Foreclosure Defense: Offensive Strategy — Foreclose on the Lender!

QUIET TITLE: From Demand Letter — see Forms Page
In essence the reverse of a traditional foreclosure where the owner of the property forecloses the claim of the people against whom he he has filed suit claiming the property free and clear of all encumbrances. Demand is made that you accept service of process of a quiet title action through your designated attorney and that you admit the essential allegations and consent to judgment being entered.
The significance in foreclosure OFFENSE is that the loan has been assigned, sold and transferred multiple times and broken up into thousands of pieces along with many others that were intermingled in portfolios, sometimes with cross guarantees from one portfolio to another.
This process started before the first payment was due on the mortgage loan and before the victim/borrower came to know the real facts of the loan withheld from him in an asymmetric information environment in an inter-temporal transaction.
Thus the true owner, against whom rescission could be claimed was never disclosed to the victim/borrower. The quiet title action sues “John Doe” identified as all persons having an ownership interest in the mortgage lien on the subject property. The allegation is made that while the victim/borrower has been notified of a transaction, the victim/borrower, petitioner has not been advised of who the entities or people are who own this interest. And since there are TILA and other fraudulent violations, the victim/ borrower/petitioner wishes to rescind. Efforts to determine the true owners have led the Borrower to determine that there may be thousands of entities or owners, none of whom have been disclosed to Borrower despite attempts to secure said information (contained in the TILA report and demand).
In Ohio and other states, the inability of the “Lender” or Mortgage Servicer to produce the original note and mortgage, combined with their inability to produce the documentation regarding the assignment or sale of the loan has resulted in de-linking the mortgage from the security interest in the home and the cancellation of the note giving the borrower free and clear title to the property that was subject to the original loan transaction.
If the court demands that the mortgage servicing company be named as nominal Defendant or Respondent, the mortgage servicing company has only one job: to produce information and proof of ownership of the loan. It is doubtful that anyone, least of all the mortgage servicing entity will be able to fulfill this condition.
Thus the default judgment will be entered, the victim stops paying the mortgage, and has a recorded judgment relieving his property of any mortgage lien and offsetting the note with the refunds and damages payable to the victim, thus satisfying the entire principal of the note and awarding attorney fees to the victim/petitioner.

In those states where the mortgage servicer is empowered to bring the foreclosure action, like Michigan, you will need to add allegations that the Mortgage Servicer lacks authority to foreclose because the party in privity with the mortgage servicer no longer has any interest in the mortgage or note by virtue of the multiple assignments and parsing of the note and mortgage. The non-disclosure of the real parties in interest at closing removed the ability of the borrower to rescind because the party was unknown. Thus the mortgage servicing rights never became executable, and no foreclosure or notice of sale could be advertised. You can add the fact that those multiple assignments created co-obligors and potentially other unknown parties that might claim an interest, all of whom are indispensable parties and each of whom probably has some right to issue instructions regarding the foreclosure or sale of the property

2 Responses

  1. I have been trying to modify my boa junior loan getting
    stalled i am sure it is because boa has no real title or way
    to do it and just say it is in process my approch is to use the
    new ca law and file QUIET TITLE the point to judge is without the real partys no mod can take place no real talks
    can take place without quite title to uncloud the issue –i think
    it is stright to point is this a good idea


    ). By error or malpractice, BAC has not disclosed the true beneficiary of the loan proceeds and party’s of interest holding security with authority to mediate, thus impairing the borrower’s interst and ability to mediate. They have not complied with the provisions in which they were to meet with me in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.

  2. Neil:

    do you have any recommendations for atty in lousiana ?

    all my investment properties are being judicially foreclosed on and they may be seeking deficiency judgement.

    i believe that i should not have been given these ridiculously appraised loans in the first place based on false rents that the seller disclosed to us. He rented these units to FEMA at way above market rents (on month to month leases) and got them apprised at unusually high value based on these false rents and realtor did not do her fiduciary duty towards an out-of-stat investor like me in disclosing all this as she was also representing the seller. In less than few months FEMA walked out on all of these units once they were done with their work, leaving me to a $20,000/mo negative cashflow. We could never fill them up at those inflated rents and had to take significant cut in rent that resulted in huge monthly deficiency that we could no longer afford and finally forced to let go of these properties.

    i would deeply appreciate if you or any reader can refer me some lousiana attorneys who are as passionate as Neil and can use the powerful information you provide here to defend me.

    please help with a referral !

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