Livinglies's Weblog

RECENT DEFENSIVE MOTIONS FILED BY “LENDERS”

5 Responses

1. 

   Jim Jordan, Esq., on January 14, 2010 at 9:37 am said:

   Over the past 4 months we have in So Calif state courts [Los Angeles Superior] been stopping lenders cold. Calif law prevents bad notices of default from supporting non-judicial foreclosures. Once the courts see this in our extensive TRO proceedings filed with our complaint…..the foreclosures are halted. This may also form the basis for reversing bad trustee’s sales and restore title back to the former owner/borrower.
   Call us at 818.453.3585 for details and referrals. We STOP LENDERS COLD, lawfully and proudly.

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2. 

   Patty K, on December 9, 2008 at 12:03 am said:

   Related to the above. . .

   A note on the “right to renegotiate.”

   While it may be arguable whether or not the right to renegotiate is absolute under common law, it is certainly a default right (i.e., a right that exists unless explicitly limited by contract or statute). It is therefore a contractual right that is not to be subverted or interfered with.

   From what I’ve been able to gather, most legal systems accept the principle that parties to a contract have an absolute right/duty to renegotiate when changed circumstances make the continuation of a long term contract onerous to one party. Like the right/duty to act in good faith, the right to renegotiate cannot be contractually nullified. The existence of absolute right/duty may not be open to question in the most legal systems, but the question of how “onerous” is “too onerous” remains.

   Under common law, although the existence of an absolute right/duty to renegotiate is apparently considered questionable, it exists in practice. If the “contractual equilibrium” gets far enough out of balance, renegotiation can be imposed by a court, even if the disadvantaged party waived the right to renegotiate in the contract. Like systems that view the right as absolute, the only question is how for out of balance is “too far.”

   To look at it another way, the fact that contracting parties sometimes take pains to conditionally “reserve the right to renegotiate” or “waive the right to renegotiate” tells us that there is a presumptive right to renegotiate. If there weren’t, what is being reserved/waived?

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3. 

   Patty K, on December 8, 2008 at 11:52 pm said:

   Follow up to post above

   Securitization = Tortious Interference ?
   ============================================================

   “Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiff’s contractual or other business relationships.” (Wikipedia)
   —-
   What “contractual relationship” exists when a party to the contract has entered into a set of agreements that renders them incapable of renegotiating in good faith?

   To make their “product” more attractive, agreements among the parties to the securitization process– trust owner, issuer, agent, indenture trustee, guarantor, servicer, depositor, custodians, and whatnot — include “no changes” clauses. (e.g., “The Guarantor guarantees that the Obligations will be paid or performed strictly in accordance with their terms.”) Such “no changes” agreements strip the mortgagor of their right to renegotiate.

   In the process of securitization, the interests that are presumed to be served by ANY mortgagor/mortagee contract are nullified.

   For example, in a legitimate mortgagor/mortgagee contractual relationship there is a common interest in maintaining/improving the condition and value of the mortgaged property. If changed conditions destroy the mortgagor’s interest in maintaining/improving the property, the mortgagee is motivated to restore the balance of interests.

   The costs associated with foreclosure, and the value lost when a homeowner abandons a property (and perhaps “trashes” it on the way out) give the mortgagee a powerful incentive to make accommodations if the market value of the house drops below the value of the mortgage loan, or if a change to the mortgagors financial status would, absent a short term forbearance or change in terms, force them into default.

   By severing the mortgage from the promissory note and dispersing the “ownership” of that note far and wide, any concern about the condition of the property, and any incentive to preserve it, has been utterly destroyed.

   Even if some party to the securitization did have an interest in making an accommodation, the agreements they have entered disallow it.

   As if it nullifying the interests that are shared by mortgagor/mortgagee weren’t bad enough, the mortgagor is barred from even attempting to improve their position within the adverse framework imposed because there is no agent “on the other side” capable of representing the tangle of entities and conflicting interests.

   The mortgagor’s “rights and duties” under the mortgage loan agreement “are adversely varied” by securitization agreements “to which he is not a party or by which he is not otherwise bound.” Therefore, their actions constitute a violation of the Uniform Commercial Code.

   The trust owner, trustee, issuer, and all the rest have engaged in the securitization scheme for profit, which is a great goal in and of itself. But collusion to advance their own interests by intentionally “damaging the mortgagors contractual or other business relationships” constitutes are breach so grave that any obligation the mortgagor may have ought to be be declared null and void.

   ——
   Patty
   pat-nospam@comcast.net

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4. 

   Patty K, on December 8, 2008 at 11:41 pm said:

   Any Tortious Interference Cases?

   We hear plenty about the damage done to investors when banks are compelled to renegotiate terms of their mortgages. (Just the other day it was reported that Greenwich Financial Services hedge fund filed suit against Countrywide/Bank America.)

   What about the mortgagor’s right to renegotiate? Whether or not one of the parties to the securitizations can produce the note, the whole process imposes adverse changes that destroy the mortagor/mortgagee contractual relationship.

   I’m not an attorney, but by any definition I’ve been able to find, the securitization process constitutes willful and blatant Tortious Interference. For what it’s worth, I’ve posted my reasoning in the following post. Would appreciate any feedback.

   Am I missing some slam dunk defense? Any thoughts on why such a suit would be advisable or inadvisable?

   It seems so obvious to me that I’ve been mystified that I haven’t been able to find a case.

   Is anyone here aware of a case in which a mortgagor sued the parties to the securitization process for Tortious Interference?

   Anyone interested in possibly pursuing such a case in NJ?

   -Patty

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5. 

   Allan (Sleepless in Miami), on November 25, 2008 at 11:22 am said:

   These appear to be well-written sophisticated motions submitted by seasoned attorneys other than the neophytes in first-line-of-defense lawyer mills.

   So, the foreclosing entity does NOT need the original note?

   Hard as a pro se to counter these.

   Did these California motions work? Do we have the recorded responses/objections to them?

   Are there similar motions for Florida?

   RSVP
   Allan
   BeMoved@AOL.com

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