NO 3-year right of rescission without a TILA violation – Eat Crow, Garfield

Dear Neil Garfield:

You’ll find a serving serving of crow in the 8th Circuit’s post-Jesinoski Keiran v Home Capital, Inc., F. 3d 1127 opinion.  After reading it, I imagine you will craft a huge apology to your LivingLies blog readers for misleading them for years about the proper understanding of TILA rescission AND of the Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 opinion.

Keirans propounded the same lame excuse as the Jesinoskis.  They signed an acknowledgment of receipt of Right to Cancel disclosures, and later gave the court an affidavit claiming they only received one copy, instead of two, each.  They appealed the judgment against them to the 8th circuit, then to SCOTUS which granted cert and remanded for consideration in light of Jesinoski.  After trial and appeal, the 8th circuit affirmed the trial court’s denial of rescission and damages. 

Keiran relied on the same false legal theory that you have espoused for years about TILA rescission, and yet, in the wake of Jesinoski, SCOTUS, the 8th Circuit, and USDC all agree that TILA rescission does NOT work the way you wish it did.  The borrow gets NO 3-year right of rescission UNLESS a TILA violation occurred.

The SCOTUS instructs you from the Jesinoski opinion:

“The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses.”

There you have the question before the court: does conditional TILA rescission written notice or notice plus lawsuit within 3 years after consummation?  Now the fun part, where SCOTUS explains TILA’s extended, conditional right to rescind requiring a TILA violation:

“Congress passed the Truth in Lending Act, 82 Stat. 146, as amended, to help consumers “avoid the uninformed use of 792*792 credit, and to protect the consumer against inaccurate and unfair credit billing.” 15 U.S.C. § 1601(a). To this end, the Act grants borrowers the right to rescind a loan “until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later, by notifying the creditor, in accordance with regulations of the [Federal Reserve] Board, of his intention to do so.” § 1635(a) (2006 ed.).[*] This regime grants borrowers an unconditional right to rescind for three days, after which they may rescind only if the lender failed to satisfy the Act’s disclosure requirements. But this conditional right to rescind does not last forever. Even if a lender never makes the required disclosures, the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first.” § 1635(f).”

My point:  you have bloviated that SCOTUS, when it gets a case like Jesinoski back, will agree with YOUR interpretation of TILA rescission law, that a TILA violation is not a condition of the extended right to rescind.  Well, SCOTUS did get precisely such a case in 2015 (Keiran), and the justices and the 8th Circuit panel made it clear that NO 3- year right of rescission exists in the absence of a TILA violation.

But who needs the Keiran opinion when Justice Scalia explained conditional TILA rescission PERFECTLY in the Jesinoski opinion?

Eat some crow.  I’ll do you good.

Neil Garfield Says Warning: Conduct your Due Diligence on ANY Attorney you Hire

Attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield

Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first.   A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help Neil Garfield spread the word.  Here’s a little information on Neil himself:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD  MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: […]

  • Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

 

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed  
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy.  Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted.  Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA.  Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case.  Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and  embarrassment through a frivolous, failing TILA rescission effort.

———————-  Garfield’s Expensive Report to Newman —————–

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:

RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments — which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don’t know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the “investor” from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE’s (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The “hidden” REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects — the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a “drive by” service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as “servicer advances.”

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their “servicer advances.” However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.
 
17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be “assigned” immediately after, or even before the apparent “closing.”

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the “Chain” had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding “holder” of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking “equity” out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the “borrower.”

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don’t think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

SpeakWrite
www.speakwrite.com
Job Number: 16039-001
Custom Filename: Newman
Date: 02/08/2016
Billed Words: 2069

WordPress.com

Crooked Neil Garfield Warns Consumers about Crooked Lawyers

Crooked attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield

Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first.   A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help crooked Neil Garfield spread the word about crooked lawyers, in this case Neil himself.  Here’s a little information on Neil:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD  MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: […]

  • Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

 

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed  
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy.  Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted.  Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA.  Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case.  Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and  embarrassment through a frivolous, failing TILA rescission effort.

———————-  Garfield’s Expensive Report to Newman —————–

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:

RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments — which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don’t know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the “investor” from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE’s (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The “hidden” REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects — the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a “drive by” service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as “servicer advances.”

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their “servicer advances.” However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.
 
17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be “assigned” immediately after, or even before the apparent “closing.”

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the “Chain” had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding “holder” of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking “equity” out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the “borrower.”

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don’t think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

SpeakWrite
www.speakwrite.com
Job Number: 16039-001
Custom Filename: Newman
Date: 02/08/2016
Billed Words: 2069

WordPress.com

Crooked Neil Garfield Warns Consumers about Crooked Lawyers

Crooked attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield

Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first.   A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help crooked Neil Garfield spread the word about crooked lawyers, in this case Neil himself.  Here’s a little information on Neil:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD  MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: […]

  • Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

 

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed  
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy.  Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted.  Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA.  Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case.  Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and  embarrassment through a frivolous, failing TILA rescission effort.

———————-  Garfield’s Expensive Report to Newman —————–

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:

RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments — which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don’t know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the “investor” from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE’s (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The “hidden” REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects — the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a “drive by” service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as “servicer advances.”

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their “servicer advances.” However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.
 
17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be “assigned” immediately after, or even before the apparent “closing.”

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the “Chain” had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding “holder” of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking “equity” out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the “borrower.”

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don’t think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

SpeakWrite
www.speakwrite.com
Job Number: 16039-001
Custom Filename: Newman
Date: 02/08/2016
Billed Words: 2069

WordPress.com

Crooked Neil Garfield Warns Consumers about Crooked Lawyers

Crooked attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:

Warning: Conduct your Due Diligence on ANY Attorney you Hire

by Neil Garfield

Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first.   A simple google search with their name will usually suffice.

In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.

Always use caution if the Bar has publicly reprimanded an attorney.

If you believe you have been a victim of an unethical Florida foreclosure attorney, please report your experience to the Florida Bar at: https://www.floridabar.org/public/acap/assistance/

Contact me at:

Neil Garfield | March 27, 2018 at 2:54 pm

In the same spirit of consumer advocacy, I decided to help crooked Neil Garfield spread the word about crooked lawyers, in this case Neil himself.  Here’s a little information on Neil:

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

JAX DAILY RECORD  MONDAY, AUG. 1, 2016 12:00 PM EST

Supreme Court disciplines 32 attorneys

The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.

Two attorneys were also placed on probation and another was ordered to pay restitution.

The attorneys are: […]

  • Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.

 

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed  
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy.  Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted.  Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA.  Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case.  Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and  embarrassment through a frivolous, failing TILA rescission effort.

———————-  Garfield’s Expensive Report to Newman —————–

This is a review and report and not a definitive statement of opinion on the entire case strategy.
Since the property is located in Florida and Mr. Garfield is licensed in Florida, he is qualified to
give both expert opinions and legal opinions.

MEMORANDUM
TO: File
FROM:

RE: Vincent Newman and his Wife
Phone No.: 954-554-6487
Email Address: vnewmansr@yahoo.com

JUDGMENT ENTERED 2011,
SALE DATE CANCELED MULTIPLE TIMES
RESCISSION SUGGESTED
FEDERAL ACTION TO ENJOIN USE OF NOTE AND MORTGAGE SUGGESTED

1. The address of the property in question is 6401 Garfield Street, Hollywood, Florida, 33024 in Broward County.

2. The property is in foreclosure. As of December 29, 2015 Mr. Newman reports that he hired an attorney, started modification and is not current on payments.

3. He has requested a review and commentary in connection with his property and his loan.

4. He has already filed a petition for relief in bankruptcy court under Chapter 7 and apparently converted to Chapter 13. Motion to lift stay was filed and presumably granted. The name of his attorney in the State Court action, Case No. CACE10041220 is Evan Plotka, in the 17 th Judicial Circuit for Broward County [Florida].

5. Mr. Newman reports that in 2010 they were 3 months behind in their payments. Acting through a HUD counselor there was apparently an agreement that was reached in September 2010 where they would catch up on the three payments. According to Mr. Newman Wells Fargo broke the agreement, refused to discuss the matter any further and Mr. Newman and his wife apparently were served with a summons and compliant that October 2010. If they have correspondence proving the existence of the deal, then this would be a point to raise in defense as a possible violation of either estoppel 1 or dual tracking, which was not passed until after the agreement.

1 If the agreement can be proven (they will most likely deny it), then even without the Dodd-Frank prohibition against dual tracking, the homeowners reasonably relied upon the existence of the agreement and made payments that were accepted. Wells Fargo has a history of accepting payments under oral modifications and then abandoning the agreement without accounting for the payments — which often makes the default letter wrong as to the missing payments.

6. Disclosures as to the true funding of the origination of the loan, the acquisition of the debt (as opposed to the acquisition of the paper) and the true party in interest who could be plaintiff are all absent, which is the same thing that I have seen as an expert witness and as an attorney many times with Wells Fargo. Many entities, like World Savings and Wachovia boasted they were funding their own loans. This was nearly never true. The loan papers may have been originated back in 2010 but the disclosure of the money trail has never been made.

7. Mr. Newman answered the summons and complaint without the help of legal counsel and served interrogatories on the plaintiff that he says were never answered.

8. He has apparently been through several attorneys that were merely kicking the can down the road to buy more time without making mortgage payments but of course having Mr. Newman make monthly payments to the attorney.

9. According to the registration statement submitted by Mr. Newman the original loan was with World Savings Mortgage which merged into Wachovia and then Wells Fargo. I think what he meant was World Savings Bank which was acquired by Wachovia Bank which in turn was acquired by Wells Fargo Bank. The case was filed as Wells Fargo Bank as plaintiff. From prior experience we know that this is probably a ruse intended to cover up the fact that they don’t know who the creditor is and they are hoping that a judge will simply take their word for it.

10. Mr. Newman has provided a docket from the Clerk of the Circuit Court which indicates that the property has been set for sale several times. This would indicate in turn that a final judgment of foreclosure was entered. However I do not see on the docket the description of an order granting summary judgment or a final judgment of foreclosure entered in favor of Wells Fargo. I presume that such a judgment exists or the sale would never have been scheduled.

11. As of December 30, 2015 Wells Fargo is showing a balance due of $93,979.25, with an unpaid principle balance of $200,338.10, an escrow balance of $31,855.05, carrying an interest rate of 6.5 percent with a maturity date in July 2049.

12. Based upon my knowledge of the parties involved, and specifically in this case Loan No. 0483028569 2 , I believe that the loan is in fact claimed by a trust which in fact does not own it. The loan was in my opinion most likely never funded by World Savings Bank, Wachovia or Wells Fargo. It is my opinion that none of those entities paid for either the origination or the acquisition of the loan and that any documents to the contrary are fabricated and most likely forged. The system at Wells Fargo if this case actually goes to trial at some point will show that probably Fanny Mae or Freddie Mac was the “investor” from the start. However, since the government sponsored entities generally function in only two areas 3 , it seems unlikely, to say the least, that the investor would be correctly identified in the Wells Fargo system that they would use at trial unless they have changed their method of fabricating business records.

2 Client advises that the loan number changed recently. The reasons for this change should be investigated.

3 The statutory authority of the GSE’s (Fannie and Freddie) allow for them to operate as guarantors and/or Master Trustees of REMIC Trusts who were intended to own the debt, note and mortgage. The “hidden” REMIC Trusts operate the same as private label and publicly registered REMIC Trusts. And they suffer from the same defects — the money from investors never made it into any account owned by the Trust or the Trustee, which means that the Trust could not possibly have paid for loans. The Trust would be an inactive trust devoid of any business, operations, assets, liabilities, income or expenses.

13. For reasons that I will discuss below, it is my opinion that the homeowners in this case should send a notice of rescission and we will discuss whether that notice should be recorded. In addition there should be consideration of a federal lawsuit seeking to enforce the rescission and seeking an injunction to prevent Wells Fargo from using the note and mortgage against the Newmans. I would further add that in my opinion from my review of the documents that were provided by the client there is a strong likelihood of success using standard foreclosure defense strategies.

14. In the court file is a notice of action which states that Vincent Newman and Imelda Newman both stated as avoiding service at the address of 6401 Garfield Street, Hollywood, Florida, 33024. This indicates to me that the service in 2010 was a “drive by” service in which no real effort was made to find or serve Mr. or Mrs. Newman.

15. This in turn leads me to believe that this was typical foreclosure mill actions and that Wells Fargo still has not fulfilled its obligation to review the business records to determine the ownership or balance of the loan. Or to put it differently, they probably did know about the problems with ownership and balance of the loan and wanted the foreclosure sale anyway. Based upon my preliminary review it would appear that Wells Fargo Bank made payments to the certificate holders of a trust under a category known mainly in the industry as “servicer advances.”

16. Based upon their statement I would say that their servicer advances totaled more than $90,000.00. The longer the case goes the higher is the value of their claim to recover their “servicer advances.” However, those advances, while made, came from a comingled account consisting entirely of investor money. Therefore there is no actual action for recovery of the servicer advances.
 
17. The case was apparently filed in January 2011. Or if the case was not filed at that time then additional paperwork was added to the file at that point. Since the case number refers to the year 2010 I am presuming that they filed a skeleton case in order to have the case filed before the end of the year.

18. The complaint is interesting in that, as usual, Wells Fargo does not allege that it is the owner of the debt. It alleges that it is the owner and holder of the note and mortgage. And of course it alleges that a default exists but it does not state the party to whom the money is owed nor the statement of ultimate facts upon which the court could arrive at the conclusion that the actual creditor has suffered a default or loss as a result of the payments being stopped.

19. The alleged loan, which in my opinion was never funded by World Savings Bank, was a reverse amortization (pick a payment) loan. This loan was probably sold in one form or another 20 or 30 times. The capital from the sale of the loans probably funded many other loans.

20. There is a request filed in January 2011 for the original promissory note, and the contact information for the current holder of the note, which was never answered. This might have some relevancy to a claim contesting jurisdiction of the court.

21. While the docket that was sent to me by Mr. Newman did not appear to contain the final judgment for the plaintiff, the documents that he sent and which were uploaded contain a final judgment for plaintiff. The final judgment apparently was a summary judgment in favor of the plaintiff on November 17, 2011 at 1:30 p.m.

22. As expected, the documents in the possession of Mr. Newman contain a mortgage servicing transfer disclosure. Hence we have evidence of the transfer of servicing rights but not transfer of ownership of the debt. 4 In my opinion this corroborates my conclusion that the loan was subject to claims of securitization starting at a time before consummation could have ever occurred. In my opinion the loan was table funded, which means that the actual source of funds for the loan was another party to whom the documents would be “assigned” immediately after, or even before the apparent “closing.”

4 This is especially relevant to the issue of whether the alleged loan is subject to claims (probably false claims) of securitization. Each of the alleged entities in the “Chain” had robust servicing capacities. The transfers of servicing duties makes no sense and explains nothing except that the usual pattern of musical chairs was being employed to confuse the issues surrounding “holder” of the note etc. The presumptions that are ordinarily used for a holder of a note should not be allowed, in my opinion, because of the history of flagrant violations by Wells Fargo and its predecessors. Producing evidence of a pattern of conduct of fabrication, forgery, robo-signing etc should enable the attorney to argue that the presumptions should not apply, thus requiring Wells Fargo to prove the money trial and ownership of the debt, which they will never do.

23. In my opinion the mortgage document was improper in that it failed to disclose a hidden balloon payment. By having negative amortization or reverse amortization, the balance that is owed as principal continues to increase. Under the terms of the mortgage when it reaches 115 percent of the original loan principal, the loan automatically reverts to standard amortization which is what caused so many people, including the Newmans, to default. Borrowers were seduced into taking these highly complex loan products under the supposition that they would later be able to refinance again, taking “equity” out of the home and providing them with the resources to make the payments. The effect of these loans is to cause a balloon payment at the end of a short period of time. Thus the balloon was not disclosed and the term of the loan was not disclosed because the full amortization of the loan was beyond the financial capacity of the “borrower.”

24. In my opinion the assertion by Wells Fargo that it is the investor, the creditor, the lender, or the successor lender is and always has been false. It appears that no sale of the property has taken place and that none is scheduled based upon information I received from Mr. Newman on December 29, 2015 in a telephone consultation. Even though a judgment has been entered, it is my opinion that the rights and obligations of the parties are still defined by the alleged note and the alleged mortgage. Hence the sending of a notice of rescission and the recording of a notice of interest in real property under Florida Statute 712.05 would be appropriate as a strategy. I also think that an action filed in federal court to enjoin Wells Fargo from the use of the note and mortgage would be appropriate. The basis for the action would be, after notice of rescission had been sent, and presumably after the 20 days from receipt of the notice of rescission had expired, the loan contract was cancelled, the note and mortgage became void as of the date of mailing of the notice of rescission.

25. There is also another strategy of alleging a fraud upon the court, but I don’t think that would get much traction.

26. What I think can get some traction is a lawsuit against Wells Fargo for having presented the false evidence to the court. The difference is that you are not accusing the court of wrongdoing, you are accusing Wells Fargo of wrongdoing and taking advantages. I believe that considering the history that the Newmans report in their narrative that substantial compensatory damages might be awarded, but that punitive damages do not appear to be likely at this time. That is not to say that punitive damages will not be awarded. As time goes on, more and more courts are becoming aware of the fact that the type of foreclosure system has been a sham. Each time another judgment for settlement is reached it becomes apparent that the banks are continuing to engage in the same behavior and simply paying fines for it as a cost of doing business.

27. As Mr. Newman knows, I do not accept many engagements to directly represent homeowners in these actions. I think that in this case I would be willing to accept the engagement, along with co-counsel, Patrick Giunta. I would have to review this file with him to confirm, but the likelihood is that the initial retainer would be in excess of $5,000.00 and that the monthly payment of our fee would be at least $2,000.00. There would also be court costs and other expenses amounting to over $1,000.00.

28. Another option is to seek out another attorney who is willing to take on the case and use my services as litigation support. The hourly rate I charge for all matters, whether as attorney or expert witness is $650.00. The hourly rate of most other attorneys is significantly below that. The actual amount of work required from me if I am in the position of litigation support would be vastly reduced and thus the expense of having me work on the Newman file would be significantly reduced, enabling the Newmans to hire counsel who is receptive to me providing litigation support.

29. In all engagements, in which I am the attorney, or providing litigation support, there is also a contingency fee that varies from 20 percent to 35 percent of any amount paid in hand to the homeowner. Specifically this means that if the case is settled or resolved in a manner in which title to the property becomes unencumbered, the contingency fee would not apply to the house itself, but only to other damages that were paid in connection with the settlement or collection of a judgment.

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May California Deed of Trust Assignee enforce it without recording

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Conundrum:  You find out that the
assignee of your California Deed of Trust never acknowledged and
recorded the deed of trust with the clerk of courts, and now wants
to enforce the mortgage in order to foreclose.  You dig around and
find these California Civil Code sections below.  Should you attack
the assignee’s standing to foreclose?

Answer:  No. In California, the assignee of
beneficial interest in a mortgage security instrument must duly
acknowledge and record the assignment in order to have the right to
force a foreclosure sale.  The assignee of a beneficial interest in
a deed of trust need not record the assignment in order to force a
foreclosure sale.

Discussion:  A mortgage differs from a deed of
trust.  Both secure the note, such that they entitle the owner of
beneficial interest in the note (or agent) to enforce the note by
foreclosure and forcible sale of the property.  However, a mortgage
requires enforcement through judicial action – the foreclosing party
must sue the borrower for breaching the note.  By contrast, a deed
of trust involves a trustee who receives notice of the breach and of
fulfillment of conditions precedent from the owner of beneficial
interest in the note (or holder or agent), then orders the sale of
the property held in trust.  A mortgage operates as a lien with
title remaining in the borrower (technically, it goes to the
mortgagee for purposes of a mortgage only), and a deed of trust
conveys title to the trustee until the borrower has retired the
debt.

It seems axiomatic that owner of beneficial interest in the note
(oobi) may, in the event the borrower breaches the note, enforce the
note through foreclosure and forcing the sale of the property
securing the debt. Furthermore, it seems axiomatic that the oobi may
assign the security instrument, to another party who may enforce the
security instrument by forcing a foreclosure sale. 

But… always verify what the law means by looking at how the courts
have opined.

For reference see Calvo v HSBC Bank, 199 CAL.APP.4TH 118 (CAL. APP.
2011)

http://www.usfn.org/AM/Template.cfm?Section=USFN_E_Update&section=Q415&template=/CM/ContentDisplay.cfm&ContentFileID=5889
https://casetext.com/case/calvo-v-hsbc-bank-usa-na#.U_KluvldV8E

California
Civil Code Section

2932. A power of sale may
be conferred by a mortgage upon the mortgagee or any other
person, to be exercised after a breach of the obligation for
which the mortgage is a security.

2932.5. Where a power to sell real property is given to
a mortgagee, or other encumbrancer, in an instrument intended
to secure the payment of money, the power is part of the
security and vests in any person who by assignment becomes
entitled to payment of the money secured by the instrument.
The power of sale may be exercised by the assignee if the
assignment is duly acknowledged and recorded.

2924. (a) Every transfer of an interest in
property, other than in
trust, made only as a security for the performance of another
act, is
to be deemed a mortgage, except when in the case of personal
property it is accompanied by actual change of possession, in
which
case it is to be deemed a pledge. Where, by a mortgage created
after
July 27, 1917, of any estate in real property, other than an
estate
at will or for years, less than two, or in any transfer in trust
made
after July 27, 1917, of a like estate to secure the performance
of
an obligation, a power of sale is conferred upon the mortgagee,
trustee, or any other person, to be exercised after a breach of
the
obligation for which that mortgage or transfer is a security,
the
power shall not be exercised except where the mortgage or
transfer is
made pursuant to an order, judgment, or decree of a court of
record,
or to secure the payment of bonds or other evidences of
indebtedness
authorized or permitted to be issued by the Commissioner of
Corporations, or is made by a public utility subject to the
provisions of the Public Utilities Act, until all of the
following
apply: (1) The trustee, mortgagee, or beneficiary, or any of
their
authorized agents shall first file for record, in the office of
the
recorder of each county wherein the mortgaged or trust property
or
some part or parcel thereof is situated, a notice of default.
That
notice of default shall include all of the following: (A) A
statement identifying the mortgage or deed of trust by
stating the name or names of the trustor or trustors and giving
the
book and page, or instrument number, if applicable, where the
mortgage or deed of trust is recorded or a description of the
mortgaged or trust property. (B) A statement that a breach of
the obligation for which the
mortgage or transfer in trust is security has occurred. (C) A
statement setting forth the nature of each breach actually
known to the beneficiary and of his or her election to sell or
cause
to be sold the property to satisfy that obligation and any other
obligation secured by the deed of trust or mortgage that is in
default. (D) If the default is curable pursuant to Section
2924c, the
statement specified in paragraph (1) of subdivision (b) of
Section
2924c. (2) Not less than three months shall elapse from the
filing of the
notice of default. (3) Except as provided in paragraph (4),
after the lapse of the
three months described in paragraph (2), the mortgagee, trustee,
or
other person authorized to take the sale shall give notice of
sale,
stating the time and place thereof, in the manner and for a time
not
less than that set forth in Section 2924f. (4) Notwithstanding
paragraph (3), the mortgagee, trustee, or
other person authorized to take sale may record a notice of sale
pursuant to Section 2924f up to five days before the lapse of
the
three-month period described in paragraph (2), provided that the
date
of sale is no earlier than three months and 20 days after the
recording of the notice of default. (5) Until January 1, 2018,
whenever a sale is postponed for a
period of at least 10 business days pursuant to Section 2924g, a
mortgagee, beneficiary, or authorized agent shall provide
written
notice to a borrower regarding the new sale date and time,
within
five business days following the postponement. Information
provided
pursuant to this paragraph shall not constitute the public
declaration required by subdivision (d) of Section 2924g.
Failure to
comply with this paragraph shall not invalidate any sale that
would
otherwise be valid under Section 2924f. This paragraph shall be
inoperative on January 1, 2018. (6) No entity shall record or
cause a notice of default to be
recorded or otherwise initiate the foreclosure process unless it
is
the holder of the beneficial interest under the mortgage or deed
of
trust, the original trustee or the substituted trustee under the
deed
of trust, or the designated agent of the holder of the
beneficial
interest. No agent of the holder of the beneficial interest
under the
mortgage or deed of trust, original trustee or substituted
trustee
under the deed of trust may record a notice of default or
otherwise
commence the foreclosure process except when acting within the
scope
of authority designated by the holder of the beneficial
interest. (b) In performing acts required by this article, the
trustee shall
incur no liability for any good faith error resulting from
reliance
on information provided in good faith by the beneficiary
regarding
the nature and the amount of the default under the secured
obligation, deed of trust, or mortgage. In performing the acts
required by this article, a trustee shall not be subject to
Title
1.6c (commencing with Section 1788) of Part 4. (c) A recital in
the deed executed pursuant to the power of sale
of compliance with all requirements of law regarding the mailing
of
copies of notices or the publication of a copy of the notice of
default or the personal delivery of the copy of the notice of
default
or the posting of copies of the notice of sale or the
publication of
a copy thereof shall constitute prima facie evidence of
compliance
with these requirements and conclusive evidence thereof in favor
of
bona fide purchasers and encumbrancers for value and without
notice. (d) All of the following shall constitute privileged
communications pursuant to Section 47: (1) The mailing,
publication, and delivery of notices as required
by this section. (2) Performance of the procedures set forth in
this article. (3) Performance of the functions and procedures
set forth in this
article if those functions and procedures are necessary to carry
out
the duties described in Sections 729.040, 729.050, and 729.080
of the
Code of Civil Procedure. (e) There is a rebuttable presumption
that the beneficiary
actually knew of all unpaid loan payments on the obligation owed
to
the beneficiary and secured by the deed of trust or mortgage
subject
to the notice of default. However, the failure to include an
actually
known default shall not invalidate the notice of sale and the
beneficiary shall not be precluded from asserting a claim to
this
omitted default or defaults in a separate notice of default. (f)
With respect to residential real property containing no more
than four dwelling units, a separate document containing a
summary of
the notice of default information in English and the languages
described in Section 1632 shall be attached to the notice of
default
provided to the mortgagor or trustor pursuant to Section 2923.3.

COURT OF APPEAL OF
CALIFORNIA, SECOND DISTRICT. EIGHT.
CALVO V. HSBC BANK USA, N.A. 
199 CAL.APP.4TH 118 (CAL. APP. 2011)

DECIDED SEPT. 13, 2011

EUGENIA
CALVO, Plaintiff and Appellant, v. HSBC BANK USA, N.A.,
as Trustee, etc., Defendant and Respondent.

No.
B226494.

Court
of Appeal of California, Second District. Eight.

September
13, 2011.

Appeal
from the Superior Court of Los Angeles County, No.
BC415545, Mark V. Mooney, Judge. *119

Dennis
Moore for Plaintiff and Appellant.

Houser
Allison, Eric D. Houser, Robert W. Norman, Jr., and
Carrie N. Heieck for Defendant and Respondent.

*120

OPINION

Plaintiff
Eugenia Calvo obtained a loan secured by a deed of trust
against her residence. The original lender assigned the
loan and deed of trust to HSBC Bank USA, N.A. (HSBC Bank).
A new trustee was also substituted after the loan was
originated. Plaintiff defaulted in payment of the loan.
The new trustee initiated foreclosure proceedings and
executed a foreclosure sale of plaintiffs residence.
Notice of the assignment of the deed of trust appeared
only in the substitution of trustee, which was recorded on
the same date as the notice of trustee’s sale. The second
amended complaint seeks to set aside the trustee’s sale
for an alleged violation of Civil Code section 2932.5, 1 which requires the
assignee of a mortgagee to record an
assignment before exercising a power to sell real
property. HSBC Bank and its agent, the nominal beneficiary
under the deed of trust, demurred to the second amended
complaint, and the trial court sustained the demurrer
without leave to amend.

1.

All statutory
references are to the Civil Code unless otherwise
specified.

We
find defendant HSBC Bank did not violate section 2932.5
because that statute does not apply when the power of sale
is conferred in a deed of trust rather than a mortgage. We
affirm the judgment dismissing the complaint.

BACKGROUND

Plaintiff
sued HSBC Bank and Mortgage Electronic Registration
Systems, Inc. (MERS), its agent and nominal beneficiary
under the deed of trust recorded against her residence.
Plaintiff had borrowed money from CBSK Financial Group,
Inc., which is not a defendant in this lawsuit. Her loan
was secured by a deed of trust against her residence that
was recorded on September 1, 2006. The deed of trust
identified plaintiff as the trustor, CBSK Financial Group
as the lender, MERS as the nominal beneficiary and
lender’s agent, and Lawyers Title Company as the trustee.
In the deed of trust, plaintiff granted title to her
residence to the trustee, in trust, with the power of
sale. The deed of trust stated: “MERS (as nominee for
Lender and Lender’s successors and assigns) has the right:
to exercise any or all of those interests, *121 including, but not
limited to, the right to foreclose and sell the Property;
and to take any action required of Lender including, but
not limited to, releasing and canceling the Security
Instrument.”

Aztec
Foreclosure Corporation was substituted as trustee under
the deed of trust on or about June 2, 2008. The
substitution of trustee stated that MERS, as nominee for
HSBC Bank, “is the present Beneficiary” under the deed of
trust, as MERS had been for the original lender. The
substitution of trustee was not recorded until October 14,
2008, the same date on which Aztec Foreclosure Corporation
recorded a notice of trustee’s sale. More than three
months before recordation of the substitution of trustee,
Aztec Foreclosure Corporation had recorded a notice that
plaintiff was in default in payment of her loan and that
the beneficiary had elected to initiate foreclosure
proceedings. The notice of default advised plaintiff to
contact HSBC Bank to arrange for payment to stop the
foreclosure.

HSBC
Bank bought plaintiffs residence in the foreclosure sale,
and a trustee’s deed upon sale was recorded on January 9,
2009. The gist of the complaint is that HSBC Bank
initiated foreclosure proceedings under the deed of trust
without any recordation of the assignment of the deed of
trust to HSBC Bank in violation of section 2932.5.

DISCUSSION

A
demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action. For
purposes of review, we accept as true all material facts
alleged in the complaint, but not contentions, deductions
or conclusions of fact or law. We also consider matters
that may be judicially noticed. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [ 216 Cal.Rptr. 718, 703 P.2d 58].) When a
demurrer is sustained without leave to amend, “we decide
whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court
has abused its discretion and we reverse; if not, there
has been no abuse of discretion and we affirm.” ( Ibid.) Plaintiff has
the burden to show a reasonable possibility the complaint
can be amended to state a cause of action. ( Ibid.)

The
trial court did not err in sustaining the demurrer without
leave to amend. Plaintiffs lawsuit rests on her claim that
the foreclosure sale was void and should be set aside
because HSBC Bank invoked the power of sale without
complying with the requirement of section 2932.5 to record
the assignment of the deed of trust from the original
lender to HSBC Bank. We find no merit in this contention. *122

Section
2932.5 provides: “Where a power to sell real property is
given to a mortgagee, or other encumbrancer, in an
instrument intended to secure the payment of money, the
power is part of the security and vests in any person who
by assignment becomes entitled to payment of the money
secured by the instrument. The power of sale may be
exercised by the assignee if the assignment is duly
acknowledged and recorded.”

It
has been established since 1908 that this statutory
requirement that an assignment of the beneficial interest
in a debt secured by real property must be recorded in
order for the assignee to exercise the power of sale
applies only to a mortgage and not to a deed of trust. In Stockwell v. Barnum(1908) 7 Cal.App. 413 [ 94 P. 400] ( Stockwell), the
court affirmed the judgment against a plaintiff who sought
to set aside and vacate a sale of real property under a
deed of trust. In Stockwell, a couple
borrowed money from two individuals and gave them a
promissory note that provided, in case of default in the
payment of interest, the holder of the note had the option
to demand payment of all the principal and interest. To
secure payment of the note, the borrowers executed and
delivered a deed of trust by which they conveyed to the
trustee legal title to a parcel of real estate, with the
power of sale on demand of the beneficiaries of the
promissory note. The borrowers defaulted. The original
lenders assigned the note to another individual, who
elected to declare the whole amount of principal and
interest due and made demand on the trustee to sell the
property. Before the trustee’s sale was made, but on the
same day as the trustee’s sale, the defaulting couple
conveyed the real property to the plaintiff, who then sued
to set aside the trustee’s sale.

One
of the bases on which the plaintiff in Stockwell sought to set
aside the sale was that no assignment of the beneficial
interests under the deed of trust was recorded and
therefore the original lender’s assignee had no right to
demand a trustee’s sale of the property. The plaintiff inStockwell relied on former
section 858, the predecessor of section 2932.5, as support
for this contention. (The parties correctly acknowledge
that § 2932.5 continued former § 858 without substantive
change.) (Law Revision Com. com., Deering’s Ann. Civ.
Code, § 2932.5 (2005 ed.) p.
454.) TheStockwell court found the
statute did not apply to a trustee’s sale.

The Stockwell court
distinguished a trust deed from a mortgage, explaining
that a mortgage creates only a lien, with title to the
real property remaining in the borrower/mortgagee, whereas
a deed of trust passes title to the trustee with the power
to transfer marketable title to a purchaser. The court
reasoned that since the lenders had no power of sale, and
only the trustee could transfer title, it was immaterial
who held the note. ( Stockwell, supra, 7
Cal.App. at p. 416
.) “The transferee of a
negotiable promissory note, *123 payment of which
is secured by a deed of trust whereby the title to the
property and power of sale in case of default is vested in
a third party as trustee, is not an encumbrancer to whom
power of sale is given, within the meaning of section 858
. . . .” ( Id. at p. 417.)

The
holding of Stockwell has never been
reversed or modified in any reported California decision
in the more than 100 years since the case was decided. The
rule that section 2932.5 does not apply to deeds of trust
is part of the law of real property in California. After
1908, only the federal courts have addressed the question
whether section 2932.5 applies to deeds of trust, and only
very recently. Every federal district court to consider
the question has followed Stockwell. (See, e.g., Roque v. SunTrust
Mortgage, Inc.
(N.D.Cal., Feb. 10, 2010, No.
C-09-00040 RWM) 2010
U.S.Dist. Lexis 11546
, p. *8 [“Section 2932.5
applies to mortgages, not deeds of trust. It applies only
to mortgages that give a power of sale to the creditor,
not to deeds of trust which grant a power of sale to the
trustee.”]; Parcray v. Shea
Mortgage, Inc.
 (E.D.Cal.,
Apr. 23, 2010, No. CV-F-09-1942 OWW/GSA) 2010
U.S.Dist. Lexis 40377
, p. *31 [“There is no
requirement under California law for an assignment to be
recorded in order for an assignee beneficiary to
foreclose.”]; Caballero v. Bank of
America
 (N.D.Cal.,
Nov. 4, 2010, No. 10-CV-02973-LHK) 2010
U.S.Dist. Lexis 122847
, p. *8 [“§ 2932.5 does not require the
recordation of an assignment of a beneficial interest for
a deed of trust, as
opposed to a mortgage”].)2

2.

Plaintiff cited only one
bankruptcy court decision in support of her argument
that section 2932.5 applies to deeds of trust. ( U.S. Bank N.A. v.
Skelton (In re Salazar
) (Bankr. S.D.Cal. 2011) 448
B.R. 814
.) We find the analysis in that case
unpersuasive. Holdings of the federal courts are not
binding or conclusive on California courts, though they
may be entitled to respect and careful consideration. ( Bank of Italy etc.
Assn. v. Bentley
 (1933) 217 Cal. 644,653 [20 P.2d 940] ( Bank of Italy).) A
federal bankruptcy court decision interpreting
California law, however, is not due the same deference.
(SeeStern v. Marshall (2011) 564
U.S. ___
 [ 180
L.Ed.2d 475
, 131 S.Ct. 2594].)

Plaintiff
argues that Stockwell is “[o]utdated”
and, that in the “modern era,” there is no difference
between a mortgage and a deed of trust. Plaintiff
misconstrues Bank of Italy, supra, 217 Cal. 644 as holding that
deeds of trust are the same as mortgages with a power of
sale, and therefore, as supporting her argument that
section 2932.5 applies to both mortgages and deeds of
trust. First, our Supreme Court inBank of Italy did not consider
or construe section 2932.5 or its predecessor statute.

Second,
the court in Bank of Italy did not hold that
a mortgage is the same as a deed of trust. Far from it;
theBank of Italy court recognized
that the distinction between a mortgage, which creates
only a lien, and a deed of trust, *124which
passes title to the trustee, “has become well settled in
our law and cannot now be disturbed.” ( Bank of Italy, supra, 217
Cal. at p. 655
.) Third, the court’s holding was
expressly limited to the question (not in issue here)
whether in California it is permissible to sue on a
promissory note secured by a deed of trust without first
exhausting the security or showing that it is valueless.
The trial court had found “that no action may be brought
on a note secured by a deed of trust unless and until the
security is exhausted. The correctness of this conclusion
is the sole point involved on this appeal.” ( Id. at pp. 647, 648,
650.)

The
plaintiff in Bank of Italy had argued the
only statute requiring that security be exhausted before
suing on the note was limited to mortgages and did not
include the distinctly different deeds of trust. ( Bank of Italy, supra, 217
Cal. at p. 653
.) The Bank of Italy court therefore
considered whether the differences between a mortgage and
a deed of trust under California law should permit the
holder of a note secured by a deed of trust to sue on the
note without exhausting the security by a sale of the
property. The court recognized there were an increasing
number of cases that applied the same rules to deeds of
trust that are applied to mortgages and concluded that
“merely because `title’ passes by a deed of trust while
only a `lien’ is created by a mortgage,” in both
situations the security must be exhausted before suit on
the personal obligation. ( Bank of Italy, supra, 217
Cal. at pp. 657-658
.) Nothing in the holding or
analysis of the Bank of Italy opinion supports
plaintiffs position here that we should find section
2932.5 applies to a deed of trust.

Plaintiff
also is mistaken in contending that Strike v. Trans-West
Discount Corp.
 (1979) 92 Cal.App.3d 735 [ 155 Cal.Rptr. 132] ( Strike) supports her
position. In Strike, a homeowner
had a judgment entered against him on a business debt he
had guaranteed. The homeowner later defaulted in payments
on a bank loan that was secured by a deed of trust against
his home, and he asked the judgment creditor to help him
out. The judgment creditor agreed to buy an assignment of
the home loan and deed of trust from the bank, consolidate
the indebtedness on the home loan with the amount owed to
satisfy the judgment, and extend the maturity date of
these obligations.

The
homeowner defaulted again, and the judgment creditor
initiated nonjudicial foreclosure proceedings. The
homeowner sued in an attempt to avoid foreclosure and
eviction but did not prevail at trial. The Court of Appeal
affirmed. Among the homeowner’s arguments that were
rejected on appeal was the contention that the judgment
creditor’s interest in his home was an equitable lien that
could only be foreclosed by judicial process. The Court of
Appeal found the creditor had the right to pursue
nonjudicial foreclosure, distinguishing an equitable
subrogee from an assignee of a deed of trust with *125 the power of sale.
The court stated: “A recorded assignment of note and deed
of trust vests in the assignee all of the rights,
interests of the beneficiary [citation] including
authority to exercise any power of sale given the
beneficiary ([§ 858]).” (Strike, supra, 92
Cal.App.3d at p. 744
.)

Plaintiff
contends the sentence quoted above establishes that
section 2932.5 (formerly codified at § 858) applies to
deeds of trust. But the Strike court was not
asked to consider or construe the predecessor of section
2932.5. TheStrike court briefly
referred to the predecessor of section 2932.5 by way of
illustrating the difference between an equitable subrogee
and an assignee under a deed of trust with a power of
sale. ( Strike, supra, 92
Cal.App.3d at p. 744
.) “`It is axiomatic, of
course, that a decision does not stand for a proposition
not considered by the court.`” ( Agnew v. State Bd. of
Equalization
 (1999) 21 Cal.4th 310, 332 [ 87 Cal.Rptr.2d 423, 981 P.2d 52].)

In
California, over the course of the past century, deeds of
trust have largely replaced mortgages as the primary real
property security device. (See 4 Miller Starr, Cal. Real
Estate (3d ed. 2003) former § 10:2, p. 15.) Thus, section
2932.5 (and its predecessor, § 858) became practically
obsolete and was generally ignored by borrowers,
creditors, and the California courts. On the other hand,
other statutes expressly give MERS the right to initiate
foreclosure on behalf of HSBC Bank irrespective of the
recording of a substitution of trustee. Section 2924,
subdivision (a)(1), states that a “trustee, mortgagee, or
beneficiary, or any of their authorized agents,” may
initiate the foreclosure process. MERS was both the
nominal beneficiary and agent (nominee) of the original
lender and also of HSBC Bank, which held the note at the
time of the foreclosure sale of plaintiffs residence.
Thus, MERS had the statutory right to initiate foreclosure
on behalf of HSBC Bank pursuant to section 2924,
subdivision (a)(1).

MERS
also had the right to initiate foreclosure on behalf of
HSBC Bank pursuant to the express language of the deed of
trust. Plaintiff agreed in the deed of trust that MERS had
the right to initiate foreclosure and to instruct the
trustee to exercise the power of sale as nominee (i.e.,
agent) of the original lender and its successors and
assigns. (Gomes v. Countrywide Home Loans, Inc.
 (2011) 192 Cal.App.4th 1149,1157,
fn. 9 [ 121 Cal.Rptr.3d 819]
[construing a deed of trust identical in pertinent part to
the trust deed in this case as granting MERS power to
initiate foreclosure as the agent of the note holder, even
if not also as beneficiary].) HSBC Bank was the assignee
of the original lender. Accordingly, HSBC Bank and MERS,
its nominal beneficiary and agent, were entitled to invoke
the power of sale in the deed of trust, and plaintiff has
alleged no legal basis for setting aside the sale in this
case. *126

We
affirm the judgment of dismissal. Respondent is to recover
its costs of appeal.

Bigelow,
P. J., and Flier, J., concurred.

*127

Bob Hurt            Blog
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