Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Moose
Folks, don't expect the recent rash of rulings in Ohio to be something to hang your hat on when combatting mortgage servicing fraud unless you have a seriously dedicated and aggressive attorney.

When a predator is coming after you because they can profit from taking your home, the Ohio rulings are nothing more than a potential temporary delay in their plan IN THAT DISTRICT.  All the predators have to do is go back into the huddle and call their better second and short play.

The issue of who has status to sue for foreclosure being raised here is nothing more than a small floating object being tossed as if it were a life presever to most victims of mortgage servicing fraud. It's an anchor. Hanging on to it may take you under.  The servicers and trustees will adapt.

If you can't afford to live where you live, the courts are going to eventually hand them the property. If you can afford to hold on, you have to find a way to get competent legal counsel to stop them.

My non-professional, non-legal advice is to cut your losses and get out of any mortgage loan situation where you were in subprime status. That might mean selling and then leasing for a couple of years in a neighborhood where your kids can still be in decent, if not the better schools.  Amplfiy their education with home schooling if you have to. Don't let your pride and ego drive you into the bigger house in the better neighborhood at the risk of being put in the cross-hairs of a predatory lender and their hand maiden servicers.

That is the world we live in for now.  Choices are tough, especially when you've been taken advantage of.

There is time to start over.

Moose.

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Originally Posted by Moose
Folks, don't expect the recent rash of rulings in Ohio to be something to hang your hat on when combatting mortgage servicing fraud unless you have a seriously dedicated and aggressive attorney.


First, I CONCUR with the idea that SUCCESS is greatly enhanced by teh availability of a "seriously dedicated and aggressive attorney".

But quite frankly MANY if not MOST attorneys still have NOT caught on that standing is almost ALWAYS a central issue that needs to be raised in a judicial foreclosure setting.  And frankly, it may also be helpful in obtaining and enforcing a temporary restraining order to preclude a non-judicial foreclosure.  And in a bankruptcy situation, questions of standing ALWAYS need to be raised within the context of the PROOF OF CLAIM.

While it would be BETTER to have an attorney, almost ALL of the Ohio dismissals involved courts dismissing cases sua sponte for defendants who were UNREPRESENTED.  Defendants are well advised when properly served with citation to ANSWER and CONTEST the foreclosure and to raise standing as an issue in a plea to the jurisdiction.

Contrary to your suggestion, standing is virtually ALWAYS a potent argument in ANY federal judicial foreclosure and in judicial foreclosure in almost EVERY STATE.  But Defendants need to take their own counsel and do their own research to present the arguments most effectively in their state.

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Originally Posted by Moose
When a predator is coming after you because they can profit from taking your home, the Ohio rulings are nothing more than a potential temporary delay in their plan IN THAT DISTRICT.  All the predators have to do is go back into the huddle and call their better second and short play.


While I am inclined to AGREE that for MOST Ohio defendants whose cases have been dismissed, these dismissals is only going to be a SPEEDBUMP, this is because (a) the defendants are almost ALL UNREPRESENTED and are mostly NOT prepared to make the effective arguments in Ohio State Courts where these foreclosures are being REFILED, and (b) the few Ohio attorneys representing debtors seem to thus far be totally UNAWARE of the REAL IMPLICATIONS of these dismissals.

The REAL IMPLICATIONS will emerge in the coiming months in those cases that ARE well litigated.  But in almost ANY instance where a federal case was recently dismissed by the Court, I believe that the defendants CAN SUCCEED in abtaining a COMPLETE DISMISAL WITH PREJUDICE in State Court resulting in the TOTAL EXTINGUISHMENT OF THE DEBT. 

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Originally Posted by Moose
The issue of who has status to sue for foreclosure being raised here is nothing more than a small floating object being tossed as if it were a life presever to most victims of mortgage servicing fraud. It's an anchor. Hanging on to it may take you under.  The servicers and trustees will adapt.


Moose, frankly, this is UTTER NONSENSE!  You simply DO NOT KNOW WHAT YOU ARE TALKING ABOUT!

Defendants need to plead the VIABLE defenses...  ALL of the VIABLE defenses.  Standing is now a VERY VIABLE defense in virtually EVERY judicial foreclosure action!  It was ALWAYS a viable defense.  But is was almost NEVER BEING PLED.  Changes in the Ohio Federal Court Rule has SHIFTED the burden there, as the Federal Courts have asked plaintiffs to produce UP FRONT the basic evidence that EVERYBODY SHOULD HAVE BEEN ASKING FOR ALL ALONG.

Frankly, I think that the Ohio Federal Bench is STUNNED that the simple things that they were asking for -- the promissory note, the mortgage or deed of trust, the ASSIGNMENTS showing a transfer to the plaintiff, and an affidavit of ownership -- are NOT readily available.

I do NOT think that YOU -- Moose -- understand WHY the plaintiffs CANNOT furnish this proof!  THIS IS NOT A SPEED BUMP!

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Originally Posted by Moose
If you can't afford to live where you live, the courts are going to eventually hand them the property. If you can afford to hold on, you have to find a way to get competent legal counsel to stop them.


There are going to be A FEW WELL LITIGATED CASES where the borower will find the entire indebtedness is actually EXTINGUISHED.  More often, a well litigated case can lead to a meaningful settlement that involves some COMPROMISE and restores some VALUE to the defendant / borrower.

But I AGREE WITH YOU Moose that those people who CANNOT AFFORD their homes need to be thinking in terms of a settlement that best preserves equity (if any), household finances and leads to a stable and durable situation.

Again, I CONCUR that competent counsel is IMPERATIVE.  But most folks actually need something MORE than just a good attorney.  Ed Cage has pointed to the value of a good forensic accountant where MS Fraud is present.  And frankly, I think that most attorneys probably also need a copetent expert witness who can IDENTIFY evidence fabrication.

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Originally Posted by Moose
My non-professional, non-legal advice is to cut your losses and get out of any mortgage loan situation where you were in subprime status. That might mean selling and then leasing for a couple of years in a neighborhood where your kids can still be in decent, if not the better schools.  Amplfiy their education with home schooling if you have to. Don't let your pride and ego drive you into the bigger house in the better neighborhood at the risk of being put in the cross-hairs of a predatory lender and their hand maiden servicers.


I would AGREE that getting out from under an oppressive subprime loan is VERY IMPORTANT.  But I think that one of the things you are MISSING HERE is that despite all of teh rhetoric about interest rate freezes or loan modifications that the REAL loan modifications are going to be offered IN SETTLEMENT when the mortgage investors are backed up against a WALL.

Whether to SELL immediately or hold depends upon a wide variety of factors, including price levels.  There are many whose properties already have NET NEGATIVE EQUITY.  The decision in such cases as to whether to hold or walk away depends in part upon the anti-deficiency judgment statutes of the state where the property is located as well as the borrower's overall net worth and financial situation.

Those in the MOST DESPARATE circumstances will sometimes actually be the very borrowers who will MOST READILY qualify for workouts, because workouts will then be MORE ATTRACTIVE to teh mortgage investors than foreclosure.  This is a very complex and treacherous area and there is no "one size fits all".

Holder In Due Course Defenses
One of the most remarkable ways in which the mortgage investors have stubbed their toes is in their failue to DOCUMENT the transfer of the loan WELL IN ADVANCE of the borrower's distress and default.

The UCC makes a distinction between a holder and a holder in due course.  Generally, issues such as fraud in origination or fraud in the prior servicing CANNOT BE ASSERTED against a holder in due course

Some mortgage investors seem to be FLIPPING the servicing before foreclosure to try to ASSERT a holder in due course status by the subsequent foreclosing servicer.

When an investor creates evidence by belated assignment of a transfer AFTER the onset of default, the mortgage investor is NOT eligible for holder in due course defenses!  The dim bulbs running the foreclosure mills have become both so arrogant and so complacent that they have FORGOTTEN the things they should have learned to pass a basic law school exam in commercial law!

IN EVERY INSTANCE WHERE A FORECLOSURE HAS BEEN BASED UPON A BELATED FABRICATED ASSIGNMENT, THE MORTGAGE INVESTOR NOW STANDS TOTALLY EXPOSED FOR ALL MANOR OF DEFENSES RELATED TO FRAUD INTHE MORTGAGE ORIGINATION PROCESS!  SURPRISE WALL STREET!  I BET YOU DIDN'T SEE THAT ONE COMING!

When a borrower PLEADS standing, the plaintiff is going to have to SHOW the origin and chain of their ownership of the promissory note and mortgage, deed of trust and/or other mortgage security instrument!  That is very often going to open the mortgage investor up to a variety of other POTENT and viable defenses, including ORIGINATION FRAUD and SERVICING FRAUD.

Moose, you have been giving folks at this Forum sober, sane and sensible advise for some time!  I DO respect you opinion.  Why don't you drop me an e-mail or give me a call.  There is FAR MORE HERE than meets the eye!

I think that you need to respect the fact that as I pull up the Ohio cases on PACER I am looking at MORE than just the opinions.  There is a GOLDMINE of opportunity in Ohio for a really SHARP LAWYER who want to make some money and make a name for himself in defending some litigants who have REMARKABLY STRONG CASES.
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Moose
William, I think you misinterpreted what I was saying.

The Ohio cases are a tiny statistical anomaly, particularly when you consider the tens of thousands of foreclosures that move through state courts and especially those that are run through the non-judicial process in many states. 

And William, they can produce the required documents. It's a matter of what resources they want to expend and in some cases, how dishonest certain employees and the attorneys are willing to be.

Moose











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Nye Lavalle
Bill is right. Also, what you do from GET GO is set up a defense and claim for Fraud Upon the Court and get them sanctioned right away and also counterclaims against Jane and John Does. This is new position we are tacking!
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Stephen
Moose, you're one helluva writer.  Really, that is one fine essay.

As a rational person, I, too would not hang my hat on this development, although, when someone is frantically trying to save their home they'll grasp at anything.

All it is to me is an indication that the legal community and judiciary branch is becoming aware of predatory lending and foreclosure and acting on behalf of the victim, using the letter of the law.
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Originally Posted By Moose
The Ohio cases are a tiny statistical anomaly, particularly when you consider the tens of thousands of foreclosures that move through state courts and especially those that are run through the non-judicial process in many states.


AGREED that the dismissed Federal cases in Ohio represent a very small fraction of ALL foreclosure.  But a roaring flame usually BEGINS from a good strong spark!

There is already an indication that some Ohio state courts may be coming around.

Bear in mind that it takes a particularly committed jurist to LOOK PAST a defendant's DEFAULT, scrutinize the plaintiff's pleadings, IDENTIFY THE DEFECTS and to rule sua sponte.  Our adversarial legal system typically relies upon the defendant and/or teh defendant's counsel to IDENTIFY THE DEFECTS IN WRITING for the Court.  If defendants start ANSWERING, PLEADING JURISDICTION, and APPEARING, there will be MORE FAVORABLE RULINGS IN OTHER STATES.

As for the non-judicial foreclosures, the standing argument per se is of no help as it involves private sale without invoking the assistance of a court in carrying forward to private sale.  However DEFECTS in evidence of ownership and IRREGULARITIES in the private sale CAN MEAN that the DID executed at the private sale may be VOID and MIGHT convey NO TITLE AT ALL!  In such instances, a person who seems to have lost his or her home through non-judicial foreclosure may be able to RECOVER the property through a judicial action to quiet title.

Quite frankly, those people who have suffered juducial foreclosures by default judgement in a court setting may be WORSE OFF than those who seem to have lost their homes through non-judicial foreclosure by private sale.  Res judicata may very well preclude re-litigating the judicial foreclosure (except in instances of the most eggregious notice problems or extrinsic fraud), while those who have had their homes sold by private power of sale may be in a position to actually RECOVER.

This is NOT to say that those who faced FRAUD in their judicial foreclosures are without any remedy.  But the remedy is unlikely to be economic except by class action and seems likely to assure recovery of only a FRACTION of lost value.

Hence, my cautions elsewhere about the necessity of answering and NOT letting a plaintiff obtain a default judgment.

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Originally Posted By Moose
And William, they can produce the required documents.  It's a matter of what resources they want to expend and in some cases, how dishonest certain employees and the attorneys are willing to be.


Moose, I think that in MANY instances you are CORRECT that the plaintiff CAN or COULD HAVE produced the required documents.  But your closing sentence "It's a matter of ... how dishonest certain employees and the attorneys are willing to be" is PRECISELY my point.  You seem to be of an opinion that when teh plaintiff FABRICATES evidence that the defendant will LOSE.  I think that this has USUALLY BEEN THE CASE, because defendants, even those represented by counsel, DO NOT KNOW how to DETECT the FABRICATIONS or to PROVE THESE DOCUMENTS TO BE FABRICATIONS.

I DO KNOW HOW TO SPOT AND PROVE FABRICATIONS!  And when a fabrication IS PROVEN, I believe that a well represented defendant OUGHT TO BE ABLE to have a foreclosure action DISMISSED WITH PREJUDICE!

So WHEN properly represented and WITH an expert witness, I should think that plaintiffs may very well LOSE THEIR SECURITY INTEREST in the property and may similarly even lose their actions on the promissory note!

NONE OF THIS IS POSSIBLE WHERE DEFENDANTS DEFAULT IN APPEARANCE OR JUST MAIL THE PLAINTIFF THE KEYS AND WALK AWAY.  Which is NOT to say that giving back the home by a deed in lieu of foreclosure IN A WRITTEN SETTLEMENT AGREEMENT isn't sometimes the most economic and viable strategy for some borrowers (EVERYONE should bear in mind that just walking away WITHOUT a binding legal agreement poses MANY OTHER potential problems, as in the instance that a mortgage investor DELAYS RECORDING THE DEED to have additional taxes, assessments and costs assessed to the defaulting homeowner rather than PAYING the taxes from possession).

I DO recognize that MOST are not going to have the time, ability or resources to stand and fight.  And there are many instances where it may be better to just walk away from the fight even where the plaintiff has eggregiously FAILED to demonstrate standing.

I do NOT go around PICKING FIGHTS.  Ideally, we obtain a meaningful understanding of the battlespace and then SELECT the time and place of battle, if we find it necessary to fight at all.  My posts are intended to help facilitate a better understanding of the battlespace by MS Fraud victims.  Your posts are most appreciated in REMINDING everybody of important additional considerations, including the undesirability of entering fights that cannot be won!
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~beenawhile
William A. Roper, Jr. wrote:
And frankly, it may also be helpful in obtaining and enforcing a temporary restraining order to preclude a non-judicial foreclosure.
 
I was wondering....... We were told that we CANNOT INVOKE, or get a TRO since there has been no "ATTEMPT" to take our home as of yet. Is this TRUE?
We are in a non judicial state.
Thanks.
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Originally Posted By ~beenawhile  
I was wondering....... We were told that we CANNOT INVOKE, or get a TRO since there has been no "ATTEMPT" to take our home as of yet. Is this TRUE?
We are in a non judicial state.
 
~beenawhile:
 
I am TOTALLY shooting from the hip on this and have NO EXPERIENCE with TROs whatsoever.  But I will simply relate you you my LAY impression of a TRO.
 
TRO stands for Temporary Restraining Order and I believe that these are granted in most instances for a TEMPORARY, SHORT and finite length of time.  By ex parte TRO, I believe that those discussing the concept mean going before a judge with a sworn pleading and posibly seeking the TRO WITHOUT prior service of the defendant, participation of the defendant in the TRO hearing or effective opportunity to respond.
 
Our adversarial judicial system DISCOURAGES the granting of orders WITHOUT NOTICE and WITHOUT OPPORTUNITY for the other side to participate, but there are instances where the immediacy of a peril makes granting a TRO essential, as in a protection from abuse order in the instance of domestic violence or a cause of action alleging the destruction of documents or property, etc.
 
Suppose, for example, that some sort of condemnation of a structure had been made and you only just learned of it when the wrecking crew arrived to knock down your house.  Deliberate litigation to set aside the condemnation order wouldn't be possible without first obtaining a TRO to STAY the demolition.
 
Because TROs are often granted without hearing opposition and judges tend to err on the side of the status quo when presented with something alledged to be an emergency, the TRO will very often last for only a matter of WEEKS while both parties perpare for a hearing on a longer or more permanent INJUNCTION pending the disposition of the case.
 
Consequently, the TRO would typically be an order that EXPIRES after that short finite period, often contemporaneous with a scheduled hearing on a requested injunction.   
 
If you think you might need a TRO, it couldn't hurt to have a petition and proposed TRO DRAFTED so that it could be quickly altered and a pleading filed immediately upon an indication that matters so required.  But you need to bear in mind that what you REALLY need to be preparing is your more deliberate complaint / petition based upon the underlying causes of action you seem to be litigating and have your case for the injunction well prepared.  Also, keep in mind that a Judge is going to be RELUCTANT to grant an injunction if you are NOT currently paying your mortgage at least in escrow or into some court depository.
 
I think your statement is therefore correct -- we CANNOT INVOKE, or get a TRO since there has been no "ATTEMPT" to take our home as of yet -- on two counts.  First, an ex parte TRO IMPLIES the need for some exigency.  That is the Judge is NOT going to grant ANY order without prior service to the defendant and an opportunity for appearance and argument UNLESS there is some indication of irreparable HARM in failing to grant such an emergency order.
 
Second, even IF you could obtain such an order, it would be essentially USELESS to you, as it would likely EXOIRE before the REAL EVENT calling for court intervention. 
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I would say that Moose is disingenuous and his/her priorities and loyalties lie elsewhere and not in the area of support for those who have been the victims of the largest breach of the public trust and land grab in history.

I think that the real headache here is that it, the current crisis, was not a concerted effort by a few but the taking advantage of a situation(s) and that many have done so. My fiances case is one of, hell there was no one that didn't get a slice of her. From the predatory broker to the predatory lender to the predatory servicer and right down the line from there.

The real headache is not that we are fighting one person or company but many when it comes to these fraudulent foreclosures. That often you end up having to fight the various parties, and their particular fraudulent practice(s), who found their niche in the fraudulent market of mortgage loans, trusts and servicer's that was the mortgage industry of yesterday.

That there are a lot of mortgage loans that cannot and will not survive any trip into sunlight for any amount of time.

Patience and perseverance is the key. Those with the worst of cases will find, as I have, that if you are willing to fight the companies involved in these cases of fraud, you will find that they will eventually come to the table to talk eventually. If your case of fraud is solid you will persevere in court these days. The outcry is too loud for sleeping judges and those in bed with the banks to continue to do as they have done in past years.

Don't trust anyone that says the obvious fraud in your case is not important or not real or any of the other excuses or false messages people give you. You have to wonder how intelligent they are or if they serve a master not friendly to justice.

But this is just me I could be wrong.

By the way could we reset or make easier to use this damn captcha thing it really is annoying as you have no way to determine if thirty seconds has gone by and after the fact.... well I think you can understand what I am saying and agree there has to be a better set up........or is this a subtle message to me?......lol
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Bill

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I would say that Moose is disingenuous and his/her priorities and loyalties lie elsewhere and not in the area of support for those who have been the victims of the largest breach of the public trust and land grab in history



C A Butler,

Any suggestion by you that Moose is disingenuous is misplaced.  He has always posted helpful, well written, knowledgeable comments for quite a considerable amount time. 

Way to go bumping a 3 year old thread/post!!!!!!!!!!

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William A. Roper, Jr.
Moose, an occasional but longstanding Forum participant, gives measured, dispassionate and very sound counsel.  You will find that Moose almost always states that he is not giving legal advice.  But these disclaimers are noteworthy.  Moose does NOT say that he is NOT AN ATTORNEY and is NOT giving legal advice.

Moose merely states that he is NOT GIVING LEGAL ADVICE.  Moose almost universally counsels folks to get an attorney if they can. 

He also persistently counsels against unreasonable and unrealistic expectations. 

Moose has persistently been a very valuable contributor to this Forum and it is unfortunate that he is unable to devote more time to contributing!
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Glad to have been a source of amusement for you. Were you trying to make a point or was that the point?

Sorry but having read a lot of these blogs and being pretty in tune to what sounds like disinformation and aware that there are those who do such things on the behalf of banks I simply made a comment about that observation and I can't help that a 3 year old post is on the front page of your blog. Is this an indicator of how helpful you are and or have been or lack there of?

Never the less it has always been apparent to me that when someone replies with such a vehement response and so childish as well that I must have hit a nerve close to the truth. Did I? I don't know and I don't care.

I will continue to read from your blog but rest assured I will not comment again to this site. The world is way to full of crappy people with crappy views making things even worse for many around them by flaming someone who made a simple observation about something written.

Which to me seems that you were/are asking for a response but hey the obvious to me has, in the past, been proven obtuse to others around me and thus I am wrong ...well..I guess...that's...good enough for me.

As to the date well good advice is timeless isn't it? I guess we'll have to wait and see if my words are worth anything. Sorry to have offended your great little group here have a nice life.

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Actually I will make one more comment. A little background, if you will, on me.

I really need nothing from your site or from you folks as I don't owe anyone anything. I own my own home and the 5 acres it sits on and have no credit card debt, mortgage or anything else I must pay each month besides the electricity and water bills and of course taxes.

I am helping my fiance get out of the hell she was helped into almost 10 years ago by the worst of people who simply had making a buck on their mind regardless of who it hurt.

While I did not sit the bar I did sit through 3 years of law school at USC. I really am in the best position to help her since there is no one in this little town who would help due to the fact that the people involved with this mortgage are town high mucky mucks and of course no one wants to insult or irritate those thieves.

So while you are in effect "catching up" for all intents and purposes, I never got taken in by or believed the lie being told to me but you did buy it and are talking about how to survive the bad decision(s) you have made.

So while I may be 3 years late in offering up my thoughts about said 3 year old article on your front page I am way ahead of all you of in that when done with this matter for my true love we will settle on property in NM and set up shop that will make sure we only have taxes from here on out to pay to anyone.

With windmills and a solar collector turbine system of my own design for power, think the best of hydro and steam turbine electricity production, along with the well for water will leave me with only the taxes to pay.

I designed the almost completely automated process of planting tending and harvesting most of the food stocks we, my fiance and I, will need and so on.

I long ago saw the field I was to play in and how bad it was, or is really, and saw that it had no good end so I disengaged from the system and set myself up to live without it. As a computer engineer I really am in the best position to take advantage of what I know to better my life and with the purchase of a "Fab Lab" will be able to make my way through life by being able to fabricate most of what I will need in one way or another.

While I don't have all the things that most consider absolutely needed for life I do have all I need for life as I see it. Food, water, shelter, clothes and toys and without owing anyone anything for it.

Once again sorry if I peed on your parade. I at 13 saw what this world was and was being groomed for and made the decisions to change my outcome by changing the variables and not participating, for more than enough time to see I was right, in my judgement, of said system.

I was a millionaire and without need...unless you count needing 8k a month to break even a need as I did. I lived in a 5000 sq ft home in a private gated community on the 9th hole of the golf course of the Country Club I belonged to. I drove a 500 series mercedes and my wife the top end volvo which she used to take our 5 kids to private school each day and I opened for said children trust funds set up to pay for, through the PhD level, an education for them after high school. 

With my wife's death I took the opportunity, given to me by the federal government when they broke me to care for her as she was an un-insurable person, to rearrange my life and to not have wants or needs anymore as it became apparent I was right at 13 and this was a chance to change the course I was on completely and not even try and continue to work in a system so obviously controlled for the benefit and pleasure of others.

Now a days I get by on so much less than you would even begin to think was possible and I do so without having to do without anything I want or need.

Have a nice day.

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