---------- Forwarded message ----------
From:
Bob Hurt <bob@bobhurt.com>Date: Sat, Mar 26, 2011 at 2:05 PM
Subject: [Lawmen: 4249] Shutdown of Foreclosure Mills Gives New opportunity to Their Victims
To:
lawmen@googlegroups.com
1. David Stern
2. Marshall C. Watson
3. Shapiro & Fishman
4. Florida Default Law Group
5. Kahane & Associates,
6. Daniel C. Consuegra
7. Albertelli Law and
8. Ben-Ezra & Katz. The principals have started shutting down these firms because of the Robo-signing scandals. This provides a unique opportunity for foreclosure victims of these firms to quiet title in their own names.
The courts will probably favor your challenge of the paperwork the above firms submitted in your case. These firms probably still function as "Attorney of Record" for the fraudulent Plaintiffs and don't have the resources to submit motions to withdraw as Attorney of Record.
Move for Dismissal
Victims of these firms should find out what complaints the Attorney General has submitted against the firm in question, then serve the court with Mandatory Judicial Notice of that AG complaint. The court will naturally doubt the validity of the Plaintiff's documents. When the Plaintiff to prove validity, defendants can move for dismissal with prejudice, attorney fees and costs, and sanctions against the Plaintiff and the foreclosure mill's counsel.
If you want to know whether you can obtain such a dismissal, contact Randall Reder - reder at redersdigest dot com, 813 960 1952. Dr. Reder can handle your case all the way through the appeals process if necessary.
Disgorgement, Treble Damages for Fraud, Quiet Title, Trover, Punitive Damages
Many facts justify asking the court to release the homeowner from obligation to pay the alleged lender, to reverse the purchase and mortgage, to disgorge all the funds, to find the lender guilty of fraud, to award treble damages to the alleged borrower, and quiet the title in favor of the homeowner. Borrower/homeowners should investigate the facts and launch the attack against the lender and servicer before foreclosure ever happens, or after a dismissal, as above.
Appraisal fraud - Appraisers have conspired with lenders and realtors for 4 decades to over-inflate realty values. Nearly every residence in Florida has sold for too much. Induced fraud - The realty purchase agreement obligates the buyer to consummate the sale upon loan approval. So at the closing table, the buyer MUST sign the documents, and feels duress accordingly. The process rushes the buyer into signing them without thoroughly reviewing them, a process that would take at least a day WITH advice of an attorney. Furthermore, mortgage lenders have universally refused to provide bilateral loan contracts whereby they promise to lend money (cash or the equivalent) in exchange for the borrower's promise to repay according to amortization schedule, making provision for the handling of defaults, and providing as exhibits the intended note and mortgage WELL IN ADVANCE of closing. The closing process rushes the borrower, typically without legal counsel, into confronting and signing a pile of documents the borrower has never seen before. As a consequence, the buyer lies when signing the note's "for a loan I have received" and the mortgage's "I am seised of the estate." Both statements constitute falsehoods and frauds because the buyer has neither received a loan or obtained the estate by seisen. These lies void both the note and mortgage. Loan fraud - The closing officer takes signed documents, commits a felony by handing a hot check to the seller, and forwards the package to the lender. The lender deposits the note and then electronically transfers to the title company bank the funds which the note created. Thus, the borrower, not the lender, funded the loan. The loan thereby became a fraud, and everything descending from it became void. Furthermore, the lender fails to have any privity of contract with the borrower, having given nothing of value/consideration/detriment for the borrower's promise to pay. When examining the mortgage, particularly a deed of trust, one cannot help noticing that the documents confer right and title to the lender. Thus, the borrower borrowed the realty if anything at all, and did not borrow any money. From the Wikipedia article: A negotiable instrument can serve to convey value constituting at least part of the performance of a contract, albeit perhaps not obvious in contract formation, in terms inherent in and arising from the requisite offer and acceptance and conveyance of consideration. The underlying contract contemplates the right to hold the instrument as, and to negotiate the instrument to, a holder in due course, the payment on which is at least part of the performance of the contract to which the negotiable instrument is linked. The instrument, memorializing (1) the power to demand payment; and, (2) the right to be paid, can move, for example, in the instance of a 'bearer instrument', wherein the possession of the document itself attributes and ascribes the right to payment. Certain exceptions exist, such as instances of loss or theft of the instrument, wherein the possessor of the note may be a holder, but not necessarily a holder in due course. Negotiation requires a valid endorsement of the negotiable instrument. The consideration constituted by a negotiable instrument is cognizable as the value given up to acquire it (benefit) and the consequent loss of value (detriment) to the prior holder; thus, no separate consideration is required to support an accompanying contract assignment. The instrument itself is understood as memorializing the right for, and power to demand, payment, and an obligation for payment evidenced by the instrument itself with possession as a holder in due course being the touchstone for the right to, and power to demand, payment. In some instances, the negotiable instrument can serve as the writing memorializing a contract, thus satisfying any applicable Statute of Frauds as to that contract.
Discharge of obligation - UCC Article III (negotiable instruments) requires that any change of numbers or letters on the note discharges the maker's obligation. The imposition of an adjustable interest rate, a late fee, a mortgage insurance premium which enters a loss reserve fund, in practical effect change the numbers on the note. By signing the morttage the borrower changes letters on the note by waiving notice of assignment of beneficial interest in the note and by waiving presentment and notice of dishonor in the event of default. These should discharge the obligation for they constitute sneaky, underhanded devises to cheat the borrower out of important rights. Note that the typical loan note refers to the mortgage but does not grant to the mortgage any right to modify the note's terms. As in the principal case, the courts holding against non-inclusion of provisions of a mortgage simultaneously executed with a note do so largely on the theoretical grounds that the two instruments are separate and independent legal entities, each designed to fulfill a particular role in the overall financing transaction.' The note is intended as evidence of a personal obligation and the manner of payment, while the mortgage is to serve as a security device in specific property.6 Under this viewpoint each instrument is to stand by itself, andconsequently the provisions in the mortgage are viewed as being applicable only for the recovery of the debt by foreclosure proceedings against the property. The promissory note is considered to be governed exclusively by its own terms. The stipulation in the mortgage should be construed as providing a remedy on the mortgage, and that so far as foreclosure proceedings are concerned, the notes for that purpose are due, but for general purposes, the obligations on the notes, are to be determined by their own expressed terms. In this way both contracts can stand and be fully enforced according to the manifest intention of the parties. McClelland v. Bishop, 42 Ohio St. 113, 124 (1884). See also, Cafritz Constr. Co. v. Mudrick, 59 F.2d 864 (D.C. Cir. 1932) ; Smith v. Nelson Land & Cattle Co., 212 Fed. 56 (8th Cir. 1914). Disconnection of note from mortgage - indorsement in blank deprives the mortgagee of power to force a sale of the mortgaged asset in foreclosure. See the http://www.nytimes.com/2011/01/08/business/08mortgage.html?_r=2&hp. If the plaintiff files suit while the indorsement remains blank, the plaintiff has no standing and commits fraud on the court because no one knows the identity of the holder in due course. Typically, the mortgage names MERS as the mortgagee and the note names some other party as owning beneficial interest. Unless the HIDC provides a contract of agency to the mortgagee, neither can lawfully force a sale of the realty to discharge the note. The mortgage suffered no injury by non-payment, and the mortgage does not bear the HIDC's name. Security fraud and Trover - It seems difficult to get courts to grasp the fact that the note belongs only to the maker, a reality that gave rise to language like "holder in due course", "holder", and "assignment of rights/benefial interest" instead of "owner" and "sale" in the USC Article III. Unless the maker conferred ownership explicitly, the make still owns it and for that reason has the right to demand return of the note upon satisfaction. Once judges come to grips with this, they will have to entertain actions in trover to compensate for unauthorized conversion of the note maker's chattel, the note, to personal use through securitization. All profits the trust, trustee, and associates earned from sale of mortgage-backed security certificates rightfully belong only to the note maker. in the same proportion as the value of the note to the overall pool of notes. On top of this, the borrower's due diligence should prove that the trustee added the borrower's note to the trust after the REMIC cutoff date, in violation of tax laws. The trust association (which functions like a limited liability company, not like a trust) hold the note, assigned in blank, so as to make it easy to retract the note in the event of default, assign it to a bank willing to litigate, and fill in the name of the assignee then. RESPA violation through mortgage insurance - Paragraph 10 of the mortgage shows that the lender can cancel any mortgage insurance and put the borrower's premium payment in a loss reserve fund. If the lender does this, it increases the cost of the loan and that does not show up on on the HUD-1 report. It also changes the amounts on the note, indirectly, effectively discharging the borrower's obligation.
Industry fraud - read http://fcic.gov's Financial Crisis Inquiry Report, then provide its summary to the court as proof of the collusion between government and the banking, lending, and securities industry to collapse realty values and steal homeowner equity through lending policies they knew or should have known would cause that result. This alone should justify a cram-down - lowering the loan balance to the existing value (based on forced foreclosure sales of comparable properties), less paid-in equity, financed over 30 years at 3%.
If you want to prove any of the above, contact Storm Bradford, 703-622-5191, pay him $1500, and he'll prove the provable items and prepare you a report with elements to use in your pleadings. He'll even train your bumbling attorney as needed to prevail in your case. If you have curiosity about what a good fraud examiner like Storm can find, look at the award attorneys Causey and Bourdas obtained for their client in an appraisal fraud case over a $200,000 house and $144,000 loan.
A Quiet Title action gives you the venue to air the above issues and getting the court to order removal of the servicer and everyone else from the deed. Naturally, you will serve the attorney of record. The foreclosure mill cannot handle the litigation for the reasons at the top of this message. You move for default judgment if the attorney of record does not answer the complaint within 30 days. The court should grant title to the borrower, clear of any defect or claim by the lender.
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