How To Win a Foreclosure Lawsuit or Quiet Title Lawsuit

How This Homeowner is Winning

Neil Garfield
Dec 14

Hat tip for Scott Staffne, Esq. for uploading an “Outline of Oral Argument Re Motion for Sanctions.” First, I commend the preparation, which is notoriously absent from most homeowner arguments and motions. In addition, both Homeowners proceeding pro se and frequently their attorneys are completely unprepared to raise objections to hearsay, business records, judicial notice, leading questions, and the absence of any foundation of personal knowledge. This is how homeowners lose so consistently. Anyone can lose any case that way.

Here is ane example of using the rules to win the case without getting to the issue of whether any debt is unpaid or due.
The second note is that the homeowner took up on appeal an interim ruling regarding the judgment entered despite a lack of evidence to support it. The assumption was that the evidence would be forthcoming at the retrial, but the homeowner knew otherwise. Like most Chase cases, there was no evidence. They were bluffing.

And my third note relates to a standard practice I have, which is NOT to take a deposition unless it will serve a specific purpose. The purpose of the Discovery rules (which are specifically set forth in statutory law in each state and in the Federal system) is to lead to the disclosure and production of information that might tend to reveal admissible evidence relevant to the case. Of course, you must ask for it, or you are not entitled to complaint about it.

Most pro litigants and many lawyers forget )or never knew) that discovery was NOT limited to evidence. It is wide-ranging as a fishing expedition as long as it seeks information that is plainly relevant to the facts and issues of the case — even if the relevance is to the theory of defense with which the opposition disagrees.

Lastly, note that this is despite obvious resistance by the judge who probably was voting on consensus with other judges who think there is no valid defense to a foreclosure action. I don’t know how the case turned out, but the homeowner here is clearly headed for another case in the win column for homeowners.
see JPMorgan Chase Bank NA vs. David Arthur Morton,

Here are some quotes from the “outline” referenced above:
Division Two reversed the previous decision of this Court foreclosing on David Morton’s home because Douglas Theener, a Chase VP had not supported his assertion that Chase possessed Morton’s Note when it was lost, with business records taking that statement outside of the parameters of the hearsay rule.

In order to obtain that evidence Theener asserted existed (which included the collateral file he had inspected) Morton noted the 30(b)(6) deposition of Chase’s designees to testify about the evidence Chase had in this regard. [EDITOR’S NOTE: THE COLATEREAL FILEIS THE LOAN ACCOUNT RECEIVABLE, WHICH DOES NOT EXIST. WITHOUT IT THERE IS NO CLAIM OR REMEDY]

Judge Aschraft at the second scheduled trial of this foreclosure case following remand ultimately acknowledged that Chase had refused to comply with this 30(b)(6) deposition notice when on the first day of trial he struck the trial to give Morton the opportunity to take Chase designee’s deposition a second time.

Now we are back again for trial and the evidence before this Court clearly shows that Chase’s designee still has not been prepared by Chase to testify about that evidence related to those topics which Judge Ashcraft ordered the Chase designee to testify about at his second deposition. Those deficiencies in the designee’s compliance with Judge Ashcraft’s order and the 30(b)(6) notice are well stated in Morton’s five page reply brief.

Because Chase cannot argue that it has complied with CR 30(b)(6) this Court must determine what is the “least severe sanction adequate to serve the sanction’s particular purpose but is not so minimal as to undermine the purposes of discovery.”

No sanction other than exclusion of the designee’s testimony is adequate because Morton was entitled to obtain discovery from a corporate designee who had been adequately prepared to testify about these matters. [e.s.]

SOME EXAMPLES OF AREAS WHERE CHASE’S DESIGNEE WAS NOT PROPERLY PREPARED:

Collateral file - Designee never reviewed the collateral file so couldn’t testify with regard to “the meaning of the assertions previously made in this case by Douglas Theener” about that file.

Assignment - Had no idea what assignment was being referred to in the comment section of the Bank One compliance record, which he testified showed that Bank One received the original note from First Franklin.
Corporate entities - Doesn’t know which Chase entity acquired Morton’s loan.

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Stop Foreclosure, Sue for Breach of Contract

Now is the perfect time to stand up for your legal rights and sue for beach of contract, mortgage fraud, and foreclosure fraud because the legal tide is beginning to turn, and homeowners are starting to win! In 2016 the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) that homeowners have legal standing to challenge an assignment of the mortgage loan contract in an action for wrongful foreclosure on the grounds that the assignment(s) is/are void. Obviously if the court had ruled differently, the banks would have had carte blanche to forge mortgage assignments with wild abandon. In fact, without a system of endorsements and assignments it would be impossible to determine who has a legitimate interest in the property!

In THE PAPER CHASE: SECURITIZATION, FORECLOSURE, AND THE UNCERTAINTY OF MORTGAGE TITLE ADAM J. LEVITIN writes "the mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too- big-to-fail problem for the courts.

The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and transferred through the “public demonstration” regimes of UCC Article 3 and land recordation systems. This arrangement worked satisfactorily when mortgages were rarely transferred. Mortgage finance, however, shifted to securitization, which involves repeated bulk transfers of mortgages.

Like many other cases, current trial court decisions are getting reversed because the courts are waking up to the reality of the rule of law. What they have been following is an off the books rule of “anything but a free house.” However a recent Yale Law Review Article eviscerates the assumptions of a free house for the homeowners and destroys the myth that somehow that policy has saved the nation. You can read the Yale Law Review article “In Defense of “Free Houses” for more information on this tide change.

To facilitate securitization, deal architects developed alternative “contracting” regimes for mortgage title: UCC Article 9 and MERS, a private mortgage registry. These new regimes reduced the cost of securitization by dispensing with demonstrative formalities, but at the expense of reduced clarity of title, which raised the costs of mortgage enforcement. This trade-off benefited the securitization industry at the expense of securitization investors because it became apparent only subsequently with the rise in mortgage foreclosures. The harm, however, has not been limited to securitization investors. Clouded mortgage title has significant negative externalities on the economy as a whole.

If your loan contains fraud or it was securitized then your lender may have breached your mortgage loan contract, and therefore your mortgage loan contract could be legally challenged in a court of law. If your mortgage loan contract is declared legally void, then any assignments of the mortgage loan contract, or subsequent assignments, could also be declared legally void.

Securitization is the process of taking an asset and transforming them into a security. A typical example of securitization is a mortgage-backed security (MBS), which is a type of asset-backed security that is secured by a collection of mortgages. Keep in mind that it is perfectly legal for banks to create mortgage-backed securities (MBS's); however there are significant legal ramifications that will either harm you, or benefit you, depending on what actions you take in response to the fact that your mortgage or deed of trust is legally void resulting in your property, in reality, being unsecured, just like a unsecured credit card debt. What's in your wallet?

This is why we recommend that you take immediate action and sue for the remedy the law entitles you to, and that you deserve. Treble damages and clear and free title to your home. Not sure if your loan contains mortgage fraud or if it was securitized, no problem, we will do a free mortgage fraud analysis and free Bloomberg securitization search for you.

Many of the programs that had modest success in the early days have fallen into disfavor as banks have enacted strategies to counter their progress. The banks are not going to go down without a serious fight. They have a large arsenal of tools to use, and the legal muscle to keep the industry off balance. This is not a static game. The reason that banks have been successful, for the most part, in protecting the large number of mortgages that were securitized is that there is an intricate web of legal theories that they hide behind to justify what they have done. In effect, they have created a shell game where the ball seems to move around in defiance of the laws of physics.

The banks are relying on a complex interaction between UCC 3 commercial paper law, UCC 9 securitization law, bailment law, agency law and local laws of the jurisdiction where the property is located. They would have us believe that what they have been doing since the 1970’s is perfectly legitimate. Many lawyers who have challenged the banks have gotten close to exposing the scheme only to find that judges retreat away from the complexity of the legal theories involved and fall back on procedural barriers under the auspices of protecting the equitable interests of the banks and their agents.

FRAUD STOPPERS Foreclosure Defense Program has moved the bar forward in many substantial ways:

• Our Private Administrative process is a targeted approach to Informal Discovery:
• 3-501. PRESENTMENT or States equivalent
• Mortgage Error Resolution/Request for Information: If you believe there is an error on your mortgage loan statement or you’d like to request information related to your mortgage loan servicing, you must exercise certain rights under Federal law related to resolving errors and requesting information about your mortgage loan. If you think your credit report, bill or your mortgage loan account contains an error, or if you need more information about your mortgage loan, you send a written letter concerning your error and/or request.
• Cutting edge mortgage fraud examination and court ready lawsuits and trial ready evidence to win your case
• Nationwide foreclosure defense attorneys and Pro Se litigation education and support products and services

Subsection of Presentment (example Covenant 8 of UCC3 Note) shows NOTE and under paragraph 1 states: “BORROWER’S PROMISE TO PAY: In return for a loan that I have received, I promise to pay….

MULTI STATE FIXED RATE NOTE--Single Family--Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3200 1/01 (page 1 of 3 pages) Covenant:

1. WAIVERS

I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

• 15 U.S. Code § 1692g - Validation of debts

Often a debt collector cannot validate a debt and therefore cannot legally enforce collections.

• Truth In Lending Act (TILA RESCISSION) codified in 12 CFR Part 226 (Regulation Z); particularly§ 226.34 Prohibited acts and §226.32 sub-paragraph (ii) et seq. predatory lending practices

A mortgage loan covered by the Truth in Lending Act may be rescinded by mailing a Rescission Letter to the purported lender, forcing the purported lender/creditor to oppose that rescission with a lawsuit within 20 days or lose all opposition rights.

• The primary focus of the legal aspect of our program revolves around taking the theories and best practices that have been most successful around the country and make refinements.

“Here, the specific defect alleged is that the attempted transfers were made after the closing date of the securitized trust holding the pooled mortgages and therefore the transfers were ineffective.

• Our program seeks to avoid getting mired in the complexity of the various areas of law involved, instead focusing on a simple, focused approach that makes it harder for judges to avoid the strength of our core arguments.

• The PMA trustees and executive team have a diverse set of skills and significant experience in the core areas that will improve the success factors for our operations.

We have spent an exhaustive amount of time analyzing all of the cases that have been successful in resolving mortgage securitization problems. We have designed our legal information litigation strategy to hit the banks hard and fast where they are most vulnerable.

Our primary focus is on getting clear and marketable title to the property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable.

Instead of fighting the foreclosure itself head-on, we argue that none of the banks or their agents has the right to enforce the foreclosure provisions of the Mortgage/Deed of Trust. In effect, if none of the banks have standing to enforce the foreclosure provision, we are entitled AS A MATTER OF LAW to a declaratory judgment of Breach of Contract (Security Agreement) that is res judicata, i.e., a permanent ban on foreclosure.

The Stand & Fight Program is a complete program that provides you with everything you need:

• Administrated Process
• Court Ready Chain of Title Investigation and Signed Affidavit
• Complaint along with all exhibits
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