Fla 4th DCA Reverses Based Upon Trial by Ambush


Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

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see 4th DCA Reive v Deutsch Trial by Ambush J Oftedal reversed DOC032515-001

Those of us who have been fighting this ground war have seen it again and again. The “corporate representative” is allegedly employed by the servicer. Nobody shows up representing the Plaintiff, except a lawyer who says he represents the Trust or other Plaintiff but we really don’t know that this lawyer has been retained by, say, US Bank as trustee for XYZ Securities Pass Through Trust 200X-A. In fact, we don’t even know if US Bank is the Trustee.

And even if they are the Trustee neither they nor their so-called trust (probably unfunded, so it couldn’t have purchased or originated any loans) have legal standing because they don’t own the loan. There is a huge difference between pleading and proof. AND standing means different things depending upon…

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Eric Mains: “Acceptable Casualties”


Originally posted on Livinglies's Weblog:

At the request of Eric Mains, former FDIC employee, I am publishing his comments on the foreclosure situation and the the banking crisis.

ACCEPTABLE CASUALTIES

I thought quite a bit about what I would say regarding the experience of battling with a large bank for the last 6 years in a foreclosure action. One could complain about the forgery, the fraud, the denial of due process and equal protections under apathetic state court system(s), the shifty attorneys, etc. One could, but frankly it’s not worth the time or waste of space writing about it in just my particular case. You can read the complaint(s) I filed in both State and Federal court, read the trial transcripts, and draw your own conclusions as to the whole situation and legalities.

What is remarkable to me, and what is worth discussing, is not that my case has been the exception to large…

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Is the PSA Relevant If It Shows the Assignment is Void?


Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

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see Yvanova2014-Opening brief

The short answer is YES. If a party initiates foreclosure proceedings based upon ownership of the loan, note and mortgage by a REMIC Trust, that ownership is based upon the express provisions of a trust instrument. And that trust instrument is the Pooling and Servicing Agreement (PSA). If that instrument is created under the laws of the State of New York, New York law expressly states that anything that violates the trust provisions is void.

So if US Bank, for example, says it brings the foreclosure by virtue of US Bank being the Trustee for a named Trust, then right there is an item for discovery —- is US bank really the trustee? Does the trust own the loan? If the answer is no, then there should be no foreclosure. Nothing could be more relevant.

So the theory…

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FDIC Employee Quits and Goes Public With Complaint Against Chase, WAMU, Citi and two law firms


Originally posted on Livinglies's Weblog:

For further information and assistance please call 954-495-9867 or 520-405-1688

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See Eric Mains Federal Complaint

see Mains – Table of Contents.petition 2 transfer

On Monday Eric Mains resigned from his employment with the FDIC. He had just filed a lawsuit against Chase, Citi, WAMU-HE2 Trust, Cynthia Riley, LPS, WAMU, and two law firms. Since he felt he had a conflict of interest, he believed the best course of action was to resign effective immediately.

His lawsuit, told from the prospective of a true insider, reveals in astonishing detail the worst of the practices that have resulted in millions of illegal foreclosures. Some of his allegations cast a dark shadow over claims of Chase Bank on its balance sheet, as reported to the public and the SEC and the reporting of both Chase and Citi as to their potential liability for wrongful foreclosures. If he is right, and he proves…

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Pondering TILA Rescission


Originally posted on Livinglies's Weblog:

For additional information or assistance please call 954-495-9867 or 520-405-1688

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see Jonathen Foxx article on TILA Rescission BEFORE the Supreme Court decision http://nationalmortgageprofessional.com/news/42119/tila-versus-tila-rescission-notice-or-lawsuit

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In my continuing research into the mechanics of rescission I keep bumping into articles like the Foxx article in the link shown above. While he concedes that no lawsuit is required to “effect” rescission, he seems concerned that the mechanics (procedure) are such that the impact on banks would be onerous and impossible to fulfill.

My answer to that is simple and seems to be borne out by the unanimous Supreme Court decision penned by Justice Scalia. The answer is that it isn’t supposed to be nice to the banks. It was decided by the highest legislative authority in the country (Congress, and now the highest court in the land) that rescission is effective as of the date of mailing and that all the duties…

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Deutsch Bank Trips and Falls: Default Notice Strictly Construed


Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

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see http://www.dailybusinessreview.com/id=1202719610201/No-Default-Notice-Means-No-Foreclosure-4th-DCA-Rules?slreturn=20150206120242

Case dismissed. Deutsch sent the notice of default to a P.O. Box when they should have sent it to the property address. End of story?

Maybe not. This decision from the 4th DCA shows that at least this Court in Florida is starting to lean heavily away from the bank illusions and myths. You can’t produce self serving documentation and then say that it is presumptively correct because you say so. As it becomes more clear that the legal presumptions and factual assumptions are leading trial courts AWAY from the truth and into a fraudulent scheme created by the banks.

When I represented banks I would send the default letter Certified return receipt requested to show delivery or attempted delivery refused. In nearly all cases the banks are showing a copy of a letter they say was sent but…

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TILA (NON-JUDICIAL AND JUDICIAL) Rescission Gets Clearer in Most Respects


Originally posted on Livinglies's Weblog:

For further information please call 954-495-9867 or 520-405-1688

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It is becoming crystal clear that with help from a competent attorney the options under the TILA rescission process are (a) different from common law rescission and (b) very effective against “lenders” who can no longer hide behind “presumptions”. LIKE THE PRESUMPTIONS THAT HAVE BEEN STRICTLY APPLIED AGAINST HOMEOWNERS, BUT WHICH ARE REBUTTABLE, TILA RESCISSION IS STRICTLY APPLIED AGAINST “LENDERS.” Just as presumptions force the borrower to take the burden of proof on basic facts in the pretender lender’s case, TILA rescission forces the “lender” to take the burden of proof in the borrower’s loan, establishing that there was no basis for rescission. This article covers the law regarding those legal presumptions AND the effects and mechanics of a TILA rescission.

Amongst the things that are clear now is the plain fact that rescission is a private statutory remedy requiring only…

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