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.
You can get a mortgage fraud analysis and a legal case review when you join FRAUD STOPPERS PMA.
Now You Can Unlock the Power of Justice and the Rule of Law with FRAUD STOPPERS
Are you tired of being a victim of financial fraud, seeking the justice and legal remedy you deserve? Look no further – FRAUD STOPPERS is here to empower you with the comprehensive tools and support necessary for success. With a wide range of services tailored to your needs, we are your ultimate ally in the fight against fraud.
FRAUD STOPPERS Arsenal of Solutions includes but is not limited to:
- Audits & Investigations: Our team of skilled professionals will meticulously analyze your case, leaving no stone unturned in uncovering the truth. We employ cutting-edge techniques and resources to expose the fraud and gather irrefutable evidence. We are the only organization (to our knowledge) that can provide you with a Full Level 4 Bloomberg Securitization Audit and all the loan level data and trust information for all Government Sponsored Loans (GSE’s) and loan placed in private trust (shipped off shores) that do not report to the Securities and Exchange Commission (SEC).
- Expert Witness Affidavits & Testimony: Our network of esteemed experts will provide compelling affidavits and testify on your behalf, lending credibility and authority to your case. Their specialized knowledge and experience will strengthen your position in the legal battle.
- Turnkey Litigation Packages: We understand that navigating the complex legal landscape can be overwhelming. That's why we offer comprehensive litigation packages, equipped with all the necessary documents and strategies to mount a strong defense against fraudsters.
- Professional Paralegal Support: Our dedicated paralegals are committed to assisting you every step of the way. They will guide you through the process, offer invaluable insights, and provide crucial administrative support to ensure your case is well-prepared.
- Nationwide Attorney Networks: We have established a vast network of highly skilled attorneys across the country who specialize in fraud cases. Rest assured, you will be connected with a trusted legal expert who is passionate about seeking justice on your behalf.
- Legal Education and Training: At FRAUD STOPPERS, we believe that knowledge is power. That's why we provide comprehensive legal education and training resources, empowering you to understand your rights, navigate the legal system, and make informed decisions throughout your case.
- Debt Settlement Negotiations: Our experienced negotiators will engage with creditors on your behalf, striving to reach favorable debt settlement agreements. We will advocate for your interests, aiming to alleviate the financial burden caused by fraud.
- Private Lending: If you require financial assistance to support your legal battle, our private lending options can provide the necessary funding. Our trusted lending partners offer competitive rates and flexible terms, ensuring you have the resources to fight for justice.
And much more! Save Time, Money, and Increase Your Odds of Success with FRAUD STOPPERS' Proven Products and Programs
If you're serious about getting the legal remedy you deserve, FRAUD STOPPERS has everything you need to succeed while saving time, money, and increasing your odds of success. Our comprehensive range of proven products and programs is designed to streamline the process, maximize efficiency, and deliver results.
Time is of the essence when it comes to combating fraud, and we understand the importance of expediting your case. With our expertise and resources, we can minimize delays and ensure efficient progress. By leveraging our extensive experience in fraud investigations and legal strategies, you can navigate the complexities of the legal system with confidence, saving valuable time in the process.
We also recognize the financial burden that fraud can impose, and we are committed to providing cost-effective solutions. Our competitive rates for services, private lending options, and expert negotiation skills can help you save money while maximizing the value you receive. Rest assured that we strive to optimize your resources, enabling you to fight fraud without breaking the bank.
Partnering with FRAUD STOPPERS significantly increases your odds of success. Our proven track record and extensive network of experienced professionals ensure that you have the best possible resources at your disposal. From expert witness testimonies to strategic litigation packages and effective debt settlement negotiations, our carefully curated products and programs have a track record of achieving favorable outcomes. With FRAUD STOPPERS by your side, you can maximize your chances of holding fraudsters accountable and obtaining the justice you deserve.
By choosing FRAUD STOPPERS, you can save time, save money, and increase your odds of success. Our proven products and programs, combined with our commitment to your cause, empower you to reclaim your future. Take the first step towards justice by completing the form below.
Remember, with FRAUD STOPPERS, you have a trusted partner dedicated to saving you time, money, and increasing your chances of success. Let us fight by your side and help you put an end to fraud once and for all.
Our commitment to your success knows no bounds. We are constantly expanding our services and partnerships to provide you with the most effective tools in the fight against fraud.
Ready to get started?
Simply complete the form below to begin your journey towards justice. Once submitted, check your email inbox or email spam folder for detailed instructions on how to move your file forward.
Remember, you don't have to face fraud alone – FRAUD STOPPERS is here to champion your cause and bring you the justice you deserve.
Join us in the battle against fraud today!
After submission, check your email inbox or spam folder for detailed instructions on how to move your file forward to get the legal remedy you seek and deserve.
LIST OF FORECLOSURE LAWS BY STATE
Get In Touch
Phone / Fax
Phone & Fax: 800-459-1215
info@fraudstoppers.org
Hours: 24/7/365
Send A Message
THIS SITE IS NOT INTENDED TO BE MISCONSTRUED AS LEGAL ADVICE. FRAUD STOPPERS is a Private Members Association PMA. FRAUD STOPPERS PMA is NOT a law firm, non-profit organization, or government agency. FRAUD STOPPERS PMA does not operate in the public sector. Although this website is visible to the public FRAUD STOPPERS PMA does not intend for any information contained in this website to be considered as legal advise.
The information about Foreclosure law and other legal information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third-party websites. Such links are only for the convenience of the reader, user or browser; FRAUD STOPPERS and its members do not recommend or endorse the contents of the third-party sites.
Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers. This site provides “information” about the law and is only designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances.
The views expressed at, or through, this site are those of the individual authors writing in their individual capacities only – not those of their respective employers, FRAUD STOPPERS, or committee/task force as a whole. All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed. The content on this posting is provided “as is;” no representations are made that the content is error-free.
For instant access to an affordable local competent attorney click here