HOMEOWNERS LOSE BECAUSE THEY FAIL TO UNDERSTAND A FORECLOSURE IS A BREACH OF CONTRACT CASE

The typical home mortgage comprises two closely related transactions. The first is a contract between the borrower and the lender under which the lender agrees to pay the borrower money in exchange for a promise to repay that money with interest. This is the note. As a condition for entering into that contract, the lender requires the borrower to give the lender a security interest in their property. This is the mortgage. The borrower is the mortgagor and the lender is the mortgagee.

The lenders’ right under the mortgage is like a non-possessory property interest that the borrower effectively repurchases with each payment on the principal of the loan. While the note gives the lender an “in personam” right against the borrower, the security interest gives the lender an “in rem” right against the property. Hence, destruction of the property — say by a hurricane or fire — might destroy the value of the lender’s in rem right, but will not destroy its in personam right to collect the full value of the loan from the borrower even though the property no longer exists.

Now, if the homeowners want a chance to save their homes, it’s necessary and imperative to have the mortgage transaction analyzed. Because the FDIC found that 83% of the mortgage transactions have problems, and 76% of the appraisals as well.

There’s only one firm in the country that provides that mortgage transaction analysis service–Mortgage Fraud Examiners www.mortgagefraudexaminers.com

MORTGAGE FRAUD EXAMINERS WARNS: THE STATUTE OF LIMITATIONS DOES NOT BAR COLLECTION OF AMOUNTS MORE THAN FIVE YEARS PAST DUE

In an opinion issued today, Florida’s Fifth District Court of Appeal joined other Florida appellate courts in holding that the five-year statute of limitations to bring an action to enforce a promissory note and/or mortgage does not prohibit a lender from collecting amounts more than five years past due.

In Grant v. Citizens Bank, N.A., slip op., Case No. 5D17-726 (Fla. 5th DCA Dec. 26, 2018), the Fifth District, sitting en banc, examined whether the trial judge erred in awarding to a foreclosing lender interest that had accrued more than five years prior to acceleration and the filing of the foreclosure complaint. The court noted that while Florida has a five-year statute of limitations to foreclose, the impact of the statute of limitations is simply that acceleration and foreclosure must be based on a default that occurred within the five year period prior to filing the foreclosure action. Each missed monthly installment payment constitutes a new default on which foreclosure may be based. Furthermore, forbearance from accelerating the note upon a borrower’s default does not constitute waiver of the lender’s right to subsequently seek all sums due and owing. Therefore, even if the lender does not file an action on a note or mortgage until more than five years after the borrower’s initial default, the lender may still recover amounts more than five years past due so long as the action commences within five years of maturity or a subsequent missed installment payment.
In reaching this conclusion, the Fifth District receded from its previous opinions in Velden v. Nationstar Mortgage, LLC, 234 So. 3d 850 (Fla. 5th DCA 2018) and U.S. Bank, N.A. v. Diamond, 228 So. 3d 177 (Fla. 5th DCA 2017), cases in which the court concluded that the statute of limitations prohibited the collection of amounts more than five years past due. With Grant, the Fifth District now joins the Third and Fourth District Courts of Appeal in holding that a lender is entitled to recover all outstanding payments upon maturity or acceleration, even those that came due more than five years earlier. See Bank of Am., N.A. v. Graybush, 253 So. 3d 1188 (Fla. 4th DCA 2018); Gonzalez v. Fed. Nat’l Mortg. Ass’n, — So. 3d —, 2018 WL 3636467 (Fla. 3d DCA Oct. 1, 2018).

The First and Second Districts have not directly addressed the interaction between the statute of limitations and the amounts a lender may collect. Given that neither those appellate courts nor the Florida Supreme Court has spoken on the topic, and now that there is no longer interdistrict conflict between the Third, Fourth, and Fifth Districts on the issue, trial courts in all districts of Florida are bound by the Grant, Graybush, and Gonzalez opinions. Thus, lenders throughout the state of Florida are able to recover all amounts owed to them—not just those that accrued within the previous five years.

BEWARE OF KNOWN FRAUDSTER & AMATEUR LEGAL THEORIST, EDDIE CRAIG

Eddie Craig, who FALSELY claims to be a “FORMER DEPUTY SHERIFF” (a “former cop” and a “former law enforcement officer”) and an “EXPERT” in the law. Specifically, Eddie Craig FALSELY claims that he was a “DEPUTY SHERIFF” in Nacogdoches County, Texas. Eddie Craig claims that during his “CAREER IN LAW ENFORCEMENT” as a “DEPUTY SHERIFF”, he found out that all traffic law (and all traffic-related law enforcement) was unconstitutional, illegal, invalid, fraudulent and corrupt.
Eddie Craig makes these intentionally fraudulent claims about himself and his background in order to deceptively “TRICK” the American people into thinking that he is a GENUINE AUTHORITY in the law. But, none of this is so.
THE TRUTH:
The closest that Eddie Craig ever came to being a “DEPUTY SHERIFF” was as a “PART-TIME JAILER” for a period of TWO WEEKS in 1992, at which time, he was unceremoniously “FIRED” (“NOT ELIGIBLE FOR RE-HIRE”)!
That’s right. On 8-17-1992, Eddie Craig was HIRED for a “PART-TIME” job as a county “JAILER” in Nacogdoches County, Texas and he was “FIRED” TWO WEEKS LATER on 8-31-1992 (“NOT ELIGIBLE FOR RE-HIRE”)! It is this TWO WEEK TENURE as a “PART-TIME JAILER” in Nacogdoches County, Texas that Eddie Craig refers to as his “CAREER IN LAW ENFORCEMENT” as a “DEPUTY SHERIFF” for which he claims he “left the Air Force”.
See this case. Muniz v. Davis, https://scholar.google.com/scholar_case?case=4860473033812235072&q=%22Eddie+Craig%22+muniz&hl=en&as_sdt=40006. In this case, the court wrote, “Muniz [a litigant in a traffic-related case who Eddie Craig duped] also asks the Court to consider the [written] expert statement of Eddie Craig, attached as an exhibit to Muniz’s First Amended Complaint… . In the statement, Craig opines that the actions of the law enforcement officers in this case were unlawful [as if Eddie Craig would know]. ALTHOUGH MUNIZ CLAIMS THAT CRAIG IS A FORMER SHERIFF’S DEPUTY, THERE IS NO EVIDENCE BEFORE THIS COURT [TO THIS EFFECT OR] OF CRAIG’S PREVIOUS EXPERIENCE OR QUALIFICATIONS [AS AN ALLEGED “EXPERT WITNESS]. Simply put, THE COURT HAS NO BASIS TO CREDIT CRAIG’S ASSERTIONS [AS AN ALLEGED “EXPERT” WITNESS]… . ” On this basis, the court CORRECTLY determined that EDDIE WAS NOT AN “EXPERT WITNESS” AND REFUSED TO CONSIDER HIS AMATEUR STATEMENT. (in the 10th paragraph, not including block indented portions, at about 35% through the text). Note that the reason that there was “no evidence before the court” that Eddie Craig was a former Sheriff Deputy is that HE IS WAS NOT A DEPUTY SHERIFF, much less an “EXPERT WITNESS” in matters of the law.
ANALYSIS:
Accordingly, Eddie Craig NEVER obtained any “valuable inside knowledge” of traffic law or traffic law enforcement. Second, Eddie Craig NEVER received any training in traffic law or in traffic law enforcement. Finally, Eddie Craig NEVER even once sat behind the wheel of a law enforcement vehicle, much less made a single traffic stop. (So much for Eddie Craig’s “EXPERIENCE” in his “CAREER” as a “LAW ENFORCEMENT OFFICER” and “DEPUTY SHERIFF”.).
OTHER FACTS ABOUT EDDIE CRAIG:
REAL law and amateur legal theories ARE NOT the same thing. Instead, REAL law and amateur legal theories are the exact OPPOSITES of one another. Eddie Craig does not use REAL law in court. Instead, he only uses amateur legal theories in court (the same amateur legal theories that he peddles in his videos, seminars and on the radio). For this reason, Eddie Craig has LOST EVERY SINGLE ONE OF HIS OWN CASES, including HIS OWN MISDEMEANOR SPEEDING CASE. State of Texas v. Eddie (Eugene) Craig, Case no. C-1-CR-12-100045, offense date 12-12-2011, ARREST date 06-25-2012, CONVICTION date 06-28-2013, Travis County, Texas. What’s more, Eddie Craig has done no better in his civil cases. He has been sued for failing or refusing to pay his debts on FOUR separate occasions. HE LOST ALL FOUR TIMES. Some “expert”.
Taylor v. Hale, https://scholar.google.com/scholar_case?case=9860090939829240302&q=%22taylor+v.+hale%22+%22appears+to+contend%22&hl=en&as_sdt=40006 In this case, an amateur legal theorist appealed the dismissal of his lawsuit against the judge who presided over his conviction for driving without a driver’s license. The court wrote, “Plaintiff [an amateur legal theorist] appears to contend that HE CANNOT BE REQUIRED TO OBTAIN A DRIVER’S LICENSE BECAUSE HE WAS NOT OPERATING A MOTOR VEHICLE FOR A COMMERCIAL ACTIVITY [a false claim identical to what EDDIE CRAIG also falsely claims]. [The Plaintiff claimed]… he was MERELY ‘TRAVELING’… . [He claimed that] THE STATE… CAN [ONLY] REGULATE ‘COMMERCIAL ACTIVITY’ through the requirement of a [driver’s] license BUT NOT ‘TRAVELING’ [a false claim identical to what Eddie Craig also falsely claims]. He contends that the term ‘OPERATE’ MEANS AND REFERS TO SOMEONE ENGAGING IN COMMERCIAL ACTIVITY in the State [a false claim identical to what EDDIE CRAIG also falsely claims]. The gravamen [core of] of Plaintiff’s argument is that BECAUSE HE WAS ‘TRAVELING’ AND NOT ENGAGED IN A COMMERCIAL ACTIVITY, HE DID NOT ‘OPERATE’ A MOTOR VEHICLE and was therefore NOT REQUIRED TO HAVE A DRIVER’S LICENSE [a false claim identical to what EDDIE CRAIG also falsely claims]…. . THE COURT CONCLUDES THAT PLAINTIFF’S ARGUMENT IS WITHOUT MERIT [read that phrase again]… . That [the] Plaintiff can argue that he was NOT ‘OPERATING’ a motor vehicle BUT MERELY ‘TRAVELING’ strains credulity. Plaintiff was traveling, BUT HE WAS ALSO ‘OPERATING’ A VEHICLE; OTHERWISE, THIS WOULD MEAN THAT THE VEHICLE ‘OPERATED’ ITSELF AND TOOK A ROUNDTRIP FROM DALLAS TO LAKE JACKSON WITHOUT ANY ACT PERFORMED BY PLAINTIFF. ‘OPERATING,’ as the word is used in [the STATE driver’s license law]… DOES NOT REFER TO COMMERCIAL ACTIVITY [read this phrase again]. To the extent that Plaintiff asserts that the license requirement interferes with his RIGHT TO TRAVEL, such argument is WITHOUT MERIT [read this phrase again]. Requiring one to obtain a license to operate a motor vehicle on a state’s public highway IS NOT an impermissible or undue burden on INTERSTATE TRAVEL… . Ensuring that one can safely operate a motor vehicle and is familiar with the traffic laws IS A LEGITIMATE EXERCISE OF A STATE’S POLICE POWERS and presents NO constitutional impediment to the RIGHT TO INTERSTATE TRAVEL [read this phrase again]. Translation: Contrary to the claims of Eddie Craig, the STATES are authorized (by the U.S. Constitution and by the Supreme Court) to require drivers of motor vehicles to have driver’s licenses and THAT RULE IS NOT LIMITED TO DRIVERS ENGAGED IN “COMMERCE”. It is the FEDERAL government (NOT THE STATE GOVERNMENTS) whose driver’s license regulations are limited to drivers engaged in “INTERSTATE commerce”. But, Eddie Craig does not know enough to even realize this.
 
Myles v. State, https://scholar.google.com/scholar_case?case=17234956748209348154&q=%22Myles+v.+State%22+%22was+not+a+hired+driver%22&hl=en&as_sdt=40006 In this case, Myles appealed his conviction for DRIVING WITHOUT A VALID LICENSE. On appeal he argued, “THE STATE OF TEXAS CAN ONLY REQUIRE PEOPLE WHO ARE ENGAGED IN ‘COMMERCE’ WHILE DRIVING ON ITS ROADWAYS TO HAVE A DRIVER’S LICENSE [a false claim identical to what EDDIE CRAIG falsely claims], AND … I WAS NOT A HIRED DRIVER ENGAGED IN COMMERCE [as if that would make any difference]. As Myles explained, ‘I don’t DRIVE. I just TRAVEL from Point A to Point B [an amateur comment of a type Eddie Craig would make].’ Myles never disputed that he was [ALSO] OPERATING A VEHICLE AS HE TRAVELED.” Regardless, the appellate court disagreed with Myles’ theories and affirmed his conviction. Translation: Contrary to the claims of EDDIE CRAIG, the STATES are authorized (by the U.S. Constitution and by the Supreme Court) to require drivers of motor vehicles to have driver’s licenses and THAT RULE IS NOT LIMITED TO DRIVERS ENGAGED IN “COMMERCE”. It is the FEDERAL government (NOT THE STATE GOVERNMENTS) whose driver’s license regulations are limited to drivers engaged in “INTERSTATE commerce”. But, EDDIE CRAIG does not know enough to even realize this.
 
EVERYONE WHO HAS EVER ARGUED FRAUDSTER CRAIG”S ARGUMENTS ARE ALL LOSSES!

Final Jesinoski Opinion Proves Garfield Wrong

Neil Garfield has repeatedly asserted on his blog that all a borrower needs to do is send a rescission notice to the creditor in order to effectuate a rescission, whether or not a TILA violation occurred.  And he has tried to con ignorant borrowers into paying $3000 for his useless “TILA RESCISSION PACKAGE” of related legalistic puffery.

Here’s proof that Garfield’s theory of TILA rescission, and of the SCOTUS Jesinoski opinion, is plain wrong.

In 2018 the Jesinoskis appealed the District Court ruling against them, and the 8th Circuirt Court of Appeals held this:

On remand, the district court[1] granted summary judgment, concluding the signed acknowledgment created a rebuttable presumption that the Jesinoskis had received the required number of copies. The court also concluded the Jesinoskis failed to generate a triable question of fact rebutting the presumption. We affirm.

JESINOSKI v. Countrywide Home Loans, Inc., 883 F. 3d 1010 – Court of Appeals, 8th Circuit 2018

You can interpret this to mean that a TILA violation is a condition precedent to TILA rescission. No violation = NO RESCISSION.

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MOST SO-CALLED FORECLOSURE DEFENSE ATTORNEYS DON’T KNOW THIS

Mortgage Fraud Examiners has been warning homeowners for years that contractually they must send a “grievance” letter to their bank/servicer of any wrongdoing within their contract before filing a lawsuit, or they’ll get booted out of court. The bank’s are beginning to catch on: https://scholar.google.com/scholar_case?case=18360324978391780375&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Neil Garfield (the Pot) Warns (Calls) Consumers (the Kettle) about Crooked Lawyers (BLACK?)

Attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys like himself, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first. A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help Neil Garfield spread the word about crooked lawyers, in this case Neil himself, if you believe the Florida Supreme Court. Here’s a little information on Neil:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: […]

  • Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

Frivolous Filings and Bogus Legal Theories

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments. As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed
05/12/2016 Order Granting Attorney Fees­ Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­ Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Misleading A Consumer about the Law

Last but not least, below see the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy. Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted. Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already expired, and the creditor had not violated TILA. Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case. Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and embarrassment through a frivolous, failing TILA rescission effort.

———————  Garfield’s Expensive Report to Newman —————–

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:
DATE: February 8, 2016
RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments — which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don’t know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the “investor” from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE’s (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The “hidden” REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects — the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a “drive by” service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as “servicer advances.”

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their “servicer advances.” However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.

17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be “assigned” immediately after, or even before the apparent “closing.”

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the “Chain” had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding “holder” of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking “equity” out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the “borrower.”

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don’t think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

SpeakWrite
www.speakwrite.com
Job Number: 16039-001
Custom Filename: Newman
Date: 02/08/2016
Billed Words: 2069

SCOTUS: NO 3-year right of rescission without a TILA violation – Eat Crow, Garfield

Crow to eat
Time to Eat Some Crow

Dear Neil Garfield:

You’ll find a serving serving of crow in the 8th Circuit’s post-Jesinoski Keiran v Home Capital, Inc., F. 3d 1127 opinion. After reading it, I imagine you will craft a huge apology to your LivingLies blog readers for misleading them for years about the proper understanding of TILA rescission AND of the Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 opinion.

Keirans propounded the same lame excuse as the Jesinoskis. They signed an acknowledgment of receipt of Right to Cancel disclosures, and later gave the court an affidavit claiming they only received one copy, instead of two, each. They appealed the judgment against them to the 8th circuit, then to SCOTUS which granted cert and remanded for consideration in light of Jesinoski. After trial and appeal, the 8th circuit affirmed the trial court’s denial of rescission and damages.

Keiran relied on the same false legal theory that you have espoused for years about TILA rescission, and yet, in the wake of Jesinoski, SCOTUS, the 8th Circuit, and USDC all agree that TILA rescission does NOT work the way you wish it did. The borrow gets NO 3-year right of rescission UNLESS a TILA violation occurred.

The SCOTUS instructs you from the Jesinoski opinion:

Jesinoski TILA Scribble Photo
Whatever did Scalia Mean?

“The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses.”

There you have the question before the court: does conditional TILA rescission written notice or notice plus lawsuit within 3 years after consummation? Now the fun part, where SCOTUS explains TILA’s extended, conditional right to rescind requiring a TILA violation:

“Congress passed the Truth in Lending Act, 82 Stat. 146, as amended, to help consumers “avoid the uninformed use of 792*792 credit, and to protect the consumer against inaccurate and unfair credit billing.” 15 U.S.C. § 1601(a). To this end, the Act grants borrowers the right to rescind a loan “until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later, by notifying the creditor, in accordance with regulations of the [Federal Reserve] Board, of his intention to do so.” § 1635(a) (2006 ed.).[*] This regime grants borrowers an unconditional right to rescind for three days, after which they may rescind only if the lender failed to satisfy the Act’s disclosure requirements. But this conditional right to rescind does not last forever. Even if a lender never makes the required disclosures, the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first.” § 1635(f).”

garfield photo
Neil Garfield of LivingLies

My point: Neil Garfield, you have bloviated that SCOTUS, when it gets a case like Jesinoski back, will agree with YOUR interpretation of TILA rescission law, that a TILA violation is not a condition of the extended right to rescind. Well, SCOTUS did get precisely such a case in 2015 (Keiran), and the justices and the 8th Circuit panel made it clear that NO 3- year right of rescission exists in the absence of a TILA violation.

But who needs the Keiran opinion when Justice Scalia explained conditional TILA rescission PERFECTLY in the Jesinoski opinion?

Eat some crow. I’ll do you good.

Keiran – IF NO DISCLOSURE VIOLATION OCCURS, THE RIGHT TO RESCIND ENDS AT THE CLOSE OF THE THREE-DAY WINDOW.pdf