Foreclosure Defense and Offense: Common Law Liens

At the suggestion of a certain non-lawyer I know, I did some research and uncovered the following, which is now resting comfortably in Garfield’s Glossary:

Common-law lien

Created by a sworn affidavit, and filed for a few dollars at the recording office where your property is located, it is a lien under common law giving a creditor (You, as a bailee) in possession of property the right to retain possession until payment of the amount due. In the context of the mortgage meltdown, this device might be available in certain states, but you need to follow the rules for filing liens very carefully. In this case, the foreclosure sale would have already occurred (although there might be a case for pushing this device to ANYTIME including before the sale). You would state all your claims for fraud, appraisal fraud, TILA violations, usury etc. against anyone and everyone who had anything to do with your loan that you uncovered through research. It forces ALL the parties to go to court to get rid of your lien and it forces the party who allegedly foreclosed on your property to bring the lawsuit against you, thus enabling you to file an answer, affirmative defenses and counterclaim — or, in other words, converting the non-judicial sale to a judicial sale.

2 Responses

  1. Is there a “Neil Garfield recommended” TILA/loan doc auditing firm? I need to get on this fast, but I only want to go with a company referred by this blog because I’ve only got one shot at getting this right.

  2. This is great information but you say this device might be available in certain states but caution to follow the rules of filing a lien very carefully but how do I find out if this is applicable to Colorado and the rules for filing a lien of this nature. I am about at the end of my rope with this whole battle. I have filed a TILA Complaint in federal court and requested a stay of the eviction in state court but the attorneys for Bank of New York/Chase are pushing forward with the eviction. As of yesterday there was still no ruling on my motion to stay but this morning I got up to find a Writ of Restitution taped to my front door so I assume the next step would be the sherriff will be here to physically move me out.
    I need help in a big way to know what to do from here and fast because I don’t want to have all of my furniture from a 3500 square foot home sitting in the front yard. I have an unbelievably strong case but the only weakness is my lack of legal guidance and limited knowledge (all learned through countless hours of research in the last 6 months). I would love to be able to file this lien if it is possible and stop them from evicting me until my case is fully adjudicated in federal court but I am afraid that the banks high dollar attorney’s are going to force me out. HELP PLEASE!!!

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