The difference between forensic and legal analysis
by Neil Garfield
You need both. One identifies the factual issues that are inconsistent with the claim against the homeowner. The other identifies the legal issues asserted by the foreclosure mill that are not supported by fact and the procedural issues and hurdles you must jump over to mount a successful defense.
The obvious problem is that homeowners do not know where to turn when presented with a claim for administration, collection or enforcement of a written promise that they issued on a promissory note. Back in the 1960s the United States Congress determined that homeowners did not know what they were signing when they were executing documents supporting a reported loan transaction. That is why they passed the Federal Truth in Lending Act. (TILA)
TILA provided the minimum foundation for disclosures and conduct in connection with such transactions or anything that looked like a loan transaction. But ever since the passage of that legislation, it has become custom and practice in the industry to avoid or escape the requirements in the act or any liability for the violations.
We are at the point where nearly all of the documents that are used in connection with transactions with homeowners are faked in whole or in part, in order to create the appearance of compliance and facial validity. This shows up in affidavits and declarations that are tendered to the court, falsely, in support of nonexistent claims for nonexistent debts.
“Nonexistent debts” are debt claims that have no foundation in fact as to the party making the claim. Debt is a duty. If you have no duty to pay the party making the claim, then as between you and that claiming party, there is no debt. And that is precisely where nearly all foreclosures filed in the U.S. for the past 2 decades should have failed.
They mostly didn’t fail because the perpetrators knew more about legal analysis and court procedure than the victims — homeowners. My objective is to give you as much information as possible so that they do fail most of the time, which in my opinion is as it should be — for reasons that I have stated elsewhere on this blog.
Judges look at both of the documents and the affidavits and declarations through the lens of an assumption that the transaction with the homeowner is exactly what the Foreclosure Mill says it is. Because of currently accepted methods of pleading and procedure, the manner in which Foreclosure claims are litigated is contrary to the manner in which all other civil claims are litigated.
This is the basis for the current movement to petition the Supreme Court of various states to change the pre-approved forms for pleading or initiating any foreclosure action. The simple basis for that is that in all other civil claims, the party making the claim must assert and not merely imply their standing to bring the claim.
This anomaly has resulted in tens of thousands of cases in which after years of litigation the court is forced to dismiss the foreclosure because it never should have been filed in the first place. And with increasing frequency, the courts are denying the award of attorney fees to homeowners.
After spending thousands or even tens of thousands of dollars the homeowner is faced with a court victory which only occurred after years of litigation only to find that the claim is brought again with some minor changes in the wording of the falsified documents.
Those changes neither assert nor change the reason why the first action was dismissed but the homeowner is forced once again, to completely litigate a case that never should have been filed. All of this occurs because, contrary to law, the forms used in most states don’t require the claimant to assert a duty owed by the homeowner to the party making the claim, the breach of that duty and the current damages suffered by the claimant as a result of that breach.
My opinion is that virtually none of the foreclosures should’ve been filed in the first place because all of the Foreclosure players were doing it for profit and none of them were doing it for restitution of an unpaid debt as shown on a loan account receivable on the books and records of some creditor who had paid value for the underlying obligation.
So here is my analysis of one declaration that popped up in Hawaii. It can be used as a guide for the analysis of any other documents that are submitted by or on behalf of the Foreclosure Mill. Please note my use of the words “by or on behalf of the Foreclosure Mill.” This is because my research and investigation have yielded a conclusion, to wit: virtually all documents produced in the name of a company that is designated as a trustee, servicer or law firm are actually produced by a third-party vendor who in most cases have no relationship with the trustee, servicer or law firm.
Minh Nghiem DECLARATION OF COMPLIANCE
1. “Document Execution Associate” implies that the sole job of the person whose signature appears at the end of the document is to be an associate of a document executioner. This is double talk. Being tasked with the job of affixing one’s signature, whether it was by hand or produced by mechanical means (most likely) is NOT the same as being authorized to sign it by someone who has the authority to task that person to execute such a document. The document does not even recite the customary “Prepared by” stamp or designation. This is a common wording trick used by or on behalf of the foreclosure mills who attempt to make claims against homeowners. We don’t know anything about whether the person whose name appears in the declaration knew or had any powers associated with making declarations on behalf of multibillion dollar banks or implied trusts allegedly managed by such bank. The notarization occurs far from the office of either the designated servicer or the designated “trustee.” PRACTICE NOTE: The approach to the court should be civil but prepared to go against the judge’s inclination to regard the attack as just a technical means to avoid the consequences of an unpaid debt. Start with your mantra and keep repeating it: “Your Honor, our defense narrative is that there is no obligation in relation to any of these parties who are participating in this illegal foreclosure attempt. Our position is that these parties are part of an illegal conspiracy who are pursuing claims in derogation of both the rights and duties of the homeowner and the rights of whoever has paid value for the underlying obligation under Article 9 §203 UCC as adopted by our state statutes verbatim.
2. “Under penalty of law” is not the same as under penalty of perjury. There is no agreement for the signor that if the contents of the document are false the declarant agrees they are committing perjury, subject to prosecution. Instead upon inquiry the person, if they exist and can be found, will and does regularly delcare that they had no idea what they were signing or they will deny that they have ver singed anything.
3. No declaration of personal knowledge, therefore the declaration is hearsay subject to motion to strike.
4. Declaration of “authorization” does not state who authorized her and how.
5. NO declaration of employment or official capacity. Motion to strike should be directed at witness competency — the components of which are — OATH, PERCEPTION, MEMORY AND COMMUNICATION. She perceived nothing, she might not have taken an oath (no recital that she did), her memory of personal perceptions is nonexistent. As for communication it is doubtful she ever prepared, read, executed or understood what was in this declaration.
6. Declaration does not state foundation for making the the statements that Mr. Cooper is authorized to sign on behalf of U.S. Bank.
7. The Declaration does not state the foundation for making the statements that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses the legal authority to grant the authority to issue, sign or deliver this declaration.
8. Declaration does not state foundation for making the statement that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses ownership of the underlying subject obligation pursuant to Article 9 §203 of the UCC as adopted by Hawaii statutes.
9. Declaration does not state foundation for making the statement that U.S. Bank, either as trustee or in its individual capacity (or the implied trust) possesses the legal authority to administer, collect or enforce the underlying subject obligation.
10. Declaration does not state foundation for making the statement that Mr. Cooper performs servicing functions or is otherwise a servicer as the term is commonly used to describe a company that processes receipts and disbursements of money ancillary to a loan receivable account maintained by the creditor.
11. Declaration does not state foundation for making the statement that the transaction is or was a loan transaction since the declarant obviously has left out any assertion that she knows anything about the transaction.
12. Declaration is carefully worded to describe a “Duty” as “servicer” without stating that Mr. Cooper has the authority granted by any creditor. NOTE: Normal wording taken from other documents that are used by U.S. Bank and other banks is to say that Cooper is authorized to perform specified servicing functions on behalf of an identified (not implied) creditor as provided in some referenced document like a servicing agreement. Such relationships do not exist in a vacuum. Such wording is evidence of deception. The sue of the word “Duty” is usually applied to provide the basis of a claim against the company identified as a servicer. It is not applied as the basis for asserting legal authority without stating that it is asserting legal authority.
13. The declaration asserts ownership of the note and mortgage seeking the reader to infer that the “Plaintiff” has paid value for the underlying obligation in exchange for ownership of it. We know that did not happen. So note that the declaration fails to state that anyone has purchased the obligation, legal debt, note or mortgage from anyone who owned it. Note also that the declaration fails to identify the source of authority to enforce the note. This might not be the subject a motion to strike but should be the subject of intensive discovery, the result of which in all probability will be that that no transaction ever occurred involving the “plaintiff” in which ownership or authority was granted to the Plaintiff by any creditor who owned the underlying subject obligation by virtue of having paid for it.
14. The last point is that it is highly unlikely that the law firm didn’t know that this was a fabricated, false document that was either forged or signed without authority. So an interesting point is directing the discovery and motions to compel and motions for sanctions in points about which the lawyers will provide no answers — daring you to pursue them. Once you get an order of sanctions on the relevant topics, you might add a new motion for sanctions directed against the Plaintiff and its attorney for intentionally filing false instruments. Perhaps even a referral to the state bar association.