There is a serious problem in the State of Oregon and it is called FEDERAL FUNDING.
Why are the states relying upon the "FEDERAL SPENDING CLAUSE" ?!
Summit speaker will shed light on MAP-21, new transportation spending law http://otrec.us/
The 2013 Oregon Transportation Summit will take place this fall, on
September 16 at Portland State University. The summit brings together
transportation professionals to shape the agenda for future research,
and this year's plenary speaker addresses new federal legislation which
will have a direct affect on that agenda.Adie Tomer of the Brookings Institution will deliver the remarks at the summit's morning plenary session. The topic is MAP-21, a new act which was passed by Congress in 2012. Short for "Moving Ahead for Progress in the 21st Century," the act redistributes the scope and responsibilities of transportation departments at all levels, from municipal to federal.
"What MAP-21 essentially did is, it enhanced the evolution that's available within the federal program," Tomer said. "Because it is an overarching policy, it touches on every actor in the system in a unique way." For example, "MPOs (Metropolitan Planning Organizations) are now tasked with collecting performance measurements ... and state offices are pushed to do a little more planning when it comes to freight."
In general under the new law, "states have more authority to spend
federal money in the ways they want than before," Tomer said.
This flexibility at the state level is the answer Tomer would give to
those who worry that the new act will cut funding for bikes and walking.
Although there is less funding designated for bicycling and
pedestrian-oriented spending, there is more freedom for states to choose
to allocate money for those areas.
"In a state like Wyoming they might have had some requirements to spend
money on non-motorized transportation; that requirement has been
removed," Tomer said. "In a state like Oregon, if state authorities want
to allow metro areas to have more control and/or if the state itself
wants to invest in active transportation, then they can do so."
Tags: federal
http://livinglies.wordpress.com/
OKIE DOKIE OREGON WE GET TO HAVE THE US CONSTITUTION'S ARTICLE I, SECTION IX, CLAUSE VII, MISSING IN ACTION ER WELL ACTING IN MISSION WITH THE AGENDA 21 AND THAT IS NOT WHAT INDIVIDUAL OR STATES' INDIVIDUAL 'RIGHTS' ARE ALL ABOUT AND THE NEW WORLD ORDER IS HELL BENT ON THE DISORDER OF GHETTOS PRETENDING TO BE GREEN - YES WE KNOW HOW THIS LOOKS IN THE HOME FORECLOSURE AGENDA:
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: CLE, Fort Lauderdale, Garfield Continuum, Livinglies, LOAN SPECIFIC ACCOUNTING AND ANALYSIS, LOAN SPECIFIC SECURITIZATION ANALYSIS, LOAN SPECIFIC TITLE SEARCH AND ANALYSIS, MEMBERSHIP, NEIL GARFIELD, SEMINARS, SUBSCRIPTION | 92 Comments »
Danielle Kelley, Esq. Swings Back at Separation of Note and Mortgage
Posted on September 5, 2013 by Neil Garfield
If the banks lose the
application of the UCC, which they should, they are dead in the water
because they have no way to prove the transactions upon which they rely
in collection and foreclosure. See LivingLies Store: Reports and Analysis
Danielle Kelley, Esq. whom I admired before she became my law partner has again broke some old/new ground in compelling fashion. This is not legal advice and nobody should use it without consulting an attorney who is properly licensed in good standing in the jurisdiction in which the property is located and who is competent on the subject of bills and notes.
The bottom line: if the note and mortgage were intended by the law to be considered one instrument, they would be one instrument. But they are not because all the conditions in the mortgage would render the note non-negotiable under the UCC and that would be true even if the loan was actually sold, for real, with payment and an assignment. The conditions expressed in the mortgage or deed of trust render the mortgage non-negotiable. Hence an alleged transfer of the note separates the note from the mortgage because the mortgage is by definition non-negotiable. If the banks lose the application of the UCC, which they should, they are dead in the water because they have no way to prove the transactions upon which they rely in collection and foreclosure.
All of this leads us back to the “sale” of the loan because the presumption arising out of being a holder or holder in due course does not exist where the paper is non-negotiable. The Banks must allege and prove the origination and sale the old fashioned way — by alleging that on the ___ day of ___, in the year ___ XYZ loaned the homeowner $____________. Pursuant to that transaction the defendant executed a note and mortgage (or deed of trust), attached hereto and incorporated by reference. On the ___ day of ________ in the year ________, Plaintiff acquired said loan by payment of valuable consideration and received an assignment that was recorded in the public records at page ___, Book ____ of the public records of ____ County. Defendant failed or refused to make payment commencing the ___ day of ____ in the year ____. Plaintiff gave notice of the delinquency and default, provided the Defendant with an opportunity to reinstate as required by the mortgage and applicable law (copy of said notices attached). Defendant will suffer financial loss without collection of the debt for which it owns the account receivable. Pursuant to the terms of the mortgage which is attached hereto, Defendant agreed that the subject property was pledged as collateral for the faithful performance of the duties under the note, to wit: payment.
Of course the Banks refuse to do that because it opens the door to discovery to exactly what money was paid, to whom and why. AND it would show that there were no actual transactions — just shuffling of paper.
Danielle Kelley, Esq. whom I admired before she became my law partner has again broke some old/new ground in compelling fashion. This is not legal advice and nobody should use it without consulting an attorney who is properly licensed in good standing in the jurisdiction in which the property is located and who is competent on the subject of bills and notes.
The bottom line: if the note and mortgage were intended by the law to be considered one instrument, they would be one instrument. But they are not because all the conditions in the mortgage would render the note non-negotiable under the UCC and that would be true even if the loan was actually sold, for real, with payment and an assignment. The conditions expressed in the mortgage or deed of trust render the mortgage non-negotiable. Hence an alleged transfer of the note separates the note from the mortgage because the mortgage is by definition non-negotiable. If the banks lose the application of the UCC, which they should, they are dead in the water because they have no way to prove the transactions upon which they rely in collection and foreclosure.
All of this leads us back to the “sale” of the loan because the presumption arising out of being a holder or holder in due course does not exist where the paper is non-negotiable. The Banks must allege and prove the origination and sale the old fashioned way — by alleging that on the ___ day of ___, in the year ___ XYZ loaned the homeowner $____________. Pursuant to that transaction the defendant executed a note and mortgage (or deed of trust), attached hereto and incorporated by reference. On the ___ day of ________ in the year ________, Plaintiff acquired said loan by payment of valuable consideration and received an assignment that was recorded in the public records at page ___, Book ____ of the public records of ____ County. Defendant failed or refused to make payment commencing the ___ day of ____ in the year ____. Plaintiff gave notice of the delinquency and default, provided the Defendant with an opportunity to reinstate as required by the mortgage and applicable law (copy of said notices attached). Defendant will suffer financial loss without collection of the debt for which it owns the account receivable. Pursuant to the terms of the mortgage which is attached hereto, Defendant agreed that the subject property was pledged as collateral for the faithful performance of the duties under the note, to wit: payment.
Of course the Banks refuse to do that because it opens the door to discovery to exactly what money was paid, to whom and why. AND it would show that there were no actual transactions — just shuffling of paper.
Affirmative defense
Non-negotiability of Subject Note Prohibits Plaintiff from Enforcing it Pursuant to Fla. Stat. §673, et seq and Failure to Attach Documents Pursuant to Florida Rule of Civil Procedure 1.130
With
regard to all counts of the Complaint, the Plaintiff’s claims are
barred in whole or in part because the subject note that the Plaintiff
may produce is not a negotiable instrument and therefore the Plaintiff
cannot claim enforcement of the note pursuant to Fla. Stat. §673, et seq.
In order for an instrument to be negotiable it must not, amongst other
things, “state any other undertaking or instruction by the person
promising or ordering payment to do any act in addition to the payment
of money.” §673.1041(1)(c). While there is no appellate case law in
Florida (and precious little in the entire country) which has ever
interpreted this portion of the statute to mortgage promissory notes,
the Second District has interpreted this section with respect to retail
installment sales contracts in GMAC v. Honest Air Conditioning & Heating, Inc., et al.,
933 So. 2d 34 (Fla. 2d DCA 2006). There, the Second District held that
clauses in the RISC such as the requirement for late fees and NSF
charges rendered the contract non-negotiable. This Court should be
mindful that the GMAC case was recently applied to a mortgage
foreclosure in the Sixth Judicial Circuit. See Wells Fargo Bank, N.A. v. Christopher J. Chesney, Case No. 51-2009-CA-6509-WS/G (6th Judicial Circuit/Hon. Stanley R. Mills February 22, 2010).
The note attached to Plaintiff’s Complaint contains the following obligations other than the payment of money
1. The
obligation that the borrower pay a late charge if the lender has not
received payment by the end of a certain period of days after the
payment is due. Defendants assert this defense although Section 7(a) of
the Note attached states “See Attached Rider”. The only riders
attached to the Complaint are a “Prepayment Rider to Note” and an
“Adjustable Rate Rider”, the latter of which deals with the interest
change, not late fees. Therefore there are documents potentially
missing from the Complaint which runs afoul of Florida Rule of Civil
Procedure 1.130 that such documents be attached as they are a document
upon which a defense can be made. Defendants are asserting the defense
without the applicable rider; however, if Plaintiff is in possession of
the original note, as they should be in order to foreclose, Plaintiff
would have had said document to file.
2. The
obligation that the borrower to tell the lender, in writing, if
borrower opts to may prepay in clause 5 of the Note and the Prepayment
Rider to the Note.
3. The
obligation that the lender send any notices that must be given to the
borrower pursuant to the terms of the subject note by either delivering
it or mailing it by first class mail in clause 8; and
4. The obligation of the borrower to waive the right of presentment and notice of dishonor in clause 9.
Because
the subject note contains undertakings or instructions other than the
payment of money, the subject note is not negotiable and therefore the
Plaintiff cannot claim that it is entitled to enforce same pursuant to
Fla. Stat. §673, et seq.
In addition to, or in alternative of, the following argument, even if the subject note is deemed negotiable, Fla. Stat. §673, et seq. (and therefore negotiation) cannot be utilized to transfer the non-negotiable mortgage, which is a separate transaction. See in Sims v. New Falls Corporation,
37 So. 3d 358, 360 (Fla. 3d DCA 2010) (providing that a note and
mortgage were two separate transactions). The terms of the mortgage are
expressly not incorporated into the terms of the note; rather, they are
merely referenced by the note. See clause 11 of the note.
Indeed, nowhere in the subject note is the right to foreclose the
mortgage a remedy for default under the note. It is clause 22 of the
mortgage, on the other hand, which allows this. Clause 22 of the
mortgage, however, cannot be transferred to Plaintiff by negotiation as
the mortgage is not negotiable.
Filed under: CDO, CORRUPTION, Eviction, evidence, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud, Servicer | Tagged: clause 22, Danielle Kelley, et al., et seq., Fl Statutes §673.1041(1)(c), Fla. Stat. §673, GMAC v. Honest Air Conditioning & Heating, Inc., N.A. v. Christopher J. Chesney, Non-negotiability of Mortgage and Note, paragraph 22, Sims v. New Falls Corporation, UCC, Wells Fargo Bank | 28 Comments »
Banks Won’t Take the Money: Insist on Foreclosure Even When Payment in Full is Tendered
Posted on September 5, 2013 by Neil Garfield
Internet Store Notice: As requested by customer service, this is to explain the use of the COMBO, Consultation and Expert Declaration. The only reason they are separate is that too many people only wanted or could only afford one or the other — all three should be purchased. The Combo is a road map for the attorney to set up his file and start drafting the appropriate pleadings. It reveals defects in the title chain and inferentially in the money chain and provides the facts relative to making specific allegations concerning securitization issues. The consultation looks at your specific case and gives the benefit of litigation support consultation and advice that I can give to lawyers but I cannot give to pro se litigants. The expert declaration is my explanation to the Court of the findings of the forensic analysis. It is rare that I am actually called as a witness apparently because the cases are settled before a hearing at which evidence is taken.
If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services. Get advice from attorneys licensed in the jurisdiction in which your property is located. We do provide litigation support — but only for licensed attorneys.
See LivingLies Store: Reports and Analysis
We have seen a number of cases in which the bank is refusing to cooperate with a sale that would pay off the mortgage completely, as demanded, and at least one other case where the homeowner deeded the property without any agreement to the foreclosing party on the assumption that the foreclosing party had a right to foreclose, enforce the note or mortgage. There is a reason for that. They don’t want the money, they don’t even want the house — what they desperately need is a foreclosure judgment because that caps the liability on that loan to repay insurers and CDS counterparties, the Federal Reserve and many other parties who paid in full over and over again for the bonds of the REMIC trust that claimed to have ownership of the loan.This should and does alert judges that something is amiss and some of their basic assumptions are at least questionable.
I strongly suggest we all read the Renuart article carefully as it contains many elements of what we seek to prove and could be used as an attachment to a memorandum of law. She does not go into the issue of their being actual consideration in the actual transactions because she is unfamiliar with Wall Street practices. But she does make clear that in order for the sale of a note to occur or even the creation of a note, there must be consideration flowing from the payee on the note to the maker. In the absence of that consideration, the note is non-negotiable. Thus it is relevant in discovery to ask for the the proof of the the first transaction in which the note and mortgage were created as well as the following alleged transactions in which it is “presumed” that the loan was sold because of an endorsement or assignment or allonge. To put it simply, if they didn’t pay for it, then it didn’t happen no matter what the instrument or endorsement says.
The facts are that in many if not most cases the origination of the loan, the execution of the note and mortgage and the settlement documents were all created and recorded under the presumption that the payee on the note was the source of consideration. It was easy to make that mistake. The originator was the one stated throughout the disclosure and settlement documents. And of course the money DID appear at the closing. But it did not appear because of anything that the originator did except pretend to be a lender and get paid for its acting service. Lastly, the mistake was easy to make, because even if the loan was known or suspected to be securitized, one would assume that the assignment and assumption agreement for funding would have been between the originator or aggregator (in the predatory loan practice of table funding) and the Trust for the asset pool. Instead it was between the originator and an aggregator who also contributed no consideration or value to the transaction. The REMIC trust is absent from the agreement and so is the ivnestor, the borrower, the isnurers and the counterparties to credit default swaps (CDS).
If the loan had been properly securitized, the investors’ money would have funded the REMIC trust, the Trust would have purchased the loan by giving money, and the assignment to the trust would have been timely (contemporaneous) with the creation of the trust and the sale of the the loan — or the Trust would simply have been named as the payee and secured party. Instead naked nominees and disinterested intermediaries were used in order to divert the promised debt from the investors who paid for it and to divert the promised collateral from the investors who counted on it. The servicer who brings the foreclosure action in its own name, the beneficiary who is self proclaimed and changes the trustee on deeds of trust does so without any foundation in law or fact. None of them meet the statutory standards of a creditor who could submit a credit bid. If the action is not brought by or on behalf of the creditor there is no jurisdiction.
Add to that the mistake made by the courts as to the accounting, and you have a more complete picture of the transactions. The Banks and servicers do not want to reveal the money trail because none exists.
The money advanced by investors was the source of funds for the origination and acquisition of residential mortgage loans. But by substituting parties in origination and transfers, just as they substitute parties in non-judicial states without authority to do so, the intermediaries made themselves appear as principals. This presumption falls apart completely when they ordered to show consideration for the origination of the loan and consideration for each transfer of the loan on which they rely.
The objection to this analysis is that this might give the homeowner a windfall. The answer is that yes, a windfall might occur to homeowners who contest the mortgage or who defend foreclosure. But the overwhelming number of homeowners are not seeking a free house with no debt. They would be more than happy to execute new, valid documentation in place of the fatally defective old documentation. But they are only willing to do so with the actual creditor. And they are only willing to do so on the actual balance of their loan after all credits, debits and offsets. This requires discovery or disclosure of the receipt by the intermediaries of money while they were pretending to be lenders or owners of the debt on which they had contributed no value or consideration. Thus the investor’s agents received insurance, CDS and other moneys including sales to the Federal reserve of Bonds that were issued in street name to the name of the investment bankers, but which were purchased by investors and belonged to them under every theory of law one could apply.
Hence the receipt of that money, which is still sitting with the investment banks, must be credited for purposes of determining the balance of the account receivable, because the money was paid with the express written waiver of any remedy against the borrower homeowners. Hence the payment reduces the account receivable. Those payments were made, like any insurance contract, as a result of payment of a premium. The premium was paid from the moneys held by the investment bank on behalf of the investors who advanced all the funds that were used in this scheme.
If the effect of these transactions was to satisfy the account payable to the investors several times over then the least the borrower should gain is extinguishing the debt and the most, as per the terms of the false note which really can’t be used for enforcement by either side, would be receipt of the over payment. The investor lenders are making claims based upon various theories and settling their claims against the investment banks for their misbehavior. The result is that the investors are satisfied, the investment bank is still keeping a large portion of illicit gains and the borrower is being foreclosed even though the account receivable has been closed.
As long as the intermediary banks continue to pull the wool over the eyes of most observers and act as though they are owners of the debt or that they have some mysterious right to enforce the debt on behalf of an unnamed creditor, and get judgment in the name of the intermediary bank thus robbing the investors, they will continue to interfere with investors and borrowers getting together to settle up.
Perhaps the reason is that the debt on all $13 trillion of mortgages, whether in default or not, has been extinguished by payment, and that the banks will be left staring into the angry eyes of investors who finally got the whole picture.
READ CAREFULLY! UNEASY INTERSECTIONS: THE RIGHT TO FORECLOSE AND THE UCC by Elizabeth Renuart, Associate Professor of Law, Albany Law School — Google it or pick it off of Facebook
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