"Malum in se" and "Malum prohibitum" The critical difference
Updated: May 17, 2020
From Wikipedia: "Malum in se (plural mala in se) is a Latin phrase meaning wrong or evil in itself. The phrase is used to refer to conduct assessed as inherently wrong and harmful by Nature, independent of regulations governing the conduct. It is distinguished from malum prohibitum, which is wrong only because it is prohibited by virtue of statute or legislation."
(Note: this post was originally published on January 7, 2018 and live ever since. After minor edits reposting here. Please see "Earlier Blog Posts" page for expansion of these topics here, thank you.)
Our battle in the arena of fraudclosure is an example in which what is currently deemed legal, allowable and even codified by statute as fair-play no-foul becomes evident as allowing conduct that is wholly incorrect, unjust, immoral and a violation of other standing laws still on our books such as Law of Contracts and Law of Voids, not to mention the original United States Constitution. Under contract law, both parties must reach a "meeting of the minds" and this requires disclosures free of misrepresentation either by commission or by omission when materially-substantial elements of the contract are due.
As it turned out these were not lawfully valid "loan contracts" in which a borrower could know the identity of her lender on any given day as per Uniform Commercial Code governing negotiable instruments such as our promissory notes when sold from our original "lender" to a subsequent party. No, we put pen to paper and signed ... only to have our wet-ink signatures immediately stolen and morphed ABSENT OUR CONSENT into investment schemes in the process called "securitization" by Wall Street.
We "borrowers" on Main Street who signed were duped into Unconscionable Adhesion Contracts in which theft of our signatory-credit was our central injury; an injury whose damages extend as far as the unregulated greed frenzy of Wall Street insiders would allow themselves to stretch our injury, streamlined in its speed by our own government through changing rules and laws, through deregulation, through fines as slaps on the wrist and the cost of doing business for "too big to fail banks" [!?!] instead of lawful prosecution of criminal conduct.
Our signatures were pilfered and rendered the property of someone else other than we who own our autographs and our consent by them! Cloaked entities and their minions taking their cuts, corporations agreeing to be "nominees" in pretender-roles for their piece of the pie once the properties were flipped post-auction, people and enterprises who we had no clue even existed profited immensely from the wet ink from the stolen seal of our honor, our autograph by signed hand which is our property not theirs, all without due disclosures to us and certainly without our consent to be subject to the harms. All this results in Contract Void Ab Intitio: both the patented note and the mortgage or deed of trust instruments are thus arguably Void, cancelled, and of no effect at its inception, by virtue of Natural Justice and other governing law which have never left our books nor our reason.
For example, one such statute in California which has been violated with every single Fannie Mae / Freddie Mac patented "Deed of Trust"instrument issued naming "MERS as Nominee .." is California Code of Civil Procedure 1132-34 governing "Confession of Judgement." Borrowers were confessing judgement against ourselves by way of the undisclosed and unconscionable adhesions embedded into the Deed of Trust instrument. Yet these cleverly devised instruments fraught with quotation marks around words of legalese doublespeak, constitute an IMPROPERLY-EXECUTED Confession of Judgement. This fact by law contributes to additional arguments that the Deed of Trust as written and executed at signing is in fact a Contract Void ab Initio. Void at signing. Contact law and the law of voids is thereby invoked. [A detailed discussion of CaCivCodeProc 1132-34 Confession of Judgement in audio and writing is found on the Resources page]
Clearly, we now uncover, we could no longer remain parties in contract to that for which we wholly did not consent! It appears however that for those who profited in the scheme, such a thing as "consent of the borrower" was deemed by the algorithm and business model as an externality; our rights as living human beings and dwellers in homes and on land deemed superfluous to these usurpers of our rights, BECAUSE THE NEW STATUTES DEEMED IT LEGAL, clever legalese written down in a few places and hidden in plain sight. Add greed frenzy run amok and you have injury without constraint, built on deceptive harm wielded on Main Street. How many of us are bombarded by these "financial weapons of mass destruction" relentlessly as we worry and stress whether we have security in our own dwellings? Far far too many of us. But take heart: the wrongs are being analyzed for what they are and the architecture and legalese is no longer as hidden in plain sight as before. The unconscionable deceptions are being SEEN in plain sight more each day.
Home-dwellers of every color, income, status and culture here in America, our scholars, writers, journalists, filmmakers, whistleblowers and many many moms and grammas (especially we women of home-and-hearth) along with our men are seeing behind the contrived confusion. Our very survival depends on it.
From "A Short History of Financial Deregulation" http://cepr.net/documents/publications/dereg-timeline-2009-07.pdf
is a timeline of financial deregulation:
1996, Fed Reinterprets Glass-Steagall – Federal Reserve reinterprets the Glass-Steagall Act several times, eventually allowing bank holding companies to earn up to 25 percent of their revenues in investment banking.
1998, Citicorp-Travelers Merger – Citigroup, Inc. merges a commercial bank with an insurance company that owns an investment bank to form the world’s largest financial services company.
1999, Gramm-Leach-Bliley Act – With support from Fed Chairman Greenspan, Treasury Secretary Rubin and his successor Lawrence Summers, the bill repeals the Glass-Steagall Act completely
2000, Commodity Futures Modernization Act – Passed with support from the Clinton Administration, including Treasury Secretary Lawrence Summers, and bi-partisan support in Congress. The bill prevented the Commodity Futures Trading Commission from regulating most over-the-counter derivative contracts, including credit default swaps.
2004, Voluntary Regulation – The SEC proposes a system of voluntary regulation under the Consolidated Supervised Entities program, allowing investment banks to hold less capital in reserve and increase leverage.
Iconic Ms. Rebecca Mairono of Countrywide called her best game the "hustle" for High Speed Swim Lane, HSSL, to motivate her loan closers to churn them out, later evading punishment and landing a nice job with the help of JP Morgan Chases' Jamie Dimon, how nice; while another Countrywide executive led his team with his own motto "If they can fog a mirror close the loan!" Predatory lending and non-disclosures became the lucrative norm for about a decade until it all started to come crashing down. [these quotes are searchable in video and news reports by former Countrywide employees.]
Thus, in possession of stolen loot in the form of millions of "borrower" signatures, those profiting from closing loans to anyone who could "fog a mirror" and while doing the quick-step "Hustle," salivated all the more knowing that Wall Street purveyors of Residential Mortgage Backed Securities (RMBS) were ravenously demanding more wet ink signatures of borrowers as fast as possible from the mid-1990s to the mid 2000s especially, a decade of doom. The preparation and eventual passing of N.A.F.T.A. in 1998 North American Free Trade Agreement ushered in "runaway plants" when America's manufacturing base fled to cheap labor overseas leaving ghost towns in their wake here at home, and great financial and material hardship and disruption across generations, felt still today.
De-regulation took the form of a constellation of woes over about three decades from the '80s ... and no coincidences for timing --- Main Street calls it out: we ARE the alarm, we now awake. With de-regulation and the repeal of Glass-Steagel in 1999 the algorithm called for rolling out of the red carpet for risky and arguably unconscionable exotic financial products which never before saw the light of day -- how did they think these things up anyway? Mainstream media celebrated "financial whiz kids," inventing such high-brow genius new exotic products! FWMD. We believe now that "wizardry" isn't too far-fetched a term -- Main Street may not know how the AI gave the signals nor do we need to. FWMD - WE are the proof in the pudding. Financial Weapons of Mass Destruction. And of course, the domino effect is felt throughout -- top to bottom, bottom to top. [FWMD is a term used by Warren Buffett ... we will blog more on this in future posts.]
Who thought them up? Who set this algorithm in motion? How could our Congress and "representatives" have allowed these to be unleashed? How? Certain pressures towards delegating law-making to unelected bureaucrats who make quasi-laws to fill the vacuum left by our elected representatives apparently, and incentivization structures designed to dismantle a sovereign Republic. We are in a dire battle for the Rule of Law to stand against some awful tyranny. But how many see this? To see it now is to see it none too soon.
Perhaps there are many more out of court settlements than we know of; because the light of day is enemy to evil done in the dark. But these sealed controversies stay locked out from publication and citation to win more cases. We Main Street not of the law-society, home dwellers standing our ground have long known that we "win" this out of court by "sacred warrior guerrilla lawyering" more than we can hope for in most litigation inside the standard courts today.
California statutes we discovered turn out to be ARGUABLY UNLAWFUL yet legal only by the stroke of a pen. Over two-thirds of the States have degraded the rule of law and due process rights to codify the aberration of justice known as "non-judicial foreclosure" in keeping with another failed idea known as "title theory" wherein a borrower unwittingly and improperly confesses judgement against herself at signing the note and deed of trust, all made "legal" by the passage of a Trust Deed Act and a violation of existing statute.
We on Main Street choke on our words. It's a scream. Its an ache and a break -- a gut-wrenching assault upon all our faculties as this dawns on us.. But many have been challenged and compelled to stare down this beast while studying .. waiting. studying watching. Finally: "YIKES. No way. Main Street under attack, viciously but oh so cleverly because it CREPT UP ON US. What a perfect Trojan horse! "Come take your American dream, here it is! In it we have hidden the American nightmare -- and we aim for the "posterity" to be prostrate in the streets before they realize the massive tidal wave that hit them and mowed them over in great swaths of broken neighborhoods and families."
But, which of us have learned the magic word?
Some of us are the ones who remember the word "NO."
And we learn the power of our inalienable right to CONSENT or NOT to consent:
We learn it is our right to say "No, I do not consent; you have NOT obtained my consent; you are wholly ABSENT MY CONSENT."
Each individual's CONSENT is his or hers to grant OR to refrain from granting-- as long as our action does not inflict unjust harm on another living being.
What is a Republic? It is a NATION OF LAWS.
The Laws of this Republic of the United States of America, have a basis in something sovereign and bigger than men, women, and governments:
"Human law must rest its authority ultimately upon the authority of that law which is Divine."
-- James Wilson, Signor of Constitution & Supreme Court Justice, 1804
There is NO OTHER NATION with the laws of THIS REPUBLIC: How many have read and know our own Declaration of Independence, Constitution of the United States (the original one), our Bill of Rights (without which the People would NOT have allowed the Constitution to be ratified.) Woe to the schools who FAIL to teach our children the tenets of Liberty and the Laws of this Republic! These laws have NOT left our books! they state that "government" cannot and does not "grant" rights naturally and originally endowed by the Creator -- yet it states that government is RESTRICTED FROM DENYING "natural inalienable rights" endowed by the Creator.
Liberty is CODIFIED IN WORDS in THIS Republic: "Our laws. Our liberty. Our responsibility. Our rights." Says We the Posterity.
Those who want to "rule the world," would hate our liberty. These three things - in this order of importance are written in our founding laws, as the minimum basis for ensuring Liberty and a just society with a moral code in our relations: that is "the pursuit of Life, Liberty and Property (as well as Happiness - both appear). " With liberty comes responsibility. And property by rightful possession is both basic need and sustenance as the fruit of one's honest labor and production of value. [See Frederic Bastiat on "What is Law?"]
Who can not be outraged? "Woeful abominable injury! Unjust destruction to the people who actually produce value in society, and to their children and elders. Woe to America. And the world." Alarm bells ringing, jolting many awake.
The history books of the future will be the history BLOGS of today -- and there is no shortage of narratives of this past decade of debauchery and deep distress: See the film "The Big Short" based on Michael Lewis' book by the same name. Then, see "99 Homes,"
And of course let's never forget these two "Michaels:" Author Michael Lewis and Michael "Credit-Default-Swap" Burry. WORTH WATCHING 60 Minutes clip: Words fall short really: Except for two: MORAL HAZARD. And that's putting it politely.
This strange animal called a CDS made Michael Burry and his investors more than $725 Million in a very short amount of time -- because he was correct when he realized that Wall Street had "lost their mind" and was on the wrong side of the bet. Hence the title Lewis' book, The Big Short.
These "genius cutting edge whiz kids" thought someone's parents' were in control ... but it turned out no parents were in charge. At all. Just themselves, greed-addicted adolescents run amok were IT. There may have been a wizard behind a curtain or an AI behind closed doors; but that's another narrative for another blog post.
There are so many good writers and books! This blog will review some of them in future posts. I must also mention two more writers: Nomi Prins' All the Presidents' Bankers, and David Dayen's Chain of Title. which could and has made many of us sick to our stomach .. because its real and happening.
How does an investment broker at Goldman Sachs sell his own trusting clients on something he and his own firm bets against? To Mr. Lloyd Blankfein: If that's not unconscionable I do not know what is.
Overwhelmingly, investors were NOT privy to the covert back-end structure of their investments: they were told professionals were insuring collections and posting of monthly mortgage payments AND that investors would owe NO taxes on these special returns; because of clever "tax-exempt pass-through conduits"and "special purpose vehicles" these finance whiz-kids had drummed up. Lucky for their retirees wasn't it? Pension fund managers and other large and small investors had been seduced and convinced these were the hottest investment products invented by finance wizards who had managed to fanagle them into tax-exempt returns with impossibly good ROIs. What could possibly go wrong? they were told: Everyone pays the mortgage on their own home! Plus, look at these regulators giving them AAA ratings! All across America now, our retirees and pensioners are at risk of not having enough steady income to cover their needs --- municipal districts, counties and states are holding our breath ... we need to correct this grave wrong to our elders!
NOW, we know these regulators at the top knew this was casino gambling that they could see would cost people our life savings, our material and financial and emotional well-being, our marriages and family unity, and far too often our lives; while devastating the nation's economy as a whole. How could so many be structurally incentivized to this dereliction of duty? Well, certainly they could point to the precedent laid out years even decades before. They could parrot, "I was just following orders. This is my job description." This is why we champion whistleblowers who denounce the harm with a cry of "No." [See recent 01/02/2018 blog post on bank whistleblower protections press conference, and former federal prosecutor Bill Black who testified before Congress "We knew this was Three-Card-Monte!"] .
While trusting investors were duped the insiders took gains coming and going: CREDIT DEFAULT SWAPS has a ring of authenticity to it, but what happened was sheer malfeasance. Those who "bet against the entire American economy" either because they were privy to the insider scoop or were clever enough to see the house of cards coming down before most, cashed in by betting that the mortgage bubble would burst -- and insurance giants like AIG who was BAILED OUT BY TAXPAYERS via The Fed and Treasury - paid these insiders handsomely. SO ... while these greed-addicted parties went happily along their way they did NOT want their name anywhere near any injured outraged borrower-homeowners who may have gumption enough to fight back with litigation. They GOT their loot. They'd let underlings do the dirty work -- mustn't let Main Street in on the greatest heist and land grab in our nation: so unleash mainstream media propaganda about "deadbeat homeowners," and later let a few small-fry sleazy robo-signing companies go down. But keep waving smoke and mirrors you minions, and KEEP FORECLOSING. When they're homeless they'll stop fighting anyway....
Add to that bailouts without mandates to the TBTF banks and you have the biggest baddest insiders throwing our "non--performing loans" to NON-BANK DEBT-COLLECTOR third-parties we know all too well as "mortgage-servicers." Now THESE bottom-feeder entities are essentially vulture-fund enterprises setting up FMLFs [Foreclosure Mill Law Firms] to serve as middlemen on the REAL ESTATE to waiting cash-holding syndicates. "Loan Modification?! Are you kidding?" The investors lost but had no contract on the collateral -- part of the plan of course: Hint: Investors, pension funds ARE the "injured party" but not owners of the LOANS. They bought securities i.e. investments that went sour, too bad. ... Oh, and the poor "Lenders?" Those "table-funder-pretender-lenders-in-name-only were stand-ins for the insiders who already got their Credit Default Swaps,CDS, right? THEY already ran off with the loot remember? So, we ask, who's left? Just the "servicers" with ZERO true owner of the loan, ZERO injured party they're collecting for, ZERO valid debt owed to ZERO entity. BUT you need an entity name to collect for, you need to give a name for the "creditor / beneficiary/owner of the loan and note" claiming injury.
Enter the rent-a-bank name as "trustee" of a long-ago-closed-nonperational Wall Street Trust. Wow, brilliant. Cold calculating brilliant deception every which way coming. Clever word magic sprinkled liberally with "legalese." A foreign language for the law society .... unless our lives depend on it.
THAT'S why only "mortgage-servicers" and their partner FMLF foreclosure "substituted trustee" entities with their legal counsels ever show up in litigation -- EVEN THOUGH EVERYTHING THESE LAWYERS AND THIRD-PARTY STRANGERS TO THE TRANSACTION CAN PRODUCE IS HEARSAY. These can NEVER nor do they ever produce an appearance of the actual "injured party and current true owner and creditor of the mortgage-debt." NO SUCH ENTITY EXISTS. Unless you call in the hundreds of thousands maybe millions of PENSIONERS and little-folk investors in from out of the cold on Main Street! [www.msfraud.org is an early resource for us being mowed over by this fast-moving unnatural disaster; stands for Mortgage-Servicing Fraud, founded by our valiant colleague and friend, Jack Wright, RIP, one of the first to be blindsided with this in 1998. Website still curated by some of his friends and colleagues]
Waking up is hard to do, often painful. Old beliefs cling and battle with the self-evident, the mind has to quiet down to restructure. But denial and slumber of our condition is far more painful when we are caught blind-sided. If there's a blessing in being attacked with fraudulent foreclosure it is that heartbreak breaks the heart open so something new emerges; and the heart must grow larger for the breakthrough. ... If we are to evolve. And we find one another, community emerges. Community is our most treasured currency.
Yes, this was an elaborate scheme of many moving parts. When the Global Financial Crisis hit the GLOBE, everyone felt it. Homeowners were DENIED LOAN MODIFICATIONS overwhelmingly when "mortgage-servicers" were completely DE-INCENTIVIZED to reinstate borrowers and instead their entire business models were STRUCTURALLY-INCENTIVIZED to foreclose and flip the properties to evade being sued. Cash-holding buyers of foreclosure properties put up "straw-buyers" and thus evade being identified. Mortgage-servicing enterprises are the cogs and wheels of those who end up taking title, however clouded, to these ill-gotten gains; our HOMES.
Homeowners thus lost homes even while all taxpayers were stuck with bailing out "too big to fail" banks who in turn promised to modify our loans; but the problem was that these banks threw us to non-bank mortgage-servicers, mere third party debt collectors who, as stated, had only one incentivization: foreclosure. Loan modification was not built into any part of their business model incentives. Go figure. Meanwhile our seniors and pensioners who SERVED OUR COUNTRY through a lifetime of honest work, lost retirement account payouts and Main Street continues to bear the brunt of Operation Grand Theft Dwelling. Main Street must not consent to this scourge; but many don't understand it or see only a tiny part of it so people don't know exactly the best or most effective way to revoke our consent and fight back for home and dwelling and against the injury and wrong.
The investors on the outside had no rights to the collateral real property, nor did they have a contract with any borrowers - these belonged to the middlemen the insiders the ones closer to the central programming and architecture of these abhorrent algorithms. Algorithms super-smart and inhumanely cold and calculating: steal properties under color of law. Living human occupants are an externality. and aren't seen in this equation. Someone signed; and no one opposite that signature by signed hand shall be deemed responsible for disclosures to the one whose pen met paper; no it is enough that the algorithm sees a wet ink signature and deemed it as consent by the signor; whether consent and a meeting of the minds ever remotely was granted by that living human being whose seal by signed hand adhered her to the unconscionable.
How did a bunch of soccer moms and grandmas in aprons and scrappy non-lawyer folks on Main Street come to know all this? We used to be clueless; we used to simply trust our home loan professionals and mainstream news of expert advisors urging America to "tap into your home's nonstop growing equity and thereby stimulate our economy..." rallying Main Street to go for our dreams by way of the American Dream of owning a home. But it turned out to be a nightmare for far too many, of EVERY socio-economic class on Main Street anyway.
This fight costs. Mama or Papa started staying up super late or getting up super early researching and writing on her computer there at the kitchen table when the house finally got quiet ... TO SAVE THE FAMILY HOME. Its just that simple.
It cost us our health. Our marriages and relationships. Our self-employment. Our time for our children and grandchildren when they needed us. It cost us price beyond measure.
So then ... how DO we continue to scale this
steep learning curve and stand our ground?
By sharing what we've learned and gaining empowerment within the community we seek and find. By what means have we deduced these things? By virtue of being attacked but rather than succumbing to victimhood, we declared instead "NO, I do not consent."
By our own judicious application of LOGIC, OBSERVATION, STUDY and DEDUCTION; along with understanding of Natural Law and Justice principles. By us knowing the difference between Right and Wrong and saying NO to wrongdoing and its resulting harm.
By surviving the battle, dressing our wounds, getting back in the saddle or lifting one another back on when we need help. By connecting the dots from what the scars have taught us. By reading what our very attackers pen by their own hand! By RESEARCH, READING, RESEARCH and so much reading. By prayer and meditation on the piles of works we've read.
By studying the unselfish and courageous education provided by former insiders, honest legal professionals, whistleblowers, journalists and bloggers, docketed cases many written by pro se litigants, and a very few but applauded favorable published court opinions.. Our PhD-intense learning has largely been online and through the grapevine.
By DISCERNING what our attackers' failed logic reveals and POINTS to, then by courageously speaking and writing what that appears to reveal which had been undisclosed, even "hidden in plain sight." When homelessness and material- emotional- and financial-destruction is the beast staring you down, you stare harder right in the eye and learn legalese to save your life. By knowing clearly "for the sake of what" we keep fighting.
By believing that what's at stake is worth fighting for.
And because of what's at stake, not giving up.
We have tried to pay them; begged to pay them; they refused our payments and aimed to steal our homes instead. Foreclosed homeowners are overwhelmingly NOT deadbeats. If you think so you've been drinking the kool-aid of mainstream media.
We contact our county officials, our consumer protections agencies and non-profits, our DA and Attorney General offices... our COURTS. Our hired attorneys too often betray the homeowners. Yes there are lawyers who have honor, but many just don't know how to unravel such clever, yea brilliant doublespeak and deception of the algorithm and operation, the "sting, the con." It is sad and terribly disappointing that far too many on Main Street share our stories to warn one another of these double-speak lawyers, to commiserate, to vent and empower and encourage. Our injuries however have also of course brought us together in community and much-needed collaboration and mutual aid. Indeed without one another here on Main Street, in these trenches, we could never have come this far!
HOME. Calling home and dwelling a "human right" is watering it down: we shouldn't have to demand the "right" like its an optional privilege. We claim the right as correct, true and in keeping with Universal Natural Law to reside peaceably in our dwellings. Living human beings bring dependent infants into the world as birth is natural; we care for our frail and dependent elders in the same way, in our homes. Living human beings are biologically endowed with dwelling as an extension of that biology, as a state of being; and tribe and family relationships as an extension of human existence.
HOME and its safety, therefore, is deemed a condition-inherent
And I ask of us, "What is the legacy we wish to leave to coming generations, not only in our own family lineages, but to all the coming generations who will ponder these times we are in right now?" When we are 85 years old sitting in our rocking chair, mind sharp as ever; and a bright young person with clear eyes, no guile and bold intelligence asks us, "How was it for you during the 2008 global financial crisis and what were you doing for the next decade after?"
. . . . ....
"Oh, I see..... WHY?"