Foreclosure Defense Strategies: Sale Pending

 

Here is a strategy for one person in California whose lenders are GMAC and Countrywide. He is about one week away from sale of his property. Feel free to use what suits you.

  • Keep in mind that the hyper-inflated values used by the appraiser, lender, underwriter, and mortgage broker constitute a violation, in my opinion, of the very abuse that TILA (Truth in Lending Act) was intended to stop: hiding the true cost of your loan. 
  • If your house is priced at $500,000 and you agree to pay 5% interest, you are agreeing to pay $25,000 in interest. 
  • But if the real fair market value was only $350,000 then the $25,000 you are paying in interest is actually 7.14% and that was NOT disclosed in TILA statement and neither was the possibility that the appraisal could be wrong.
  • This means that the interest, points, costs and fees were all misrepresented and you are entitled to a full refund, which in the case below could amount to over $100,000 from the lender.

 

OK, first the disclaimer, since I am a licensed attorney in Florida and the United States Courts and the U.S. Bankruptcy Court. I have not conducted an interview with you, offered you legal advice, nor suggested that you rely upon my advice or use my advice or any facts I share with you without consulting competent counsel in any state or Federal Court or in connection with any communication with your GMAC lender or Countrywide second mortgage. NEEDLESS TO SAY, WITH A SALE DATE LOOMING IN THE NEXT WEEK OR SO, YOU NEED TO MOVE VERY QUICKLY.

 

The following is an outline of information which you should read, re-read and study from livinglies.wordpress.com. 

 

Feel free to lift from this email or the blogsite any verbiage that is helpful to you in the pleadings you file in State and Federal Court (Bankruptcy Court). 

 

As I understand it, your intention is to first file a motion which I assume will look something like the following, and that you will be hand delivering the original to the Clerk of the Court, a copy to the Judge assigned to the case along with a request for an emergency hearing, and a copy to the attorney on the opposing side — and I assume that your local rules require your signature(s) on your Emergency Motion to be Notarized:

VERIFIED EMERGENCY MOTION TO SET SET ASIDE JUDGMENT, CANCEL SALE AND DISMISS ACTION FOR FAILURE OF JURISDICTION AND LACK OF STANDING

Comes now the defendants, xxxxxxxxxx and ___ xxxxxxx his wife, Defendants in the above-styled action and move this Court to vacate and set aside the Judgement entered on the __- day of ___, 2007/8, vacate and set aside the order dated __ day of ___, 2008 setting the sale date, and canceling the sale of the subject property and as grounds therefor says that the Plaintiff committed a fraud upon the Court in that the Plaintiff does not now and did not, at the time of the foreclosure, own the mortgage, the mortgage note, any security agreements, nor have the requisite power to represent the real party in interest, nor did the Plaintiff allege facts in support thereof. This Emergency motion is not filed for the purposes of delay. The true facts (and consequent fraud perpetrated upon this Court by Plaintiff) regarding the prior sale of the risk, servicing and ownership of the mortgage and note regarding the subject real property and alleged liability did not come to the attention of the undersigned defendants until the last 24 hours.

I HEREBY CERTIFY that a true and correct copy was sent by FAX to opposing counsel at the following number _____________________ and by U.S. Mail at the following address _________________________.

SIGNATURE

NOTARY

 

I further understand that you intend to file a Chapter 13 bankruptcy, await the motion for relief from stay for the foreclosure to proceed and that you intend to contest the motion for relief from stay by alleging the same thing as I have outlined in the State Court action and that in addition you will go to the Bankruptcy clerk’s office to file an adversary proceeding.

 

I assume you will put the “liability” in your bankruptcy proceeding as a contingent liability since it was procured by fraud along with a statement that the Creditor is not a creditor but claims to be one, and that the mortgage encumbrance is not a valid lien.

 

1. You have a house that was initially purchased in the year 2000 for $315,000.

2. You have done some refinancing during which your house was “appraised” at $750,000 around 3 1/2 years ago, which is about the middle of the period wherein a scheme had been hatched: money was made free by selling unratable securities to banks, governmental agencies, pensions, mutual funds and individual investors offering (a) a higher rate of return than they could otherwise get and (b) a higher rate of return than the underlying “investment” (mortgage) was paying. These were called collateralized debt obligations (CDOs) or collateralized mortgage obligations (CMOs) or other forms of “derivative securities, including but not limited to mortgage swap and other “hedge products, all of which were outside the regulatory scheme contemplated by the United States Federal Reserve and the various agencies controlling issuance and disclosure and sale or trading of such securities.

3. The seller’s of these securities obtained AAA ratings from Moody’s and S&P who were competing for market share of the ratings business and ended up literally going fishing with the people who were representatives of the securities that were being rated. Analysis was replaced by negotiation and thus AAA rated securities were sold when in fact they should have ben unrated.

4. The securities were sold to investors (including governments around the world, who now must write-off a portion of their “cash on hand” and cut back social services) with “disclosures” that the proceeds of sale would be used to pay the interest and repay the obligation, thus giving rise to an obvious Ponzi scheme, which was a violation of laws and rules under the Federal Securities and Exchange act of 1933, and the Securities and Exchange rules, and applicable and similar State laws and rules

5. The investment bankers and other intermediaries who were selling the securities were making a bundle of money through commissions, fees, and mark-ups from their own portfolio which they bought from mortgage aggregators.

6. The demand for these high rated “cash equivalent” securities sky-rocketed, causing the investment bankers and retail brokerages to step up pressure on mortgage aggregators to come up with more “product” to sell. This aggregation process is either done within the investment banking firm or by a third party who also gets a “mark-up”, rebate or kickback.

7. The aggregators went to mortgage brokers and lending institutions (financial and non-financial) offering financial incentives to the mortgage banks, non-financial lenders, and mortgage brokers to (a) steer customers (borrowers) into mortgage terms that were contrary to the interests of the borrower (b) contained terms that conformed to the needs of the investment bankers that were selling the bogus non-ratable securities and (c) adopting practices and tacit understandings to pressure or trick the borrower to sign the papers that would ultimately be aggregated into pools of the aforesaid bogus securities.

8. The “underwriting” lenders allowed practices of creating fictitious borrower income and assets, fictitious appraised values all driven up by the influx of “free money,” in which all parties to the transaction, except the borrower understood that there was no risk underwritten by the “lender” who was passing along the risk to the aggregator and eventually to the investor in the CDO or CMO.

9. Appraisers understood that they would never be hired again if they did not confirm the value of the property at a high enough level to close the financing deal and the sale of the home and were thus given improper financial incentives and coerced into providing fraudulent assessment of the value of surrounding property and the subject property itself.

10. Borrowers were thus lulled, pressured or tricked into believing that the fair market value was as stated in their closing documents, and that the lender, the underwriter and the insurers of title and property were all relying upon those representations concerning fair market value.

11. In fact, the reverse was true, all participants except the borrower understood full well that the fair market value was over-stated, that the risks were actually being undertaken by the borrower and the investor in the bogus securities and that all the parties in between were profiting from this Ponzi scheme.

12. As a result the borrowers were all overcharged for points, costs, fees, interest, in transactions that they never would have signed had full disclosure been made.

13. Under the above facts, the parties involved in the transaction, except the borrower, were engaged in a comprehensive nationwide scheme violating the provisions of the Truth in Lending Act, Securities Laws, RESPA and RICO and the comparable laws and rules of the applicable state agencies.

14. Multiple investigations of these actions are taking place under actions started by attorney generals of the United States and various state governments and at least one U.S.L Trustee in the Bankruptcy Court of Judge Raymond B Ray in the Southern District of Florida wherein the the trustee has been instructed to investigate the civil and criminal responsibilities of Countrywide Mortgage, the results of which will apply equally to thousands of other parties involved in this scheme which resulted in undermining the economy, money supply and wealth of the United States of America, other countries, and virtually all American citizens.

13 Responses

  1. Ok. Why a Las Veags attorney? Are they experienced in this type of thing?

  2. Richard S: Probably not. Contact Las Vegas attorney

  3. Question; We were in the process of buying our first home. The house was in short sale. We have a contract pending and were closing on the 10th. Then we got word that it went into foreclosure and someone bought the house this morning on the court house steps. Is it legal for this to happen.

  4. My mother in law’s house is being foreclosed, she was served on 8/19/08 – I prepared an answer filed and served it on 9/03/08.
    After doing some research and reading the plaintiff’s identitity, coupled with the fact that she has a $1100 a month income and qualified for a $500,000 loan I am convinced that violations took place. We are seeking a lawyer to represent us and conduct an examination of the mortages.
    We have the mney to bring the arrears current, however after educating myself over two weeks, I am convinced that we need to hire attorneys who can modify the loan – vacate the action and commence a lawsuit for counterclaims. Please note that in my answer we reserved the right to amend our answer. Please contact me – we do not want to mitigate or settle until we get better advice.
    Thanks Bob Menke, New York

  5. I need help with loans they justified with assets false income documentation , and not the ability to repay at age 88 regarding my mother now in tustee sale status please call (818) 326-1823 thank you for your concern

  6. […] to use what suits you. Keep in mind that the hyper-inflated values used by the appraiser, lender,http://livinglies.wordpress.com/2008/04/22/foreclosure-defense-strategies-sale-pending/Highland Distressed Opportunities, Inc. Announces March 31, 2008 Quarterly Financial Results Centre […]

  7. Great Information -useful and worth the reading
    for a better understanding
    Thanks
    Much

  8. […] http://livinglies.wordpress.com/2008/04/22/foreclosure-defense-strategies-sale-pending/The “underwriting” lenders allowed practices of creating fictitious borrower income and assets, fictitious appraised values all driven up by the influx of “free money,” in which all parties to the transaction, except the borrower … […]

  9. […] Foreclosure Defense Strategies: Sale Pending Keep in mind that the hyper-inflated values used by the appraiser, lender, underwriter, and mortgage broker constitute a violation, in my opinion, of the very abuse that TILA (Truth in Lending Act) was intended to stop: hiding the true … […]

  10. […] http://livinglies.wordpress.com/2008/04/22/foreclosure-defense-strategies-sale-pending/The “underwriting” lenders allowed practices of creating fictitious borrower income and assets, fictitious appraised values all driven up by the influx of “free money,” in which all parties to the transaction, except the borrower … […]

  11. […] The Hour Staff wrote an interesting post today onHere’s a quick excerptOK, first the disclaimer, since I am a licensed attorney in Florida and the United States Courts and the US Bankruptcy Court. I have not conducted an interview with you, offered you legal advice, nor suggested that you rely upon my … […]

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