Over at Dealbook, I look at the very different treatment awaiting unsecured creditors of Countrywide, depending on whether they are bondholders or tort litigants.
May
11
NBC NIGHTLY NEWS- FRAUD RAMPANT IN FORECLOSURE COURTROOMS
The fraud and abuse in our courtrooms has come out of the shadows and is now a persistent part of our national lexicon. Please watch this 4 part series on foreclosures and Florida and pay particular attention to the very clear and specific language that press and attorneys are now using which describe the explicit fraud that is a uniform and consistent part of our legal system.
The sanctity and integrity of our entire legal system, and indeed the legitimacy of our entire system of government, is under a direct and full scale assault by corporations and teams of lawyers who have exploited a key fact in our legal system….that we rely upon the integrity of litigants in order to protect the integrity of our court system. But we all know that in far too many cases, judges simply ignore the blatant fraud that passes right in front of them. In far too many other cases, there is no care or concern given to examine the possible existence of fraud….the key objective….the only objective is to grant foreclosure judgments.
Every time a foreclosure judgment is granted based on flawed or forged documents and evidence our court system is weakened, our entire system of justice is desecrated and the foundations of our unique system of government is damaged. Unlike totalitarian or more repressive regimes, our system of government is predicated on the integrity and responsibility of those who are subject to its control. In many ways, the authority and power of our government is illusory. The governing apparatus is simply to weak and ineffective to police all wrongdoing. That’s why the effectiveness of government control over individual behavior is conditioned upon the consent of the governed and the agreement that we will abide by the rules, laws and morays that we all agree are essential to maintain order and protect individual rights and liberties.
What the foreclosure crisis shows is how vast sectors of our society…in this case the entire banking, finance and now our legal profession are willing to abandon those laws, morays and rules in the blind and naked pursuit of economic dominance. All of this is causing major fault lines in the compact between government and the governed. The American Mythology was that we were One People Under the Law, a people governed by rules and laws and these laws were applied evenly and fairly across all races and all economic stations. But this Mythology is now broken….the fiction blasted away behind the overwhelming evidence of abuses….watch the following stories:
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May
02
FINALLY- HOW TO SAVE YOUR HOME FROM FORECLOSURE IN CALIFORNIA!
I get calls all the time from people all over the country who are looking for attorneys or for assistance in fighting their foreclosure for themselves.
In the State of Florida, h
omeowners and litigants are fortunate to have a dedicated corps of attorneys, many of whom offer deeply discounted legal fees and others who share their pleadings and strategies. One of the best things about practicing in this area of law is working closely with so many exceptional attorneys who selflessly share their hard fought work product because they believe in the higher calling of the profession of law which is to serve others.
Another fine example of this sort of effort is a newly-published book authored by my friend and colleague George Gingo. Click below for a sample of the detailed and comprehensive work covered in this book…
Conclusion and About the Authors
And most importantly, click on the link below to find out how you can order this book….I really support this effort and encourage everyone, whether you live in California or other states, to purchase this book and learn how to defend and protect your home!
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Apr
04
An Order Putting A Case in Legal Twilight Zone
There are so many screwball things happening across this state…one thing that the whole statewide Florida Foreclosure Fiasco has exposed is that our courts are just no equipped to deal with the cases that are pending before them.
The response has been a process that is deficient in many vital areas. In many cases, these deficient procedures are going to cause the properties that were subject to foreclosure to be unmarketable forever. There are still other cases that are languishing in a state of suspended reality….a sort of legal purgatory with no bottom or top….no end, no resolution.
The following order is an example of one such circumstance. Note that there is no rule cited which authorizes the proposed action taken in this case and that’s because….there is no rule that authorizes such an Order. And if there is no rule that authorizes, exactly what are the procedures that apply to such a non-authorized action? And how do litigants in a case respond to orders and procedures which have no rules?
This really is unprecedented and it’s impossible to predict where all this will go…..but in times of such chaos it’s hard to believe it will be anything but bad…..
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Mar
23
RETRACTION- “FORECLOSURE MILL” Means very good law firm that provides excellent service.
I would like to apologize to all the Foreclosure Mills out there (excuse me, I mean Most Excellent Law Firms). I, and other members of the press had been using the term in a derogatory manner, but according to a State Senator, this is not at all fair:
“In most occupations, whether it’s making doughnuts or running a sporting goods store, having more volume is better than having less volume. It may, in fact, be a commentary on your capability and your competitive advantage rather than something that we should disparage,” Negron said. “Foreclosure mill could also be called very busy law firm because you provide excellent service to your clients.”
I mean WOW! That’s just incredible. SCARY. Terrifying. The problem is, this is the mindset that permeates Tallahassee. The legislature is absolutely incredulous at the Florida Supreme Court and a primary reason for it is the Verified Complaint Rule. I mean,
HOW DARE THE SUPREME COURT PASS A RULE THAT REQUIRES LITIGANTS TO TELL THE TRUTH!
In one early signal of the petulant legislature’s rage, there is a proposal to split up the Florida Supreme Court. That’s just one example of the lashing out that is coming…..There are bad, bad things brewing in Ye Olde Capitol. I’m just betting that somethings will come out of this session that will gut foreclosure defense and will make some penance or forgiveness for all the past wrongdoing. If you think the Rocket Docket was bad, just wait until this session is over….methinks an evil wind this way blows.
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Feb
09
New Order On Verification-COMPLAINTS MUST BE VERIFIED!
When the Supreme Court of Florida passed its Rule that required all residential mortgage complaints to be verified, the highest court in this land announced rights that are owed to litigants in courtrooms all across this state.
These foreclosure mills cannot continue to deprive Floridians of rights given by the highest court in this land and our Circuit Courts must take action to ensure those rights are respected.
My complaint about this Order is the lawsuit should be dismissed. There must be some sanction for the continued deprivation of Floridian’s rights. I only wish our courts felt the same way.
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Aug
09
GROUP POLITICAL ACTION URGED BY BLOG READERS
WOW! I guess I hit a nerve. Here is an example of the many comments received. Worth the read not only because it validates what we know, but proposes action.
CAUTION: I agree that freedom of assembly and free speech is probably going to have more effect than any traditional approach. But we are close to a tinderbox here with millions of people out of work, underemployed, and simply dropped out that could lead to a chaos that none of us should want or allow. The anger and frustration is growing. Power in the people is reserved to those who maintain the higher moral ground. Scaring people with violence or threats will isolate you even if it gets you some press coverage.
So my advice is don’t break any laws, and if you are given a direct instruction from law enforcement, obey the command unless you are prepared to be arrested or detained. If so, go peacefully. Take no action against law enforcement officers. They are not the cause of the problem and you will alienate people who might otherwise sympathize with your views.
Essentially, this is what will happen in court. The foreclosure mills justify their conscience because they are simply doing what they are paid to do. Pro-se litigants have a personal hook in the deal – the foreclosure mills have nothing but easy money.
We started filing our lawsuit long before we stopped paying the mortgage. In fact, it was “after” we sent the demand letter with complaint attached to the builder and original lender when they filed to foreclose.
We were left in a no-win situation because of what the BANK – BUILDER – APPRAISER – County Code Official – conspired and did. We cannot fix, correct, or sell our house because of their actions. It has cost us everything which is exactly the position the foreclosure mills want their prey to be in. Unfortunately, they filed false affidavits and committed fraud on the court. The judge dismissed the case without prejudice which means they will be back.
My outrage and infuriation is that they ALL know it. The alleged original lender knew they pre-sold our loan so their liability was already limited at best. We paid the full mortgage for 8-months before moving into the house. That alone is a violation of the PSA. The house violates the zoning & building codes – another violation. IMHO – I do believe the mortgage loan – Instrument is VOID & Nullified because at NO-TIME was it EVER a legitimate legal Instrument. It is still isn’t…
The idiocy of attempting to work this out legally – respectfully is futile because they have NO INTENTION of working anything out. Their intentions are clear – pound us into poverty – take the property – sue us for whatever else defiency or whatever and leave us for dead…
Yet, at no-time did we participate with their lies & deception.
I specifically gave Patrick countless proof that CW deliberately sold mortgages to consumers that did NOT know what they were getting. Yet, he believes these people are accepting their due-responsibility. How can they accept responsibility for something they have no-idea was done – worse it was done TO THEM and NOT the lender. That is hypocrisy on Patrick’s part. Yet, he will conveniently drop back to the courts continued mis-handling of these cases and proclaim victory.
I agree with Frankielee – the fact of the matter is everyone should stop paying their loans and drive the lenders into bankruptcy. It would not take every loan – maybe 4-6 months and these lending institutions would collapse. Sadly, that will not happen because these lenders control the media which portrays every borrower in trouble as a deadbeat. Strangely, when I think back to a few weeks before settlement – I kept asking – don’t they need a U&O Permit – what about the lien waivers – invoices – how could they get a final inspection and appraisal to settle on a house that was NOT completed..? I was told it was all taken-care-of… hmm?
I know of folks who were never late paying their mortgage and they were foreclosed. As for us – we simply attempted to sue the original lender so we could fix the house, correct the zoning – illegal U&O – lack of inspections – etc and just sell the damn place. The made it very clear – they will stomp us into submission – take the house – wash the title through the foreclosure process – pay for the illegalities using the special hazard insurance (Ins fraud) and auction for pretty penny pocketing the entire deal as another cash-cow for them.
…and somehow the guilt manipulators want me to feel as though it was my-fault…
All I know anymore is this driving me insane – I wake up several times per night with them on my mind and none of it is good. Gee maybe I can sue them for punitive damages for driving me crazy but do I have to [suggestion omitted) to do it…? It certainly appears that way…
Filed under: foreclosure
Aug
05
How the Other Side Sees Us
From a comment from icetea
Here’s a good powerpoint to read
http://www.mortgagebankers.org/files/Conferences/2010/LIRC/LIRC1011Lit1Huo.pdf.
Note that this is just the common view of most banks to litigation and what causes of action they are most prepared for.
As a Pro Se, I have learned that reading appellate decisions about how claims fail is very instructive (even if it isn’t a foreclosure case). What you may soon learn is that you can lose right at the beginning (to borrow from Neil’s admonition to win at the beginning).
• Most pro se litigants know just enough procedure to kill their cases from the get go and even a skilled attorney brought in later can’t fix what was broken.
• Many attorneys write crappy pleadings and were a complete waste of money for their client.
• You have to put in the very long hours at a real law library. Find your state/federal causes of action reference texts and learn the rules of what you have to plead – or should plead – in your complaint or answer.
• Learn about how cases get removed from State to Federal court and what that means to you – especially Twombly pleading standards.
• Learn the procedures of the court you are in. Not just the official statutes but find some books written to get attorneys up to speed on the procedures and terminology.
• Learn to search appeals decisions for your court (this is often available from the web). With a bit of keyword search skill, you can get access to how your state/fed court views the rules for proving various claims or how it views things like recission, Lis Pendens, injuctions etc.
• Evidence, evidence, evidence. Learn your court’s rules and objections. (If you watch Neil’s youtube vids, you might see a classic text on Evidence in the background … hint hint) Some of the books on evidence are massive so you will have to learn about what parts are likely to affect your case.
• Most of all, if you are going to do this Pro Se, you cannot learn everything you need to know from the web. Hit the real books made out of dead trees!
• Whatever you do, don’t mistake a rant against securitization (of which this blog has thousands) as a sufficient basis for your pleadings or motions.
Its way more work than you think. This is also why picking the right attorney with specific experience in this area of litigation – and familiarity with modern foreclosure defense – is critical.
Filed under: foreclosure
Jul
12
NY Judge Orders Discovery — AMBAC V EMC MORTGAGE
AMBAC Assurance Corporation v EMC Mortgage Corp, EDNY.July 9.2010.Motion to Compel Production
Now that these venerable institutions have turned into ankle biter’s, their claims to compel production and other forms of discovery are being heard by the same judges that turn down similar claims from borrowers. In this case AMBAC is suing one of the mortgage aggregators alleging that the aggregator caused loans to be originated without regard to the ability of the borrower to repay the loan. They allege that despite the claim that the mortgage “pools” were sampled, many of the loans consisted of transactions in which the borrower was known not to have the capability of even making the first payment. In other cases, as we know, the loans were “qualified” simply on the ability of the borrower to make the first payment, which was substantially reduced by allowing the borrower to pay less than the accrued interest and not of the principal. AMBAC is therefore making the same claims as borrowers and investors.
It is clear from this case and other recent decisions at the trial court level that the defensive stonewalling tactics which were used successfully against borrowers are not working when the litigants are both institutions. This particular case was submitted to me by Max Gardner, who recognizes the significance of this development. It may seem like technical procedure to most people but the fact remains that these “pretender lenders” simply do not have a factual defense. The only thing they have our lawyers who are skilled in using civil procedure to avoid any possibility that the case will be heard on the merits. This tactic, while successful against borrowers, is obviously going down the tubes in connection with litigation between institutions.
This will have an obvious and palpable effect on litigation with borrowers. Borrowers or their attorneys that represent them will merely cite rulings in the same or nearby jurisdiction wherein discovery was allowed to proceed. Our experience in monitoring thousands of cases indicates that in the relatively few cases where judges allow discovery to proceed the matter was quickly settled or the party seeking foreclosure simply vanished, allowing the borrower to either get a judgment for quiet title by default or to sit in limbo with no party seeking payments or foreclosure.
Filed under: foreclosure
Apr
06
DISCOVERY AND MOTION PRACTICE: SHOW ME THE BOND
REGISTER NOW FOR DISCOVERY AND MOTION PRACTICE WORKSHOP
SHOW ME THE BOND!: 9th CIRCUIT AFFIRMS BACKDOOR REQUIREMENT FOR ENHANCED “CREDITOR” DISCLOSURE REQUIREMENTS IN CHAPTER 13 PLAN: SEE chapter 13 debtorsHerrera Monroy opinion 09-1175 (9th Cir BAP 01 05 2010)
Among the things we will cover at the May workshop on Motion Practice and Discovery, are the many ways the pretender lender lenders are obfuscating the truth. Practitioners and litigants need to know the progression of building a case and the progression of presenting a case. They are not the same thing. Pleading-Motions-Hearings-Argument-Exhibits-Raising Issues of Fact- Discovery-Evidentiary hearings is the rough order of things while lawyers may have stylistic differences. Here are your bullet points when you go to court:
- The money for the funding of the borrower’s loan came from the investor. Thus the borrower is or at least was the debtor and the investor is or at least was the creditor. In old style transactions the borrower would sign a note and it would be kept by the bank that gave him the loan. Why? Because the note was evidence, presumptively correct of the terms of the obligation that came into existence when the borrower accepted the benefits of the funding of the loan.
- If the borrower did not execute a note, the obligation would still exist, if the borrower accepted the benefit of the funding the loan.
- If the bank did not fund the loan, the note would not be evidence of any obligation, because there was no obligation. Signing a note does not create the obligation. It is the monetary transaction — the transfer of actual money — that gives rise to the transaction.
- In securitized residential mortgages, the borrower signs a note which is conveyed to the investor as the lender by way of a mortgage backed bond. Hence the evidence of the holder of the note is in the bond.
- The only place to start is where the bond was issued and to see the bond that conveyed the ownership interest in the loan pool to the investor.
- So you want them to produce all the mortgage backed bonds that conveyed an ownership interest in the pool. Without the bond there is no evidence of who owns the note.
- Remember the terms of the bond: (1) conditional non-recourse payment of interest; (2) conditional non-recourse payment of principal; and (3) conditional non-recourse conveyance of the borrower’s note. The SPV that issued the bond is not the actual Payor or obligor on the Bond. The mortgage backed bond is strictly dependent upon the various conditions, provisions and terms contained in the indenture, prospectus, pooling and service agreement and assignment and assumption agreement.
- Hence legally the note is “given” to the investor both as collateral and as owner for the obligation acquired when the investor advanced funds to purchase these unregistered securities.
- The reason why “show me the note” is so powerful is that 40% of them were destroyed and the pleaders have no credible story to explain why or when (key elements in establishing a “lost instrument”). But the reason it creates a trap door for borrowers is that 60% of the time they do have the note, or they create one using advanced color copying and printing technology off of copies. So if you don’t know the story behind securitization and the litigation tools — motions, discovery, compelling answers, use of qualified written requests etc. you are left with your mouth hanging open.
- Since you know the loan has a 96% statistical probability of having been securitized, you know that an investor funded it, you have a forensic analysis and expert declaration to support and corroborate your pleading and argument, and a question of fact exists as to how and when the investor received and/or parted with possession of the note and under what circumstances.
- The only way then that the transaction can be completely presented in court or out of court is for the them to show you the note AND SHOW YOU THE BOND WITH THE INVESTOR’S NAME ON IT. This requires a request to produce the minute books, trustee’s records and actual copies of the certificates, or failing that the names, addresses and contact information of the investor, so you can get a copy from them and find out if they still have it or if they ever had it.
- You may find they never received the note. You may find that the “depositor” or “trustee” or any other “entity in the securitization chain either never received the note or doesn’t have it anymore. That doesn’t mean the obligation is dead. It means that the two pieces of evidence of the obligation are deed and the court has the power to reform the transaction into what “the parties” (i,e, the real parties) intended.
- But it also means that if the investor, his agents, servants or employees or servicers or affiliates have received payoffs from insurance, credit default swaps or otherwise that the obligation would of necessity be correspondingly reduced. The corroboration of the existence of the likely reduction is the current opinion evidence and allegation that the entire transaction was based upon fraud — inflated appraisal of the property, inflated rating of the mortgage, inflated appraisal of the mortgage backed bond and inflated rating of the collateral resulting in the issuance of a fictitious security without the collateralization upon which both the borrower and the investor relied.
- And the last point for today’s “lesson” is that you are entitled to the same presumptions that your allegations are true as they are — nothing more and nothing less. So you better know how to plead, and how to argue when you’re dealing with a presumption of credibility in the brand name of a big bank and a judge who isn’t interested in complex theories. That’s why your argument boils down to “show me the BOND.”
- So don’t try to win the whole case in the first or even the 10th motion hearing. You should use each hearing as an opportunity to educate the Judge on a little more of securitization and plan out your educational curriculum, demonstrative exhibits, affidavits, declarations, and forensic analysis reports.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, workshop Tagged: actual Payor or obligor on the Bond, argument, conditional non-recourse conveyance of the borrower's note, conditional non-recourse payment of interest, conditional non-recourse payment of principal, DISCOVERY AND MOTION PRACTICE, elements in establishing a "lost instrument, expert declaration, forensic analysis, HERS, request to produce the minute books, securitized, show me the BOND, trustee's records and actual copies of the certificates, unregistered securities
Mar
23
PACER CITED FOR ALLOWING IMPROPER DOCUMENTATION ON LINE
I MERELY REPORT THE FOLLOWING AS A POSSIBLE “HEADS UP”. I HAVE NOT HEARD OF THIS PROBLEM WITH PACER. IF ANY OF YOU KNOW SOMETHING ABOUT IT, PLEASE POST YOUR COMMENTS.
Editor’s Note: Like MERS, garbage in, garbage out. Without a referee the players do whatever suits them. Here PACER enables litigants to submit questionable documents — i.e., where authentication is bypassed and foundation is absent.
In MERS, the participant members have constant access to change anything in those “data” records and then submit MIN reports (milestone) as though they were business records, even though they were probably changed to reflect the oral argument from the previous hearing.
The myth in MERS is that someone is submitting documents where they are reviewed for authenticity, proper execution and accuracy just like in the property appraiser’s office or the county recording office in which the property is located. The truth is the only employees at MERS (numbering under 20) are administrative and IT people to keep the technology platform running. MERS was never intended to be a system equal to the recording office. it was always intended to get around the recording requirements.
From: joseph zernik <jz12345@earthlink.net>
Subject: [law-discuss] Richard Fine: Comprehensive Review of PACER & CM/ECF Practices Sought By Volunteers Across the US
To: “US agencies, law school faculty, NGOs, media, and others” <jz12345@earthlink.net>
Date: Thursday, March 18, 2010, 5:44 PM
Richard Fine: Comprehensive Review of PACER & CM/ECF Practices Sought By Volunteers Across the US
Los Angeles, March 18 – following his claims fraud in PACER and CM/ECF in the habeas corpus petition of Richard Fine at the US District Court, Los Angeles and at the US Court of Appeals, 9th Circuit, Dr Joseph Zernik, Los Angeles, California, resident, published in various online outlets letters [1] seeking volunteers throughout the US to help in producing a comprehensive review of the practices and procedures of the United States courts and courts of appeals relative to their computerized systems: PACER – the public access system, and CM/ECF – the case management/electron ic filing system.
Specific help was requested in a two-fold manner:
First – comprehensive examination of the local rules, general orders, and CM/ECF manuals of the district and appellate courts, to identify mention, if any of the practice of NEFs (Notices of Electronic Filings) bearing RSA- encrypted digital signatures as the replacement for the stamps and hand-signatures of the clerks of the courts in the former paper-based certification/ authentication;
Second – examples of alleged fraud by US District courts and US courts of appeals through the issuance of court orders and judgments with invalid NEFs – bearing no RSA-encrypted digital signatures, or no NEFs at all.
In his letters, Dr Zernik compared the practice to the signing of an instrument by an individual, and acknowledgment of such individual’s signature on the instrument by a notary public, based on the notary’s hand endorsement and stamp, which the notary was required to keep possession of at all times. Furthermore, Dr Zernik stated: “In other words, the public access system (PACER) permitted the inspection and the copying of the instruments alone (and even then – not always the signatures on the instruments) , but the NEFs – the equivalent of notary public acknowledgements – were uniformly eliminated from the PACER records. Therefore, there was no way that the public could distinguish through PACER between court records that were honest, valid, and effectual, and the multitude of false and deliberately misleading records that populated PACER through misconduct of the courts.”
Such requests were issued as part of an effort to solicit experts’ opinions from outside the US regarding integrity of operations of the US courts relative to the practice and procedures of PACER and CM/ECF. Dr Zernik was confident that experts would confirm his claims that PACER and CM/ECF, as implemented by the Administrative Office of the US Courts, were a large-scale Shell Game fraud.
LINKS/NOTES:
[1] March 18, 2010 Letter by Dr Joseph Zernik, Los Angeles resident, soliciting volunteer reviews of Local Rules, General Orders, and local CM/ECF User’s manuals across the US. The links at the end of the letter provided examples of both valid, and invalid NEFs.
———— ——
Hi [ ],
Thanks, since it appears that you know all the right people. Maybe you could help me in the most urgent task, relative to PACER in the US courts and US courts of appeals:
THE CLAIMS:
My basic claims relative to the recent implementation of the public access (PACER) and case management/ electronic filing (CM/ECF) systems at the United States courts is that it was the largest Shell Game fraud in the history of mankind, and that it was executed with no legal authority at all, since there was no way that the public could tell through PACER, which records were honest, valid, and effectual court records, and which were false and deliberately misleading court records.
Through many generations of paper-based administration of the courts, fundamental safeguards were established, which required that court orders and judgments be verified by the hand signature of the judge, and certified/authentic ated by the stamp/seal of the court and hand endorsement by the clerk of the court. Moreover, the clerk of the court was the only one authorized to hold the seals/stamps of the court.
Such basic procedures could be compared to the signing of an instrument by an individual, and acknowledgment of such individual’s signature on the instrument by a notary public, based on the notary’s hand endorsement and stamp, which the notary was required to keep possession of at all times.
The claim is that with the introduction of computer-based administration of the US courts, the certification/ authentication by the clerk was implemented as NEFs (Notices of Electronic Filings). The hand endorsement of the clerk was replaced by an RSA-encrypted digital signature, which appeared at the bottom of the NEFs as a 3-5 line nonsensical alphanumeric string.
However, in coordinated fashion, such newly practiced court procedures were NEVER lawfully established through local rules of courts in any US court or court of appeals that I examined.
Furthermore, in devising its dual computerized case management (CM/ECF) and public access (PACER) systems, the US courts deliberately eliminated from public access, and were actively denying public access to the NEFs. The NEFs were simply excluded from PACER.
In other words, the public access system (PACER) permitted the inspection and the copying of the instruments alone (and even then – not always the signatures on the instruments) , but the NEFs – the equivalent of notary public acknowledgements – were uniformly eliminated from the PACER records.
Therefore, there was no way that the public could distinguish through PACER between court records that were honest, valid, and effectual, and the multitude of false and deliberately misleading records that populated PACER through misconduct of the courts.
Moreover, the claim is that there was no reasonable explanation for the design of such dual systems that was consistent with the furtherance of justice and honest administration of the courts.
CURRENT EVIDENCE/DOCUMENTAT ION:
Ample documentation of the claims above was accumulated from the US District Court in LA and the US Court of Appeals, 9th Circuit (in re: case of Richard Fine), and from the US District Court in Brattleboro, Vermont, and the US Court of Appeals, 2nd Circuit (case of Scott Huminski).
The alleged fraud in such cases was in the issuance by the US District Court of court orders and judgments with NEFs with no digital signatures, and the service of court orders by the US courts of appeals with no signatures by the judges, and no NEFs at all.
WHERE IT STANDS TODAY:
I am in the process of seeking prominent expert opinions on the matter from outside the US (no US expert that is prominent, whom I have approached, was willing to issue a written opinion on the matter). I do have non-formal opinion from a prominent US expert, and preliminary formal opinion from a prominent expert from outside he US.
REQUEST FOR HELP:
I am seeking:
A) COMPREHENSIVE REVIEW OF LOCAL RULES OF COURTS/ GENERAL ORDERS/ USER MANUALS ACROSS THE US:
Review of as many US District Courts and Courts of Appeals, to establish whether they documented in their Local Rules of Courts the basis for operation of PACER and CM/ECF, the nature of certification/ authentication of records through RSA-encrypted digital signatures in NEFs. The only good reference that I found was often in informal “CM/ECF USER MANUALS”, which were not adequate court records at all.
What I would expect from those who were willing to help was a short declaration under penalty of perjury such as:
1) On this and that date I inspected the Local Rules of Court of this and that US District Court – as posted by the court at this and that URL, the Standing Orders – as posted by the court at this and that URL, and the local “CM/ECF User’s Manual” -as posted by the court at this and that URL. (I would appreciate also a time-date stamped PDF copies of the complete Local Rules of Court, General Orders, and CM/ECF Manuals of each court that was examined)
2) The only mention of PACER and CM/ECF was such and such.
3) The practice and procedure of NEFs and RSA-encrypted digital signatures in the NEFs, as the valid certification/ authentication of court records was/was not mentioned in such Local Rules of Court – Rule #xx; Was/was not mentioned in the local General Orders – General Order #xx-xx; Was/was not mentioned in informal “CM/ECF User’s Manual” of the court, pp xx-xx.
2) ADDITIONAL EXAMPLES OF FRAUD ON INDIVIDUALS AT THE US DISTRICT COURTS AND US COURTS OF APPEALS, PARTICULARLY IN MATTERS PERTAINING TO HABEAS CORPUS, CIVIL RIGHTS, AND FINANCIAL INSTITUTIONS.
I am seeking:
a) US District Court orders and judgments that were served with NEFs bearing no RSA-encrypted digital signatures, and/or
b) US Courts of Appeals orders that were served with no signatures of the judges and no NEFs at all.
Such fraud is typically perpetrated on litigants who are:
a) Prisoners filing habeas corpus petitions.
b) Individuals filing complaints pertaining to civil rights abuses.
c) Individuals filing complaints pertaining to complaints against members of the judiciary.
d) Individuals filing complaints pertaining to financial institutions – truth in lending, disability insurance, ERISA, benefits plans, etc.
My email for direct communications is:
jz12345@earthlink. net.
Truly,
[]
Joseph Zernik, PhD
http://inproperinla .blogspot. com/
http://www.scribd. com/Free_ the_Rampart_ FIPs
http://www.liveleak .com/user/ jz12345
http://www.examiner .com/x-38742- LA-Business- Headlines- Examiner
Please sign our petition – Free Richard Fine: http://www.thepetit ionsite.com/ 1/free-fine
Patriotic pics of Beyonce’ Knowles, Sharon Stone, and Charlize Theron,
Coming soon- deep house music!
LINKS:
[1] NEFs – a review with examples of honest and fraudulent NEFs:
http://www.scribd. com/doc/24732941 /10-01-03- Notice-of- Electronic- Filing-NEF- First-Amendment- CMSs-Review
[2] Large Scale Fraud Alleged in PACER
http://inproperinla .blogspot. com/2010/ 03/10-03- 17-large- scale-fraud- alleged-in. html
Filed under: foreclosure Tagged: CM/ECF, county recorder, court record, foreclosure defense, foreclosure litigation, Fraudlent documents, hadn signature of judge, Joseph Zernik, MERS, NEF, Notice of electronic Filing, Pacer, property appraiser, recording, Richard Fine, RSA-encrypted, stamp of the clerk
Mar
14
Why Show Me the Note Isn’t Enough
see no-silver-bullet
The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.
My observation is that many lawyers and pro se litigants are left with their mouths hanging open when the the other side (pretender lender) does in fact produce a note, copy of a note, assignment, separated allonge, indorsement or other document giving the appearance of propriety. You have to ask yourself what if I was physically holding that note, copy etc.? Would that mean I had the power to enforce it?
Those who have not studied securitization don’t know what to say because deep down inside they think the show is over — when in fact it has only just begun, which is the point of Brad’s Workshop on forensic analysis.
Lawyers have complained that we tried to pack too much information into one day in the our workshops we did over the last two years. They are right. The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.
That note or copy they produced is probably not the evidence that is required. It probably is a copy of the note as it existed at the closing, and does not contain the chain of custody, assignment, indorsements or other indicia of ownership.
There is no doubt that a workshop on motion practice and discovery for lawyers only needs to be done and I am working on that. My problem is the same as any trial judge would have. How can we go that level unless the lawyer knows what evidence exists, what evidence to ask for, and how to use that evidence? That is the purpose of the forensic workshop. Unless the lawyer or pro se litigant knows what to do and say about the information produced in a forensic analysis, it is of little use. Logically, they could not possibly know what to say or do with the information unless they understood the significance of the information when it is presented to them.
Brad’s forensic workshop, together with my participation and other guest speakers, weaves together the issues presented by the loan transaction itself, the securitization of the mortgage, the transfers and chain of title issues combined with what works and doesn’t work with Judges because it is seen as truly significant as opposed to merely technicalities designed to delay the proceedings. Indisputable evidence that raises questions of fact that helps the Judge “get it” is what is necessary to win.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: brad keiser, evidence, forensic analysis, show me the note, silver bullet, TILA, workshop
Nov
09
Finally, a Judge Willing to Hold Lenders/Servicers Accountable!
I have to say that reading the below order from Judge Arthur Schack is refreshing. It’s also disappointing because there are so few judges out there today willing to do what he is doing. The majority of Florida judges are cowboys who don’t really care about legal standards and rules of civil procedure. They routinely grant motions for Summary Judgment even when there are clear issues of material fact in the case or even when there is still outstanding disovery that the Plaintiff servicer/trustee hasn’t complied with. They routinely hear a Motion to Dismiss AND a Motion for Summary Judgment on the same day/time! It’s ridiculous and despicable all at the same time.
The bottom line is that most judges in Florida and other states trample on the civil rights of homeowners and deny them due process because of their “personal views” on the issues of foreclosure. I highly encourage homeowners to organize in their communities and march on the steps of their local courthouse and protest what their elected judges are doing and not doing to uphold the law as Judge Schack is doing in this case.
Judge Schack also provides some great points that attorneys and pro se litigants should focus on in their case(s). Read carefully and learn the elements that he is stipulating because there are fine points of law that he his holding the plaintiff in this case to. Enjoy…
HSBC Bank USA, N.A. v. Valentin N.Y.Sup.,2008. NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, Kings County, New York.
HSBC BANK USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2005-3, Renaissance Home Equity Loan Asset-Backed Notes, Series 2005-3,, Plaintiff, v. Candida VALENTIN, Candide Ruiz, et. al., Defendants. No. 15968/07. Jan. 30, 2008. Vincent P. Surico, Esq., De Rose & Surico, Bayside, for Plaintiff. No Opposition submitted by defendants to plaintiff’s Judgment of Foreclosure and Sale. ARTHUR M. SCHACK, J. *
1 Plaintiff’s application, upon the default of all defendants, for an order of reference, for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings) is denied without prejudice. The “affidavit of merit” submitted in support of this application for a default judgment is not by an officer of the plaintiff or someone with a power of attorney from the plaintiff.
Leave is granted to plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3 (HSBC), to renew its application for an order of reference upon presentation to the Court of compliance with the statutory requirements of CPLR § 3215(f), with “an affidavit of facts” executed by someone who is an officer of HSBC or has a valid power of attorney from HSBC.
Further, the Court, upon renewal of the application for an order of reference requires a satisfactory explanation to questions with respect to: the assignment of the instant nonperforming mortgage loan from the original lender, Delta Funding Corporation to HSBC Bank; the employment history of one Scott Anderson, who assigned the instant mortgage to HSBC, yet in a case I decided last month, HSBC Bank, N .A. v. Cherry, 18 Misc.3d 1102(A), swore in an affidavit to be HSBC’s servicing agent; and the relationship between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche Bank and Goldman Sachs, who all seem to share office space at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409 (Suite 100). Background Defendants, Candida Valentin and Candide Ruiz, borrowed $340,000 from Delta Funding Corporation, on June 23, 2005.
The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 14, 2005, at City Register File Number (CRFN) 2005000395517. Delta Funding Corporation, by Mortgage Electronic Registration Systems, Inc. (MERS), its nominee for the purpose of recording the mortgage, assigned the note and mortgage to plaintiff HSBC, on May 1, 2007, with the assignment recorded on June 13, 2007 at CRFN 2007000306260.
Plaintiff’s moving papers for an order of reference fails to present an “affidavit made by the party,” pursuant to CPLR § 3215(f). The application contains an April 23, 2007-affidavit by Jessica Dybas, who states that she is “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.”On that date, the note and mortgage were still held by MERS, as nominee of Delta Funding Corporation. For reasons unknown to the Court, MERS, as nominee of Delta Funding Corporation, or plaintiff HSBC failed to provide any power of attorney authorizing OCWEN to go forward with the instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in fact, Ms. Dybas is not an officer of OCWEN. She is a “Foreclosure Facilitator,” a job title unknown to this Court. Therefore, the proposed order of reference must be denied without prejudice. Leave is granted to plaintiff HSBC to comply with CPLR § 3215(f) by providing an “affidavit made by the party,” whether by an officer of HSBC or someone with a valid power of attorney from HSBC. *2 Further, according to plaintiff’s application, the default of defendants Valentin and Ruiz began with the nonpayment of principal and interest due on January 1, 2007. Yet, four months later, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan. The Court wonders why HSBC would purchase a nonperforming loan, four months in arrears?
Additionally, plaintiff HSBC must address a third matter if it renews its application for an order of reference. In the instant action, as noted above, Scott Anderson, as Vice President of MERS, assigned the instant mortgage to HSBC on May 1, 2007. Doris Chapman, the Notary Public, stated that on May 1, 2007, “personally appeared Scott Anderson, of 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.”In HSBC Bank, N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his affidavit, executed on June 15, 2007, states he is Vice President of OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC is signed by the same Scott Anderson as Vice President of MERS. Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three years. Lastly, the court notes that Scott Anderson, in the MERS to HSBC assignment gave his address as Suite 100. This is also the address listed for HSBC in the assignment. In a foreclosure action that I decided on May 11, 2007 (Deutsche Bank Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ), Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit 21.1 of the November 25, 2006 Goldman Sachs 10-K filing with the Securities and Exchange Commission … is a “significant subsidiary” of Goldman Sachs…. [T]he January 19, 2007 assignment has the same address for both the assignor Deutsche Bank and the assignee MTGLQ Investors, L.P., at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial behemoths, Deutsche Bank and Goldman Sachs share space in a West Palm Beach, Florida office suite In the instant action, with HSBC, OCWEN and MERS, joining with Deutsche Bank and Goldman Sachs at Suite 100, the Court is now concerned as to why so many financial goliaths are in the same space. The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths or if there is a more nefarious reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference, the Court needs to know, in the form of an affidavit, why Suite 100 is such a popular venue for these corporations. Discussion Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v. Gkanios, 230 A.D.2d 770 [2d Dept 1996] ). *3 Plaintiff has failed to meet the requirements of CPLR § 3215(f) for a default judgment. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party… Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney. [Emphasis added]. Plaintiff has failed to submit “proof of the facts” in “an affidavit made by the party.”The affidavit is submitted by Jessica Dybas, “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.” There must be an affidavit by an officer of HSBC or a servicing agent, possessing a valid power of attorney from HSBC for that express purpose. Additionally, if a power of attorney is presented to this Court and it refers to pooling and servicing agreements, the Court needs a properly offered copy of the pooling and servicing agreements, to determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d 1201(A) [Sup Ct, Suffolk County 2006] ).
Also, the instant application upon defendants’ default must be denied because even though it contains a verified complaint, the attorney’s verification is insufficient to meet the requirements of CPLR § 3215(f). The Court, in Mullins v. Di Lorenzo, 199 A.D.2d 218 [1st Dept 1993], instructed that “a complaint verified by counsel amounts to no more than an attorney’s affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215.”Citing Mullins v. Di Lorenzo, the Court, in Feffer v. Malpeso, 210 A.D.2d 60, 61 [1st Dept 1994], held that a complaint with not more than an attorney’s affidavit, for purposes of entering a default judgment “was erroneous and must be deemed a nullity.” Professor David Siegel, in his Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, CPLR C3215: 16) explains that Mullins v. Di Lorenzo is in point here. Perhaps the verified complaint can do service as an affidavit for various purposes within the litigation while the contest is on … but it will not suffice to put an end to the contest with as drastic a step as a default at the outset. It must be kept in mind that even an outright “affidavit” by the plaintiff’s attorney on the merits of the case-except in the relatively rare circumstances in which the attorney happens to have first-hand knowledge of the facts – lacks probative force and is usually deemed inadequate by the courts to establish the merits. A fortiori, a verified pleading tendered as proof of the merits would also lack probative force when the verification is the attorney’s. [Emphasis added ] *4 In Blam v. Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that: In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (seeCPLR 3215(f): Goodman v. New York City Health & Hosps. Corp. 2 AD3d 581 [2d Dept 2003]; Drake v. Drake, 296 A.D.2d 566 [2d Dept 2002]; Parratta v. McAllister, 283 A.D.2d 625 [2d Dept 2001] ). Accordingly, the plaintiff’s motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 A.D.2d 337, 338 [2d Dept 1997] ). (See Hazim v. Winter, 234 A.D.2d 422 [2d Dept 1996]; Finnegan v. Sheahan, 269 A.D.2d 491 [2d Dept 2000]; De Vivo v. Spargo, 287 A.D.2d 535 [2d Dept 2001]; Peniston v. Epstein, 10 AD3d 450 [2d Dept 2004]; Taebong Choi v. JKS Dry Cleaning Eqip. Corp., 15 AD3d 566 [2d Dept 2005]; Matone v. Sycamore Realty Corp., 31 AD3d 721 [2d Dept 2006]; Crimmins v. Sagona Landscaping, Ltd., 33 AD3d 580 [2d Dept 2006] ). Therefore, the instant application for an order of reference is denied without prejudice, with leave to renew.
The Court will grant plaintiff HSBC an order of reference when it presents: an affidavit by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of HSBC explaining why HSBC would purchase a nonperforming loan from Delta Funding Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share office space in Suite 100.
Conclusion Accordingly, it is ORDERED, that the application of plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 29, County of Kings), is denied without prejudice; and it is further ORDERED, that leave is granted to plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, to renew its application for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order, of: an affidavit of facts either by an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson, describing his employment history for the past three years; an affidavit from an officer of plaintiff HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, explaining why plaintiff would purchase a nonperforming loan from Delta Funding Corporation and why plaintiff *5 HSBC BANK N.A., shares office space at Suite 100, 1661 Worthington Road, West Palm Beach, Florida 33409, with Ocwen Federal Bank FSB, MortgageElectronicRegistrationSystems, Inc., Deutsche Bank and Goldman Sachs. This constitutes the Decision and Order of the Court. N.Y.Sup.,2008. HSBC Bank USA, N.A. v. Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) END OF DOCUMENT
