I want to deliver a very short and bitter message here: individual case litigation strategies have failed and are doomed to continued failure. EVERY PERSON who wants to fight in court for his or her family home in Court in California must include a Constitutional Challenge to the Non-Judicial Foreclosure System and all the component statutes, but even this is not enough: the remedy is political action. Until these statutes and the nation-wide socialistic policies which support them are obliterated, which can be reliably expected to happen ONLY through political rather than judicial action, the institutions of private property and the home-based family will continue to erode and disintegrate.
Without MASSIVE LEGAL REFORM, there is no hope that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” will not be continually violated as it has been in millions of cases nationwide. These mass foreclosure and eviction policies have been approved and strategies formulated by the government at the highest levels.
(That was the short brief and very bitter message—all the rest that follows is an elaboration on these points).
I am writing today to announce firmly that I think that everyone involved in the “Anti-Foreclosure” guerilla resistance is and has been misguided, myself included. We have to stop thinking, or even looking for ways, to succeed on an individual, case-by-case basis. We have to organize as a community whose wealth and values are under siege. Offering potential strategies or hypothetical solutions to individuals is just “wrong” and we’ve got to give it up. We must organize like the abolitionists before 1861, like the labor unions from the 1880s-1920s, like the real civil rights activists of the 1950s-60s. All our “gurus” and sources of individual advice regarding individual and isolated action, from the cosmically brilliant Neil Garfield on his wonderful “Living Lies” website, down the hierarchy through local geniuses like April Carrie Charney and Malcolm Doney in Florida, Charles Koppa and Catherine Bryan in Orange and San Diego Counties, California all the way down to Theresa Moore and Robert Garvin in Studio City and finally Peyton and me have just had it all wrong—–we have been doing more harm than good.
We are all either engaging in false hopes or blindly misleading people to think that we can stop the seizure of homes and property in any sort of systematic way through litigation and the court system.
Worse than that, by offering false hopes to people and engaging in one losing court-battle after another, we have been bolstering and shoring up the success of the corporate-banking enemies.
What I am writing today is that the individual case-litigation approach is a massive failure even to slowing the rates of foreclosure and eviction in California or anywhere else. Even in Florida, at best “Anti-Foreclosure Guerillas” like April Carrie Charney, Malcolm Doney and Catherine Bryan can claim very if outright victories other than temporary delay in a small percentage, not even a statistically significant minority of foreclosures or evictions.
The individual case strategy cannot be used to eradicate what is a society-wide systemic cancer created by the politically tempting bait of “easy credit” which was, after all, the original communist-socialist demand of the mid-to-late nineteenth century.
Because “easy credit” is by definition based on wants and desires rather than actual wealth or production, “easy credit” is the antithesis of capitalism or any sound economic system, but it sure is popular if you’re a politician…. When they said that Communism works through the ways and means of the devil, they weren’t kidding: the theory that temptation has been the path to sin and death since the Garden of Eden is not actually “just a theory” but a fairly demonstrable fact.
Even coordinated constitutional litigation cannot work because I do not think we can every achieve statewide in California, much less nationwide, anything like what I tried and failed to achieve in the family courts in Williamson County Texas in 2005-7. What I tried in Georgetown, Texas, was to try to arouse and incite enough popular discontent and cooperative participant action among parents that we might close down the system. I came close enough that Judge James F. Clawson commented on the fact that if he did not ban me from further litigation in the state of Texas, I would have closed down the Family Law Courts.
But in fact we did not come anywhere close to permanently shutting down the courts by flooding them with protests and constitutionally demanding civil rights motions and litigation maneuvers. We just got labelled “paper terrorists.” Ok, Assistant Texas A.G. James Carlton Todd and his boss Mr. Greg Abbott actually called me “the most dangerous paper terrorist in Texas”—but that dubious distinction plus $5.00 is barely enough to buy you a coffee and pound cake at Starbucks these days.
Given the scale of the foreclosure crisis—Millions in California alone—tens of millions nationwide—1.5 million abandoned and empty homes in Florida—we have to recognize this as a problem much bigger than any of us as individuals.
Slavery was not abolished by helping individual slaves escape through the “underground railroad” or even through individual plantation-owners granting manumission by will to hundreds or thousands of slaves upon their deaths by will.
Decent wages in factories were never achieved by individualized negotiation for “modifications” of employment contracts—only by COLLECTIVE ACTION on the part of organized labor unions—and that is what we need in the foreclosure arena. And in doing so we have to recognize that we face, just like the operators of the underground railway did, just as the early leaders of the labor movement did in the 1880s-1890s, the possibility of arrest and even armed suppression of our movement. (Compare the “Haymarket Riot” in Chicago on May 4, 1886 and the much larger and more widespread Pullman Riots, also centered in Chicago but Nationwide, in the summer of 1894.)
So if we REALLY oppose collectivization of private property we cannot do so individually, we cannot oppose the government one-on-one, unless we do so as “We the People” acting politically and in concert. To this end I would ask for contributions to take out full – page ads in the Los Angeles Times and advertise on television and radio as well as the internet. ”CALIFORNIA FORECLOSURE LAW IS UNCONSTITUTIONAL—TAKE BACK YOUR RIGHTS BEFORE THEY TAKE YOUR HOME, IF YOUR HOME HAS BEEN TAKEN, TAKE BACK YOUR RIGHTS AND YOUR HOME.
We must clearly articulate our position that: we know that the Foreclosure Crisis is Government Policy in Action, Securitization is the Banks’ Communistic Mechanism for Confiscation, and we demand an end to both the governmental policy and the (ironic as it might seem) banks’ confiscation of property by securitization.
The outward trappings of capitalism have become the instruments of communistic confiscation and expropriation of homes and the destruction of families. This will only end when the people demand it to end—and the Courts are not the proper arenas to do this. Courts in the United States and Europe, all known judicial systems, really, are designed at best to correct (or compensate) small variant problems and deviations from established norms.
We who OPPOSE foreclosure and eviction, who DEMAND adherence to the common law and constitutional norms respecting contract and the right to own property according to contractual terms and rights, WE are the deviants now, and it is UP TO US to bring the law into conformity. It is a tall order, but it is the only way we can reclaim our heritage and our RIGHTS to property—even when so much property has already been lost or destroyed.
Courts can only act as mechanisms for the imposition of widespread social and cultural change when they are expressly delegated this purpose by the political branches, as they have been during the racial civil rights movements 1948-1972 and the less well-publicized but even more historically significant family and domestic relations “reformulations” involving no fault divorce, abortion, and “sexual liberation” generally during the period starting not later than 1962 and continuing until the present time.
Ironically, for all its internal contradictions, for all that it was an incomplete movement which only raised up one part of society by dragging down another, upgraded some statements of rights while degrading others, some of the best pro freedom statements and constitutional formulations of the law as written today owe their origins to the American Civil Rights movement.
The civil rights movements of both the 1860s-70s (though mostly constitutional and statutory) and 1950s-60s (mostly judicial) had many positive components and results which were actually pro-freedom and anti-communist (although the movement itself was widely labelled as “communistic” by many opponents during the twentieth century—I often retell the story that among my earliest memories of highway driving in Texas and Louisiana were the “Impeach Earl Warren” signs all throughout the South and Southwest in the late 1960s).
Again ironically, the “sexual liberation” movement and now the mortgage foreclosure crisis have undone many of the positive, pro freedom, effects of the civil rights movement by creating new forms of oppression (as indeed have some statutory civil rights programs—as distinct from a strong majority of the judicial decisions of the civil rights quarter century noted, 1948-1972).
But the mortgage foreclosure crisis appears to be completing what was worst in both the civil rights and sexual liberation movements: the final destruction of the home-based family and stable neighborhood community. In fact, it is fair to say that, on the populist activist level, it would now be impossible to have a civil rights movement analogous to the one that started after World War II, because NO COHERENT COMMUNITIES OF ANY POLITICALLY SIGNIFICANT SIZE REMAIN IN AMERICA TODAY—we are truly a nation of transients).
For fifteen years now, since 1996, I have been involved almost continuously in Civil Rights litigation of one species or another against State and Corporate abuses of individual rights and personal autonomy, against takings of liberty & property without due process of law. I started off fighting the Sheriffs and Police Departments in Central Texas, disputing their claims of “qualified immunity” to abuse the rights and autonomy of people on a random and unsystematic basis, almost like criminals or terrorists. I then graduated to believing the problem took a more systematic form with a plan to destroy the individual and family regularly and predictably, and that the root of problem lay with judicial immunity and the Court system, especially the Family or Domestic Relations Courts. I still believe that at both levels, our local, state, and national institutions have betrayed their birthright in liberty.
Since 2006, my focus has been primarily against the mortgage finance and credit systems. During these five years’ time I have researched and experimented with many varieties of theories or approaches to common-law (and commercial code) holder-in-due-course doctrine, privity of contract, quiet title, securities fraud, and other pro-consumer, pro-buyer, theories. I have tried and tested such theories at the very least in Texas, Florida, Louisiana, Michigan, Massachusetts, Connecticut, New Jersey, Colorado, Idaho, Washington, Arizona, Nevada, and (most intensely of all since 2008) California. I know that, logically and rationally, all these theories are either correct in some absolute or historical or logical sense, but they do not work in Court in ANY SORT OF PREDICTABLE WAY. What this means is that, as a matter of any individual’s “reasonable expectation”, there is no adequate remedy at law or in equity, there is only the occasional, seemingly almost random, single decision in a thousand or so that goes the way of the owner consumer. This is not a matter of “legal victory”, this is a matter of “playing the odds” at Roulette or Blackjack, much worse than betting on racecars, ponies, thoroughbreads, or greyhounds whose mechanical design and/or natural and innate skills can be rated and assessed objectively.
In the past five years, no two cases or situations have ever been exactly alike, but the pattern is always the same: the decks in the courthouses across the nation are stacked against the homeowner/consumer/buyer/ “borrower” or “credit applicant/credit user.” I feel I fairly competently understand the law in only five states at the present time: California, Florida, Massachusetts, Michigan, New Jersey, and Texas (although all the Ninth Circuit States—Arizona, Idaho, Nevada, Washington—are by conscious historical design pretty close in design and execution of statutory scheme to California). In Florida and New Jersey, the law is EXCELLENT, in that foreclosure and eviction are both by the clear requirement of the law judicial in nature, and common law modified by the commercial code is all that counts. Yet the rate of foreclosure is astronomical in both states. In Florida, they are dragging judges out of retirement to preside over the foreclosure epidemic in the state with the flimsiest houses (owing to both construction and lack of regular winter weather) and the nation’s longest tradition of continuous real estate fraud. In New Jersey, there is a moratorium on foreclosure proceedings until the system “can catch up with itself” whatever that means.
In California, the worst laws in the country are fueling the worst foreclosure epidemic anywhere in history. I have written extensively about California Civil Code §§2924 et seq., especially 2924a, 2924i, and the related “attorney conspiracy” limitations of §1714.10. Michigan and Texas are both “mixed” systems where judicial and non-judicial foreclosure are authorized by law, but non-judicial foreclosure has become the norm in the past decade.
It was only when I came to California in 2008 that I began to realize for certain what was really going on, and what is really going on is that the United States Government, and State Governments with more-or-less enthusiasm, are cooperating with banks and finance companies to abolish private property and turn ownership of all private interests to a state-controlled governmental-corporate conglomerate along the lines originally suggested in Karl Marx’ and Frederick Engels’ Communist Manifesto of 1848.
In some very real ways, the most disturbing results come from Massachusetts. To the same degree that I believe that the Gomes v. Countrywide Home Loan case (121 CalRptr3d 819 OPINION Gomes v Countrywide Home Loans Inc Feb_18_2011) illustrates the utter futility of fighting within the law of California—(when the law itself is the enemy and unconstitutional wall-to-wall), I had thought that the Ibanez case in Massachusetts showed a glimmer of sanity and light on the East Coast US Bank Nat Ass’n v Ibanez 458 Mass 637 941 NE2d 40 (Massachusetts 2011). Peyton’s research in Massachusetts last month (May 2011) has brought evidence to my attention that Ibanez in fact had nothing whatsoever to do with securitization and that Massachusetts law appears to expressly permit the separation of ownership of the note and ability to collect on the mortgage, and has done so for approximately 100 years. In particular, two sections of its general laws make Massachusetts appear as bad or even worse than California in terms of its statutory scheme, although Massachusetts generally has a much “kinder and gentler” set of consumer protection laws § 9-609 Secured Party’s Right to Take Possession After Default UCC 106 Art 9 GENERAL LAWS of MASSACHUSETTS and § 9-607 Collection and Enforcement by Secured Party (these are all part of the “gentle, gradual” transition to socialism which deceptively gives the—entirely false— appearance of respect for individual rights). The “Uniform Commercial Code Comment” for 1999 Main Volume appears to confirm that the note and mortgage may be separated in Massachusetts by stating:
“6. Relationship to Rights and Duties of Persons Obligated on Collateral. This section permits a secured party to collect and enforce obligations included in collateral in its capacity as a secured party. It is not necessary for a secured party first to become the owner of the collateral pursuant to a disposition or acceptance.”
In other words, Massachusetts Law addresses by editing the Uniform Commercial Code what would otherwise is and should remain one of the strongest common law (and in fact, “normal” commercial code) explanations for why securitized mortgages are (everywhere else) facially illegal. It is widely known that Massachusetts and California are two of the most “socialist-tending” states in the Union—so the Ibanez case as originally (apparently, COMPLETELY misinterpreted) was a major surprise. See also the Boston Bar Journal Comment on the case: Boston Bar Journal US BANK v IBANEZ THE MORTGAGE INDUSTRY’S DOCUMENTATION PRACTICES IN FOCUS, and for the disconnection between Massachusetts law and the rest of the United States Concerning the necessary that “note and mortgage travel together” see the Westlaw Journal Article published on Valentine’s Day: 02-14-2011 IBANEZ A 19TH-CENTURY DECISION FOR THE 21ST CENTURY.
Now, regardless of whether California or Massachusetts has the WORST foreclosure law “on the books” the simple truth is that the law, and the way that the law is consistently applied by the courts—is the primary problem—NOT “robo signing” by the banks, NOT any of the faults or practices of the banks at all in fact—because if the Courts would enforce the common law and constitution against the financial industry, criminal and civil violations would be recognized and dealt with as such. The problem is that the law and the Courts have effectively IMMUNIZED the Banks and financial institutions pursuant to an express government policy—very succinctly and clearly, and unambiguously identified, articulated, and described in the California Gomes opinion attached above, from February 18, 2011, that California public policy favors quick and easy foreclosure. Foreclosure has thus become a kind of “kindly manner” of execution in this “Brave New World” in which we now live. (Compare G.B. Shaw’s Intelligent Woman’s Guide to Socialism” which explains:
…under Socialism…..you would be forcibly fed, clothed, lodged, taught, and employed whether you liked it or not. If it were discovered that you had not the character and industry enough to be worth all this trouble, you might possibly be executed in a kindly manner; but whilst you were permitted to live you would have to live well.”)
One repeating mantra of the “easy credit” society is that “living well is the best revenge” but appears that in a Socialist Society—others (namely the Corporate/Governmental Intelligencia) has the power to decide on our behalf what constitutes good living. Obviously, the choice to live austerely in the desert and contemplate truth, like the early Christian monastics known as “The Desert Fathers” would be off limits/impermissible. I suppose “living well” means buying at shopping malls, living in government/corporate allocated housing which will be awarded based on the degree of your conformity with government/corporate policy—whatever that is—which determines whether you have or have not the character and industry enough to be worth all this trouble.”
Getting to these conclusions and understanding what’s going on has been a long and fairly painful process…..
It is still less than ten years since, on my son Charlie’s tenth birthday, California Attorney Deborah S. Gershon, then Vice-President and General Counsel of AAMES Home Loan, Inc., informed me that AAMES could not modify any Home Loans because the notes at all been pooled and securitized. Following up, I now find that Deborah S. Gershon (according to her profile with the California State Bar) is employed by and affiliated with another subprime lender: “Signature Group Holdings, Inc.” (owner of “Signature Capital Advisers, LLC, Fremont Credit Corporation and Fremont Investment & Loan Bank of California). This is very interesting because Fremont Investment & Loan went through bankruptcy reorganization a couple of years ago as a direct result of some early “foreclosure crisis” litigation in Massachusetts relating to predatory lending in the sub-prime field. See, e.g., http://masscases.com/cases/sjc/452/452mass733.html (452 Mass. 733, 2008) and also, Attorney General Martha Coakley’s press release on her $10MM settlment http://www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2009_06_09_fremont_agreement&csid=Cago In short, Deborah S. Gershon has dedicated her life to the securitization of mortgages and related financial and legal endeavors. It is apparently a very good business, and a very good line of work. Those who had the foresight to join in that movement deserve the same respect as those who saw that the Bolsheviks were destined to rule Russia after the 1917 Revolution, that Mao Tse-Tung would triumph over Chiang Kai-shek (aka Jiǎng Jièshí or Jiǎng Zhōngzhèng in Mandarin), and that Saigon would ultimately fall to Ho Chi Minh in Vietnam (for the Vietnamese aftermath, seehttp://www.eng.hochiminhcity.gov.vn/eng/news/default.aspx?cat_id=513&news_id=12053#content “Scientific seminar on President Ho Chi Minh and the road to national salvation”).
AAMES was a pioneer in home equity loans, starting an advertising program in the late 1970s (Carter Administration) which included some fairly interesting and or amusing ads, see for example: http://www.youtube.com/watch?v=jjTzEzNT7_M&NR=1, http://www.youtube.com/watch?v=CJgB335zLfc&NR=1, http://www.youtube.com/watch?v=Cp5STpiAwt0. AAMES is thus one of the earliest criminal enterprises which insinuated the concept of Easy Home Credit through the Yellow Pages into the American Consciousness as a vehicle of expanding credit regardless of productivity and wealth or REAL need—and AAMES’ was a mover in reshaping Federal and State laws to allow for the extension of such loans and the consequent expropriation of homes without due process of law.
In one sense, the American people bear full responsibility for and complicity in this crisis up to the present time. More certainly even than that the Germans voted Hitler and the Nazi Party into power in not one fluke but two successive national elections in 1932 and 1933, the Americans have repeated voted the supporters of easy credit and punitive and confiscatory policies leading to the expropriation of property into power. The destruction of Germany under Hitler and during World War II, then was guaranteed by only two elections.
The Americans have been voting soft-sell corporate socialists into power continuously for 76 years since 1932, with increasingly express enthusiasm since at least 1970 (the last “real” anti-communists to receive any electoral votes for the Presidency were Barry Goldwater in 1964 and George Wallace in 1968). The election of 2008 saw the first election of the first avowedly, admittedly socialist President in U.S. History, and major magazine articles discussed his commitment to socialism with fanfare as “Cover” articles, but little actual controversy. And the greatest irony was that there was not one IOTA of difference between the “avowedly socialist” policies of President Barack Hussein Obama and the “Conservative Republican” policies of George Walker Bush—Obama has yet to introduce a single policy without precedent in his predecessor’s administration more significant than his “cash for clunkers” program. (“Obamacare” has actually been “in the works” since 1993 during Hillary’s first term in the White House….. yes, if Paula Jones and Monica Lewinsky made anything clear about Bill Clinton, it was that if anyone was wearing the pants in the White House during the first term, it certainly was NOT him….and in fact Hillary’s support for health care reform back then was well-known and publicized).
The highly controversial “individual mandate” for healthcare has been a socialist threat since the 1920s. Samuel Gompers, an early American union leader, founder of the American Federation of Labor (A.F.L.) and contemporary of Eugene Debbs, argued against the individual mandate as early as January 22, 1917:
“Compulsory social insurance is in its essence undemocratic and it cannot prevent or remove poverty. The workers of America adhere to voluntary institutions in preference to compulsory systems, which are held to be not only impractical, but a menace to their rights, welfare, and their liberty. Compulsory sickness insurance for workers is based on the theory that they are unable to look after their own interests and the state must use its authority and wisdom and assume the relation of parent and guardian.”
If Gompers could see the “individual mandate” coming in January of 1917, it is not so surprising that we now HAVE IT as enacted law today, in June 2011, despite considerable resistance in the courts and public mind.
And the general proposition that socialism would be imposed by stealth on the United States people without their realizing it has been around since at least 1947, when Harvard’s famed professor of history (and CUNY “Albert Schweitzer Professor of the Humanities”) wrote in an oft-quoted essay:
IF SOCIALISM (i.e. OWNERSHIP BY THE STATE OF ALL SIGNIFICANT MEANS OF PRODUCTION) is to preserve democracy, it must be brought about step by step in a way which will not disrupt the fabric of custom, law, and mutual confidence upon which personal rights depend.
That is, the transition must be piecemeal; it must be parliamentary; it must respect civil liberties and due process of law Socialism by such means used to seem fantastic to the hardeyed melodramatists of the Leninist persuasion; but even Stalin is reported to have told Harold Laski recently [remember this was written in 1947] that it might be possible. . . . There seems no inherent obstacle to the gradual advance of socialism in the United States through a series of New Deals.
Socialism, then, appears quite practical within this frame of reference, as a longtime proposition. Its graduate advance might well preserve law and order…. the active agents in effecting the transition will probably be, not the working classes, but some combination of lawyers, business and labor managers, politicians, and intellectuals, in the manner of the first New Deal.
Quoted in John A. Stormer’s 1964 None Dare Call it Treason, Ch. XIII, Economics & Government: 199.
I submit to you that we find ourselves in a critical moment of history. I oppose collectivism because I want to own my home and all its contents. If people steal my home and all its contents under any pretext which violates my common law contractual and constitutional rights, I want them to be held liable as thieves and compelled either to restore my property to me or to compensate me very richly for the loss of the same. I have in fact lost two homes and their valuable movable content to such “predatory lending practices”, once in Texas and once in California, both times in 2009. I don’t think it is a coincidence that these criminal acts happened during the first full year of the first term of the first openly socialist President of the United States. Expropriation and confiscation and destruction of private property are, in essence, a core part of the socialist way of life, mandated by the express terms of the Communist Manifesto of 1848.
How do you feel about your homes and property, if you still have them OR if you’ve already lost them? Do you believe that those who oppose collectivism are routinely discredited by smears as I and so many others have been? Do you believe that we should all accept that we “can’t fight city hall” as our philosophy and settle down to “exist” within the framework of a completely-controlled, federally dominated economy and culturally decimated way of life? Do you feel that politicians should avoid genuine controversy, and focus on emotionally “hot” issues which are tangential to the choices we have to make that will define our own and our children’s way of life for hundreds of years to come?
Should we all just look to our own individual interests or should we band together and fight until the laws which permit Collectivisation of our Society and the Confiscation and/or Expropriation of all that we own are repealed and or overturned?
NONE OF THESE THINGS WILL EVER OCCUR THROUGH INDIVIDUAL CASE-BY-CASE LITIGATION. NONE OF US WILL EVER REALLY OWN PRIVATE PROPERTY AGAIN UNTIL ALL OF US CAN OWN PRIVATE PROPERTY and, within the words of the Fourth Amendment, know for sure that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” either by the Federal Government, the State Government, Local Sheriffs, or Privateering Real Estate Pirates Like Steven D. Silverstein and all the other marauders like him who operate “under color of law” in California and nationwide.
