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Letter of Objection to Trustee in Non-Judicial Sale States
SEE three-day-rescission-three-year-rescission-and-general-rescission
NOTE: THERE ARE ACTUALLY THREE LETTERS OF OBJECTION AND RESCISSION THAT COULD BE SENT: (1) THREE DAY NOTICE OF RESCISSION, (2) THREE YEAR NOTICE OF RESCISSION AND (3) GENERAL CLAIMS NOTICE OF RESCISSION OR NULLIFICATION. IN ALL CASES, THE NOTICE SHOULD CONFORM TO STATE LAW AS TO FROM, SUBSTANCE AND METHOD OF MAILING. GENERALLY IT SHOULD BE SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED. IN ADDITION, A FILING OF LIS PENDENS OR NOTICE OF PENDENCY TOGETHER WITH YOUR NOTICES AS ATTACHMENTS WOULD GUM UP THE WORKS ON THE PROPOSED SALE AND PROBABLY FORCE THE ACTION TO CONVERSION FROM NON-JUDICIAL SALE TO JUDICIAL SALE. THE ADVANTAGE IN CONVERTING TO JUDICIAL SALE IS THAT THE TRUSTEE OR “LENDER” MUST FILE A COMPLAINT AND ALLEGE THINGS THAT WILL EXPOSE THEM TO LIABILITY BECAUSE THE ALLEGATIONS ARE NOT TRUE. IT KEEPS THE BURDEN WHERE IT BELONGS — ON THE LENDER.
The Trustee has an obligation of fair dealing with both the borrower and the lender. All to often the Trustee’s loyalties follow the money, for it is the Lender that pays the bills. A Notice of Non-Judicial sale is very much like a Motion for Summary Judgment in Judicial Foreclosure States. It is designed to take the case off the docket and the get the sale over with as little trouble as possible — where the facts are not in dispute, the borrower is in default, the lender has followed all the necessary procedures, and the Lender is in fact collecting on a debt that is owed. The Lender, by having the property sold is recovering part or all of the debt owed to the lender.
In the Mortgage Meltdown context however, everything is turned on its head for mortgages originated between 2001-2008. The Lender has already been paid, doesn’t won the note and is attempting to score a windfall by getting the property in addition to the money it received from the REAL source of the financing. And the Lender has received an undisclosed fee of around 2.5% of the total “loan.” The mortgage broker, the appraiser and other participants were also overpaid by as much as seven or eight times their normal fees to keep their mouths shut. The borrower’s reliance on the good faith of these people was misplaced.
Thus when a property owner receives a notice of delinquency, notice of default or notice of sale, the borrower should write a letter that says something along these lines (subject to checking the verbiage with local counsel):
Dear Trustee:
I am in receipt of (fill in the notice you have received) dated (fill in the date). I hereby object to the Notice. I hereby give notice that as Trustee, you have an obligation not only to whom you perceive as the lender, but to perform due diligence as to the status of the note and the true owner of the note and the true party in interest who might be entitled to enforce the note or mortgage. Based upon my information, you already had notice of the fact that the true lender was undisclosed at the time of the loan closing, and therefore breached your fiduciary duty to me and all other parties affected and/or committed acts of negligence, gross negligence or malpractice such that you are presently liable for civil remedies for attempted conversion, fraud, civil theft, and usury. Under State Law you are obligated to file either a judicial foreclosure procedure procedure, a petition for declaratory relief and/or an interpleader.
I hereby request that you send a copy of this letter to your insurance carrier, the title insurance carrier and all other interested parties as described herein for the following reasons:
- There is no delinquency or default. The Lender has been paid in full plus a fee for standing in for an undisclosed third party lender that was not properly registered or regulated as a financial institution or lender at the time the transaction took place. IN ADDITION I HEREBY EXERCISE MY RIGHTS TO RESCIND THE LOAN TRANSACTION IN ITS ENTIRETY UNDER THE THREE DAY RULE, THE THREE YEAR LIMITATION, AND UNDER THE USURY AND GENERAL CLAIMS THEORIES AND CAUSES OF ACTION. BY FAILING TO DISCLOSE THE TRUE LENDER AND USING SUBTERFUGE TO HIDE THE FACT THAT THE “LENDER” AT CLOSING WAS PAID TO POSE AS THE LENDER WHEN IN FACT AN UNDISCLOSED UNREGISTERED THIRD PARTY HAD RENTED THE CHARTER OR LENDING LICENSE OF THE “LENDER”, THE LIMITATIONS ON MY RIGHT TO RESCIND WAS EXTENDED INDEFINITELY. UNDER STATE AND FEDERAL LAW, THE MORTGAGE IS NOW EXTINGUISHED AND YOUR RIGHTS UNDER THE TRUSTEE DEED HAVE TERMINATED.
- The Lender has failed to state the name or address of the holder in due course, John Does 1-1000, being the holders of certificates of asset backed securities, which are backed by the security instrument (mortgage) on the subject residential property.
- The Lender does not own, possess or control the note or the mortgage,which has been satisfied in full. Demand is herewith made for satisfaction of mortgage to be filed in the appropriate county records.
- Your authority as Trustee has also been transferred to the Trustee of the pooled mortgages and/or notes on various properties, real and personal, that were included in an asset pooled that was eventually securitized and sold to investors, who along with others in the chain of securitization acquired rights and obligations to the note, mortgage, and stream of revenue eventually due to the investor.
- Because of the known presence of necessary and indispensable parties to any dispute that the true holders in due course might have against me, only a judicial proceeding in which all parties are included will provide a fair determination of the rights, obligation and title to the property, mortgage and note.
- The “loan closing” was in fact a scheme to trick me into issuing a negotiable instrument that was pre-sold to investors as an unregulated security. The parties and their fees were not revealed nor was the true APR disclosed, as it was inflated considerably by the intentional overstatement of the appraisal on the property.
- The title agent, which might well be the same as the Trustee also has insurance for errors and omissions and the title insurance company that issued the policy will have total liability for this fraudulent transaction to the extent it had knowledge through its agents of the fraudulent scheme.
The totality of the transaction violates numerous state and federal laws including usury, Truth in Lending, deceptive business practices, and administrative standards for the practice of professions.
Therefore, please confirm the filing and recording of the satisfaction of mortgage, send the original note back to me (or tell me where it is), and confirm the retraction of the attempt to collect a debt which is incorrectly stated, improperly computed, improperly obtained, and fraudulently produced and transmitted.
THIS LETTER SHALL NOT BE CONSTRUED AS A WAIVER OR ELECTION OF REMEDIES.
Sincerely,
Filed under: CDO, currency, Eviction, foreclosure, GTC | Honor, Mortgage | Tagged: foreclosure defense, foreclosure offense, Notice of Default, Notice of Delinquency, Notice of Sale, Unlawful Detainer |
Neil, will this be useful within a week of wrongful foreclosure sale for blatant violations and no assignment, and much more as documented in court?
Beryl
THOUGHT YOU ALL MIGHT BE INTERESTED IN THIS. THIS WAS AND IS A CONSPIRACY TO COMMIT FRAUD AMONG OTHER THINGS. MIGHT BE GOOD AMMUNITION TOO.
Extract From THE BANKER’S MANIFEST, for private circulation among leading bankers only. “Civil Servants’ Year Book (The Organizer)” Jan 1934 & “New American” Feb 1934
“Capital must protect itself in every way, through combination and through legislation. The courts must be called to our aid, debts must be collected, bonds and mortgages foreclosed as rapidly as possible.
When through a process of law the common people lose their homes, they will be more tractable and more easily governed by the strong arm of the law, applied by the central power of wealth, under control of leading financiers. People without homes will not quarrel with their leaders. This is well known among our principal men now engaged in forming an imperialism of capital to govern the world. By dividing the people we can get them to expend their energies in fighting over questions of no importance to us except as teachers of the common herd. Thus, by discreet action we can secure for ourselves what has been generally planned and successfully accomplished.”
Wells Fargo is lying through their glutinous teeth about a deed of trust that has an undivided 1 /4% interest in and To the said prooerty as exhibit A . Notice of default,trustee sale was recorded feb 2010 months go by without a sale date set or an extention then the benificiary not the trustee s suing me in judicial foreclosure. March 2011 I now have to set aside default with my answer. My uncle is being sued for his 1/4% also even though he didn’t know of the loan. I want to present a strong cross complaint of Fraud and oppression against lender for Making me close my store (commercial property loan) thinking it was going to be sold In 90days. As well as Breach of Written contract. All appraisal, title reports and loan application claims are verbal and don’t exist exept in alligations. These gorillas need to be caged up so good people wont get screwed by the government s prostitution system. Any help in my efforts as an in pro lawyer will be a blessing. Thanx Sincerely , deadbreed1212@gmail.com>
There are a number of business these days offering to postpone a trustee sale on a month by month basis for no upfront fee, client pays each month only after the postponement is confirmed. The firms are not run by attorneys, and I here they charge a little less then it would cost to rent the home. Client benefits by remaining in their home for less than they would pay to rent it, and it gives them time to work on short sale. These firms claim they do not contact the lender/loan servicer, that they only contact the trustee and challenge the legality of the intended trustee sale. This claim to do this without filing any legal action in court, therefore it must be done with a letter to the trustee, and perhaps a phone call. I am curious what the content of such letter would be? Would be what Niel has pasted above? Or are they simply alleging that trustee has not complied with California Civ Code 2924? And asking trustee to prove they have before proceeding? I am a California attorney, so I am only interested knowing how this is being done in California. If anyone has an info they can share, or if they can post a sample draft of such a letter that works, I would much appreciate it, and so would a lot of homeowners. Thanks.
Allen, we are trying to get ahold of you.
We want to move forward quickly.
We are not going to use Simon.
We have a call center and the Dialer is ready.
How do you feel about being a machine
Doing referrals to others is good.
Lets move quickly.
vic 951-675-0009
I am in GA where they do Power of Sale. The house has already been foreclosed even though I filed a complaint and sent a cease and desist letter to forclosure attorney before the sale. A man says he bought it and filed to dispossess me. What steps can I take to keep my home? Can I rescind the loan even after the foreclosure sale and void the original contract?
My CA property went to Trustee sale without notification and without cure of delinquent taxes! I found out through my own investigation, nearly three weeks later, that this occurred. One market sale was already attempted and failed. Do I fax and mail the above letter with fax confirmation and certified/return receipt to the Trustee, a bank attn. to th CFO, immediately?! Does the letter require a notary?
Trying to find an attorney in Alabama to discuss what I think is a wrongful foreclosure. Any suggetions? Also, does anyone know of a requirement in Alabama that requires a bank to have a physical address in Alabama to do loans?
Hi, I am in NC and facing foreclosure in a judicial hearing….Please Direct me. I have several properties, as I made my living in real estate. Now, I am out of work, temporarily and am the victim of “you do not qualify” after the bank is looking at 2 months of lost income. This is not something I am sitting around doing nothing about! For 23 years I have paid “on time”, never late and I find myself in a mess, not created by me and looking at being homeless. Ocwen is the servicer of one of these loans and had me late 58 days out, $743.00 payment, over $1,000 in fees, which I refused to pay! Please Advise…
Thanks Apollo 😉
Hello Folks!
Discovering what you have and what they have is what this is all about!
You will not be able to get ALL of the answers, or realize ALL of your potential claims until you demand it from the other parties.
Initially you want to simply request what you want from them, when they do not comply, you file suit to get a court order for them to provide.
Your goal should be to clarify the title to your property through a quiet title action.
Once you know ALL of their wrongdoing(s), you can continue your suit to seek damages.(TILA, RESPA, and other claims such as Deceptive and predatory lending practices, and wrongful foreclosure, etc.)
You must throw some punches in the form of Motions, and Pleadings. If you are in a Non-Judicial state, you must also throw the first punch in court, as Plaintiff.
We are here to help train you like Rocky Balboa!
Allan Hennessey
Foreclosure Protection Expert
AllanHennessey@gmail.com
1-800-552-9313 Ext 111
I wish I would have found this site sooner. Out home was supposed to be forclosed on in Nov., but they delayed until 12/15/08 in 3 days. The servicer {Wilshire Credit}still has not produced the proof of ownership papers. If I called the Plantiff’s attorney would they tell me if they had them, and am I too late to fight even if they dont have. They are so many violations from the appraisal to the fees. I could use some help.
What do I do at a “status conference” for the unlawful detainer by Fannie Mae’s lawyers? I was not served with anything, not even any notice of any sale, nor any other thing. The only way I found out about an unlawful detainer was from the court sending me the “courtesy notice.” I had predatory loans by Countrywide to a disabled senior citizen. Legal Aid doesn’t help with an unlawful detainer, you have to do it yourself. What do I do to try to remain longer? What do I say to the judge at the “status conference?” I have no money, Countrywide took everything I had, and I am a senior citizen. There are so many of us this has happened to, and there is no help to even know what to do. The media portrays it all wrong, most of us have lived in our homes for many years and had our life savings in them. Thank you.
Folks, the steps above do work!
Neil Garfield has put together all of the information and professional resources you need here on this site.
May we find peace in our times of need,
ALLAN HENNESSEY
Certified Loss Mitigation/Litigation Consultant
GREEN STAR FINANCIAL, INC.
http://WWW.GREENSTARFINANCIAL.COM
ALLAN@GREENSTARFINANCIAL.COM
TOLL FREE PHONE/FAX 1-800-552-9313 EXT. 111
[…] September 17, 2008 · 2 Comments SEE foreclosure-defense-objecting-to-trustee-sale […]
CJ, contact me at panicroompro@gmail.com
I have some options for you. I am in S Ca.
Hi libra99,
Do you reside in CA? I’m in dire need to find legal assistance bec. I have a trustee date scheduled by the 9th of Sept. If there is anyone out there who can give me a clue on how to fight these SOBS…..I greatly appreciate. Should I get a mortgage audit done on the mortgages, I have 3 other properties in similar situation 2 are in Las Vegas NV. the property is in northern CA and I reside in southern CA. where will i file the documents.
First of all, thank you to Mr. Garfield for this very informative site. I have learned so much about the mortgage meltdown in America. My situation is this: Dec. 06 did a refi on home, mortage broker talked me into doing a 4 pay option arm, with a negative amortization, that with the difference saved on mortgage payment, I would be able to SAVE money and make more in interest on the net difference. At closing I realized that there was a prepay penalty, and my broker wrote out an IOU to make monthly payments back to me for one year to pay me for any pre pay penalty. Broker made first payment only, in the mean time saying that they would refi the loan again and just save me the difference in closing costs…whatever…payment goes up significantly after 2 months. We continue to make OUR payments and Broker closes office and American Home Mortgage goes belly up in August of 07. My property taxes were not paid out of my escrow which was paid current. several months later they did pay them in Oct 07, however insisted on charging me penalties and interest, of course I objected. In Dec 07 American Home Mortgage Servicing upped my escrow 400 per month stating that is how much my taxes went up…HELLO…that would mean they went up 4800, which may be possible in some circumstances, but mine went up about only about 80 per year. I continued to make normal payment trying to get this resolved, with AHMS not recognizing the payment because it was not for the amt THEY said was due. In March 08 a person in there office in TX said to hold off on a payment until they can figure what went wrong. I was served paper in June starting judicial foreclosure proceedings. I contacted the company and was just going to negotiate something to pay arrears, but they would not accept a payment electronically out of my checking acct, the said I could only pay via Western Union, which has significant fees, which would have amounted to almost another 1000 in expenses. So I spent the money on a mortgage audit, by Mr Maher Soliman of borrowerhotline.com
12 RESPA and TILA violation were found. I went to my court date on Jul 22, and the plaintiff’s attorney didn’t even bother to show because I had not contacted them, I contacted the company instead, and they were prepared to rubber stamp it. The judge allowed me to continue the case, but stated several times that I had not responded within the 20 days, and being a novice I thought by contacting AHMS that would be considered. The judge also required that the plaintiff’s attorney MUST be present for the next hearing. The court date was rescheduled for Aug 14, the attorney for the plaintiff called me on Aug 11, to see if I would be willing to delay the court date again, as it wasn’t convenient to drive across the state for a 15 min hearing, and stated that they received the Qualified Written Request, but didn’t know that they were expected to respond to it. I agreed that we should postpone the next court date, and in a conference call with the court, it has been moved to Sept 22.
On Aug 26, I received a formal request for Interrogatories from the plaintiff. I have contacted my family atty who admitted that he is not well versed in TILA , RESPA, or securities laws, as this loan was sold as a security soon after closing. The title company said there have been no assignments to the title. Do I have a legitimate case? What would be the proper protocol? Are there any attorneys in Wisconsin that are familiar with Mr. Garfield’s strategy? Also, since I will not be able to attend in Santa Monica, will there be a workbook or summary that could be purchased of the workshop Sept 3.
JD this fight is bigger than you,get the good lawyer you do not have time.
I have a unique case that may already have no hope as I found this site too late it seems.
How can I stop a foreclosure sale well past the appealing date? Do I have to file a fraud suit in the Supreme Court of Florida?
The situation is unique as I was married with everything in the wife’s name and then she left the country and abandoned the marriage in April of 2006. In Oct 2006 I had great credit and with financing available and approved, the servicing company refused to deal with and or accept payment in full.
In March of 2007 I made my last payment as my savings ran out (due to the marital income being diminished). Each month attempting to have the loan paid off.
Fats forward 6 months and I found myself Pro Se in a court room with an unsympathetic judge. My answers to the complaint which included the assignment of note etc, was brushed off by the judge. Considering the plaintiff was Deutsch Bank and everything goin on in Ohio I thought for sure he would have even considered my requests for proof.
He said “Their (DB) paperwork “seemed in order” and set the sale date. Being Pro Se and not familiar with the appellate process, I walked out of the court dismayed and with all loss of hope. I had to file a Chptr 13 to stop the April 2008 sale date. Now that the Chptr13 was dismissed the house sale has been reschedlued for Sept 10, 2008.
WHAT AND WHERE DO I HAVE TO FILE AND TO STOP THIS SALE AND GET CASE ACTUALLY LOOKED AT?
I went to a Consumer Affairs “recommended” attorney and he basically said “your legal responses to the Action wasn’t properly done.” He recommended I contact the Banks att. and ask for a 60 day ext on the sale as I “may” have a way to get the bank there money. And then it would allow the time necessary to possible bring a fraud suit.
Will filing a TILA fraud suit stop the sale automatically if filed in the Supreme Court of Florida, with a Liz Pendens Action (???) against the property?
Sorry for the long post, but as I said it was unique. Thanks for reading and any help or names of “ACTUAL CARING ATTORNEYS” in the Broward County area of South Florida would be most helpful.
Thanks again and great website!
To all of the new friends I’ve made here on Neil’s blog, those whom I’ve corresponded with and spoken to, I won my court case today !! The lender is trying to evict me, but they messed up on the eviction protocol. They served me with a Notice to Quit before they recorded the Deed. In other words, they tried to take posession of property they didn’t yet legally own.
This isn’t the end of it by any means. But for now, they have to go back and file the Unlawful Detainer all over again, have to serve me with papers, at which time I’ll file another Answer Form with the court. It takes about 45 days for the Unlawful Deatiner process, then it will take another month or so for another court date. I’d say I just bought myself another two months here. Plus, they’re eating it on court costs and attorney fees. I love it !!
The attorney for the “Lender” tried to get my attorney to take a deal. A reasonable amount of time for me to move out, plus they’d drop the monetary damages they’re seeking against me. They’re trying to get $50 per day for every day I’ve been here since they “owned” it. Good luck with that !!
My Legal Aid attorney surprised me, she really did a great job. Unlike the attorney for the lender, she came well-prepared. The other side really wasn’t expecting to go to trial. Their guy was a real jerk. I think the judge picked up on that as well. The judge was a really nice guy, perhaps luckily for me.
It was a bit tempting to just take the deal, and be done with this nightmare. But I’d rather have lost and gone down fighting, then to have signed the house over to them and walked away.
Anyway… live to fight another day. I have to admit, it felt pretty damn good to win !! As I said, the battle will continue, and these guys play hardball. But at least for now I have more time on my side to see what else I can do to these guys. I’m not finished yet !!
Steve
Hello………I live in the Phoenix, Arizona area. I need help deperately………..I have already lost my home due to a wrongful foreclosure in 2004. I was a member of the FTC and Curry vs. Fairbanks Capital Corporation lawsuit….. I rescinded my loan formally and properly in July 2003…I had refinanced in March 2003…….Fremont Investment and Loan was the original lender………..Fairbanks responded in October 2003……this was not only a TILA violation, but also a RESPA violation………I was compelled to mandatory arbitration in January 2004 and then in March 2004 it was withdrawn………Fairbanks started foreclosure proceedings in March 2004…………they foreclosed in September 2004 and I had five days to move with my five children………This is after the FTC and Curry Settlement Agreements……I was then compelled to arbitrate a time-barred claim that was to have been released under these settlement agreements….arbitration……….the arbitrator ruled in Fairbanks…………What about Injuctive Relief under these Settlement Agreements………Now a judge here in Arizona is enforcing the judgement of $5500.00 dollars………..Oh, by the way I did have an attorney…………through 2007…………..No one will represent me,,,,,,,,,,,,,,,,Will I benefit from the workshop in Santa Monica???????????
Please some help……..My statute of limitations is running out on the wrongful foreclosure claim I can file under the FTC order…………….Please help………
Kathi Sharpe
So today, just 3 days before my Summary Judgment Hearing, I get a document overnighted to me via FedEx. It’s from my lender, you know, the one who’s suing me for eviction. Now suddenly they’re offering me a moveout deal, cash-for-keys. Screw them, I’ll make them take this place from me before I sign it over to them. They may well succeed in getting me out of here, but the battle isn’t over. I know what they’ve done to me, and they know that I know. Besides, I consider this to be a ploy on their part, dirty little pricks that they are. I’d imagine it’s nothing more than leverage, so they can tell the judge they offered me an out without having to go to court, and I opted not to take it. I’ll see these SOB’s in hell.
This site is incredible, I wish I would of found it a while ago. I have learned so much!!
Libra99,
Your right I dont think most attorneys want to follow some of the strategies Neil lays out, they have no expirience with them and are to far out of the box. Keep us posted on ho things pan out for you,
good luck
Suzanne,
Ask Neil if he can possibly recommend an attorney in your area for you.
Hi Suzanne,
I did manage to get an audit done, and they found TILA and RESPA violations. [I used Loan Compliance Advisory Group in New Jersey, they’re good]. The mortgage broker put me into a loan that at the time was over 4000% beyond my affordabilty acording to my tax docs !!
The only attorney I currently have is from Legal Aid, and she won’t go near this stuff with a ten foot pole. She’ll only handle the “eviction” end of things, as she things they messed up on the protocol. They posted a 72 hour Notice to Vacate prior to recording the deed, it should be the other way around. She “thinks” she can make them go back and re-do it, but honestly, I wouldn’t trust her to defend a traffic ticket.
As far as being “served” … they filed an unlawful detainer against me, and I was also served with papers. But … when the guy came to serve me the papers, I lied about who I was. Thinking I was someone else, he just left them with me to give to “me”.
I’m going to bring the results of my mortgage audit with me to hopefully be able to show the judge, and also Neil had me send a copy of the “Foreclosure Defense Form” to the trustee and the attorney. I don’t know if it will do any good, but he said it may stop things for now.
This whole thing is a nightmare. I’m going to have to plan on having to be out of here, just in case. My sale date was back on 5/2 and I’m still here almost 4 months later. Feel free to email me directly if you want.
Steve
99Libra@gmail.com
Seeking an attorney who is knowledgeable to Mr. Garfield’s technique. NY lawyers are closed minded not willinging to do any type of brain work.
Still seeking a knowledable lawyer in NYC. nyone know of any?
Hi Libra- Just wanted to tell you that you should try to adjourn the eviction for as long as possible. Can you contest your foreclosure? Did you do an audit? I know this requires money and believe me it is scarce. I am going throughthe same thing but I am in NYC. I am trying to get a motion put in Supreme Court to have the foreclosure vacated. I wish you all the best. Service is a big thing in court. If you have not been served make sure you tell the judge.
To Suzanne –
You’d put up a post asking what state I’m in. Your post, along with my reply, got deleted. But anyway, I’m in Califronia. Email me if you want to.
Does anyone know anything about a defense in Washington State where Greenpoint Mortgage is the lender/servicer, and a regulation that the lender must maintain an office within the state where a payment can be accepted and thereby stalling the foreclosure by resetting the dates and requiring a new notice? I was told about this possible defense, but have not been able to find any information to support the argument. Any help will be appreciated – sale date is scheduled for August 29 2008 on King Co. Courthouse steps.
Libra Call me at 786 274 0527 please
I’m giving this a shot to hopefully avert my Summary Judgment Hearing next week.