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March 2019 Article Archive

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If you think foreclosures are a thing of the past, think again
livinglies.wordpress.com | March 29, 2019
In order to maintain the illusion of legality and an orderly marketplace the banks and their servicers must continue to push foreclosures even if it means going after people who are not actually withholding payments. The legacy of the mortgage meltdown and the brainless government policies that let the banks get away with what they had done, is that the crime not only continues but is being repeated with each new claimed securitization or "resecuritization" of residential loans.
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The Discovery Rule: Tolling the Statute of Limitations
livinglies.wordpress.com | March 13, 2019
There is an excellent post by Michael B. Schwegler in Tennessee on the whole issue of whether the statute of limitations can be extended to the date that the breach of duty was discovered. Schwegler's post clearly enunciates the position of the Supreme Court of Tennessee. In my opinion it also articulates the way that most courts look at tolling when it comes to mortgage litigation and the torts arising from mortgage litigation.
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Unworthy Trusts
livinglies.wordpress.com | March 12, 2019
The simple fact is that the REMIC trusts do not exist in the real world. The parties named as trustees --- e.g. US Bank, Deutsch, BONY/Mellon --- are trust names that are used by permission through what is essentially a royalty agreement. If you are dealing with a trust then you are dealing with a ghost.
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Do Expert Declarations Help?
livinglies.wordpress.com | March 6, 2019
The bottom line is that facts --- or absence of required facts --- is what persuades the judge. The value of good investigation and case analysis lies not in the opinion of the writer of the report but in the usefulness of the facts that are revealed or, more importantly in foreclosure cases, the usefulness of revealing facts that should be present but are not.
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Is that Mortgage or Deed of Trust Void or Just Unenforceable?
livinglies.wordpress.com | March 5, 2019
Proving that an instrument is unenforceable does not void the instrument unless it is unenforceable by anyone. Better to prove that it should never have been written. The DOT could only be void if it was not facially or actually valid. That, in my opinion, means that the the DOT should never have been written, should never have been executed and should never have been recorded. It must the equivalent of uttering a false instrument and have the qualities of being a wild deed.
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Mortgage Integrity Act
livinglies.wordpress.com | March 4, 2019
For ten years, Gary Dubin in Hawaii has been practicing law defending homeowners from foreclosure. He has preached his own version of how to combat foreclosure fraud. And he has practiced what he preached. I find his work enlightening and refreshing. So when I read his Proposed Mortgage Integrity Act (MIA) I decided to republish it in its entirety. Some of what he proposes is new but most of it, in my opinion, is a much needed tune-up of the wording of existing law.
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Transcript of Neil Garfield Show on Foreclosure Settlement
livinglies.wordpress.com | March 4, 2019
In the marketplace of mortgage loans and foreclosures and declarations of default, we have a fake world in which investment banks hide their existence and connection to real estate loans. Virtually nobody on whose behalf declaration of default is issued, nobody has suffered a default, because they don’t own the debt, because they suffered no loss. And yet they do, and they start foreclosure proceedings and they take houses by default unless some homeowner says wait minute, who the heck are you?
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Enforcement of Note vs. Enforcement of Mortgage
livinglies.wordpress.com | March 1, 2019
Watch out for the discrepancy between enforcement of a note and enforcement of an encumbrance. Enforcement of the note requires proof that the claimant is the owner of the debt, or has been authorized by the owner of the debt to enforce the note. Enforcement of the mortgage requires that the claimant be the owner of the debt.
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TILA Rescission and Bankruptcy: What Happens When the Bankruptcy Court Gets it Wrong
livinglies.wordpress.com | March 1, 2019
When TILA rescission has occurred the encumbrance is eliminated and the debt converts from one arising from a promissory note to one arising from a statute --- 15 USC §1635. The debt then becomes subject to the statute of limitations for claims under TILA because the debt now arises under TILA. If the statute has run the debt is barred. Thus when the court gets it wrong and ignores the TILA Rescission it is warping the value of the bankruptcy estate as well as allowing secured status to unsecured creditors.
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