We, the people have the inalienable right to freedom, life, property and the pursuit of happiness. Yet, governments of almost every nation and their courts have ignored the widespread abuse by international banks and financial services providers and the resulting eviction and foreclosure mills across every country. And, not protecting their people against corporate tyranny;
The truth is that foreclosures are fraudulent and unlawful; and, the people are the victims and not the banks; and, evictions, foreclosures and repossessions constitute an infringement on people rights;
The banks are not curbing their own behaviour and neither are courts in any country, bar a few, doing anything about the pandemic while the lists of evicted and foreclosed people continues to grow to crisis levels without relief or remedy on the horizon unless we, the people ourselves take action.
Credit River Decision:
Almost 50 years ago, in 1968, in Credit River Township, Minnesota, the finding commonly referred to as The “Credit River Decision” of the landmark court case, First National Bank of Montgomery, Minnesota, vs. Jerome Daly, held the Federal Reserve Act to be unconstitutional and void. This decision, which is legally sound, declared in effect, that all private mortgages on real and personal property, and all U.S. and State bonds held by Federal Reserve National and State Banks to be null and void.
This amounts to the emancipation of all Americans from personal, national and state debt, purportedly owed to the Federal Reserve Bank. Every American owes it to himself, his country, and to the people of the world, to study and understand this decision, for upon this decision hangs the question of freedom or slavery for the world.
The bank brought an action to recover possession of the property to the Justice of the Peace Court at Savage, Minnesota. The first 2 Justices were disqualified by Affidavit of Prejudice; the first by Mr. Daly, the second by the bank, and a third judge refused to handle the case. It was then sent, pursuant to law, to Martin V. Mahoney, Justice of the peace, Credit River Township, Scott County, Minnesota, who presided at a Jury trial on December 7, 1968.
The Jury found the Note and Mortgage to be void for failure to give any validity to the Sheriff’s Sale.
The banker testified about the mortgage loan given to Mr. Jerome Daly, and then Mr. Jerome Daly cross exemined the banker about the creating of money “out of thin air”.
…He freely admitted that his Bank created all of the Money or Credit upon its books with which it acquired the Note and Mortgage of May 8, 1964. The credit first came into existence when the Bank created it upon its books by ledger entry. Further, he freely admitted that no United States Law gave the bank the authority to do this. There was obviously no lawful consideration for the Note. The Bank parted with absolutely nothing except paper and a bit of ink.
Justice Martin V. Mahoney then said, “IT SOUNDS LIKE FRAUD TO ME” and everbody in the court room nodded their heads indicating that they agreed with Jusice Martin V. Mahney.
…No complaint was made by the banker that the bank did not receive a fair trial. From the admissions nade by Mr. Lawrence V. Morgan, the path of duty was clearly made and very direct and clear for the jury. Their verdict could not reasonably have been otherwise. Justice was rendered completely, and without denial, promptly, and without delay, freely, and without purchase, comfortable to the laws in this Court on December 7, 1968.
This was the first time the question has been passed upon in the United States. This decision is one of the great documents of American history. It is a huge cornerstone wrenched from the temple of Imperialism — one of the solid foundation stones of Liberty.
To quote from the Credit River Decision case: ‘When the Federal Reserve Banks and National Banks acquire United States Bonds and Securities, State Bonds and Securities, State Subdivision Bonds and Securities, mortgages on private Real property and mortgages on private personal property, the said banks create the money and credit upon their books by bookkeeping entry. The first time that the money comes into existence is when they create it on their bank books by bookkeeping entry. The banks create it out of nothing. No substantial fund of gold or silver is back of it, or any fund at all.’
Banks create money out of thin air. That was the verdict.
Download ruling: CREDIT RIVER DECISION original
Financial Crisis Inquiry Commission:
Five years ago at this time, the Financial Crisis Inquiry Commission (FCIC) presented the President and Congress with its final report on what caused the 2008 financial meltdown that devastated our economy and millions of American families. The report concluded that the financial crisis was avoidable and was caused by widespread failures of regulation, reckless risk taking on Wall Street, and a systematic breakdown in ethics and accountability.
The FCIC’s report included evidence of industry wide fraud and corruption in the mortgage markets, from loan origination to Wall Street’s bundling and sale of mortgage securities to investors. One study obtained by the Commission placed the losses resulting from fraud on mortgage loans made between 2005 and 2007 alone at $112 billion.
By Neil Garfield
Every Bubble Bursts. The banks are now struggling to find people who will “find” nonexistent documents without expressly telling their superiors at the bank that the “found” documents were fabricated. The evidence is all over the internet as banks troll for prospective employees who will get their hands dirty and be prepared to get thrown under the bus should the malfeasance be discovered.
The documents are not merely missing. They do not exist. And without the critical documents required in every foreclosure, there can be no foreclosure. The documents must be fabricated because they don’t exist. The documents don’t exist because they were actually intentionally destroyed and because the banks have no interest in the property, the alleged loan, the “original” note (“missing” in most cases), the mortgage or the debt itself. Many documents existed but were destroyed by the banks.
If pushed to open their books we would find a complete absence of any financial transaction in which the banks or their pet trusts were involved. Up until recently the banks were able to get their employees to execute documents that were fabricated for the purposes of presentation in court. But the number of people who are willing to do that is diminishing. Bank employees sense the impending disaster for the banks and they don’t want to take the blame even if it costs them their job.
The entire bank scheme, as I previously reported, is based upon the ability to use legal presumptions. These presumptions create an opportunity for epic fraud and theft. If a document is facially valid, the burden shifts to the homeowner to rebut the presumption that it is indeed a valid, authentic document. But now homeowners are hiring forensic document examiners who are showing that the document presented is not the original even if it looks that way. More and more homeowners, when presented with a “blue ink” document will say they don’t know if that particular signature is their own signature because they know that the documents and signatures are being fabricated. The bank’s witness in court is treading the fine line between ignorance and perjury when they say that the note is the original. The same holds true to bogus assignments, indorsements (“endorsements”), powers of attorney and other documents the banks use to avoid being required to prove their case without the presumptions.
So the banks, without using their own names, are posting job openings for what 4closurefraud.com calls “time travelers.” People get hired for their willingness to create documents that appear to have been prepared and executed years ago. This is required because if there was no transaction years ago, then the sham is exposed — the “loan contract” between the homeowner and the originator never existed. And so when the originator endorses or assigns the note or mortgage to an undisclosed third party, the assignment is completely and irrevocably void as coming from an entity that never owned the loan but was merely named as the Payee or Mortgagee.
BUT if the original loan documents look valid, and the alleged transfers of the loan look valid, then the burden shifts to the homeowner to rebut the presumption that a real transaction took place between the homeowner and the originator and between the originator and the next party in the false chain of possession and ownership of the loan. This is why I have been relentless in insisting that discovery take place and be pursued aggressively. I have already seen many cases in which an order was entered requiring the banks to respond to discovery requests; in virtually all cases someone steps forward and settles with the homeowner. The only exceptions are where it is clear that the judge is going to rule for the banks anyway and will deny subsequent motions to compel the discovery that was previously ordered.
Of course the problem with the settlement is that the homeowner is being coerced into accepting a settlement that acknowledges some bank, servicer or trustee as actually having rights to collect or enforce the loan; since these parties are merely intermediaries who issue self-serving paper designating themselves as real parties in interest, such settlements could result in the homeowner being presented with claims later from the real source of funding in their loan. This is unlikely, but nonetheless possible. The only reason it is unlikely is that the real parties in interest are investors whose money was commingled with thousands of other investors in hundreds of trusts that never received any proceeds from their offering of mortgage backed securities that were neither mortgage backed or securities. The investors need a way to trace their money into the loans or, if they elect not to do so, to settle with the bank that cheated them in the first place with bogus mortgage bonds. There have been many such settlements, most of them unreported.
The fact remains that the “lender” is never part of any documented transaction. Hence the “lender” (the investors) enjoy none of the protections of a holder of a note nor the security of a mortgage. Fabricating documents and forging them is the only way of breathing life into the false loan contract that was documented, even if it never happened. And borrowers and their attorneys should take note that the entire loan infrastructure is an illusion that has been awarded judgments that pretend the illusion is real. we are either a nation of laws or a nation of men. Our Constitution makes us a nation of laws. This is our challenge. Do we allow bankers and politicians to turn back time on paper and treat them as though they are doing something right because NOW it is right because they declared it right, or do we reject that and apply rules of law that have existed for centuries for this very reason.
So for the people who are unemployed due to a recession that won’t really quit until the money stolen from the system is somehow replaced or clawed back, you have a job waiting for you if you can sleep at night knowing that if your activities are exposed, the bank will disavow your “irresponsible” actions, leaving you exposed to jail or prison.
How a sports agent uncovered the greatest financial fraud in American history
By David Dayen , June 29, 2016
New Republic contributor David Dayen’s book Chain of Title focuses on three individuals in South Florida—cancer nurse Lisa Epstein, car dealership worker Michael Redman, and Lynn Szymoniak, a lawyer specializing in insurance fraud— who stumbled upon the biggest consumer fraud in American history. They did so after they fell into foreclosure, and realized that all the documents they were sent by their mortgage companies—the evidence being used to kick them out of their homes—were fake. It turned out that the industry broke the chain of title—the chain of ownership, really—on millions of securitized mortgages, and were using false documents to cover it up.
Extract – Posted on July 8, 2016 by Neil Garfield
On Appeal, the servicers did not argue and failed to cite any authority that the assignment was sufficient to support the judgment when standing is contested during trial (see: Beaumont v. Bank of N.Y. Mellon, 81 So. 3d 553, 555 n.2 (Fla. 5th DCA 2012)- a copy of an assignment of a note in the court file was not competent evidence where it was never authenticated and offered into evidence). The final judgment was reversed and the case remanded back to the trial court with directions to enter an order of involuntary dismissal. With Florida’s lack of a statute of limitations on foreclosures, the servicer will likely have ample time to “correct” their deficiencies and errors and attempt to foreclose again ad nauseum.
Congratulations to attorney Nicole R. Moskowitz of Neustein Law Group, Aventura representing Appellant Robert Stoltz.
Possession of a Note is required:
Posted on June 28, 2016 by Neil Garfield
Extracts: The Golden Rule of Mortgage Foreclosure: the Uniform Commercial Code forbids foreclosure of the mortgage unless the creditor possesses the properly-negotiated original promissory note. If this can’t be done the foreclosure must stop. — Douglas Whaley, Professor Emeritus, The Ohio State University Moritz College of Law.
“By saying yes, the homeowner admits that the paper is original which it is not, he admits that it is his signature, which it is not, and he admits that the possession of the original note is unquestionable which is completely wrong because the actual original was “lost” many years earlier.” — Neil F Garfield
The problem with the great tidal wave of foreclosures has been that everyone (lawyers, judges and homeowners) have made great leaps of faith in accepting nonexistent facts. And the other problem is that all foreclosures are governed by the UCC which has been adopted in all 50 states as State Law. It is the source of all governing law as to the ability to negotiate the note, enforce the note and to enforce the foreclosure provisions contained in the mortgage.
Those who created the current infrastructure of what is erroneously referred to as securitization understood that nearly all lawyers — on or off the bench — retained practically nothing about the Uniform Commercial Code. They correctly predicted that the Judge would accept whatever the lawyer for the Bank said was in the UCC. The result was a startling array of decisions twisting and undulating in confusion about exactly who should be paid by the “borrower”, who could modify the obligation, who could enforce the note and who could foreclose.
…So the best minds in the judicial world came together and created a uniform code that everyone everywhere in the country would follow. It was originally a “National Code.” Like all new endeavors there were defects in the structure of laws in the first national code which was based upon centuries of common law decisions from trial and appellate courts. So the next generation of brilliant legal minds came together to fix the defects and create certainty in the marketplace for negotiable instruments and ancillary instruments like mortgages.
As a general rule one must physically possess the note in order to negotiate it or enforce it. Possession was determined by thousands of judges and lawyers to be essential to enforcement and thus also negotiation of any note; this was so because if a party claimed rights to enforce a note but admitted that the note did not exist, was in the possession of someone else or even lost, the maker might be liable multiple times. So POSSESSION became the gold standard. As a brief example of how this applies to the many issues we have discussed on this blog, let’s begin with the “closing.”
The “borrower” is required to sign the note before the loan is funded. Hence the loan contract is not commenced or consummated until funding. BUT the signing of the note created a negotiable instrument. After signing the note, the customary practice is for the closing agent to take delivery of the note. The closing agent thus becomes the first possessor, but without any right to enforce the note.
* Back when I stared law practice a representative of the lender was frequently present at closing. Once all the papers had been properly signed and money was received by the closing agent to fund the loan, the closing agent would physically deliver the note to the representative of the lender or transmit this valuable document (“cash equivalent”) to the lender or its authorized representative. If the lender was the funding source, the loan contract was complete and the the lender was the possessor of the note with direct rights to enforce — i.e., the lender was named on the note as payee just as one would write out a check.
* If the lender sold the loan into the secondary market, the lender would receive a sum of money the amount of which was determined by agreement between the buyer and the lender as seller. The buyer would receive physical possession of the note with an “indorsement” frequently spelled as “endorsement.” The endorsement would generally be made payable to the name of the buyer but it could be endorsed in blank, which would make the loan negotiable or enforceable by anyone who came into possession — even a thief, who could sue but not win once the facts of the theft came out.
* The above description is what most people have in mind when they think about loans today. But their thoughts are antiquated.
* Today, the “loan closing” starts in the usual way — the “borrower” is required to sign the note thus creating a negotiable instrument before any funding takes place. The party named as lender is never present and thus cannot take possession of the note. The closing agent is the first possessor with no rights to enforce. But theoretically the closing agent, if he or she was dishonest, could bring suit to enforce the note. Like the thief, the closing agent can sue but he cannot win. But I digress.
* What happens next depends upon whether the lender is an actual lender who might still be sending a representative to the “closing,” or is an originator who merely sells the loan product to the borrower. 96% of all “loan closings” over the past 15 years were “originator” loans.
* In the case of an originator the physical note, best case scenario, is sent to the party who was instructing the funding source, as a conduit. The originator is not generally allowed to touch, much less possess the note nor does it have any right of enforcement — because the originator has already signed an “Assignment and Assumption” Agreement before the borrower even applied for a loan. Hence the originator lacks both possession and any authority to negotiate the note.
* If the originator is still in business (check the Implodometer.com), at some time in the future a representative of the originator is called upon to execute an indorsement of the note. Lacking both physical possession of the note and the right to enforce it such an endorsement is void. Someone else possesses it and as it turns out, a party other than the possessor supposedly has (or claims) the right to enforce the note.
* The party with possession could theoretically acquire the right to enforce from the party who claims to have the right to enforce — and in today’s market that is exactly what happens. If the originator is not in business the signature nevertheless appears like magic as an officer of an institution that does not exist — but lacking the date on which it was executed. Or, as is usually the case we learned from the robo-signing, robo-witness, robo-officer scandals, we see some signature of a person who either didn’t exist or was not employed by any of the parties in the false paper trail. Neither the lawyer for the homeowner nor the homeowner is able to prove this because the information is in the hands of third parties who are not even parties to the foreclosure litigation.
* The problem with that scenario is that the party who claims the right to enforce it does not have those rights, does not have possession, does not have any receipt or proof that it paid for the note, and is essentially a stranger to the entire transaction — but now nonetheless accepted in court by itself or through an agent or power of attorney as the party in possession with rights to enforce. Such representations are untrue and a fraud upon the borrower, the court and anyone else having an interest in the actual events that transpired at the “loan closing.”
* Further eviscerating the position of the eventual party who has conducted foreclosure proceedings is the documented fact (see Study by Catherine Ann Porter) that most and perhaps nearly all of the original notes were immediately and intentionally destroyed. Fabrications of the note were created each time the loan was sold. Such sales were often virtually simultaneous so that the party claiming the right to enforce the note and the right to foreclose received multiple payments on the same loan while at the same time retaining the “servicing rights” so that they could foreclose and report to the unhappy buyers that their investment was worthless.
* Hapless homeowners with clueless lawyers were asked at trial if the document before them was the original. The homeowner had no idea that the signature he or she was looking at was forged by high tech mechanical means which today actually employs a ball point pen and created variations in the signature as to pressure, lines and swirls. By saying yes, the homeowner admits that the paper is original which it is not, he admits that it is his signature, which it is not, and he admits that the possession of the original note is unquestionable which is completely wrong because the actual original was “lost” many years earlier.
Neil Garfield is a U.S. property rights attorney. Here are some articles regarding the fraudulent nature of foreclosures:
Posted on March 28, 2016 by Neil Garfield
MEGAN WACHSPRESS, JESSIE AGATSTEIN & CHRISTIAN MOTT published an article that takes dead aim at the “free house” controversy. In the Yale Law Review they come to the conclusion that (1) the house isn’t free to any homeowner even if they escape the mortgage and (2) the projected social cost of market values are wrong. But probably the most stinging criticism of the judicial system is that judges are abandoning the rule of law for ad hoc rulings whose only purpose is to avoid a result the judge doesn’t like.
Unfortunately, the article does not fully address the issue of why the banks are failing to prove what is ordinarily a slam dunk case. The authors seem to assume that the debt is legitimate and that it is mainly a paperwork problem. I would add my usual comment: if the banks simply had continued with the standard procedures they would not have had any paperwork problems no matter how many times the loan was sold. The greater evil that is not addressed in case decisions and law review articles is that this was all part of fraudulent scheme and THAT is why the banks had to resort to more fraud (in documentation).
We should remember that banks basically drafted the statutes and are the source of all paperwork on consumer loans, especially mortgage loans. For hundreds of years they knew how to do it, knew how to keep it and rarely misplaced anything. It strains belief to think that suddenly the banks forgot what took hundreds of years to develop. The more insidious reason is what is feared to be the nuclear option — that the mortgages, notes and loan contracts were all an illusion, even if the money was real.
In the end, for reasons other than those expressed on these pages, the authors come to the same conclusion that I did — the “free house” is going to the banks every time a foreclosure is granted.
Here are some quotes from their article that I think are self-explanatory.
When addressing faulty foreclosures, courts are afraid to bar future attempts to foreclose—that is, afraid of giving borrowers “free houses.” While courts rarely explain the reasoning behind this aversion, it seems to arise from a reflexive belief that such an outcome would be unjust. Courts are therefore quick to sidestep well-established principles of res judicata in favor of ad hoc measures meant to protect banks against the specter of “free houses.” [e.s.]
This Comment argues that this approach is misguided; courts should issue final judgments in favor of homeowners in cases where banks fail to prove the elements required for foreclosure. Furthermore, these judgments should have res judicata effect—thus giving homeowners “free houses.” This approach has several benefits: it is consistent with longstanding res judicata principles in other forms of civil litigation, it provides a necessary market-correcting incentive to promote greater responsibility among foreclosure litigators, and it alleviates the tremendous costs of successive foreclosure proceedings.
In a foreclosure suit, the bank must generally prove the following:
(1) the homeowner has signed both the note (the underlying loan) and the mortgage assigning the house as collateral for that note;
(2) the bank owns the note and mortgage;
(3) the homeowner still owes a debt to the bank;
(4) the homeowner is behind on that debt; and
(5) the bank has accelerated that remaining debt in accordance with the terms of the note itself.
When a bank fails to prove these elements, a judge is legally required to rule in favor of the homeowner.
Recently, courts have been inundated with suits where homeowners question the bank’s ability to prove the second element. Litigation over “proof- of-ownership” issues in foreclosures is a growing nationwide problem; sampling suggests a ten-fold increase between the periods immediately preceding and following the 2007 collapse of the housing market.
To demonstrate ownership without expending more resources than pooling and servicing agreements allotted, bank employees signed hundreds of thousands of affidavits asserting that they had seen and could attest to the contents of original documents demonstrating ownership of the underlying mortgage. Although such affidavits were a legally acceptable means of demonstrating such ownership, a significant number of them were actually fraudulent.
…ethical transgressions have affected hundreds of thousands of foreclosures.
Judge Schack, a trial judge sitting in the New York Supreme Court for Kings County, has repeatedly sanctioned law firms for bringing improper foreclosure suits when he has independently discovered the inadequacy of the plaintiffs’ evidence as to defendants’ indebtedness or plaintiffs’ ownership of the note. See, e.g., Argent Mortg. Co. v. Maitland, 958 N.Y.S.2d 306 (Sup. Ct. 2010); Wells Fargo Bank v. Hunte, 910 N.Y.S.2d 409 (Sup. Ct. 2010); NetBank v. Vaughn, 841 N.Y.S.2d 827 (Sup. Ct. 2007).
By focusing on the immediate consequence of a ruling for homeowners, the courts ignore perverse incentives created by allowing banks to continue to externalize the costs of their mistakes.
…one approach—that taken by the Florida and Maine Supreme Courts—is to bend the rules of res judicata to avoid a windfall for homeowners. This approach creates few benefits and significant economic problems. In this Part, we argue that further subsidizing banks’ poor litigation practices results in deadweight loss by contributing to negative public-health outcomes and by disincentivizing banks from improving their servicing and litigation techniques. We also explain how granting winning homeowners “free houses” will not negatively affect the mortgage market.
…broader social subsidization of irresponsible [bank] behavior.
…prolonged foreclosure proceedings create negative social externalities, depressing surrounding homes’ resale value, reducing local governments’ tax revenues, and increasing criminal activity. Foreclosures also appear to have significant effects on community members’ physical and mental health, and correlate with increased rates of depression, anxiety, suicide, cardiovascular disease, and emergency-care treatment.
…although judges have expressed concern about homeowner windfalls, the alternative creates a windfall for banks that cut corners in managing and prosecuting foreclosures. The risk and costs of losing foreclosures should already be internalized in the price of current mortgages. Empirical studies suggest that greater protection for mortgagors historically corresponds to slightly higher mortgage rates among lenders. These studies indicate that lenders adjust the price of mortgages based on what they anticipate the cost, and not just the likelihood, of foreclosures will be.
Houk v. PennyMAC CORP. | FL 2DCA – PennyMac failed to meet its burden of showing the nonexistence of a genuine issue of material fact regarding its entitlement to enforce the lost note.
Hat tip to StopForeclosureFraud.com
The Emergence of Post-Traumatic Foreclosure Disorder:
Posted on April 6, 2016 by Neil Garfield, By William Hudson
The daily calls haunt Neil Garfield and his staff. Homeowners facing foreclosure vacillate through a predictable cycle of fear, helplessness, betrayal, confusion, powerlessness and sometimes the desire for retribution. Some callers display a pressured, almost manic-like urgency to correct their situation while some are so beaten down they are complacent. There are also the calls from homeowners who learn that they waited too long- and there is nothing else that can be done. The feeling of hopelessness and despair are palpable. Many homeowners will prevail against their loan servicers and many will lose, but all will come away from the experience emotionally altered.
Florida Foreclosure: Where No Case is Over-Ever
Posted on May 2, 2016 by Neil Garfield
The article here points out that the 3rd DCA has bent over backward and essentially broken its own backbone by creating legal fictions to save the banks. What they continue to ignore is that saving the banks means screwing the consumer, the citizen and the taxpayer. They also have essentially ruled that the banks can keep coming into court, filing the same lawsuit over and over again, until they win by attrition — few homeowners can afford to contest foreclosures repeatedly. The 3rd DCA decision essentially says that it isn’t over until the bank wins.
The obvious premise behind this flawed decision is that somehow this will make everything turn out “right.” It doesn’t. The court completely ignores the huge body of law and information in the public domain that reveals the banks as the perpetrators of epic fraud. Either the court doesn’t know about the fraud or it doesn’t care.
And what the court does not address is the nature of the fraud by assuming facts that don’t exist. These banks don’t have a penny invested in any of the loans that they are using for foreclosure and even modification where ownership of the debt gets transferred from the investors who advanced the money to the banks who sold them the bad deals. The investor is left with nothing in most cases while the borrower cleans out his savings account trying to save his/her home only to lose it to a party who is stealing the home from the borrower and the loan from the investor.
The court is creating multiple legal fictions. In so doing the court has destroyed the value of stare decisis — legal precedent. Or, if you look from another point of view creating a destructive legal precedent. Instead of taking each legal effective act as something that matters, they have bent and broken the language of the note and mortgage — essentially converting the act of acceleration to an option that means nothing unless foreclosure is successful.
“Prejudice” Element of Wrongful Foreclosure:
By Kevin Brodehl
If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful foreclosure? Or does the property owner also need to show that it would have been able to avoid foreclosure by paying the debt to the true lender?
The California Supreme Court’s recent Yvanova decision (reviewed on Money and Dirt here: California Supreme Court: Borrowers Have Standing to Allege Wrongful Foreclosure Based on Void Assignment of Note) only partially addressed the “prejudice” issue. In Yvanova, the Supreme Court discussed prejudice, but only “in the sense of an injury sufficiently concrete and personal to provide standing,” not “as a possible element of the wrongful foreclosure tort.” The Court held that the plaintiff in that case demonstrated sufficient prejudice — lost ownership of property in an allegedly illegal foreclosure sale — to confer standing to pursue a wrongful foreclosure claim.
A recent opinion by the California Court of Appeal (Fourth District, Division One, in San Diego) — Sciarratta v. U.S. Bank National Association — picks up the “prejudice” analysis where Yvanova left off, and addresses prejudice as an element of a wrongful foreclosure claim.
The facts: a twisted tale of note assignments
In 2005, the property owner obtained a $620,000 loan secured by real property in Riverside County. The note and deed of trust identified the lender as Washington Mutual (WaMu).
In April 2009, JPMorgan Chase Bank (Chase), as successor in interest to WaMu, assigned the note and deed of trust to Deutsche Bank. The trustee promptly recorded a Notice of Default, followed by a Notice of Sale.
In November 2009, Chase recorded a document assigning the note and deed of trust to Bank of America (even thought just months earlier, Chase had already assigned the note and deed of trust to Deutsche Bank — oops!). On the same date as the assignment, Bank of America recorded a Trustee’s Deed, reflecting that Bank of America had acquired the property at a trustee’s sale in exchange for a credit bid.
In December 2009, Chase recorded a “corrective” assignment of the note and deed of trust, suggesting that the April 2009 assignment to Deutsche Bank was a mistake, and was really intended to be an assignment to Bank of America.
The property owner sued the banks and the trustee for wrongful foreclosure.
The trial court’s ruling: no prejudice; case dismissed
The banks filed a demurrer, arguing that the property owner could not allege “prejudice,” which is an essential element of a wrongful foreclosure claim.
The trial court sustained the banks’ demurrer and dismissed the case.
The property owner appealed.
The court of appeal’s opinion
The Court of Appeal reversed, holding that a property owner who loses property to a foreclosure sale initiated by someone purporting to exercise rights under a void assignment suffers enough prejudice to state a claim for wrongful foreclosure.
The court first relied on the Supreme Court’s holding in Yvanova that “only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt.” In this case, based on the clear paper trail of assignments, the entity entitled to enforce the debt was Deutsche Bank, but the entity that foreclosed was Bank of America.
Based on the complaint’s allegations, the court noted, the assignment was not merely voidable but void. The court observed, “Chase, having assigned ‘all beneficial interest’ in [the property owner’s] notes and deed of trust to Deutsche Bank in April 2009, could not assign again the same interests to Bank of America in November 2009.”
The court concluded that a property owner “who has been foreclosed on by one with no right to do so — by those facts alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure.” The court added:
The critical issue is not the plaintiff’s ability to pay, but rather whether defendant’s conduct resulted in the plaintiff’s harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title.
The court also offered policy grounds supporting its decision. The court’s ruling would encourage “lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan.” A contrary ruling, on the other hand, would subject property owners to unfairly losing their property in foreclosure to someone who does not even own the underlying debt, with no court oversight.
The Sciarratta decision will make it easier for property owners to assert wrongful foreclosure claims…….
To read more please visit:
Gieseke-The “Creditor” consists of the Investors not Servicer
Posted on May 26, 2016 by Neil Garfield
Gieseke Remand Order 5 20 16 from 9th Circuit (3)
“As it stands, the “creditor” consists of all investors in all trusts created by each investment bank. But nobody is acting as if that is true.”
And for those who thought they could get away with lying and cheating forever, let me say this: anyone can get away with almost anything — at first. But eventually if you keep doing it you are going to pay the price. The 9th Circuit Court of Appeals (Federal) has made it clear that it will routinely reverse any decision that involves the trial court accepting void assignments or in which the court rules that the borrower has no standing to raise the issue of ownership and standing based upon a void assignment on the grounds that the borrower was not a party to the transaction.
Just to be clear, that whole line of reasoning was flawed from the start. If you witness a murder, will your testimony be blocked because you were neither the murderer nor the victim? The very notion of due process means that all parties have an opportunity to pursue the truth and not be stuck with some legal presumption that is based upon a false statement of fact.
The importance of the Geiseke decision is that several states are involved and it likely to have strong persuasive impact on courts across the country. However, don’t think the party is over for the banks. They will continue to raise the standing issue (i.e., the borrower was not part of the assignment transaction) and judges will continue to say to borrowers until they absolutely cannot, that borrowers have no standing the raise the issue as to whether any of the implied transactions actually exist.
Read more at: https://livinglies.wordpress.com/2016/05/26/35105/
Pennymac tried to outwit the court system, succeeding at the trial level and then failing on appeal. The simple fact is that it is a rare instance where a party can lose a lawsuit based upon a forged instrument. The court will (and should) always find a way to deny such relief.
Simple case. Closing attorney still had copy of the note — 5 pages. Pennymac sued on a 6 page note. Defendants denied that the note was real and denied they signed the document upon which Pennymac was relying. Pennymac said that Florida statutes required Defendants to file a cause of action to get rid of a forged document. The trial court agreed. The appellate court said no, the authenticity of the document and the signature is put in play once it is apparent to all that this the gravamen of the defense.
Florida Statutes 673.308.1 reads in relevant part: [Note §673 is UCC Article 3]
In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.
Pennymac Trust likens the statute’s passing reference to “specifically” denying a signature’s authenticity to the specificity required to plead a cause of action for fraud under Florida Rule of Civil Procedure 1.120(b): “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.”
So as long as you don’t contest the signature specifically there is an iron clad presumption that you signed it. If the facts fit, then deny or set forth an answer or affirmative defense that specifically denies you signed it. But the word of caution here is that denying it doesn’t do you any good if you don’t have some pretty hard evidence, like this case, that shows that the document and/or the signature is not authentic. In this case the proof was straightforward.
BUT notice that the obvious nature of the forgery, fraud upon the court still somehow managed to escape the Plaintiff Pennymac and the attorneys for Pennymac. I wonder when someone important will look at that and say that is not the way to practice law.
Foreclosures in South Africa:
New Economic Rights Alliance brings heat to the banks
Posted 05 May 2013 Written by Arlene Levy; http://www.newera.org.za/
The New Economic Rights Alliance (NewEra) has lodged a complaint with the National Credit Regulator (NCR) calling on it to force the major banks to disclose details of their securitisation transactions, which are reckoned to exceed R20 billion a month.
NewEra, which is a non-profit organisation with 135,000 members, has made several failed attempts to bring legal action against the major banks on the grounds that the banks are foreclosing on defaulting borrowers, forcing them out of their houses and repossessing their cars, when in fact they have no legal standing to do so. The banks managed to throttle the High Court actions on technical legal points.
Cundill says he nearly choked on his cappuccino when one senior counsel claimed before the judge the Reserve Bank was a public interest group, just like NewEra. The entire case was a circus, he says, with people in black robes bowing, scraping and pleading before the judge.
Banks do a roaring business in the sparsely regulated securitisation trade by selling financial instruments that have long and predictable income streams, such as a 20 year mortgage bond. They get paid up-front on the sale (securitisation) of these instruments, often as much as 2,5 or 3 times the face value of the loan. This will probably get your blood boiling if your house or car has been repossessed, and perhaps explains NewEra’s surging membership.
So what is NewEra’s argument?
Essentially, it says a bank no longer has legal title to a loan that has been securitised. Based on statistics published by the Reserve Bank, it appears most mortgage, credit card and other retail loans issued by the banks in SA have been securitised.
The securitised loan has a new owner, and the bank’s legal position has changed to one of collection agent for the new owner, a fact that the bank does not disclose to the borrower.
Interview with Scott Cundill – Chairman of the New Economic Rights Alliance.
Scott explains the unlawful, unconstitutional and fraudulent activities of the banks in South Africa and the legal action that NewERA brought against the four major banks and the Reserve Bank of SA. Click on this link to view: Scott Cundill Interview
Scott Cundil Interview on Radio Today – Regarding Banking Activity and Corruption
Click Here to listen to the interview with Scott Cundill
Securitisation and debt markets: an industry of lies and deception
Acts Online News; Posted 02 March 2016 Written by Jack Darier
In the first of this two-part article, Jack Darier delves into the murky world of securitisation, and how banks are able to side-step the law in grabbing the homes of upwards of 10,000 South Africans each year. It’s all accomplished with legal trickery and the blessing of the courts.
The economic underworld of bankruptcy for profit – Part 1
Posted 24 April 2016 Written by Acts Online
Professor William Black, an expert on banking and economics from the US, testified in 2015 before the Joint Committee of Inquiry into the Banking Crisis in Ireland. In his testimony, he pointed out that the financial crisis of 2008 and 2009 is certain to repeat because none of of the criminal bankers that bankrupted the country had been sent to jail – unlike the “Savings and Loans” crisis nearly two decades earlier in the US, which resulted in more than 1,000 convictions. One of the indicators that tell us banks are making “liar loans” is the speed at which lending is growing. If Prof Black is right, modern banking will sink us all. It is predicated on a business model of bankruptcy for profit. This is a long read, but well worth it for the deep insight Professor Black provides into the crisis and the criminal mentality of the bankers who were bailed out by taxpayers.
The economic underworld of bankruptcy for profit – Part 2
Posted 26 April 2016 Written by Acts Online
In the second part of this series, William Black gives testimony before the Inquiry into the banking crisis in Ireland. He talks from a US perspective, but explains how to tell when banks are behaving recklessly (when their loan books are growing faster than the economy), how bankers have lobbied politicians to get rid of pesky legislation that inhibits their gambling instincts and how they have managed to avoid going to jail. This is fascinating testimony into the dark heart of modern banking.
A big thanks to Ciaran from Acts-Online! He helped us nail it down. Sterling work!
RSA – more on Securitization:
Explanation on securitization:
Affidavits from a South African expert on finance and a statistician:
The final proof! Thanks to Ciaryn from acts.online.co.za and to Ash Davenport:
Another RSA Court Ruling for precedent:
UBUNTU Party Explains Home Loans at 0% Interest
By Stephen Goodson: ex director and shareholder of the SA Reserve Bank and Ubuntu Candidate. Friday, 2 May 2014
Under the existing paradigm if a buyer of a house wishes to finance it, he/she applies for a loan from a bank and then is required to repay it over a 20 year period plus an annual interest charge of 10% per annum as well as other sundry expenses. Most people are under the impression that the bank loans this capital sum by utilising the savings of a depositor and the difference of 4% in interest rates (10% for the borrower and 6% for the saver) represents the bank’s profit margin.
This is NOT the case.
Provided that the bank has lodged sufficient reserves with the SA Reserve Bank such as cash and Treasury bills, it can lend up to 14 times that amount for home loans. What the bank then does is to credit the home loan account of the borrower with say R500,000, which is then represented as an asset on its balance sheet and at the same time creates a fictitious deposit of R500,000 as a liability in order to balance its books. The bank then charges 10% interest on the loan – money which has been created out of nothing or thin air. This method of finance is not only immoral, it is fraudulent. As a result of this deceitful practice it comes as no surprise that homeowners spend more than 50% of their after tax income on repaying capital and interest (as opposed to the accepted norm of 25%) and that almost everyone is struggling to survive in a sea of debt. The UBUNTU Party proposes to solve this problem with immediate effect, by establishing a People’s or State Mortgage Bank. This bank will issue loans at 0% plus a small handling charge, which is necessary in order to run the system. What do local experts think? In an article in the SA Real Estate Investor of May 2011, Introducing the Sovereign Man Breaking Free from Financial Checkmate, Robert Vivian, Professor of Finance and Insurance at the School of Economic and Business Sciences at the University of Witwatersrand questions the morality of banks not lending their own money, but creating it out of nothing and then charging interest on it. He states that “A management fee payable to the bank managing the system seems more appropriate.” New Zealand provides a good example of a state financed mortgage system that has worked successfully in the past. In 1935 New Zealand’s agricultural exports of meat, wool and dairy products were badly affected by the artificially created Great Depression, and were down by 40% compared to five years earlier. There was much poverty and the unemployment rate rose to 27%. Many home owners lost their properties as they were unable to service their mortgages, and were forced to live in squatter camps. There was rioting as a result of food shortages. In November 1935 the Labour Party came to power and in January 1936 amended the Finance Act, which enabled the establishment of a State Housing Project. The first £10 million was provided at an interest rate of 1% per annum, while further advances in excess of that amount were charged at 1 ½% per annum. Within three years everyone was properly housed. The Act also included a public works programme, which enabled the building of hospitals, schools, airports, dams etc. The unemployment rate declined by 75% to less than 7%. Under the UBUNTU Party’s proposal for 0% home loans it will be possible to house the entire population in proper housing (not RDP or NDP matchbox houses) within a period of five years. Not only will this policy create a boom in the housing industry, it will have a positive impact on many related industries, as well as manufacturers of furniture and other household goods. Millions of new and permanent jobs will be created and all other sectors of industry can follow this simple process, creating financial stability for every South African. This is the short-term UBUNTU plan of action and we have no doubt whatsoever that this will be the outcome, based on sound empirical evidence.
Finance and Banking
Wednesday, 1 August 2012
The entire banking system and the industry that supports it is based on an unlawful, exploitative and corrupt foundation. It is the greatest act of deception launched against humanity. The banks break the law thousands of times every day with impunity or or any kind of legal backlash, and destroy the lives of millions of trusting South Africans without an end in sight.
This is the sector of society that has caused the greatest amount of damage to the honest and trusting citizens who believe that the government is their servant and is doing the best it can for our greatest benefit. This is a blatant lie and misperception. Please see the numerous video clips and articles on our research page to learn severe this situation is and how many legal actions there are against banks, governments and ministers around the world.
Together with the legal/justice sector, the financial sector needs a complete overhaul so that it truly serves the people and not the shareholders of the banks or the multinational corporations that are using it as a tool of control over its people.
The misery and hardship caused by the financial industry is almost unimaginable. So much so, that every year many people commit suicide as a result of the unlawful activity of banks. This makes their actions utterly unacceptable in a moral society that upholds human rights above all. Unfortunately the rights of corporations are valued above those of human rights in South Africa. Our personal experience in the Constitutional Court is the living proof of such a statement.
Many have tried to stop the action of the banks in the various courts of South Africa, including the Constitutional Court, only to find that the Justice System is not ‘just’, and not impartial in any way, because even in the face of irrefutable legal argument and evidence against the unlawful activity of the banks, all judgements regarding action against the banks, in the last several decades, have been in favour of the banks.
Read full article of facts on banking and Ubuntu proposals at: http://www.ubuntuparty.org.za/2012/08/finance-and-banking.html
The Abolition of Income Tax and Usury Party:
A Short History of Income Tax, its Effects and its Remedies
The Abolition of Income Tax and Usury Party holds that Income Tax is a Marxist invention (point number two of the Communist Manifesto) and should be done away with in a reconstructed South Africa functioning under a new economic system. The system is called Zero Income Tax or Z.I.T.
Income Tax is a system of economic enslavement which is relatively new to this country, only coming into use in 1914 in the greater South Africa. We are convinced that it is a disincentive to economic growth, creating individual misfortune and creating a social climate of dishonesty. The system today is in chaos – many people fall outside “the net” while many others side-step it through “legal” avoidance because they are in a position to pay for the services of so-called tax experts. In a reconstructed South Africa the experts – bookkeepers, tax accountants, and such – will still have work, however, and plenty of it.
Download Manifesto: AITUP MANIFESTO
The author has made an in depth investigation and here is the latest findings:
Read more on banking, money and fractional reserve banking at:
Further Resource material and pdf text documents:
RSA Foreclosure document examples:
For further educational templates also see: https://giftoftruth.wordpress.com/notices/
Background to Foreclosures page:
As background to this Foreclosures page on Giftoftruth is the Banksters page with some important articles, events, history an speeches providing sufficient logical reason that a private banking cartel took control of the financial system and money markets:
That banking itself is contrary to public perception and that we are in fact operating under revolving, foreclosure bankruptcy laws wherein everything is the opposite to what the people believe; such as that money is merely an IOU;
And, the lines have been blurred between ‘money of account’ and ‘money of exchange’; see: https://giftoftruth.wordpress.com/bills-of-exchange/
Sufficient logical reason that predatory capitalism is in fact destroying our environment, health, lands, resources, sovereignty and water, amongst others: https://giftoftruth.wordpress.com/capitalism/
More and more experts in fields such as accounting, banking, commerce, economics, environment, finance, investigative journalism, judicial, etc. are speaking out: https://giftoftruth.wordpress.com/whistleblowers/
Does our government acknowledge the abuse and correct the wrongs? NO! Iceland held the banks accountable and grew their economy. Our government leaders took money from the big banks and therefore turned their backs on the people. In the U.S., Wall Street created the scam and was bailed out and banks merely get fines for scams and abuse. Millions of homeowners are scammed with fraudulent notes, mortgages, fake ‘trustees’ and servicing company abuse.
As one will discover from the herein there is NO STANDING and UNCLEAN hands. There is no legal reason for any home to be taken, yet many judges will rule in favour of and stand by the corporate crooks.
The following are only a few of the many articles and posts one may find in our archives regarding the fraudulent financial system.
South Africa and the USA are very much linked on levels of commerce as set out on the RSA INC. page: