Foreclosure Defense: Non-Judicial Sale States

Most of my experience is in judicial sale states where the foreclosure is a lawsuit started by the lender. In those cases, when you challenge the Lender or mortgage service provider on its authroity to bring the action and counterclaim on violations of Truth in Lending, fraud etc, you are the counterclaimant.

In states where they use “Trustee” deeds, (a practice which I think waives due process rights that are not waivable) the lender merely gives some kind of notice to the Trustee and the Trustee posts the notice of sale. ANY CHALLENGE YOU WISH TO REGISTER REQUIRES YOU TO START THE JUDICIAL PROCESS AND SO YOU ARE CALLED THE CLAIMANT OR PETITIONER OR PLAINTIFF.

Your best first challenge is to demand copies of documents through a request to produce or whatever it is called in your local jurisdiction. The clerk of the court will assist you my giving you the form or a copy of some request to produce recently filed. 

  • You want to demand a copy of that notice because you want to know who sent it, what they said, and whether the information came from yet another third party, which it probably did. 
  • So then you want a copy of the documents showing that whoever gave notice to the alleged lender (who is probably not the lender anymore because of some sale or assignment that did not identify your mortgage and note).
  • You also want copies of whatever documents they are relying upon, along with copies of any documents showing transfer of the mortgage and note, or assignment of the mortgage servicing rights. In many cases these documents do not exist. In that case, you win they lose and there is no foreclosure. 
  • The burden is on THEM to show they own the mortgage and note and how they came to be the owner.
  • In states that follow the non-judicial sale practice, as soon as the notice of sale is posted the burden shifts to you the borrower to file something to stop the foreclosure. 
  • Remember, if you are asked, that violations of Truth in Lending are NOT waivable. They can’t tell you it is too late to file the claim. 
  • If asked what you are trying to accomplish it is this: 
  1. vacate the foreclosure sale notice as invalid 
  2. challenge authority of Trustee to commence foreclosure sale 
  3. challenge authority of whoever reported to Trustee that payments had not been made 
  4. assert violations of TILA, RESPA, RICO and trade regulations
  5. challenge validity of sale/transfer of mortgage rights to investors 
  6. counterclaim or claim against the Trustee, lender and whoever the real party in interest is — the one who actually asserts ownership of the mortgage and note 
  7. stop the foreclosure 
  8. stop the sale 
  9. get copies of the documents given to the Trustee who then started the non-judicial foreclosure sale 
  10. get refunds, damages and fees

4 Responses

  1. […] unknown wrote an interesting post today onHere’s a quick excerptMost of my experience is in judicial sale states where the foreclosure is a lawsuit started by the lender. In those cases, when you challenge the Lender or mortgage service provider on its authroity to bring the action and counterclaim … […]

  2. #1 – I am at this very moment in the attempt of writing an Emergency Motion to stop the sale of my home of 15 years… So little infomation is provided to mortgagees; even by their OWN attorneys. The paperwork/information I have rec’d from my attorney doesn’t amount to even a dozen pages. Pre-Foreclosure Listings that are put on the Web “on the day of”‘ your DEFAULT MAY CRITICALLY UNDERCUT your ability to sell your home at so-called “fair market value”, and bring to your door only those “Property Johns” looking for a quick “flip”. Your County’s property appraisal may well be double or more the true value– a joke to obtain more tax revenue. Where is a homeowner to turn???

  3. One of the key reasons for anyone buying a house is because it can turn out to be one of the best investments you’ll ever make. Everyone’s heard of the saying “invest in property”, and that’s exactly what you’re doing when you buy your own home. Mortgage loan enables homewoners to purchase a new home.

  4. I had a Professor of Economics who told me that pretty much anything “done in the dark” was dangerous to us all. He ALSO said that most people who get rich do so in the dark. Not that’s it’s impossible to do well for ones self in the light, it’s just more difficult, and you have to work harder.

    Shining a light on these unscrupulous lending practices takes some of their “power” away. I’d like to thank Neil for bringing the details of this to our attention. Armed with the light, we’re better able to defend ourselves.

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