t get that far because they’re not forward thinking. They’re so tied up in emotional knots they can’t think straight. They just want to lash out and then wonder why they end up homeless and living in a tent city (or worse, with relatives).
You can also build a case against the mortgage loan servicer when they don’t respond to your QWR requests (either at all or in an untimely manner). The author would suggest you look up the Real Estate Settlement Procedures Act § 6 and thoroughly read that BEFORE engaging in your research quest. Understand that there are statute of limitations on many things involving your case. Identify what those are and avoid challenging areas where the court is likely to toss your claims. It’s another waste of money.
ONCE YOU GET TO THE SERVICER, YOU CAN EXPOSE THE LAW FIRM
In the Carrsow-Franklin case in New York, Wells Fargo’s robosigning behaviors were exposed by New York bankruptcy attorney Linda Tirelli. The use of MERS in a lot of these documents can also work in your favor, even though MERS is now hiding behind the same bunch that owns the New York Stock Exchange.
You’ll find the use of MERS (Mortgage Electronic Registration Systems, Inc.) shows up in all REMIC-related cases. If MERS is involved, you can bet your loan was securitized into the secondary mortgage markets.
And don’t sue MERS … you’re throwing money away again. They have very good hiding places that will cost you millions of dollars to find … if you get my drift. And you don’t have millions of dollars to spend; otherwise, you wouldn’t be in the foreclosure mess you’re in, right?
Some folks have amended their foreclosure complaints to include the law firm involved in the processing of the documents because it localizes their cases and keeps them in state court instead of getting thrown into the federal realm, where litigation costs are exponential and the banks’ attorneys have an edge. The local law firm suing you can be especially vulnerable if the law firm’s employees were involved in the direct manufacture and robosigning and notarizing of the documents. Surprisingly, many of the law firms involved in the National Default Exchange (NDEX; a national network of foreclosure mills) are directly involved in processing trash documents. Research those networks and what you find may surprise you, especially when you discover what “servicing platforms” they used (Vendorscape, Servicelink, etc.) and what discoverable information you can get from that.
If the law firm was directly involved in “doing the dirty”, now the State Bar can get involved … if you get my drift.
RESEARCH THE JUDGE!
Assume all of them are bought and paid for by the banks! That way, you’ll know who you’re dealing with. Research their political campaigns and who donated to them (betcha never heard that angle before). It’s a great way to get them to recuse themselves from your case, especially if the mortgage loan servicer or law firm that’s trying to foreclose on you donated to the judge’s campaign.
judicialwatch.org/judge and therobingroom.com are great tools to explore the way federal judges rule and to look up their declared financial records. You might find a conflict of interest. One such case in Florida opened up a can of worms when the homeowner discovered that one of the federal judge’s law clerks worked for a former foreclosure mill that litigated against the homeowner in the lower courts! Talk about conflict of interest!
For state judges, you’ll have to do more digging, which is the subject of another article.
Keep your friends close and your enemies closer.
As a closing note, if you have to educate your attorney on discovery and how to read a prospectus and understand securitization, you need to find another attorney who you don’t have to spend money to educate. Avoid attorneys with big egos and attorneys who make promises that “you’ve got a great case”; otherwise, you’ll be bent over a screwed again in the end … if you get my drift.
Clouded Titles Blog 