Once again it’s clear Neil Garfield doesn’t understand who can foreclose and how. It’s also clear he can’t read and understand the law, or is just using his factually and incorrect interpretations to sell his worthless consulting services and chain of title audits.
In a post on his blog he stated:
Under the laws of all states that adopted Article 9 §203 of the Uniform Commercial Code (all 50 states) a condition precedent to enforcement of the mortgage is that the claimant must have paid value for the debt. Such payment is often presumed from the apparent facial validity of (a) the original loan documentation and (b) transfer and apparent delivery of the promissory note and mortgage or deed of trust.
Here is one of dozens of cases that prove him wrong:
“Because a foreclosure case is an action to enforce a negotiable instrument, standing in a foreclosure case IS NOT BASED UPON OWNERSHIP of the note; it is based instead on whether the plaintiff is a “person entitled to enforce.” § 673.3011. The term “person entitled to enforce” is a technical, defined term in all versions of the Uniform Commercial Code, including Florida’s. Id. An entity may qualify as a “person entitled to enforce” for several reasons, but the most common reason is that the entity is “the holder of the instrument.” Id. In a case where the plaintiff is asserting standing based upon its status as a “person entitled to enforce” because it is the holder of the instrument, PROOF OF WHO OWNS THE NOTE IS NOT NECESSARY OR EVEN RELEVANT to the issue of standing. Id. (“A person may be a person ENTITLED TO ENFORCE the instrument EVEN THOUGH THE PERSON IS NOT THE OWNER of the instrument or is in wrongful possession of the instrument.”).” See, HSBC Bank USA v. Buset, 16-1383 (Fla. Dist. Ct. App. 2018). (emphasis mine).
From a recent blog post by scammer Garfield: “In virtually all cases where a loan is subject to any claim of securitization, the scheme employed by the investment banks is not recognized by law or nor should it be.”
As usual, he makes another moronic statement the courts have found, factually and legally incorrect. Why anyone listens to this fraudster is beyond comprehension.
RODENHURST V. BANK OF AM., 773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support a [claim] based upon improper securitization.”) “[S]ince the securitization merely creates a separate contract, distinct from plaintiffs’ debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs’ claims arising out of securitization fail.” LAMB V. MERS, INC., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases); BHATTI, 2011 WL 6300229, *5 (citing cases); IN RE VEAL, 450 B.R. at 912 (“[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.”); HORVATH V. BANK OF NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt); COMMONWEALTH PROP. ADVOCATES, LLC V. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt); HENKELS V. J.P. MORGAN CHASE, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff’s claim for unauthorized securitization of his loan because he “cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments”); JOHNSON V. HOMECOMINGS FINANCIAL, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the “discredited theory” that a deed of trust ” ‘split’ from the note through securitization, render[s] the note unenforceable”); FRAME V. CAL-W. RECONVEYANCE CORP., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: “Plaintiff’s allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan”).”The Court also rejects Plaintiffs’ contention that securitization in general somehow gives rise to a cause of action – Plaintiffs point to no law or provision in the mortgage preventing this practice, and cite to no law indicating that securitization can be the basis of a cause of action. Indeed, courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor a cause of action.” See JOYNER V. BANK OF AM. HOME LOANS, No. 2:09-CV-2406-RCJ-RJJ, 2010 WL 2953969, at *2 (D. Nev. July 26, 2010) (rejecting breach of contract claim based on securitization of loan); HASKINS V. MOYNIHAN, No. CV-10-1000-PHX-GMS, 2010 WL 2691562, at *2 (D. Ariz. July 6, 2010) (rejecting claims based on securitization because plaintiffs could point to no law indicating that securitization of a mortgage is unlawful, and “[p]laintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not bundle or sell the note in conjunction with the sale of mortgage-backed securities”); LARIVIERE V. BANK OF N.Y. AS TR., Civ. No. 9-515-P-S, 2010 WL 2399583, at *4 (D. Me. May 7, 2010) (“Many people in this country are dissatisfied and upset by [the securitization] process, but it does not mean that the [plaintiffs] have stated legally cognizable claims against these defendants in their amended complaint.”); UPPERMAN V. DEUTSCHE BANK NAT’L TRUST CO., No. 01:10-cv-149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010) (rejecting claims because they are based on an “erroneous legal theory that the securitization of a mortgage loan renders a note and corresponding security interest unenforceable and unsecured”) POWELL V. WELLS FARGO HOME MORTG., No. 14- CV-04248-MEJ, 2017 WL 840346, at *8 (N.D. Cal. Mar. 3, 2017) (contention that defendant lacked authority to make assignments because the note and deed of trust were split during the securitization process is not a viable theory of recovery under California law); SILVAS V. GMAC MORTG., LLC, No. CV-09-265-PHX-GMS, 2009 WL 4573234, at *5 (D.Ariz. Dec. 1, 2009) (rejecting a claim that a lending institution breached a loan agreement by securitizing and cross-collateralizing a borrower’s loan).The overwhelming authority does not support a cause of action based upon
improper securitization. Accordingly, the Court concludes that Plaintiffs cannot maintain a claim that “improper restrictions resulting from securitization leaves the note and mortgage unenforceable); SUMMERS V. PENNYMAC CORP. (N.D.Tex. 11-28-2012) (any securitization of Plaintiffs’ Note did not affect their obligations under the Note or PennyMac’s authority as mortgagee to enforce the Note and foreclose on the property if Plaintiffs defaulted).; NGUYEN V. JP MORGAN CHASE BANk (N.D.Cal. 10-17-2012) (“Numerous courts have recognized that a defendant bank does not lose its ability to enforce the terms of its deed of trust simply because the loan is assigned to a trust pool. In fact, ‘securitization merely creates a separate contract, distinct from [p]laintiffs[‘] debt obligations under the note, and does not change the relationship of the parties in any way. Therefore, such an argument would fail as a matter of law”);
Someone sent me this post and I couldn’t sit by and allow such B.S. to stand.
This is why Garfield has NEVER won a foreclosure case he clearly doesn’t know or understand foreclosure law.
DEUTSCHE BANK NATIONAL TRUST CO. V. VALERIE J. SLOTKE (Wash. Ct. App. 2016) (“it is the holder of a note who is entitled to enforce it. It is not necessary for the holder to establish that it is also the owner of the note secured by the deed of trust.); TROTTER V. BANK OF NEW YORK MELLON, 275 P.3d 857 (Idaho 2012). (“a trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first proving ownership of the underlying note….”); BROWN V. DEP’T OF COMMERCE, 184 Wn.2d 509, 514, 359 P .3d 771 (2015); BAIN V. METRO. MORTG. GRP., INC.. 175 Wn.2d 83, 104, 285 P.3d 34 (2012); TRUIILLOV. NW. TR. SERVS., INC., 181 Wn. App. 484, 502, 326 P.3d 768 (2014), rev’d on other grounds, 183 Wn.2d 820, 355 P.3d 1100 (2015); (“Ownership of a note is irrelevant to the power to enforce that note.”); U.S. BANK, N.A. V. KNIGHT, 90 So. 3d 824 (Fla. 4th DCA 2012) (“to have standing, an owner OR holder of a note, indorsed in blank, need only show that he possessed the note at the institution of a foreclosure suit; the mortgage necessarily and equitable follows the note.”)
For years Mortgage Fraud Examiners has been warning the public about these stall attorneys ripping off homeowners. Finally, the evidence is coming to light.
A well respected foreclosure defense attorney, Thomas Cox proves Joseph Esquivel, owner of Mortgage Compliance Investigators, is a scammer.
“I bumped into this con artist back in 2013 and wrote the attached article about his con game… in case you want to see how totally looney the guy is”: https://docs.google.com/viewer?a=v&pid=forums&srcid=MDYwMDAzOTAyMzU3OTcyMzc4MzgBMDYyODYyNjc3NDQyNTA2MDEyOTgBZ1kwRkdvMUJCQUFKATAuMS4xAQF2Mg
Sadly, a quick search will show dozens of homeowners lost their homes; worse yet we couldn’t find even one case where a homeowner was successful. It’s clear anyone relying on Esquivel’s “inaccurate legal conclusions,” and “erroneous statements of law” will lose their home. See, ERNESTO McKENZIE v. M&T BANK case. In the very last footnote of the case, the court makes it clear, this Esquivel character is totally incompetent and has no idea what he’s talking about. https://scholar.google.com/scholar_case?case=12352845220372117433&q=%E2%80%9CJoseph+Esquivel%E2%80%9D+foreclosure&hl=en&as_sdt=6,33.
The court cites several cases where homeowners lost their homes using Esquivel’s worthless audits. The court: “The Court notes that this is not the first time that borrower-homeowners have relied on Esquivel’s ‘inaccurate legal conclusions,’ despite the fact that he is not a lawyer and has ‘not shown competence’ to provide legal advice or testimony regarding chain of title issues.” The court further notes: “Mr. Esquivel’s affidavit is “replete with erroneous statements of law and is wholly unhelpful to a resolution of the case let alone to be admitted as any expert opinion.”
It was founded by Ed Vallejo, an alleged pedophile, https://www.facebook.com/…/alert-danger-in…/873731129371575/ and is inundated with forensic/chain of title/securitization audit scammers, the disgraced and disbarred “stall” attorney Mark Stopa, other nitwits, and “useful idiots” who parrot wild claims and nonsense.
Any distressed homeowner that listens to or follows any of the nonsensical advice these losers propagate are guaranteed to lose their home. Unfortunately, many already have!
Mortgage Fraud Examiners has correctly proven for years that foreclosures are breach of contract cases, and the homeowner has to attack the mortgage contract to save their homes. This is why scammer, “stall” atty. Mark Stopa’s clients, thousands of them, lost their homes to foreclosure, because he’s clueless and didn’t understand this very basic principle. The attorneys, that use this principle win their cases, and therefore don’t blame the courts for their losses like Stopa, because they don’t have any.
Here’s more proof evidence foreclosures are breach of contract cases: https://www.bakerdonelson.com/files/Litigation-Tools-in-a-Foreclosure-Action.pdf.
If you want to save your home the ONLY strategy that works is attacking the contract: http://www.releasewire.com/press-releases/homeowners-receiving-multimillion-dollar-awards-attacking-banks-using-the-loan-contract-678710.htm