Monthly Archives: April 2013

Collectivization of Debt is Communism in Action: Republicans are Moral Lepers (the Republican House Majority in Florida has just passed HB 87, approving expedited foreclosures and insulating false securitization from effective challenge or review)

CONTINUING THE DEBATE BETWEEN BOB HURT, MYSELF (CEL) MALCOLM DONEY, & MELINDA PILLSBURY-FOSTER

Bob:
Without attempting to address everything you write, or even everything you wrote in your reply to Malcolm Doney below, regarding Florida HB 87 (04-30-2013 Florida House Bill 87 Just Passed—Communist Dream of Abolishing Private Property Marches Forward).  Florida HB 87 degrades due process of law in the taking of property below “rational basis” review to no effective review at all…. any deprivation of private property should be treated, quite literally, with the same seriousness as a death penalty.  Furthermore, by its expedited provisions, HB 87 will prevent all but the most prepared homeowners from mounting any sort of defense to a foreclosure suit at all.
HB 87 permits (encourages) banks to hit weak people at their weakest when they are down and hits them hard.  At a time when the system should be extending every possible allowance to the “little guy”, the small time investor or single-family homeowner in economic distress, HB 87 makes sure that the fight (actually the sacrificial execution) of the homeowner will be swift but brutal.  Summary foreclosure, summary evictions, the all permit the claimants to hide behind judicial procedures of expedience to avoid close scrutiny of their deceits and prevarications in pretense of compliance with the law—THAT is why the requirements of HB 87 are themselves dissembling and dissimulating of the true purpose: the goal is artificially to stimulate the economy by pretending to put more houses on the market.  HB 87 is revolting!  Republicans (at least in Florida) are really and truly MORAL LEPERS.
         For family, home and freedom in America, the foreclosure crisis, and securitization of mortgages, is effectively a slow death penalty.  I am appalled and shocked that the Republican Controlled State House in Florida has passed HB 87:
             I think you basically have sold yourself out to the collectivist mentality, in that you see no injury resulting from securitization. As I wrote earlier: despite your citations to Black’s Law Dictionary and your occasional assertion of the notion of sovereign citizenship, you no longer adhere to the Anglo-American common law (and indeed the Ancient Roman civil law) notions of private property, originating in private contract, and I think this is a terrible “shame on you” and your contributions.  You have championed the “sovereign citizen” movement, but in betraying the doctrines of holder-in-due-course and privity of contract, you betray one of the most basic precepts of sovereign citizenship: the right to choose with whom you deal and associate.  Socialization of debt by securitization deprives the individual of his freedom of choice of business associates.  
Such things are always justified as “cost saving measures”, but they infringe to violently and directly on our individual autonomy.  Surely you would agree that we have the right to choose our friends, especially our mates in marriage with whom we may spend upwards of 20-30 years, am I correct?  If you agree with this proposition then you should agree that each man and woman has a right to choose his business partners in the same way, OR ANY OTHER PERSON WITH WHOM HE OR SHE WOULD CHOSE TO DO BUSINESS.  
This freedom of choice surely includes the more important obligations we assume: marriage is a great example of an open ended series of interactions and obligations, but so is entering into any business partnership, including a partnership based on investment, in which one party lends another the funds to start a business or purchase a house with repayment planned over 30 years. The famous Christmas movie “It’s a Wonderful Life” illustrates the ideal of lending as partnership. When Frank Capra’s movie was made, in 1946, even just after World War II, the Federal Reserve system had already extended its tentacles everywhere, into even the banks of small town America, so the story was already anachronous to the reality of modern life—UP TO A POINT.
But even as a child, growing up age 6-12 in Dallas, I knew my grandfather’s bankers as family friends and neighbors.  They went to the same churches, they walked and swam and boated in the same parks as we did. Those bankers had extended my parents personal letters of credit to live in London starting when I was six months old….The Astons who own and ran the Republic Bank of Texas in Dallas and the Dullworths and McKnights who ran First National Bank were real people.  Everybody in Dallas knew everybody else on a first name basis….no one wanted national banks that crossed state lines—everybody knew what the consequences would be: destruction of freedom.
Their kids went to the same school I did.  The adults entered into real contracts which were carefully negotiated with lawyers who were also our neighbors.  When my grandfather wanted to start a new line of products or buy a new building, he visited them and discussed his plans in detail.  Where is that kind of banking today?  Republic Bank of Texas and First National Bank are long gone, absorbed by Bank of America and JP Morgan Chase, respectively.  No one has any idea who is really in charge of these banks and in fact, no one is, because they are merely bureaucratic appendages of the government.
Because of the effective nationalization and government takeover of the national banks, loans are allocated by government policy discussed behind closed doors at the Federal Reserve Board these days—they try to encourage certain actions and discourage others by liberal lending and greater or lesser taxation.  The impose nationwide CONTRACTS OF ADHESION that even small industrialists like my grandfather would have no power to negotiate anymore at all—this is the ultimate fruit of securitization—we have no freedom of choice anymore.  We have been deprived of our local control and autonomy in the interests of streamlining the economy—of maximizing leverage and debt in the hands of the central bankers—this is not injury?  This is the destruction and death of freedom….
You have always been very good to me and I hate to be critical, but you are as profoundly wrong as you can possibly be when you write:

1.  The Ponzi scheme to which you refer (securitization) does not concern or injure the borrower, and that’s why courts across America have consistently ruled against securitization arguments in foreclosure defenses. 

Collectivization of debt can only be permitted or exist in a world where private contract and private property have both ceased to exist. Florida HB 87 facilitates the abrogation of private autonomy without due process of law by demeaning private property acquired by contract to a level of an epiphenomenal set of rights, hardly worthy of the true status which ownership of private property enjoys as one of the Carolene Products, Footnote 4, specifically enumerated rights, deprivation of which is subject to the highest, strict level of scrutiny.. So the securitization of mortgages is the abolition of private property.  The Individual is either the sole owner of her/his life or s/he is not.  There are no shades of gray here.  “Limited Sovereignty” is an oxymoron here. 
In short, Bob, what you fail to realize is that Securitization constitutes a license arbitrarily and capriciously (1) to impair and in impairment of the rights and obligations of contract, in violation of Article I, Section 10 (see this old 1922 Law Review Article: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=4859&context=mulr), (2) to take private property interests without due process of law when those property interests are secured and guaranteed by contract, in violation of the Fifth and Fourteenth Amendments, (3) to infringe if not violate the freedom of assembly and association guaranteed by the First Amendment, (4) Securitization and in particular the amendments proposed by Florida HB 87 violate the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and (5) the Ninth Amendment reservation of the right of the people to the enjoyment of the privileges, liberties, and immunities afforded to them in the Anglo-American common law tradition.
In short, I can think of nothing more pernicious than the effect that Florida HB 87 will have on the property rights of Floridians.
You need to wake up, Mr. Bob Hurt, to the fact that securitization (i.e. collectivization) of debt is just the Bush-Obama Communist Oligarchy’s most effective tool for eviscerating all the property and contract related provisions of the American Constitution, of the Common Law, and of the traditional rights and freedoms of the English people, passed on to us, their American Heirs.
Make no mistake—in condemning our resistance to securitization, you are aligning yourself with the goals of the Communist Manifesto of February 1848, and of all subsequent efforts to obliterate the sovereignty of the individual which you pretend so vigorously to support as a matter of highest principle.  Without the freedom to contract, in a world of contracts of adhesion with anonymous and unknowable, unreachable “supervisors”, we as individuals will cease to exist and our individuality will be obliterated in the collectivity of the Marxist anthill.

Charles Edward Lincoln, III

“Ich bin der Geist der stets verneint! Und das mit Recht.”

Deo Vindice/Tierra Limpia

In case of emergency call Inger Michelle Garcia, Esq.,

1-954-7461 or 1-954-894-9962, attorney@ingergarcia.com

Inger Michelle Garcia, Esq.                                                                                    4839 Volunteer Road; #514 Davie, Florida 33330

Cellular: (954) 394-7461; Tel.: (954) 894-9962; Fax: (954) 446-1635

Service E-Mail:attorney@ingergarcia.com

Think not that I am come to send peace on earth: I came not to send peace, but a sword. . . . And he that taketh not his cross, and followeth after me, is not worthy of me. . . .  

Matthew 10:34-39


De : Bob Hurt <bob@bobhurt.com>
À : malcolmdoney@comcast.net
Cc : Charles Lincoln <charles.lincoln@rocketmail.com>
Envoyé le : Mardi 30 avril 2013 21h34
Objet : Re: HB 87

Malcolm:apparently you read what I wrote to Charles about HB87.  It’s pretty simple really.  We are lucky in Florida that we don’t have a non-judicial foreclosure process, MAYBE.I have learned a lot since we met at the May 2008 Foreclosure Defense Seminar.  I’ll share a few points for your edification.1.  The Ponzi scheme to which you refer (securitization) does not concern or injure the borrower, and that’s why courts across America have consistently ruled against securitization arguments in foreclosure defenses.2.  The real problem of collusion between Clinton/Bush/Obama and Lenders which resulted in predatory lending and collapse of homeowner equities has not faced any day in court, and until it does, and the court rules against the lenders, no foreclosure court or trustee will consider the merit of the argument that “the lender caused the collapse of the value of my house and that’s why it’s underwater, and caused me to lose my job, and that’s why I couldn’t pay the mortgage.”  You can present the FCIC report and TRY the argument, but it will fail because no borrower can prove proximate causation.  I make the balance of my comments in light of this reality.3.  Foreclosures, as equity proceedings, deal with FAIRNESS.  It is hardly fair for a mortgagor to sign the note and mortgage, borrow and USE money, fail to pay accordingly, and then keep the collateral which the borrower agreed to forfeit in the event of default.  Every single judge knows this, especially the senior judges you love to hate for their rocket docket summary judgments.  So they have a natural predisposition to order the foreclosure unless the borrower can dispute the essential facts alleged the complaint.4.  Except when temporarily derailed by standing issues, or the borrower cross claims with valid causes of action (which virtually never happens), statistically ALL Foreclosure complaints EVENTUALLY succeed because in fact the borrower did default and must forfeit the collateral.   And they SHOULD succeed, for that reason.

5.  The ONLY defense against foreclosure lies in an offensive action against the original lender or lender’s agents for tortious conduct, contract breaches, or legal errors underlying the mortgage.  I have written about this till I’m blue in the face and NOBODY ever refutes it because it’s true.  If the borrower cannot show how the lender injured him, the borrower who defaults WILL LOSE THE HOUSE TO FORECLOSURE, as the borrower should.  Underlying causes of action give just reason to dispute the essential factual allegations in the foreclosure complaint.  For example “Yes I breached the contract, but the original lender breached it first, AND fraudulently induced me to take a loan for far more than the actual value of the property (etc).”

6.  Given the above realities, FORECLOSURE DEFENDERS engage in legal malpractice by fighting the foreclosure itself and failing to examine the mortgage for underlying causes of action.  Their victims should sue them.

7.  I gave cogent reasons for having no opposition to HB87 as I understand it.  Foreclosure plaintiffs should stop screwing around and start speeding up their process, and competent judges should hear and dispatch the foreclosure cases, particularly those with no dispute of the essential facts.

8.  If you had loaned someone $300,000 to buy a house, would you want the borrower to tie you up in court for years just to delay giving up the collateral?

Instead of getting angry with me, SHOW me where I’m wrong.

I have attached a totally bogus QWR from Neil Garfield, FYI.  Why bogus?  Because RESPA requires the servicer to answer ONLY questions related to the loan servicing, i.e. identifying what funds it disbursed to what entities.  It can ignore all other questions, and a lawyer like Neil Garfield should have known that instead of concocting such onerous nonsense as his qwr.

I also attached my recent blast against Garfield for his bogus securitization arguments, and included plenty of case law to show how bogus they are.  Also, here’s some more case law you might find useful.  Where am I going with this?  Virtually all foreclosure defense arguments other than standing issues or attacks against the causes underlying the mortgage WILL FAIL.  So why bother with them just to delay the inevitable?

QUIET TITLE CASES
“Plaintiff’s basis for claiming ‘better title’ is that securitization somehow altered her obligation to pay her mortgage. This argument is unrecognized in the law.” Herold V. One West Bank (D. Nev. 9-29-2011);
“A plaintiff cannot quiet title without discharging the mortgage debt. Aguilar V. Boci, 39 Cal.App.3d 475, 477 (1974) (“the cloud upon his title persists until the debt is paid”); Kelley V. Mortgage Electronic Registration Systems Inc., 642 F.Supp.2d 1048, 1057 (N.D. Cal. 2009).
Trusty V. Ray, 249 P.2d 814, 817 (Idaho 1952) (“[a] mortgagor cannot without paying his debt quiet title as against the mortgagee”); “Plaintiff’s quiet title claim is based on the argument that, as a result of securitization, the trust deed has been split from the note and, therefore, the deed of trust should be declared a nullity. This Court has repeatedly rejected this argument. Recently, both the Utah Court of Appeals and the Tenth Circuit Court of Appeals have similarly rejected this claim. For the same reasons stated by all of these courts, this claim must be rejected.
Winn V. Bank Of America (D.Utah 1-4-2012); “A quiet title claim seeks to extinguish interests in the property in favor of the interest of the plaintiff. Here, Plaintiff is seeking to extinguish the Trust Deed. ‘To succeed in an action to quiet title to real estate, a plaintiff must prevail on the strength of his own claim to title and not the weakness of a defendant’s title or even its total lack of title.’ Plaintiff fails to assert her own claim to title. She does not allege that the Deed of Trust was not validly executed or that she is not in default under the note. Accordingly, the court rejects Plaintiff’s argument and dismisses this claim.
Domingo V. Direct Mortgage Corporation (D.Utah 9-21-2011); “quiet title is not a remedy available to the trustor until the debt is paid or tendered. Plaintiff has not paid the loan amount, nor has Plaintiff alleged that he is ready, willing and able to tender the full amount owed. See Farrell v. West, 114 P.2d 910, 911 (Ariz. 1941) (refusing to quiet title until and unless the plaintiff tenders the amount owed, as required in equity). Instead, Plaintiff asks this Court to invalidate the claims of the beneficiary under the deed of trust. The Court will not indulge this inappropriate use of an action to quiet title; “Plaintiff’s argument that the assignment to U.S. Bank was void, and that U.S. Bank and MERS are not beneficiaries fails to support Plaintiff’s claim for quiet title. As discussed above, an assignment of a deed of trust does not need to be recorded in order to be valid, and under the terms of the Deed of Trust, Plaintiff was not entitled to notice of any such assignment.”
Frame V. Cal-Western Reconveyance Corporation (D.Ariz. 9-2-2011); “This appeal requires us to interpret the statute governing judgments in quiet title actions. The statutory language is about as straightforward as such language ever gets: “The court shall not enter judgment by default. . . .” Entry of a default judgment against appellant HSBC Mortgage Services, Inc., and in favor of respondent Harbour Vista, LLC, in a quiet title action was error.”
Harbour Vista V. Hsbc Mortgage Serv. Inc., G044357 (Cal.App. 12-19-2011); Mier v. Lordsman Inc., Civ. No. 10-00584, 2011 U.S. Dist. LEXIS 8484, at * 15-17 (D. Haw. Jan. 26, 2011) (“[T]o assert a claim for quiet title against a mortgagee, a borrower must allege they have paid, or are able to tender, the amount of the indebtedness.”).
 
Fidelity Land Trust Case – put property in trust and use quiet title action to defeat foreclosure – a scam. Florida Attorney General complaint:
Fidelity sued AG in Florida Middle USDC for its adverse ruling:
“… this Court concludes that Plaintiff initiated and pursued this litigation in bad faith.  The evidence of this is legion: a state judge has told Plaintiff that its legal theory is meritless; a federal judge has told Plaintiff its legal theory is frivolous; and the Florida Attorney General has obtained injunctive relief against Plaintiff to prevent it from asserting claims based on the legal theory advanced in this lawsuit. Yet even in its objection, Plaintiff clings to the notion that its claims have merit. They do not… Plaintiff appears to be in the business of delaying lawful foreclosures. The courts are not to be used to delay, deny, or frustrate just claims, and they are not to be used as a cog in a litigant’s business model. Litigants who pursue meritless claims should be sanctioned, if only to ensure that the burden of their contemptuous behavior is borne by themselves alone.”
On 4/30/2013 7:29 PM, malcolmdoney@comcast.net wrote:

Bob & Charles,

It is a long time since I contacted you Bob.  I have believed for some time that somehow you have lost your way since the days when I believed that you stood for justice and doing what is right.  
 
I have lived through and been the victim of Hitler’s fascism and I have lived in the UK during both conservative and socialist extremes.  I well remember when the leaders of the UK Trade Union Congress made their annual Christmas pilgrimage to Moscow to get their instructions on how to disrupt the British economy over the next year and beyond.   
 
I have also witnessed during my long life the extremes of communist, fascist dictatorships and religious fanatics and frankly while it may be very intellectual to debate whether or not communism or fascism is at work I could never see much to chose between Hitler and Stalin, or Idi Amin.    
 
The evidence is overwhelming that the present mortgage foreclosure crisis was premeditated by the most evil organization in modern times, the Federal Reserve.  That all these mortgages were set up to fail and comprise the biggest Ponzi scheme in the history of the world.Yet all I hear from those who seek to classify those of us who were the deliberate targeted victims of these Banksters and their government backers is that we borrowed the money and we should not get a free house.  
 
Anyone, who cannot see anything wrong with HB 87 and its almost appropriately named SB 1666 is either totally blind or so brainwashed by a corrupted society that they are incapable of any constructive thought whatsoever.  I think it is a tragedy that you have allowed yourself to be persuaded to your present apparent view.  Anyone who believes in government of the people, by the people, for the people can see through this criminal land grab for exactly what it is.  
 
Shame on you Bob – you have done such good work I am truly saddened to see your latest comments.  When Henry Trawick – the Dean of Rules tells every member of Florida’s legislature that these bills are unconstitutional and bankster inspired there must be something wrong with this bunch of garbage.  What is clear is that it is not in the interest of the people. 
Sadly
Malcolm
******************************************************************
They are all fascists (there is that word again) 
Melinda Pillsbury-Foster
MacPherson Investment Group

Executive Vice-President for Rebuild America

Point out to me any single document in the writings of Benito Mussolini, Admiral Horthy, Francisco Franco, Sir Oswald Moseley, Paul Joseph Goebbels, Heinrich Himmler, or any economically oriented member of Hitler’s government that predicts the step-by-step takeover and abolition of private property the way the communist manifesto does.  Oddly enough, the nearest to a “Socialist” among the Fascists would be British Sir Oswald Moseley.  He was very aristocratic and really an admirable “failure” among all the Fascists of Europe, but his writings go the closest towards credit-based socialism of any genuine “Fascist” from the 1920s or 30s I know—and Moseley was the only one outside of Spain to continue active through the 1950s and 60s—during which time, oddly enough, he joined with former Marshall Petain supporter Robert Schuman and other “Labor Left Socialists” in pushing for the European Union after the war…. but I do not see how you can connect the movement of Fascism to Credit Leveraged Confiscation of private property for the purpose of abolishing private property….

De : Melinda Pillsbury-Foster <themelinda@gmail.com>
À : Charles Lincoln <charles.lincoln@rocketmail.com>
Envoyé le : Mardi 30 avril 2013 17h38
Objet : Re: Property Confiscation House Bill 87 Just Passed Republican Controlled House in Florida

They are all fascists (there is that word again)
Melinda Pillsbury-Foster
MacPherson Investment Group

Executive Vice-President for Rebuild America

On Tue, Apr 30, 2013 at 5:29 PM, Charles Lincoln <charles.lincoln@rocketmail.com> wrote:
HB 87 eviscerates the adversarial aspects of litigation in favor of the foreclosing party.  
Are you ever going to work on developing those Vindicatio websites or not?  If you’re not going to develop them I need to give them to Melinda Pillsbury-Foster but you DO have a better e-mail list to promote them on….. I thought we had a deal…But I’ll suggest to Melinda that she call you to check up on what your real intentions are….I certainly didn’t spend $100 on those domains just to let them sit around undeveloped and unpromoted….. If neither you nor Melinda want to work on them I’ll have to find someone else, but heck I BOUGHT them and I want to see some new business come in as a result…. but nothing will happen if a competent Web developer doesn’t do something—-Melinda’s working on a single case website for me in regard to a personal injury suit of mine in New Orleans….
Your problem, Bob, I have figured it out, with Neil Garfield and the Anti-Note Securitization Camp (you probably don’t like Mickey Paoletta either and basically you seem doubtful about me because I’m with THEM) is that you really do believe in Social Ownership of Credit—that is why you have jumped ship on the “holder-in-due course” doctrine…. Social Ownership of Credit leads to Social Ownership of all land and real property, perhaps all real and personal property…  You have abandoned Capitalism….. you really do believe that proof of ownership is not essential to collect debt or foreclose a property…. if that’s raving like a lunatic then I plan on doing so continually until I die….

De : Bob Hurt <bob@bobhurt.com>
À : Charles Lincoln <charles.lincoln@rocketmail.com>
Envoyé le : Mardi 30 avril 2013 17h45
Objet : Re: Property Confiscation House Bill 87 Just Passed Republican Controlled House in Florida

I fail to see a problem with hb87.  It forces lenders to take speedier action and come to court better prepared for the lawsuit.

Instead of raving like a lunatic below, why don’t you explain SPECIFICALLY what you don’t like about the bill and why?

On 4/30/2013 5:29 PM, Charles Lincoln wrote:
Republicans are Moral Lepers—and COMMUNISTS!:
It is beyond appalling to me that any Republicans would vote for Florida House Bill 87 to speed up foreclosures….. Aren’t the Republicans supposed to be the party of traditional American Values? Aren’t Republicans supposed to be the defenders of common law against social engineering through legislation?  Florida House Bill 87 is just speeding up the process by which the Soulless and Heartless machine of American Corporate Socialism sweeps up property into the collective “pool” of government ownership….  Everyone in Florida: WRITE TO YOUR SENATORS to stop the companion bill 1666 (how apt?) from passing.  Every step we take towards socialized ownership of debt is a major triumph for Marx & Engels’ original “manifestation” of their dream to abolish private property in land, first published in February 1848 under the name of the Communist Manifesto.
All steps to abolish “holder-in-due course” doctrine assert that mortgage debts are not private but public, and this is the key ingredient of communist confiscation of all real estate in America…

Charles Edward Lincoln, III

“Ich bin der Geist der stets verneint! Und das mit Recht.”

Deo Vindice/Tierra Limpia

In case of emergency call Attorney Inger Garcia at 954-394-7461

Matthew 10:34-39

Think not that I am come to send peace on earth: I came not to send peace, but a sword. . . . And he that taketh not his cross, and followeth after me, is not worthy of me. . . .  

My Anti-Federalist (Anti-Federal Reserve) Credo

Every complaint regarding any credit-based financing or any other Federal Reserve Issue needs to address these points:

(1) 12 USC Section 1813l(1)-(5) requires monetization of promissory notes…. and defines deposit as receipt of money for CREDIT.

(2) Does this (monetization of promissory notes as credit, definition of “credit” as adequate consideration) constitute a government mandated taking of property without due process of law?

(3) Does this (monetization of promissory notes as credit, definition of “credit” as adequate consideration) constitute a government-manated interference with obligations of contract?

(4) Does this (monetization of promissory notes as credit, definition of “credit” as adequate consideration) infringe upon the reserved rights of the people to the use and protection of the common law?

(5) What I learned fighting Obama was that the positive requirements of the Constitution regarding the Federal Government are generally NOT politically enforceable.  It is for that reason that the constitutional eligibility lawsuits against Obama all failed: we citizens cannot require the enforcement of the “natural born citizen” requirement of Article II.  Likewise, the mandate that the States shall not authorize anything but gold and silver as payment of debt has not been and cannot be enforced.

(6) But the violation or infringement of any and all rights expressly enumerated FOR THE PEOPLE in the Constitution does give rise to Article III standing, and that is why we must always frame our complaints in terms of specific “Expressly Enumerated Rights” and demand “strict scrutiny” review of the same under Footnote 4 of USA v. Carolene Products, Inc.

(7) It is incumbent on each Plaintiff to allege with the greatest specificity possible the actual injuries suffered, but we must also, I think focus on the following general questions:

(8) Is the existence of a generalized right to private property under the common law guaranteed by the Constitution?

(9) Can private property exist if contractual obligations are shared and “socialized” by assignment and pooling or securitization, or do laws which permit the socialization of obligations (which was absolutely prohibited by the Common Law) not simply obliterate the essential personal obligations of contract which constitute the proprietary elements of contract under both common law and the UCC?

Definition of “Deposit” under Title 12 U.S.C. Section 1813l—this is the root of all evil in the Federal Reserve Banking System

(l) Deposit

The term “deposit” means—
(1) the unpaid balance of money or its equivalent received or held by a bank or savings association in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time, or thrift account, or which is evidenced by its certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the bank or savings association, or a letter of credit or a traveler’s check on which the bank or savings association is primarily liable: Provided, That, without limiting the generality of the term “money or its equivalent”, any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable, or for a charge against a deposit account, or in settlement of checks, drafts, or other instruments forwarded to such bank or savings association for collection.
(2) trust funds as defined in this chapter received or held by such bank or savings association, whether held in the trust department or held or deposited in any other department of such bank or savings association.
(3) money received or held by a bank or savings association, or the credit given for money or its equivalent received or held by a bank or savings association, in the usual course of business for a special or specific purpose, regardless of the legal relationship thereby established, including without being limited to, escrow funds, funds held as security for an obligation due to the bank or savings association or others (including funds held as dealers reserves) or for securities loaned by the bank or savings association, funds deposited by a debtor to meet maturing obligations, funds deposited as advance payment on subscriptions to United States Government securities, funds held for distribution or purchase of securities, funds held to meet its acceptances or letters of credit, and withheld taxes: Provided, That there shall not be included funds which are received by the bank or savings association for immediate application to the reduction of an indebtedness to the receiving bank or savings association, or under condition that the receipt thereof immediately reduces or extinguishes such an indebtedness.
(4) outstanding draft (including advice or authorization to charge a bank’s or a savings association’s balance in another bank or savings association), cashier’s check, money order, or other officer’s check issued in the usual course of business for any purpose, including without being limited to those issued in payment for services, dividends, or purchases, and
(5) such other obligations of a bank or savings association as the Board of Directors, after consultation with the Comptroller of the Currency, and the Board of Governors of the Federal Reserve System, shall find and prescribe by regulation to be deposit liabilities by general usage, except that the following shall not be a deposit for any of the purposes of this chapter or be included as part of the total deposits or of an insured deposit:

(A) any obligation of a depository institution which is carried on the books and records of an office of such bank or savings association located outside of any State, unless—

(i) such obligation would be a deposit if it were carried on the books and records of the depository institution, and would be payable at, an office located in any State; and
(ii) the contract evidencing the obligation provides by express terms, and not by implication, for payment at an office of the depository institution located in any State;
(B) any international banking facility deposit, including an international banking facility time deposit, as such term is from time to time defined by the Board of Governors of the Federal Reserve System in regulation D or any successor regulation issued by the Board of Governors of the Federal Reserve System; and
(C) any liability of an insured depository institution that arises under an annuity contract, the income of which is tax deferred under section 72 of title 26.

Deutsche Bank National Trust v. Russo, 57 A.3d 18, 429 N.J. Super 91 (November 14, 2012)

DEUTSCHE BANK NAT. TRUST v. RUSSO, 57 A.3d 18 (2012)

429 N.J. Super. 91

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee on behalf of HSI Asset Securitization Corporation Trust 2006-HEI, Plaintiff-Respondent,

 

v.

 

Conrad D. RUSSO and Irene Russo, Defendants-Appellants.

Docket No. A-2437-11T1Superior Court of New Jersey, Appellate Division.

 Argued October 10, 2012.

Decided November 14, 2012.

 Jessica T. Zolotorofe argued the cause for appellants (Ansell Grimm & Aaron, PC, attorneys; Lawrence H. Shapiro and Ms. Zolotorofe, Ocean, on the brief).
Edward A. Vincent argued the cause for respondent (Frenkel Lambert Weiss Weisman & Gordon, LLP, attorneys; Mr. Vincent, on the brief).
Before Judges REISNER, YANNOTTI1 and HARRIS.

The opinion of the court was delivered by

REISNER, P.J.A.D.
Defendants Conrad and Irene Russo appeal from a December 7, 2011 order denying their application to further restrain a sheriff’s sale, and denying as untimely their motion to vacate a final judgment of foreclosure entered on March 17, 2009 in favor of plaintiff Deutsche Bank National Trust Company. We affirm.
I
On July 13, 2006, defendants refinanced the existing mortgage on their home by executing a note and mortgage in the amount of $458,700 in favor of Mortgage Electric Registration Systems, Inc. (MERS) as nominee for Countrywide Home Loans, Inc. (Countrywide). The note disclosed, in large capital letters, that it was an “interest only” loan. Its terms produced a lower monthly mortgage payment for five years, followed by a significantly higher monthly payment beginning

[ 57 A.3d 21 ]


after the fifth year. According to defendants, as part of the loan package, $31,000 in points and fees were added to the principal balance of the loan.2 They contend that they did not realize the mortgage would increase their principal indebtedness and would eventually result in higher monthly payments. However, defendants defaulted on the loan long before they were required to begin repaying the principal or making the higher monthly payments. On June 1, 2007, less than a year into the mortgage term, defendants stopped making payments.

Plaintiff sent defendants a Notice of Intention to Foreclose by certified mail on September 24, 2007. Irene Russo signed the certified mail receipt. Plaintiff filed the foreclosure complaint on November 27, 2007. There is no dispute that the complaint was properly served on defendants on January 24, 2008. They failed to file an answer, and default was entered on June 3, 2008. After serving defendants with the required notice of intent to enter a final judgment, plaintiff obtained a final foreclosure judgment on March 17, 2009. There is no dispute that defendants were aware that the final judgment had been entered.
A sheriff’s sale was first scheduled to take place on May 24, 2010, but was adjourned because Conrad Russo filed for bankruptcy on May 19, 2010. The Bankruptcy Court granted him a discharge on September 17, 2010. For various reasons, the sheriff’s sale was adjourned a total of seventeen times. Finally, on July 5, 2011, defendants filed their first pleading in the foreclosure action, an order to show cause seeking to stay the sheriff’s sale and seeking to vacate the 2009 final judgment of foreclosure pursuant to Rule 4:50-1(d) and (f).3
In their motion, defendants argued that plaintiff lacked standing to file the foreclosure complaint, because it did not take an assignment of the mortgage until after the complaint was filed. The motion record filed with the trial court disclosed the following information. Countrywide, now doing business as Bank of America, has continued to service the loan since it originated on July 13, 2006. However, on August 15, 2006, the relevant collateral file was allegedly transferred to Wells Fargo Bank M.N., and was then transferred to Wells Fargo Bank N.A., the servicer and custodian for the current plaintiff Deutsche Bank, on October 31, 2006. However, an assignment acknowledging Deutsche Bank as the legal possessor of the note and mortgage was not signed and recorded until June 17, 2008, seven months after the complaint was filed.
In a lengthy oral opinion placed on the record on December 6 and 7, 2011, Judge Thomas W. Cavanagh, Jr. held that defendants had not filed their Rule 4:50 motion within a reasonable time after entry of the foreclosure judgment. He further found that they produced no proof of excusable neglect for their failure to file a timely answer to the complaint or for the years of delay in filing their motion. He also rejected their standing argument, accepting

[ 57 A.3d 22 ]


plaintiff’s proof that it had possession of the note at the time the foreclosure complaint was filed. In fact, the trial judge stated that he had required plaintiff to produce a certified copy of the note itself:

Now, the track of title here, according to the person rendering the certification, who says that she did so on personal knowledge, and the information compiled in her cert was done [from] the business records, which were recorded by people with personal knowledge of the information, or from persons transmitting personal knowledge, goes as follows. The original loan was given to the defendants in 2006, and Mr. Russo executed a note to Countrywide Home Loans, Inc. The mortgage was parked at MERS as nominee for Countrywide, which is something that occurs frequently. Countrywide ultimately was absorbed into Bank of America, N.A., and Countrywide continued to service the loan since the date of origination. On August 15, 2006, the collateral file was transferred to Wells Fargo. The collateral was then transferred to Wells Fargo Bank, the servicer and custodian for Deutsche Bank National Trust Company as trustee on behalf of HSI. That is, of course, the plaintiff in this case. That occurred on October 31, 2006. Wells Fargo is the servicer and custodian for the owner of the note, which is the Deutsche Bank Securitized Trust. The plaintiff purchased the note in 2006, and is the owner of the note pursuant to the consideration which was paid for the note in 2006. Under U.C.C. Section 3-301, a person entitled to enforce the obligation is either a holder, or a non-holder in possession who has the rights of a holder.
… [A] certified copy of the note was forwarded to the court in September of 2011, and a copy is by now, I’m sure, in the possession of the defendants. The note contains a bearer allonge endorsed in blank by Countrywide and obviously was in the possession of the plaintiff through its servicer in accordance with PSA since 2006. That occurred prior to the default, so there is no holder in due course issue to be raised.
The judge further reasoned that defendants had not denied the validity of the note, denied their default, or raised any other meritorious defense to the enforcement of the mortgage:
[T]here was no question that … the defendants … acknowledge the validity of the note and mortgage in the sense that there is no claim that the money was not received, nor that they have defaulted and there is no underlying defense as to the basic components of the mortgage. Throughout the years of correspondence and orders, at no time have the defendants ever said you have the wrong parties, or we didn’t borrow the money, or we didn’t default. Basically, they’ve accepted the underlying aspect of the action over many, many months and years.
II
We review the trial court’s decision for abuse of discretion. US Bank Nat’l Ass’n v. Guillaume, 209 N.J. 449, 467, 38 A.3d 570 (2012). “The trial court’s determination under [Rule 4:50-1] warrants substantial deference,” and the abuse of discretion must be clear to warrant reversal. Ibid. (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261, 966 A.2d 1036 (2009)). On this record, we find no abuse of discretion in Judge Cavanagh’s decision.
Under Rule 4:50-1(a), “[a] defendant seeking to set aside a default judgment must establish that his failure to answer was due to excusable neglect and that he has a meritorious defense.” Goldhaber

[ 57 A.3d 23 ]


v. Kohlenberg, 395 N.J.Super. 380, 391, 928 A.2d 948 (App.Div.2007). “`Excusable neglect’ may be found when the default was `attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'” Guillaume, supra, 209 N.J. at 468, 38 A.3d 570(quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass’n, 132 N.J. 330, 335,625 A.2d 484 (1993)). Rule 4:50-1(d) motion, based on a claim that the judgment is void, does not require a showing of excusable neglect but must be filed within a reasonable time after entry of the judgment. See R. 4:50-2; M & D Assocs. v. Mandara, 366 N.J.Super. 341, 351-52, 841 A.2d 441 (App.Div.2004), certif. denied, 180 N.J. 151, 849 A.2d 184 (2004).

Defendants first claim that they presented a reasonable explanation for the delay in filing their motion. They contend that “based on representations from the loan servicer,” they believed that “no foreclosure action would proceed while they were actively working toward a loan modification.” While defendants make that representation in their appellate brief, they produced no legally competent evidence to support that contention. Irene Russo’s motion certification described defendants’ efforts to save their home by working with a variety of private financial consultants and attorneys, none of whom were employed by plaintiff, and later, by applying for a loan modification. But nowhere in her certification is there any statement that plaintiff told defendants that they did not need to file an answer to the complaint or that the foreclosure would be held in abeyance.
Our Supreme Court recently held in Guillaume that this fact pattern does not constitute excusable neglect. As here, the Guillaume defendants made bald assertions that they believed they did not need to file an answer or otherwise defend the foreclosure action. The Court held:
The trial court properly rejected this contention, holding that the Guillaumes were fully informed of the existence of a `court process’ requiring a legal response for over a year, and that U.S. Bank’s communications with them regarding loan modification did not alter the analysis…. There is no evidence that U.S. Bank suggested to the Guillaumes that it was unnecessary to respond to the foreclosure action…. Notwithstanding the repeated notices, the Guillaumes took no action to respond to the foreclosure complaint, and the record reflects no excuse for their inaction.
[Guillaume, supra, 209 N.J. at 468-69, 38 A.3d 570.]
Further, as we recently held in Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J.Super. 31553 A.3d 673 (App.Div.2012), “[m]otions made under any Rule 4:50-1 subsection `must be filed within a reasonable time.'” Id. at 319, 53 A.3d 673 (quoting Orner v. Liu, 419 N.J.Super. 431, 437, 17 A.3d 266 (App.Div.), certif. denied, 208 N.J. 369, 29 A.3d 741 (2011)). We also noted that, pursuant to Rule 4:50-2, “motions based on Rule4:50-1(a), (b) and (c)” must be filed within a year of the judgment. Ibid. Therefore, a Rule4:50 motion based on excusable neglect is barred if it is filed more than one year after the foreclosure judgment was entered. Ibid. Additionally, as we held in Deutsche Bank,equitable considerations may justify a court in rejecting a foreclosure defendant’s belated attempt to raise as a defense the plaintiff’s lack of standing:
In foreclosure matters, equity must be applied to plaintiffs as well as defendants. Defendant did not raise the issue of standing until he had the advantage of many years of delay. Some delay stemmed from the New Jersey foreclosure

[ 57 A.3d 24 ]


system, other delay was afforded him through the equitable powers of the court, and additional delay resulted from plaintiff’s attempt to amicably resolve the matter. Defendant at no time denied his responsibility for the debt incurred…. Rather, when all hope of further delay expired … he made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment.

[Id. at 320, 53 A.3d 673]
A similar result was suggested in Bank of New York v. Raftogianis, 418 N.J.Super. 323,13 A.3d 435 (Ch.Div.2010). Addressing a situation in which a plaintiff filed the complaint before it had possession of the note or a valid assignment of the mortgage, the court observed that dismissal of the complaint without prejudice might not always be the appropriate remedy:
Whether any particular action should in fact be dismissed should be addressed on a case-to-case basis, dependent on all the circumstances. As a general matter, dismissal will probably be appropriate, if only to provide a clear incentive to plaintiffs to see that the issue of standing is properly addressed before any complaint is filed. There may be cases, however, where dismissal would not be appropriate. That may be the case if the defendant fails to raise the issue promptly, or when substantial time and effort may have been devoted to addressing other matters that would then have to be revisited in any new litigation.
[Id. at 356, 13 A.3d 435.]
In Guillaume, the Court confirmed that dismissal of the complaint is not necessarily the appropriate remedy for a filing defect in a foreclosure complaint. In that case, the notice of intention to foreclose did not list the name and address of the lender, which the Court held was legally required. However, the Court held that
dismissal without prejudice is not the exclusive remedy for the service of a notice of intention that does not satisfy N.J.S.A. 2A:50-56(c)(11). A trial court adjudicating a foreclosure complaint in which the notice of intention does not comply with N.J.S.A. 2A:50-56(c)(11) may dismiss the action without prejudice, order the service of a corrected notice, or impose another remedy appropriate to the circumstances of the case…. Given the Guillaumes’ thorough familiarity with the status of their mortgage — reflected in their consultations with a professional adviser and active loan modification negotiations with ASC — the trial court’s remedy of a cure constituted a proper exercise of its discretion.
[Guillaume, supra, 209 N.J. at 475-76, 38 A.3d 570.]
Because the Fair Foreclosure Act violation that the defendants asserted would not require dismissal of the complaint, the Court held that “the FFA does not provide a `meritorious defense’ to this action within the meaning of Rule 4:50-1(a).” Id. at 480, 38 A.3d 570.
Based on our reading of Guillaume and Deutsche Bank, we conclude that, even if plaintiff did not have the note or a valid assignment when it filed the complaint, but obtained either or both before entry of judgment, dismissal of the complaint would not have been an appropriate remedy here because of defendants’ unexcused, years-long delay in asserting that defense. Therefore, in this post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint.
In reaching that conclusion, we note that, contrary to defendants’ contention, standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not “void” within

[ 57 A.3d 25 ]


the meaning of Rule 4:50-1(d). In the federal courts, standing is a jurisdictional concept, because Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies. See Raftogianis, supra, 418 N.J.Super. at 353, 13 A.3d 435 (citing In re Foreclosure Cases, 521 F.Supp.2d 650, 653-54 (S.D.Ohio 2007)).

By contrast, the Superior Court of New Jersey is a court of general jurisdiction, Swede v. Clifton, 22 N.J. 303, 314, 125 A.2d 865 (1956), and in our courts, the requirement that a party have standing is a matter of judicial policy not constitutional command. See DeVesa v. Dorsey, 134 N.J. 420, 428, 634 A.2d 493 (1993) (“Unlike the Federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, para. 1.”) (Pollock, J., concurring); Salorio v. Glaser, 82 N.J. 482, 490-91, 414 A.2d 943cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 7 (1980). “Because standing affects whether a matter is appropriate for judicial review rather than whether the court has the power to review the matter, and standing is a judicially constructed and self-imposed limitation, it is an element of justiciability rather than an element of jurisdiction.” N.J. Citizen Action v. Riviera Motel Corp.,296 N.J.Super. 402, 411, 686 A.2d 1265 (App.Div.1997), appeal dismissed, 152 N.J. 361,704 A.2d 1297 (1998); see also Gilbert v. Gladden, 87 N.J. 275, 280-81, 432 A.2d 1351(1981) (distinguishing the concept of justiciability from that of subject matter jurisdiction).4
Finally, based on our review of the record, we find no evidence that defendants have any other meritorious defense. They claim that they were defrauded into taking an interest-only loan that would eventually result in higher mortgage payments. But they produced no proof that the alleged fraud caused them to default on the mortgage. See Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624, 432 A.2d 521 (1981) (fraud requires proof that the victim relied “to his detriment” on a material misrepresentation). They stopped making payments in the first year of the mortgage, long before the monthly payments were scheduled to increase.5
Affirmed.

Footnotes


1. Judge Yannotti did not participate in oral argument, but joins in the opinion with the consent of counsel. See R. 2:13-2(b).
2. Defendants did not produce any documentation to support this claim.
3. In pertinent part, Rule 4:50-1 permits a court to vacate a final judgment on these grounds: “(a) mistake, inadvertence, surprise, or excusable neglect; … (c) fraud … (d) the judgment or order is void; … or (f) any other reason justifying relief from the operation of the judgment or order.” A motion pursuant to (a) or (c) must be filed within a year after entry of the judgment, while motions pursuant to (d) and (f) must be filed “within a reasonable time.” R. 4:50-2. On appeal, defendants claim for the first time that the judgment was obtained by fraud. See Rule 4:50-1(c). That claim is untimely. R. 4:50-2.
4. There is no dispute that plaintiff obtained a valid assignment of the mortgage, albeit some months after the complaint was filed. Hence, standing issues aside, it had a legal right to enforce the note, pursuant to the Uniform Commercial Code, N.J.S.A. 12A:3-301, at the time it obtained the judgment. See Wells Fargo Bank, N.A. v. Ford, 418 N.J.Super. 592, 597, 15 A.3d 327 (App.Div.2011). Contrary to defendants’ argument on this appeal, the judgment was not obtained by fraud. R. 4:50-1(c).
5. Nor have defendants produced any evidence that the alleged increase in the principal balance, or in the post-fifth-year interest rate, precluded them from redeeming the property or from selling the house at a price that would yield them some equity.

 

Bob Hurt on Neil Garfield: amateurs should not try to make broad pronouncements reading cases they do not even try to understand…..sorry Bob!

Dear Bob Hurt:
Honest people can and often do disagree honestly about issues.  You do yourself A GREAT discredit and indignity when you call Neil Garfield (and me, by the way) “a scammer” for disagreeing with you when, so far as I can tell, you and Storm Bradford are the ONLY people who take your view of things.  You have now misrepresented TWO cases, the Salazar case and the DeCastro case (from three weeks ago) and I have to take a stand and take exception to what you’re writing.  You are my friend and I am yours, but HONEST PEOPLE MUST DISAGREE and point out each other’s mistakes, and your mistakes here are HUGE.  You are really misleading people and wrongfully defaming Neil Garfield (and me, by the way).
You are simply WRONG that “NOTHING in a foreclosure defense foils the foreclosure EXCEPT dispute of [what you consider to be] the essential facts.”  In Connecticut, Florida, Kansas, Louisiana, Massachusetts, New Jersey, and New York, just to name a few states, the “Holder in Due Course” defense DOES work.
My problem with what you wrote earlier about the Salazar opinion is that you BLATANTLY and TOTALLY misrepresented what the Judge in that case said about Neil Garfield.  Even when I challenged you AND quoted the entirety of Footnote 4 from Salazar in my response to your first post, you persisted in misrepresenting the words, the import, and the meaning of what the Judge said.  It was simply NOT an attack on Neil Garfield at all but an attack on incompetently offered evidence.  And I still want to know where you got a copy of a Judicial Opinion written in “word.doc” with so many typos and no evidence that it came from any of the major sources of judicial opinions.  I know the Salazars did NOT in fact retain Neil Garfield.  They did NOT have a case specific affidavit from him.  THAT is the subject of the Judge’s critique.  YOU are guilty of misrepresenting facts rather than accurately informing the people you serve.
I want you to acknowledge this misrepresentation to the readership of both Lawmen and Lawsters.  Only your best friend, Bob, will tell you to your face when you’re making a fool of yourself and right now (as, regretably, with your occasional articles on Eugenics and the need to sterilize low IQ people) you really are….  Making a fool of yourself is understating the issue, you’re really kind of making an ass of yourself.  I love you but I am too closely associated with you in too many ways not to disagree with you and correct you openly when you write things that are just plain wrong.
And so far as misrepresenting court cases go, I DID let one pass a couple of weeks ago when you totally misrepresented the holding of a New Jersey case on April 5, 2013, when you wrote that it supported your notion that holder-in-due course doctrine was dead (this was the case of Indymac v. DeCastro.  What the opinion in that case said was the DeCastro’s motion was UNTIMELY under Rule 4:50 of the New Jersey Rules of Civil Procedure, and that he raised the issue too late, and that the Judge was justified in denying his motion for that reason.  Indymac HAD THE NOTE at the time of filing the complaint in this case (and I quote from the opinion at length):
We now turn to the primary contention that the final judgment is void for lack of standing. In support of this claim, DeCastro relies on Deutsche Bank Nat’l. Trust Co. v. Mitchell, 422 N.J. Super. 214 (App. Div. 2011), to assert that IndyMac lacked standing and should be precluded from filing a foreclosure claim because it had not been assigned the mortgage prior to filing the foreclosure complaint. This claim lacks merit.
           In Mitchell, Deutsche Bank had not been assigned the mortgage prior to filing the foreclosure complaint.  Relying on Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-101 to -605, which addresses who may enforce negotiable instrument, we held that either possession of the note or an assignment of tthe mortgage that predated the original complaint conferred standing.  Id. at 216, 225.  We remanded for the trial court to determine whether before filing the original complaint, Deutsche Bank  was in possession of the note or had another basis to achieve    standing to foreclose, pursuant to N.J.S.A. 12A:3- 301.  Id. at 225.
     DeCastro's reliance on Mitchell is inapposite, as that case
is plainly distinguishable from the instant case.  The record is
clear that, unlike Deutsche Bank in Mitchell,  IndyMac was the
holder of the note on DeCastro's property at the time it filed
the foreclosure complaint.  DeCastro has not disputed that fact
in the complaint nor presented any proof that IndyMac did not
possess the note at the time of the filing of the complaint.
See Angeles, supra, 428 N.J. Super. at 319.  In accordance with
the UCC provision, N.J.S.A. 12A:3-301, the plaintiff bank, as
the holder of the negotiable instrument, has a legal right to enforce the note at the time it obtained the judgment.  As such,IndyMac had standing to bring the foreclosure action.
The DEUTSCHE BANK NAT. TRUST v. RUSSO 57 A.3d 18 (2012), opinion cited here, is ANOTHER New Jersey Civil Rule 4:50 case and it all has to do with the TIMELINESS OF THE MOTION:
Based on our reading of Guillaume and Deutsche Bank, we conclude that, even if plaintiff did not have the note or a valid assignment when it filed the complaint, but obtained either or both before entry of judgment, dismissal of the complaint would not have been an appropriate remedy here because of defendants’ unexcused, years-long delay in asserting that defense. Therefore, in this post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint.
In reaching that conclusion, we note that, contrary to defendants’ contention, standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not “void” within

[ 57 A.3d 25 ]


the meaning of Rule 4:50-1(d). In the federal courts, standing is a jurisdictional concept, because Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies. See Raftogianis, supra, 418 N.J.Super. at 353, 13 A.3d 435 (citing In re Foreclosure Cases, 521 F.Supp.2d 650, 653-54 (S.D.Ohio 2007)).

By contrast, the Superior Court of New Jersey is a court of general jurisdiction, Swede v. Clifton, 22 N.J. 303, 314, 125 A.2d 865 (1956), and in our courts, the requirement that a party have standing is a matter of judicial policy not constitutional command. See DeVesa v. Dorsey, 134 N.J. 420, 428,634 A.2d 493 (1993) (“Unlike the Federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, para. 1.”) (Pollock, J., concurring); Salorio v. Glaser, 82 N.J. 482, 490-91, 414 A.2d 943cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 7 (1980). “Because standing affects whether a matter is appropriate for judicial review rather than whether the court has the power to review the matter, and standing is a judicially constructed and self-imposed limitation, it is an element of justiciability rather than an element of jurisdiction.” N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 411, 686 A.2d 1265 (App.Div.1997),appeal dismissed, 152 N.J. 361704 A.2d 1297 (1998); see also Gilbert v. Gladden, 87 N.J. 275, 280-81, 432 A.2d 1351 (1981) (distinguishing the concept of justiciability from that of subject matter jurisdiction).

De : Bob Hurt <bob@bobhurt.com>
À : Charles Lincoln <charles.lincoln@rocketmail.com>
Cc : JOHN WOLFGRAM <johnwolfgram@hotmail.com>; Bradley S. Austin <brad@healthyhighway.com>; Senator Jerry O’Neil <oneil@centurytel.net>; Kathy Ann Garcia-Lawson <kgarcialawson@yahoo.com>; Dan Mack <mackassoci@aol.com>; Renada March <renada.march@gmail.com>; Brad Henschel <crusaderjd@yahoo.com>
Envoyé le : Vendredi 26 avril 2013 19h52
Objet : Re: LAWMEN & LAWSTERS: The Correct Reading of Court Orders (re: Neil Garfield)

Charles, you ignore the fundamental point.  NOTHING in a foreclosure defense foils the foreclosure EXCEPT dispute of the essential facts.  And ultimately the plaintiff will cure all defects and get the foreclosure UNLESS the borrower proves to the court that the lender injured the borrower at the inception of the mortgage.  Otherwise, the borrower agreed to the note and mortgage and defaulted, and now the court will enforce the note as the constitution requires.

THAT’s why all foreclosure defenders commit malpractice in failing to examine the mortgage for causes of action.

And that’s why Garfield essentially SCAMS people into thinking they can drum up some kind of valid defense.  Did you READ the case law citations?

Bob

On 4/26/2013 5:03 PM, Charles Lincoln wrote:
Don’t be serious as a heart attack when you are wrong: you are in fragile health and might give yourself a heart attack.
In My E-mail I quoted Footnote 4 correctly, you did not!  They did NOT have an original affidavit from Garfield regarding their case—read it again!  I do not feel that you understand at all the fundamental correctness of Garfield’s stance.  Does he cover everything? No, it’s difficult to cover every aspect of the kind of financial fraud that is going on these days, but you have COMPLETELY misrepresented the Holding of the Court in Salazar.  There was NO original or case-specific affiidavit from Garfield—I’m sorry Bob, but you’re way off the mark here.  You know I love you but I cannot let you go around messing things up, misrepresenting improperly copied court orders and things like that…

De : Bob Hurt <bob@bobhurt.com>
À : Charles Lincoln <charles.lincoln@rocketmail.com>
Envoyé le : Vendredi 26 avril 2013 16h47
Objet : Re: LAWMEN & LAWSTERS: The Correct Reading of Court Orders (re: Neil Garfield)

If you read the cases, you know one of them presented an affidavit from Garfield, presumably with permission of Garfield.  And that’s my point.  He performs services, sells items to people and he knows they are bullshit.

I am serious as a heart attack in my partisanship against foreclosure defense thugs who use ruses to mug desperate foreclosure victims and virtually never actually save the house from foreclosure.

In the article I wrote and formatted (attached) I confess the inartful presentation of the arguments, but the courts have made it crystal clear that they will fail anyway, even if presented by JC himself.  Didn’t you see all those citations in Salazar footnote 4?  Those are just SOME of the losing cases based on Garfield’s templates (I couldn’t find the one cited at Mario Kenny’s blog, so I guess he hosed it to get out of the limelight).

Right, I am not perfect, but I’m not the one making a fortune in referral and seminar fees from predatory foreclosure defenders who “get it,” and even more fortunes from feckless, desperate foreclosure victims who waste precious money on useless securitization audits.  He has been misleading and preying on feckless foreclosure victims FOR AT LEAST 5 years.

Fastcase supplies all kinds of court docs.

Garfield is a scammer, a very successful scammer.  How can you have the cheek, the audacity to pipe in on his behalf?

You have insulted me and I demand satisfaction in a game of Barefoot Chocolate Bayou Icepick Mumbly Peg.

You do know the location of Chocolate Bayou, right?
http://goo.gl/maps/N2FKf
http://www.tshaonline.org/handbook/online/articles/hnc54

I grew up mostly in Foster Place at 6821 England Street, Houston.  Chocolate Bayou Road bordered the neighborhood on the east.  The city later renamed it to Cullen Blvd (probably because of the presence of SunnySide just south of Foster Place, on the other side of the railroad tracks, now about where I610 runs, a gigantic Negro community.  Cullen Boulevard seemed less offensive, I imagine, than did Chocolate Bayou road.  Old Chocolate Bayou Road still exists, just north of the beltway.

I had no clue where the actual bayou lay, but just assumed it had something to do with Negroes swimming in or drinking from it.  When it rained heavily we kids always swam in the ditch in front of the house.

Anyway, Foster Place started turning black when I joined the Navy in 1962, and had become completely black by the time I got out of the Navy in 1971. Almost.  My mother Ruby still lived there.  Negroes stole her TV 3 times and tried to rape her twice, but she talked them out of the rape ( what black teen boy wants an old wrinkled white woman?).  She eventually moved together with my brother Norman and his beautiful daughter Ashley.

I guess my own Chocolate Bayou was the ditch of muddy water with crawdads in front of my house as a kid.  And out there beside that ditch we played mumbly peg with an icepick, barefooted.  Every once in a while one of us would get an icepick in the foot, and it hurt.  But it didn’t bleed much, and alcohol scrubbing would keep infection away.  It was dangerous and fun.

You game?

On 4/26/2013 3:33 PM, Charles Lincoln wrote:
Dear Bob:
You have become a partisan among mortgage experts, and I think the result is most unbecoming, especially this recent attack on Neil Garfield, who has in fact educated a large portion of the public regarding the mortgage fraud ongoing.  Neil Garfield was NOT retained as an expert in the cases you are circulating and your commentary regarding the judge’s treatment of Garfield is misleading in the extreme.  If anyone is a “bozo” under these orders it is the parties who do not understand how to present expert witness evidence.  The Federal Courts have very clear rules that you don’t just walk in randomly or non-randomly selected expert testimony without an expert to “qualify” or “sponsor” the opinion and these people utterly failed to do that.  You’re acting a bit like a “bozo” yourself right now, I’m afraid… Please retract your unwarranted attack on Garfield!!!! It just isn’t good manners or at all well-taken.
Without understanding the nature of the argument, you are interposing yourself on one side against another.  The Court order does not criticize Garfield or his opinion IN THE LEAST.  What the Court is saying here is that randomly chosen commentary taken off the internet IS NOT EVIDENCE of anything.  Even if it were written by Milton Friedman or F.A. von Hayek or Jesus Christ himself, NO HEARSAY IS ALLOWED IN COURT and this particular evidentiary hearsay does not even refer directly to the case at hand.  Your assertion that this is a criticism of Neil Garfield is TOTALLY UNWARRANTED and I want you to apologize to everyone in Lawmen or Lawsters for blatantly misrepresenting the Court’s opinion.  I am also curious to know how you got a non-Westlaw non-Lexis Word.doc version of a Court order—is this even possible?  I notice lots of typos in the order also….what’s going on here?  GRRRR…. this sort of thing makes me mad…. You are being an unfair partisan and you clearly do not understand the basic meaning of what you’re distributing here…
What the Court actually says, according to your copy of the Memorandum order, is:
        As noted, the Plaintiffs have copied verbatim many of the allegations in the Arizona complaint cited above and from an Ohio form complaint found at livinglies.files.wordpress.com/2008/07/federalcomplaint-ohio.pdf.. “Living lies” is a website and blog created and published by attorney Neil Garfield4 .
4. For other examples of cases in which these general complaints contain information supplied by Mr. Garfield, see Maixner v. BAC Home Loans Servicing, LP, Civ. No. 10-3037-CL, 2011 WL 7153929, 3 (D.Or. Oct. 26, 2011) (“Maixner also offers as fact extended excerpts from a Securitization Research Commentary’ (‘SRC’) obtained through LuminaQ and authored by Neil Garfield, an attorney licensed to practice in Florida who Maixner asserts is a ‘nationally recognized expert in mortgage securitization.’ (Id., ¶¶ 14-22 & Ex. I). A review of the SRC reveals that this document consists primarily of a general commentary regarding the practice of mortgage securitization accompanied by Garfield’s opinion ‘as an expert in securitization’ regarding the significance of these practices with respect to the Maixners’ mortgage loan, not of which are properly offered as fact” and dismissing with prejudice the plaintiffs claims seeking an “order holding the mortgage on their property to be void and unenforceable, the pending non-judicial foreclosure proceeding unlawful, and seeking damages for violations of, among others, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and the Truth in Lending Act (“TILA”) 15 U.S.C. § 1601 et seq.)”); Sainte v. Suntrust Mortg., Inc., No. 1:10-CV-1637-TWT-WEJ, 2010 WL 4639242, ……(noting that “[a] significant portion of the body of Plaintiff’s Complaint can be found in Nature of the Action by Neil Garfield. Accordingly, there are only a handful of statements included in Plaintiff’s Complaint that are personal to her claim and not pulled directly from the above-posted source” and dismissing claims “alleging violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605; the Home Ownership Equity Protection Act (“HOEPA”), 15 U.S.C. § 1639; the Truth-in-Lending Act (“TILA”), 15 U.S.C. § 1601; and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681. (Comp., Dkt.1.) . . . and claims of fraudulent misrepresentation, unjust enrichment, civil conspiracy, civil RICO, quiet title, and usury” as improperly pleaded against all Defendants).
In all fairness, Bob, the opinion does not criticize Garfield himself but these particular parties’ USE of Garfield’s published material without connecting them to any particular case.

De : Bob Hurt <bob@bobhurt.com>
À : lawmen@googlegroups.comhurtfamily@yahoogroups.comtorresfamily@yahoogroups.com; Melissa Gillespie <costcogypsy@gmail.com>; Jonathan Gould <jrg606@att.net>; James Emerson <jim.emer@gmail.com>; Cheryl Kissell <marketwiz@earthlink.net>
Envoyé le : Vendredi 26 avril 2013 13h17
Objet : Do US Courts See Neil Garfield As Expert or BOZO?

Neil Garfield – Expert or Bozo?


I know many people love Neil Garfield because on his LivingLies blog, he acts like the champion of foreclosure victims.  But check out just two of the cases where the court denounces Garfield’s pleadings and “expertise,” and those relying on Garfiels LOSE BIG.  The courts RIP Garfield’s tactics to SHREDS. See attached opinions:

  • Connelly v USBNA, US Bankruptcy Ct, AZ;
  • Salazar v Indybank, USDC New Mexico, attached.
Neil Garfield might have the intention of helping foreclosure victims, but he actually hurts them.  He sells them useless securitization audits and “expert” affidavits and provides an utterly bogus foreclosure defense template here:

http://livinglies.files.wordpress.com/2008/11/template-complaint1.pdf

He totally ignores the indisputable, undeniable facts of virtually every foreclosure:

  1. The borrower signed the note and mortgage
  2. The borrower defaulted on the loan by not making timely payments, thereby injuring the note holder.
  3. The mortgagee/holder files a foreclosure action in order to force a sale of the mortgaged property to recover the loss
  4. The public trustee or the courts MUST give redress to the injured party and MUST NOT impair the obligations of the contracts.


Excerpt of note:

“Plaintiff solely relies on his expert’s assertion that he possesses “knowledge of the actual intents, purposes, meanings and effect of the 1999 amendments [to the] Uniform Commercial Code…. Article 9 applies to the sale of promissory notes.” Garfield Aff. 9:9-12.

        Even if this opinion testimony by a witness who has not been qualified as an expert could be considered by the Court, it would be rejected because it directly contradicts Veal. This Court follows the decisions of the Ninth Circuit BAP, and accordingly, Plaintiff’s argument that only Article 9 applies to the transfer of the Note fails.

Look at this footnote from the Salazar case, showing an array of victims of Garfield’s nonsensical “expertise”:
All of this brings me to ask:

Is Neil Garfield an expert or a bozo?

Let me make this point by asking another question:

If you were a lawyer and a client came to you for help dealing with a notice of foreclosure or a foreclosure complaint for breach of contract, which of these would you do:

  1. Allege that the bank didn’t lend real money or that the securitization trust receipts paid off the loan or the holder of the note has no standing?
  2. Examine the mortgage for evidence of prior torts, breaches, or error by the lender or lender’s agents?
Now, ponder these additional questions:
  1. Doesn’t it go without saying that the foreclosure becomes INEVITABLE if the foreclosure victim cannot deny the essential facts outlined in 1-4 above?
  2. Doesn’t a foreclosure defender attorney commit legal malpractice by doing #1 immediately above and ignoring #2?
  3. Doesn’t it seem obvious that one can defeat foreclosure ONLY by proving a prior breach, tort, or error underlying the mortgage so as to give the court justification for declaring the mortgage void, invalid, or defective?
My central point…  If you took out a mortgage in the past 10 or 12 years, you have a 90% chance that the lender or lender’s agents cheated you.  If you don’t believe this, read the summary at the front of theFinancial Crisis Inquiry Commission Report.  It essentially ignores Wall Street fraud, but it shows that government and the finance industry colluded in the predatory lending that caused massive job loss and collapsed homeowner equities nationwide.
What does “predatory lending” mean?  It means lender knew the borrower could not afford payments or the appraiser overvalued the house, or the mortgage broker or lender charged excessive fees, or the lender or lender’s agents made false representations to the borrower, or  somehow cheated the borrower, and DID SO KNOWINGLY.  They did this to obtain unjust enrichment and set up the borrower for foreclosure.
In order to prove an injury, the borrower must hire a professional to perform a comprehensive mortgage examination to find all the causes of action (reasons to sue) underlying the mortgage.  If the examination report reveals causes of action, the borrower can obtain legal counsel to demand and negotiate a settlement offer or sue the  original lender in a new action or as a cross claim for those causes of action.
Neil Garfield STUDIOUSLY refuses to tell his readers this reality, but the comprehensive mortgage examination provides the ONLY WAY a mortgage victim or foreclosure victim can get the house free and clear or obtain financial compensation for suffering the injuries from the lender or lender’s agents.
There is NO other way, as the attached court cases point out here in Connelly:How could the judge have stated it with greater clarity and simplicity?  What does Neil Garfield FAIL TO UNDERSTAND about this?  Everything, apparently.
You see the two possible scenarios?
Scenario 1.  By attacking the lender for mortgage torts, breaches, or errors, the borrower can win the house free and clear or financial compensation AND legal fees because the lender or agents injured the borrower.
Scenario 2.  But by attacking the foreclosure, the borrower can at best win temporary dismissal without prejudice on some standing issue, and the lender will refile and the borrower will lose the house and all the fees paid to the attorney, because the borrower injured the lender by defaulting on the mortgage.
Neil Garfield thrives on  and promotes Scenario 1.  Instead of performing comprehensive professional mortgage examinations, Garfield contents himself with hawking securitization and loan audits that do absolutely no good because they aim mostly at arguing over the foreclosure rather than attacking the original lender for causes of action underlying the mortgage.  And the statute of limitations has expired on most of the TILA/HOEPA/RESPA violations he might find, so they provide no basis for a lawsuit.
Let me clarify:  ONLY a comprehensive professional mortgage examination, combing through ALL of the documents related to the mortgage and foreclosure in the context of the borrower’s observations and experiences can provide a basis for settling with or suing the lender.  And such a settlement/suit will stop a foreclosure dead in its tracks.  It can result in the borrower getting the house free and clear, all legal fees and costs paid, and punitive damages.  Want Proof?  Read these stories and see what a SENSIBLE, COMPETENT attorney can do with a proper professional mortgage examination:
[Note that these stellar examples exist only because the lender or lender’s counsel was an idiot for not settling early – all settlements include non disclosure agreements to hush up the mortgage victim]

  1. House free and clear, legal fees/costs paid, $2.1 million in punitive damages –
    http://wvrecord.com/news/233771-quicken-loans-on-losing-end-of-3-million-predatory-lending-verdict 
  2. Wells Fargo lied on the loan application – $250K compensation, $1 million punitive –
    http://www.bizjournals.com/baltimore/stories/2008/08/11/story8.html?b=1218427200^1681713
  3. Ocwen lied to borrower who missed loan payment – $10 million actual damages, $1.5 million mental anguish and economic damage –
    http://www.bizjournals.com/southflorida/stories/2005/11/28/daily20.html?page=all
  4. 8th USCCA W. Mo. reinstated $6 million punitive damage arbitration award against servicer (Stark v. Sandperg, Phoenix & von Gontard, et al.)
    http://mortgage-home-loan-bank-fraud.com/legal/Stark%20vs%20EMC.pdf
If you have a mortgage, particularly if you have an under-water loan (you owe more than the value of the house), you NEED a professional mortgage examination to prove any causes of action underlying that mortgage.  If  you want such a mortgage examination, call me right now for help.  I’ll explain the solution strategy and connect you to a professional mortgage examiner who can provide you with a full examination report within 7 business days.
Bob Hurt
727 669 5511  – Call Now.  I charge no fee
(Yes, you may distribute this article far and wide, if you really want to help people)

Based on our reading of Guillaume and Deutsche Bank, we conclude that, even if plaintiff did not have the note or a valid assignment when it filed the complaint, but obtained either or both before entry of judgment, dismissal of the complaint would not have been an appropriate remedy here because of defendants’ unexcused, years-long delay in asserting that defense. Therefore, in this post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint.

In reaching that conclusion, we note that, contrary to defendants’ contention, standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not “void” within

[ 57 A.3d 25 ]


the meaning of Rule 4:50-1(d). In the federal courts, standing is a jurisdictional concept, because Article III of the United States Constitution limits the jurisdiction of the federal courts to cases and controversies. See Raftogianis, supra, 418 N.J.Super. at 353, 13 A.3d 435 (citing In re Foreclosure Cases, 521 F.Supp.2d 650, 653-54 (S.D.Ohio 2007)).

By contrast, the Superior Court of New Jersey is a court of general jurisdiction, Swede v. Clifton, 22 N.J. 303, 314, 125 A.2d 865 (1956), and in our courts, the requirement that a party have standing is a matter of judicial policy not constitutional command. See DeVesa v. Dorsey, 134 N.J. 420, 428,634 A.2d 493 (1993) (“Unlike the Federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, para. 1.”) (Pollock, J., concurring); Salorio v. Glaser, 82 N.J. 482, 490-91, 414 A.2d 943cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 7 (1980). “Because standing affects whether a matter is appropriate for judicial review rather than whether the court has the power to review the matter, and standing is a judicially constructed and self-imposed limitation, it is an element of justiciability rather than an element of jurisdiction.” N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 411, 686 A.2d 1265 (App.Div.1997),appeal dismissed, 152 N.J. 361704 A.2d 1297 (1998); see also Gilbert v. Gladden, 87 N.J. 275, 280-81, 432 A.2d 1351 (1981) (distinguishing the concept of justiciability from that of subject matter jurisdiction).

St. George the Anarchist? Adolf the Good Shepherd? St. George of Lydda was not a Good Shepherd, but on AH’s 124th birthday we might well reflect whether Der Fuhrer appealed to the sincere craving most people have for a Good Shepherd, a true leader: meditations at the Cusp of Aries & Taurus: April 20-23, 2013 in New Orleans, Louisiana

Today is St. George’s Day, the national day of England, Aragon & Portugal, Greece, and Russia (literally the Four Corners of Europe).  The real dragon that the historical St. George slew was not a scaly monster with wings but (in effect) the last gasp of Pagan imperialism and imperial taxation for the ancient Gods in Rome.  He was a nobleman who died a noble death for the highest of all causes: preservation of his own faith, morals, philosophy, and religion.  

George’s father, Gerontios, was a Greek, from Cappadocia, Asia Minor, a high officer in the Roman army of the Eastern Empire and his mother, Polychronia, was a Greek from the city Lydda, Palestine.  George’s parents were both pre-Nicene, pre-Imperial adoption Roman Christians and from noble families of Anici, so their child was raised with Christian beliefs, although it is probably fair to say that Christian beliefs of the late 3rd century might have included a lot of what we now consider “Gnostic” and other heresies.  His parents decided to call the future saint by a rather humble name: Georgios, which in Greek means “earth-worker” or “farmer”.  

No records attest or even suggest St. George’s birthdate or exact age, but “as a young man,” sometime in his early-to-mid twenties, before A.D. 302, George traveled to Nicomedia (now Turkish “Izmit” by the Sea of Marmara), the imperial city of the Eastern Roman Empire (from 284-324, just until the foundation of Constantinople).  There in what was then the Primary Center of the collapsing Roman Empire, George offered his services to the Eastern Roman Emperor Diocletian and applied for a commission in the Roman Army, specifically the late imperial version of the Praetorian Guard. Diocletian welcomed this young nobleman, apparently quite warmly, as the Imperator had known George’s father, Gerontius — one of his finest soldiers.  By his late 20s, George was promoted to the rank of Tribunus and stationed as an imperial guard of the Emperor at Nicomedia.

In the year AD 302, Diocletian (following his junior imperial co-regent Emperor Galerius) issued an edict that every Christian soldier in the army should be arrested and every other soldier should offer a sacrifice (tax or offering of some sort) to the ancient Roman gods still prominent at the time.  A Christian himself, George son of Gerontius objected and with the courage of his faith approached the Emperor and ruler.   Roman Emperors, presumably, did not much like their edicts to be questioned, since their edicts were law.  (The current President of the United States feels much the same way).  

George’s actions put Diocletian in a pickle, however.  George was either his best or one of his best tribunes and the son of either his best or one of his best officials, Gerontius.

In what can only be called an act of Anarchism and Defiance of Leadership, George loudly renounced the Emperor’s edict, and in front of his fellow soldiers and Tribunes he claimed himself to be a Christian and declared his worship of Jesus Christ.  Diocletian sought to convert George, to “save” him as it were for Apollo, Jupiter, Juno, and Zeus, even offering gifts of land, money and slaves if George would bow down and sacrifice to the Roman gods.  The Emperor essentially offered George massive and generous bribes and benefits, which the saintly young Christian never accepted.

Recognizing the futility of his efforts, Diocletian was left with no choice but to haveGeorge executed for his defiance.  But, just to make the Emperor’s situation worse, before his execution George gave all his not inconsiderable wealth to the poor and prepared himself. After various torture sessions, including laceration on a wheel of swords from which George survived three times, George was executed by decapitation before Nicomedia’s city wall, on April 23, 303.

A witness of his suffering convinced Empress Alexandra and Athanasius, a pagan priest, to become Christians as well, and so they joined George in martyrdom. George’s body was returned to Lydda in Palestine for burial, where Christians soon came to honour him as a martyr.  So the Dragon that George slew in fact was the dragon of obedience in violation of his faith, of his God and of his Truth.  St. George was a nobleman who followed no leader but Jesus Christ, although he might have been close in wealth to the Emperor had he consented to the bribery and pressure.   So let us feast today in memory of St. George the Anarchist, whose defiant death as an Imperial Tribune, so close to the emperor, brought the triumph of Christianity in Rome one major step closer.  

For all these reasons St. George was truly heroic and a model for our time, and his inheritance of the Ancient Indo-European mythic status as Dragon Slayer is altogether appropriate and fitting (see Calvert Watkins: How to Kill a Dragon Oxford University Press).  It seems particularly appropriate to celebrate St. George one week after April 15, in honor and memory of all who in adherence to their faith in freedom and the Constitution to defy the illegal taxes and sacrifices required of them in these United States today.  

In following Jesus Christ, St. George in fact died more as a Dragon himself than as a sheep—he died with full knowledge of the earthly riches and power he could have possessed, if only he had abandoned his Lord for his earthly leader.  

And all of this happened on the Cusp of Aries & Taurus (Does History Make Myth or does Myth Make History?): Does the following astrological characterization (“randomly” selected not by me but by Google as the first listed) seem at all appropriate for a week commemorating Adolf Hitler, Cannabis sativa L., Earth Day, Good Shepherd Sunday, and St. George’s Day?:

“Often times referred to as the as the “cusp of power”, the Aries/Taurus combination is one you do not want to fight against. I say this because you may never win; a fire/earth combination is never easy to beat. Aries is a fiery and impulsive sign.  They charge forward even where angels fear to tread and have no problem doing what needs to be done to obtain their objective. The Taurus part of this combination grounds the impulsiveness and provides an air of practicality and endurance. It is like a tug of war and the feel of both involved is set in concrete.
The Aries Taurus combination is truly dominant and capable of being a force you cannot control. Make no doubt, they will be a leader wherever they end up being and you will do their bidding. At home or even at work, they are the established principal and do not like submitting to someone else’s authority. At the same time, all of this ‘being the alpha’ of the group can also overwhelm them causing them to lose their drive or ambition. They begin to question if it is worth all their effort and skill. But for as strong as these two signs are, they are also very, very dangerous.
They are the first signs of the zodiac as well as their element and quality. Like many first signs you will always have a fight for lead position. They surround themselves with people who are not afraid to go toe to toe with them and don’t mind going that extra mile. They enjoy a challenge and love to be intellectually stimulated. As someone who loves an Aries Taurus cusp, you will need to be patient with them as they can be quarrelsome and changeable at the best of times, especially if you have their heart. You will get the brunt end of many aggressions because again, they expect you to be able to take it. If you can remember that they are likely to follow their instincts rather than rules, it might help you two get along better.  As a person living within this cusp, you are a bundle of energy at the best of times. The Aries in you is ready to take on the world while the Taurus in you thinks great idea but let’s sit down and plan strategy before you attack. If you are unable to find your own personal balance you are left restless and stressed. Finding the proper balance takes time, trial and error. You have to find your own path, one where you can let your aggressive nature out to play while keeping certain things in life stable and relaxed.”

(http://xstrologyscopes.com/articles/aries/aries-taurus-cusp)

We’ll see what happens today, but so far Sunday, April 21 has been the most dramatic day of this “Cusp” for me, mostly because of what happened at Church.  It was the Fourth Sunday of Easter and “Good Shepherd Sunday”—due to my own schedule and whereabouts on Sunday I ended up going to the evening service at the Trinity Church Chapel on Jackson Street instead of my usual trip to “Real Presence” at the Cathedral.  The 6:00 pm service at Trinity is much more conservative and traditional than the radically “avant guarde” event at the same time at Christ Church on St. Charles.  

The drama started immediately when the opening hymn was (Episcopal) 1982 Hymnal: 522 (Glorious Things of Thee are Spoken–http://www.hymnary.org/hymn/EH1982/522).  The words are almost irrelevant: the tune, the music, is Franz Joseph Haydn Opus 76, no. 3: the world knows this as Deutschland über Alles.  Interesting choice the day after Hitler’s birthday, don’t you think?  To aggravate the complexity of the thought, and the coincidence.  Father Henry Hudon’s sermon concerned “Leadership” concluding “the Good Shepherd is the one who leads his flock, whom his flock will follow willingly.”   The Psalm was 23 of course:

The LORD is my shepherd; I shall not want. 
He maketh me to lie down in green pastures: 
He leadeth me beside the still waters. 
He restoreth my soul: 
He leadeth me in the paths of righteousness for his name’s sake. 
Yea, though I walk through the valley of the shadow of death, 
I will fear no evil: for thou art with me; 
Thy rod and thy staff they comfort me. 
Thou preparest a table before me in the presence of mine enemies: 
Thou anointest my head with oil; my cup runneth over. 
Surely goodness and mercy shall follow me all the days of my life: 
And I will dwell in the house of the LORD for ever.

Historically speaking, Adolf Hitler was not a “Good Shepherd” for Germany or the world.  He did not lead them to green pastures or still waters but led Germany into near total self-anihilation by fighting a war that should never have been fought.  Even if we consider that Hitler had been a Good Shepherd for Germany right up until September 1, 1939, the invasion of Poland ultimately led to the cancellation of any good thing he or his regime had ever done.  Hitler did indeed lead the world into the valley of the shadow of death where everyone, both Germans and non-Germans, had much to fear in those days.  Goodness and mercy were not notable features either of the Third Reich nor the World War, nor of the Allied Occupation of Germany which followed.   The War Crimes Trials held in 1946-49 (and sporadically thereafter) are among the greatest mockeries of justice in history.

But none of this changes the fact that Hitler operated as a remarkably “Good Shepherd” in the sense of a persuasive leader—a man whom his people followed.  Many in the Patriot movement criticize Americans for being “Sheeple”—and yet our religion, or symbolism, everything in Christianity teaches us that the Lamb of God should be the leader of all the sheep.  The Gospel on Sunday was John 10:22-30 “My sheep hear my voice.  I know them, and they follow me.  I give them eternal life and they will never perish.  No one will snatch them from out of my hand.  What my Father has given me is greater than all else, and no one can snatch it out of the Father’s hand.  The Father and I are one.”  

One of Hitler’s Harvard-educated followers Ernst Hanfstaengl once rhapsodized about the Nazi leader, “What Hitler was able to do to a crowd in 2½ hours will never be repeated in 10,000 years,” Hanfstaengl said. “Because of his miraculous throat construction, he was able to create a rhapsody of hysteria. In time, he became the living unknown soldier of Germany.”  Hitler’s sheep knew his voice, but perhaps he did not know them.  Hitler not only gave an early death rather than eternal life to a huge number of his people, especially a near generation and a half of the good-looking young German men pictured in film-clip after film-clip from the 1930s shouting “Sieg Heil.”  What could be more ironic?  Hitler’s personality followed very closely to the Aries-Taurus cusp described above.  Was it written with Hitler in mind?

And herein is the deep and troubling problem: people crave leadership.  They long for a “Good Shepherd.”  This is not merely a feature of the German people at all.  The Americans since at least 2000 have recently been led down several paths by two good and persuasive leaders whom they did not question.  The paths on which the United States of America has walked since 2000 are clearly paths to tyranny, despotic dictatorship, and one form or another of Socialism or Communism which will be utterly incompatible with the Constitution of 1787, or its ten 1791 Amendments known as “the Bill of Rights.”  

The comparisons between Bush, Hitler, and Obama may get tiresome, but they are not pointless.  Very few people in the world are actually capable of living as true leaderless “anarchists.”  I fancy that I am one of the few who can manage, in large part because I am my grandparents’ grandson, and I know a few other true “anarchists”, but most people long to be told what to do.  While teaching I learned this: most students hate a professor who encourages them to go their own way and be creative.  They want strict instructions and stricter guidelines.

Prior to the Sunday of the Good Shepherd, I had spent parts of Saturday meditating as I always do on the horrible incongruity of 420 being Adolf Hitler’s birthday and International Marijuana-Pot, “Cannabis sativa culture” day.  I don’t smoke pot anymore (never did very much) but almost everyone else in the world does or seems to.  I last smoked in July 1991, right here in New Orleans in fact at a party my wife Elena and I threw in the Mary Martin suite at the Pontchartrain Hotel, within a few blocks of where I’m sitting writing this in fact.   Elena’s little sister Alex and a bunch of Maya archaeological luminaries attending the International Congress of Americanists including Clemency Chase Coggins, Merle Greene Robertson, David H. Kelley, Edward B. Kurjack, Norman Hammond, and Harriot Topsey, were having a great time lighting up in one of the rooms while others were sitting “talking shop” in another.  Elena made a gigantic scene when she found her (underage) sister smoking in a room full of adults and told everyone the horrible study of her brother George and his decline due to drug addiction (he died nine years later in January 2010, at the ripe old age of 51).  It was the beginning of the end for me and Elena but it was absolutely the last time I ever touched Pot.  

Still, as an anarchist I believe in Freedom and the right of each individual to choose his way, and for that reason I support the 420 movement to the extent that it proposes an abolition of all government interference with both the production, sale, and distribution of whatever people really want, even if they are led to destructive habits by bad shepherds….. Yes, I do think part of freedom is the freedom to follow even Bush, even Hitler, even Obama, even Stalin, but it is the duty of every Anarchist to try to turn sheep into wolves…..

Earth Day has never been that “big” a day in my life.  I was President of the Environmental Law Society at the University of Chicago and have always fancied myself an environmentalist.  But in recent years, I have become extremely uncomfortable with the Environmental Movement largely because of its alliance with “Agenda 21” and what Obama Czar “Cass Sunstein” (my former professor for both Environmental and Administrative Law at the University of Chicago) calls “Command and Control” state action.  “Command and Control” over the economy under PRETEXT of environmentalism is to my mind, totally wrong.  

I submit that sound money is the best guarantor of sound economic policy.  But for ludicrously extravagant government expenditures in the 1920s-1930s, none of the gigantic dams could ever have been built along the Colorado River and, without that hideous diversion of water, the ecological fiasco known as Southern California suburbia could NEVER have come into existence.  Los Angeles might have remained a small railroad town.  Although, pushing the model back further, the great railways of the 1860s-1890s which created (among other things) Los Angeles and Pasadena, would likewise never have happened if government had stayed limited and constrained by sound monetary policy and the Constitution of 1787, limited by the Bill of Rights.  Dams are the greatest ecological and environmental curses known to the Planet, yet they provide short term comforts which people love.  As I have often written, Dams are just the latest manifestation of “Oriental Despotism” which is the original form of state-based welfare, the original basis for welfare-based “command and control” over large populations.  Ecologically speaking, NOTHING is more wasteful, destructive, and against nature than the water-redistributive policies which have transformed Southern California, Southern Nevada, and most of Central and Southern Arizona into suburban wastelands.  Abolish the free credit easy money economy, restore gold and silver as the only lawful currency, and the dams will soon cease to function, have to be torn down, and the Southwestern Deserts will reclaim the suburbs, slowly but surely.  That is MY dream for Earth Day.

But finally, will it take a real St. George to achieve such an ecological turn around?  A modern St. George might well be the man who dismantles the dams.   St. George, the Patron Saint of England, Greece, Aragon (Catalonia), Egypt, Lithuania, Serbia, Ukraine, and Russia.   St. George, by all accounts, was a leaderless Anarchist.  He was NOT a Good Shepherd.  He apparently did not lead people at all, but acted alone and set an example.  I think this is why St. George is such an appropriate Patron Saint for England, and Americans would do well to think more of his example as well.  

Is America More a “Communist” or “Fascist” State Today? In terms of understanding and historical analysis, it DOES matter…

An ongoing conversation, of several years in duration, with Malcolm Doney of “Hanging Together for Justice” Florida and Melinda Pillsbury-Foster of Santa Barbara, California…

Malcolm Doney wrote on the evening of Friday, April 19, 2013: “Some of us mistakenly identify Obama as a Communist (this is Corporate Fascism).”

Well, as you know, I suppose I am one of those who “identifies Obama as a Communist” (for one thing, Obama’s late parents, both his father and his mother would be so pleased, so would his grandparents and “Godfather” Frank Marshall).  What’s more I think that the difference between calling Obama a Communist and a Fascist is the difference between really understanding what’s going on and NOT understanding it at all…

The Mortgage Crisis is what brings us together in this discussion: the question is—is the Mortgage Foreclosure Crisis a Failure of Corporate Fascism or a Triumph of Communism?  I maintain that the Mortgage Foreclosure Crisis still ongoing around the world today is the TRIUMPH of a century and a half of careful communist positioning and planning to abolish private property in real estate once and for all.

The historical threads that connect Obama to his Communist roots are very clear.  “Fascism” evolved in the 20th century ONLY as a reaction to Communism, and never had any real intellectual coherence or “platform” to stand on, Hitler’s wildly contradictory policies and behavior during his 12 year Reich being pretty much the key example of just what a “non-program” Fascism really was.  Mussolini “made the trains run on time”; here beginneth and endeth the lessons of Italian Fascism.  

But Malcolm Doney: you are without any doubt at all one of the smartest people I know and respect very highly in everything you do, but I have this argument repeatedly with you and (strange to say) another one of the smartest people I know whom I respect in everything she does, and that’s Melinda Pillsbury-Foster. Your command of finance, like hers of 20th century political and social history, is unparalleled.  But I think it is a non-trivial mistake you both make.  Barack Hussein Obama IS in every real sense of the word a Stalinist communist, and we live in a Stalinist Communist State today (or something close enough to a communist state that it is very, very scary).  

I think I have challenged both you and Melinda to this before, but I will challenge you again:  Attached here is a copy of the Communist Manifesto Communist Manifesto of Karl Marx & Frederick Engels 1848-1888, whose first programmatic platform plank is the abolition of private property in land by the means of leveraged lending and confiscation through central banking and easy credit.

I want you to tell me what parts of the Communist Manifesto HAVE NOT been implemented so far in America.  I can find almost nothing.  

There are some confusing semantic variants, to be sure: the Manifesto uses the phrase “Industrial Armies, especially in Agriculture.”  Since no such thing as an Industrial or Agricultural Army (NAMED as such) has ever existed in the history of the world, anywhere, you might think that this is one place where the Communist Manifesto has failed.

But I propose to you that precisely YOUR WORD “Corporate” is exactly what is meant by “Industrial Armies.”  “Corporate” is merely a Latin-derived word for a group of people acting with one general mind and one general purpose.  Modern Mega-Corporations are the very Industrial Armies that Marx proposed, they have just chosen a more traditional label than Marx’ because “Armies” rarely create anything—they normally specialize in destruction.

“Fascism” by contrast, is a bogeyman, a non-existent chimera.  There are neither any “Fascist Constitutions” nor “Fascist Manifestos” which have the coherence or comprehensive coverage and organizational application either of the U.S. written Constitution, the unwritten Constitution of (pre-1930s) Great Britain, or the Communist Manifesto.  

The so-called Fascists of history were pretty much improvisers—not great thinkers or theoreticians at all—they mostly made it up as they went along.  That is part of the reason why they were all such catastrophic failures—the most amazing feature of Hitler’s regime was its capacity to make alliances and treaties and to immediately break them in a manner that doubly and triply made the world hate him.  Even Hitler’s anti-Semitism, at the very beginning of his Chancellorship, was aimed primarily at the formation of the State of Israel—how ironic is that?  

Little is remembered of those early days when Hitler was effectively a Zionist….. but the whole world remembers the Stalin-Hitler/Von Ribbentrop-Molotov Pact which treacherously, fiendishly, split Poland in 1939, which only lasted two years before Hitler broke it and invaded Russia, which he never would have done if he had ever read the history of Napoleon, who was a much greater military strategist than Hitler, to put it mildly.  And that is how Fascism was—it was opportunistic and “reactionary” in the most fundamental sense: “Fascism” came into existence ONLY as a pro-Elite alternative to Communism, and therein is the only consistent difference: whereas Lenin, Stalin, and Mao all wiped out not only the Elites but the Middle Class of their countries, Hitler, Mussolini, Franco in Spain, Petain in France, and Admiral Horthy in Hungary all sought to preserve the Elite and Middle Class.  And that is also, in my opinion, the only real similarity between Hitler, Mussolini, Roosevelt, and the British Prime Ministers from Lloyd George Forward—they implemented socialist programs while keeping the elite and (for the most part) the middle class in place, although the middle class was always easily dispensable.  

Other than this feature of Elite preservation, nothing unifies the West with the Fascist movements, but by Contrast the Communist Manifesto does explain it all….

So, seriously—read and study the Communist Manifesto attached and tell me how this is not the DE FACTO Constitution of the United States of America at the Present Time…

I will anxiously await your commentary..