Foreclosure Defense: Why People are Ignoring Their Rights

Sometimes this mission of mine gets frustrating. I’m trying to provide the necessary information for homeowners and their lawyers to defend their property, get damages from their lender, and potentially walk from the foreclosure house with free and clear title and no note instead of walking from their homes.

Lawyers are mostly skeptical and people are too depressed and beaten to take all this seriously. But you DO have rights, and it isn’t about delaying the inevitable. It is about getting relief you deserve and can legally obtain but only if you assert those rights. The bad guys are betting you will walk away like 57% of homeowners are doing. I’m betting on you — that you will stand up for your rights and stop the current disaster and turn it to your advantage.

Nearly all current foreclosure actions are legally improper in both procedure and substance.

Notice of Sale is not available where there are equitable and constructive rights of third parties (i.e., investors in the securitization chain).

ALL foreclosures involving securitized loans are required to be initiated as judicial foreclosures — not by non-judicial Notice of Sale. This forces the “lender” to prove it is a holder in due course and has the right to foreclose. It also gives the homeowner/borrower the opportunity to find out whether the insurance and other agreements attendant to the pooling and service agreements, actually created alternative sources of payment.

In many cases, the note has been paid in full by a third party AND the monthly payments are being made without contribution from the borrower. These third parties might have rights to collect against the “lender” or the “borrower” but that doesn’t give the “lender” the right to foreclose. Those rights go with the note, according to LAW, and a mortgage servicer by definition does not own the note even if they have possession of it.

In many cases the note was forged in advance of the loan closing in order to pre-sell it (the industry calls it selling forward). Thus there is no endorsement on the note showing a transfer of ownership, and yet the payee “lender” has received all of the principal balance PLUS a fee of around three percent, plus the fee for servicing.

Now they are coming into court, fully paid, and foreclosing on the house, so they want the property too. And they want a deficiency judgment as well. It is highway robbery and the news media is ignoring the black letter law and the rights of homeowners giving the misimpression that this transfer of wealth to the upper echelons of our society cannot be stopped or reversed. It isn’t true. Most homeowners are giving up without a fight (57%). They have rights and meritorious defenses.

They can turn back the tide if they have the information. I am a retired (OK, now semi-retired) attorney who is giving out information for free on my website. More than 100 homeowners nationwide have used the information contained on my blog and walked out of foreclosure proceedings with their house free and clear of the note and mortgage. Lawyers and pro se homeowners are using it. You can too.

32 Responses

  1. I am a disabled senior renting a room in a home in Colorado that was foreclosed upon. A UD suit has been filed. Is there something I can file, contest to or present in court to buy me some time to relocate in 60-90 days? Can the owner possibly go back and contest the foreclosure (mortgage lender is IndyMac Bank, taken over by FDIC and failed in 2008) The mortgage pool assignee is Onewest bank or US Bank. Has OneWest legally foreclosed with rightfull ownership? If not what can we do next to possibly stop this train?

  2. I have received “Motion for summary final judgment of foreclosure”, I am in Miami, FL from IndyMac. Been told to file an affidavit ” To state case and why house is in foreclosure” .

    Main reason is unemployment. I do not want to lose my home, but with no job and no immediate job offerings what can I do to prospone foreclosure till I find a job. At the moment would be forced to live in the street as have no money to rent either.

    Thanks much for your help

  3. My house was forclosed in last March o8, I had mortgage insurance [disability clause] but was denied a modification of my loan by countrywide, I am a victim of predatory lending practices of Dana Capital and Argent I did not over buy as I often hear being stated. I owed 102,000 house sold at auction for 98,000

  4. Hey Troy, I also forgot to mention that you can request a jury trial for an eviction action. This might buy a little extra time.

  5. Hey Troy, did you file a counterclaim in response to an eviction action? In Minnesota, you have to file a separate lawsuit challenging the foreclosure first and then ask the judge to stay the eviction until the foreclosure challenge is settled. Hope this helps man. Also, you might consider going to the newspapers about your case. They are always looking for good stories and this might also bring enough “bad” press against the bank for it to try to negotiate a little bit more with you. You might have several defenses to your foreclosure … and you should throw them all in your lawsuit against the bank.

  6. way to go Sally, im glad you made it through round one. I recieved my order from the judge today, the denied my stay because I filed late in the action????? So Im appealing it I guess. this site is so helpful. As I get new paper work filed Ill share it with anyone, so you can see a real working case in progress. These blogs really help a lot.

  7. Sally,

    I am so happy for you ===GO SALLY===yeah

    I wish you all the luch work hard and you will do just great.

  8. I appearred in court on the 12th with my answer to the forcible entry and Detainer complaint from my servicer who is CHASE. I plagerized some of your attorney’s sentences in your countercomplaint (Troy’s) and I got a trial date so the court can decide if the foreclosure and sale of my residence was legal. So, I may it this far. They can’t kick me out of my own home as the judge granted the temporary injunction that I requested until this is figured out. Now I am trying to figure out what docs I have to file in the next two weeks. I know I have send the request for document form but I’m not sure if I also file a countercompaint or if I do a set for trial pending discovery? Got any clue on this one? And, by the way, Thanks, Troy, I wouldn’t have made it this far if I hadn’t stumbled across you on this site.

  9. I had court today, the judge will be making a decision, im hoping to stay the case. I want to see the note, if they actually produce it then i may be screwed, if they dont produce it then I will have some options. My attorney thought it would be good to have the note delivered to the banks attorney and we can go to his office to inspect it, what do you think? so much to leanr in so little time.

  10. troyusaguy,

    I am understanding a Promissory Note can and should be fought with a jury trial.I got this info from someone in the last two weeks or so.

  11. Oh I am also in Orlando, FL and looking for a good lawyer. Do you have any referrals?

  12. I am not sure if this is the place to ask questions but I have a crazy situation. My private money lender in trying to foreclose on my property on the grounds that I did purchase a second property from him. I refinanced my house. The lender gave $90,000 to pay off all liens on my property. $65,000 was held for the future purchase of the other property. I also put down a $10,000 escrow deposit. The property decreased in value so it is not a good idea for me to purchase the property. Obviously I am to lose the $10,000 escrow but they are also looking to sue for due process. They are also refusing to release my $65,000 and they are trying to foreclose of my property. This wasn’t a residental loan. I think its under regulation Z. Do they have the right to do this?

  13. I have court in the morning, Im also in broker school, so my attorney is going on my behalf-hope it goes good. we are looking to stay the foreclosure given the statue violation and the question to who owns the note. Ill keep you posted.
    Troy

  14. Just since yesterday, I have so much info/complaints regarding Chase Home Finance mortgages. They are ripping off so many Average Joes/Joans like me. Anywhere from double dipping insurance charges to outright seeling the property. I hope I can stop this one. I sent you an email, Troyusaguy. Thanks for your help. I’ll keep you posted and am looking for your reply.

  15. Warning if your loan was done by Argent you can get out of it.

  16. I am so glad that Neil is here. Wow I am so glad I fought my case in time, with his help I was able to do a lot I just hope that I get my way soon.
    Many times I posted my rants here and felt so embarrassed to post when 70000 other people was reading and not saying anything. I felt like a fool, but wow I am feeling so good right now. I cornered my bank so far (knock knock on wood)

  17. Pardon Me I omiited that this is in Knoxville, TN

    Thanks Again

  18. Does anyone know of an attorney that will take a Pro Bono case in regards to eviction after a
    Foreclosure that should be set aside because I
    filed bankruptcy pro se.

    Thank You Much,
    John Stewart

  19. email me, ill send you the paper work my attorney filed.
    troyusaguy@yahoo.com

  20. I also have an eviction notice (Forcible Entry and Detainer) which I must appear in court to address in 4 days. I am not sure what form to file to stop this. Troyusaguy, what did you file to stall the eviction while you request the original note and investigation into fraud ( I presume)? Help, I don’t have much time.

  21. mers is involved with my deal, im talking to my attorney tommorrow and Ill let you know. I was reading about that class in santa monica on 9-4 and thinking about going to learn more about this.

  22. Dear RJB,
    Any attorney’s in New Mexico/Pro Bono?I could use one to read my motion before I submit it. I’ll go to court myself/pro se for everything that follows.
    Thanks

  23. i also have a foreclosure in the summons state with citimortgage. i am filing a motion to dismiss . i blieve that i’ll win with this claim “legal transfer of assignment of leinholder”. citimortgage is just several from an original note 24 yrs ago, lender was one of many federal savings and loans their loans were just sold when saivngs and loans went under. i believe citimortgage is a member of MERS, MERS doesn’t allow its members to file for a lost-note affidavit in place of mortgage note. i am going to file myself and hope for the best. (at least thats what i have read)
    hope your case benefits you and all ends well.

  24. The attorney representing the bank (citimortage) asked my attorney what I wanted from my claim. My attorney left me a message asking me to think about what I want.
    I dont feel its time to negotiate, they still havent produced the note.
    I think the attorney goofed up on his filing and i dont think the citimortagge has the note. I think i should hold out untill I see there cards, any thoughts??

  25. I lost my job last year and fell behind. i tried to work with my lebder to catch up-they were aweful!! noone knew where or what department i needed to talk to. They told me I didnt have an account with them (citimortgage) my sheriff sale ocurred and now my redemtion is over. They sent me a letter asking me to get out and they will give me 1000. I was mad and have been reading a lot, so I sent a demand and asked them to produce the original note.
    the lender responded with an eviction notice. I retained an attorney, he didnt know to much about this but is very eager to learn and we have been working together, not to many people know to much about this, including realestate attorneys.
    I filed a counter claim and still asked for the note, I also had Acron housing write an affidavit in support of my claims.
    I also filed a liz penden(i probally spelled it wrong)
    I think i have a good shot at getting the Judge to make the lender produce the note, I do think they lost it. I have a LOT of passion to learn about this. I have been a top selling real estate agent, and successful banker (before the market went to crap) and I have never heard of any of this.
    thanks for this site I will post and check in regularly and update you on my personal expirience. If any of you have suggestions for me please let me know. i live in the state of Minnesota.

    Troy

  26. I thought that I was signing a 7 year ARM with a fixed rate of 5.65 and two months ago I received a letter that stated I had signed a 3 year ARM and the adjustment would be made. At the time of signing for the loan I pointed out to the Sr. Loan officer that the contract was wrong and that the 5.65 was for 7 years. She told us not to worry sign it to lock in the rate and that she would take care of it and it would never get through the examiners even if I hadn’t caught it. Low and behold three years later, here we are with my mortgage going DOWN instead of up because instead of 3.5% for a 3 year ARM, I’ve been paying 5.65% for what I thought was a corrected 7 year ARM. I called twice and was told essentially too bad and then I wrote a certified letter to the lender a month before the 3 year limitation was up and hired a lawyer. I am currently envoking Reg. Z and filing mulitiple counts of Fraud, Negligence, Breach of Contract, and other charges. My lawyer had never heard of Reg. Z being used in this manner and it was my research and stumbling onto this website that made all that happen. I am hoping to have the mortgage completely cancelled and a pretty big settlement with the treble damages on the $680,000 mortgage amount they tried to defraud me with plus all the punitive and statuary amount. I think that will now get their attention. I’m hoping it goes smoothly, but one never knows. I know I’m going to sock to their asses, I just hope the Reg. Z applies to this home mortgage as I’ve read it doesn’t apply to them. What is the definitive answer to that?

  27. Sir, I too am fighting and I too really appreciate all of your website’s illuminations. NOt, to everyone else who’s into foreclosure, you’re NOT ALONE! The Atty’s that I have interviewed seem to want to repreesent the Mortgage Co.s more than me. That being said, I’ve found that just by reviewing sites like this one and Predatorix.com and MSFraud.org, I’ve been able to write my own Legal Answer, my own replies, done my own interrogatories (both answered and created) and now have them on “Legal Standing issues they’re gonna find it hard to refute. All in all I’ve put off living on the streets now for about 6 months, and it’s starting to look as if I may get to keep the house I built with my own 2 hands, mortgage free. It’s not been easy, but then again, a house paid for is worth quite a lot of work. So do the work! Check out the sites. Follow the instructions. YOur article alludes to 57% of homeowners walking away… here it’s more like 85%! That’s just crazy! FIGHT!!! You CAN make a difference. What’s it cost to try? FIGHT!!!

  28. Dear RJB, I will email the information of the attorneys to Neil and to you. Please send me your information by email.

    My email is jlsemidey@gmail.com

  29. Please Help!
    we have a property here in Georgia that is going to foreclosure on Sept 2. I cant find a lawyer in Atlanta who has a clue about defending against foreclosure, raising questions about note ownership, etc. please advise.
    Thanks
    Damon

  30. Jose..I live in Northern Va. also and desperately need a lawyer who will take my case on a contingency. I am about to lose my house because I cannot find a knowledge lawyer in this arena. Could you give me some names of who might do it on a contingency. It involves a family owned house since 1945 and bait& switch tactics, and fraud on the lenders part. Thanks..RJB

  31. Dear Neil,

    It has been my mission in the last few months to spread the word about what you are doing and what could possibly and surely be accomplished.

    I have been able to find three good law firms in the Northern VA area that are taking cases, but it has been slow and in order to knock down the doubtful attitude of some attorneys has been very difficult to say the least.

    It is really funny that every one bought the funny toxic loans the lenders and investors pushed down our throats but when you talk about peoples rights lawyers talk about clean hands, complicity, etc. It seem the borrower for most attorneys seem to be guilty for almost everything.

    I was not in the settlement company’s office or at the lenders office when they forged the documents and our signatures. The fact that the consumer signed the documents at the table comes close to the cigarette smoker issue. it was not enough the suffering and death it caused through time, but it took hell of lot more to beat the corruption and political abuse of the large corporations.

    It is really surprising that we do not see TV ads from lawyers trying to defend people from foreclosure, there are plenty of Bankruptcy ads though. Asbestos, and toxic prescription drugs.

    In Virginia where I live, you may even be reported to the state Bar if you call for people to fight for their rights.

    It is a fight that is not fair but I am proud to be a part of it and to take it to the end. The appreciation and admiration this will bring to your efforts cannot be measured by how many lawyers believe in this or not, since they seem to be behind the eight ball. The consumer in the search for answers and ways to fight their personal situation seem to be ahead of the game,.

    Even legal assistance entities seem to be lost at the helm, either by lack of funds and personnel, or even interest in helping those who by their own admission do not know how to get the cases to move forward. Do not let up, keep up your efforts, there are many of us who trust and believe in your approach and that has great value.

    Keep it up, do not let up, why not do a consumer based seminar as well and let the people move and push the lawyers forward, we are the ones losing our homes, we are the ones who have their credit ruined, we were the ones that were duped and defrauded, we should be given the opportunity to do so. About two weeks ago NACA came to Washington DC, they interviewed 20,000 people desperate for help. That is almost seven times more people than the HOPE program has been able to service.

    The consumer in the most part will have the leadership role. I forward your articles to all the lawyers I know, to all my friends and to all my clients. And the snow ball effect is starting to happen. Mr. Garfield god bless you and let the fight begin.

    By becoming educated in the issues you have brought about, it has served as a great motivator to me and others in my office, we have began training ourselves, to become mortgage examiners, and advocates for the ones who lack the knowledge and information.

    I thank you very much!

    La pelea es peleando!

    The fight is made whole by fighting!

  32. Sir,

    Please do not be troubled if anything you have been a GODSEND in my life without you my family ,dog and cats would have been on the streets.Please compose your good self sir I am with 100 percent sir and I know other [eople who are with too,including Lawyers even the ignorant ones.People are like this many people pass up the greatest gifts without ever knowing the true value of such gift as this is.If you have helped one person you should feel great and you have helped me sir.Whenever you feel down pleasse call me or write me I will give you bliss.My family is so greatful to you sir and so are many of my friends.I am boots on the ground sir for you,us and this war on our homes sir.
    Please keep the fire burning forever no matter the stopages.I will write more to you later

    Thank you so very much sir.Thankyou forever sir

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