Foreclosure Defense: Get into the Details: Trustee Deeds

IT IS ENTIRELY POSSIBLE THAT THE TRUSTEE HOLDING THE DEED AND MORTGAGE, THE APPRAISER OR LENDER HOLDS AN INSURANCE POLICY THAT PROVIDES A BASIS FOR RECOVERY OF YOUR DOWN PAYMENT AND OTHER REFUNDS DUE FROM VIOLATIONS OF TILA, RESPA, RICO ETC.

In states that use Trustees for deeds and mortgages, you should of course check the requirements of being a Trustee and whether any transfers or assignments have occurred that effectively change the duties of the Trustee. So if your mortgage and note was bundled up with others and sold to a mortgage aggregator and eventually sold to an investment banker and then sold to an investor, the paper trail needs to be as precise as the original documentation when you took title to your house subject to your mortgage.

In all likelihood, based upon our current information and interviews, most of these deals have in one or more of the transfers, failed to comply with State law, failed to properly transfer rights, and have transferred some rights that cannot be properly transferred.

In Arizona for example, under ARS Section 33-820, the Trustee is described and there is plenty of case law that says the Trustee is a fiduciary (owes an obligation to protect) both the borrower and the lender.

SO IF THE TRUSTEE KNOWS FOR EXAMPLE, THAT THE MORTGAGE AND NOTE WERE GOING TO BE TRANSFERRED AND THAT THE LENDER WAS IN FACT NOT TEHR EAL LENDER, HE IS AWARE OF IMPROPER DISCLOSURE — AND THEREFORE (A) LIABLE FOR DAMAGES AND (B) PROBABLY HAS LOST HIS POWER OR AUTHORITY TO FORECLOSE THE PROPERTY BECAUSE HE IS ACTING ONLY ON BEHALF OF THE LENDER.

By failing to exercise proper due diligence on the status of the ownership of the mortgage and note and whether payments or refunds were due, the Trustee has not fulfilled the threshold requirements to post the sale of the property. Having failed that, the notice of sale is void or voidable.

This should be brought to the attention of the Trustee through a letter advising him/her that you will hold him/her accountable for the damages incurred, and that you challenge his/her right to proceed. 

It should also be brought to the attention of the Court and you should check with the clerk of the court on how you file a Notice of Contest in which you deny that the notice of sale is proper.

2 Responses

  1. What happens if you do a counterlawsuit and the parties to do not respond?

  2. i am individual investor duped into several bad loans by unscrupulous brokers. At this point i am unable to keep my mortgages current owing realestate meltdown and my investment properties are scheduled for foreclosure in beginning of June…due to which i will not only lose all the money i invested over the last several years but also stand the chance of defficiency suits.

    i was referred to get help from someone at repairyourloan.com (even your website has a link to them) who claim that they can get all the interest and fees i paid owing to fradulent loans i was given and that they can get foreclosures stopped and get better loan payments – all without any legal help !

    would you have any advice on what thier stratergy is to get me relief and how effective is thier stratergy in forestalling my pending foreclosures ? i already paid an attorney heftily for similar services and i dont see much movement from his side as the lenders dont respond – even to a lawyer !

    please help me understand what i can and should not expect from repairyourloan.com and would deeply appreciate any guidance as my clock is rapidly ticcking away and i need to make a decision about enlisting repairyourloan’s help (which is expensive)

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