FROM FAQ ON PROCEDURE: OBJECTIONS, HEARINGS AND ATTACKING OLD JUDGMENTS

QUESTION: Submitted on 2008/12/23 at 8:03pm

1. FLORIDA CASE: Have a foreclosure defense in Miami. In what time MUST defendant reply with OBJECTION to the lawyers’ response or submissions, so as not to waive defenses? Cite FRCP if possible.

2. MASSACHUSETTS CASE: I’m sure my Boston loan got securitized and had TILA and other violations before sought Ch 13 BK protection back in 2002-2006, and sold my home of 20 years in 2005 to avoid foreclosure. How might I revisit that case and/or transaction, now that I have UNCOVERED NEW EVIDENCE withheld from me in the redacted documents they offered in discovery, and know what I now know from this site? Got case law how I can reopen this?

RSVP
Allan
BeMoved@AOL.com

Your Massachusetts case depends upon Massachusetts law, with which I am not familiar.  If it is anything like the state laws I DO know then there are two cometing principles at work: (1) finality — i.e., once a case is done it is done and they don’t like to re-open cases, period. (2) fraud and perjury: tricky but possible. You not only have to show that there was a fraud upon the court and that it was intentionally withheld from you and the court, but also that it would most probably have made a difference. Grey areas will be decided against you. The Motion is Generally Called Motion to Vacate Judgment for Fraud Upon This Court.

5 Responses

  1. JC: If you have perfected a lien, then you need to go through post-judgment collection process. You will need to follow your state law and levy it or foreclose on it. If you don’t get paid, then levy on a GMAC mortgage that they claim to be the owner of. Just go down to the courthouse and see which cases have GMAC and of those which ones do they claim ownership. Then assuming you have a judgment, you garnish the mortgage. Then you work out a new mortgage with the homeowner (assuming they have the means). I strongly suggest that the re-structured loan follow this model: 80% LTV (loan to value), 5%, 30 year fixed, 5-10 year balloon payment. So say you have a $50,000 judgment lien perfected against GMAC. You find another unrelated case where they claim to be the “lender” or in any event the “owner” of the loan. Let’s say the note in the other case is $200,000 and the property is worth $90,000 now. After you get control of the mortgage, you execute a new mortgage with the distressed homeowner for $72,000, 5%, 30 year, fixed rate, with a 5 year balloon which means they need to refinance or sell their property within the 5 years. You ALSO file a friendly quiet title action against the homeowner and record a final judgment quieting title to the homeowner subject to your encumbrance (the new mortgage). If the homeowner cannot qualify for any mortgage, then you work out a 90-day period for vacation of the premises in which they something toward rent and do the same deal suggested here with a new homeowner. By reducing the principal to reflect reality, sale the of the property is no longer impossible — it is likely.

  2. We have recently perfected a lien, through consent, on GMAC with a UCC-1 after sending notices of default and demand letter with an affidavit supporting the debt with no reply by GMAC. We are now seeking judgment to obtain an order for a writ of execution. Filing a complaint will gain the courts jurisdiction but instead we are considering filing a petition. With your thoughts and experience what would be the best way to proceed to collect on the lien? or how can the trust proceed to collect on the UCC-1 avoiding the courts as much as possible? The court case is now closed; should it be reopened? how without filing motions? Your time is much appreciated.

  3. Sounds like the Trustee (and others) need to be shown the definition of extortion:

    EXTORTION – The use, or the express or implicit threat of the use, of violence or other criminal means to cause harm to person, reputation, or property as a means to obtain property from someone else with his consent. USC 18

    The Hobbs Act defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. S 1951(b)(2).

    I will not give them consent.

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  4. 1. It isn’t illegal or prejudicial to a plaintiff trustee’s case for it to have acquired rights or be assigned a mortgage AFTER a borrower is in default — but it DOES raise issues of fact that must be heard by the Court. Since the Mortgage went into default there are several possibilities:
    (a) under the pooling and service agreement the original lender might be the responsible party and unless that original lender is STILL in privity with the CURRENT (was there a substitution?) trustee, the trustee might not be getting instructions from the real beneficiary.
    (b) under the assignment(s) the real beneficiary might have changed as well.
    (c) Remember that there are at least three Trustees in securitization — the Trustee on the Deed of Trust, the Trustee of the Pooled Assets, and the Trustee for the owners of certificates of mortgage backed securities. There are also substitutions of Trustees at all levels. Each of these Trustees, in order to have any relevance to the case must have the acquired legal enforceable rights. The acquisition of legal enforceable rights is ONLY through a document of transfer that identifies the Grantor as the party who has the power to appoint the Trustee and his/her/its powers. So the mere existence of a “Trustee” cannot be established by an allegation or declaration from the Trustee. For example, the Trustee for the owners of certificates of Mortgage Backed Securities is usually limited in his/its responsibilities to litigate. The usual provision in the certificate is that the Trustee for the holder of asset backed securities series 2007-A etc. is that the owners must agree to the litigation and agree to pay for it. Otherwise the Trustee is stuck with paying for it.
    (d) Just because someone calls themselves a Trustee doesn’t mean they are a Trustee with any relevance to your transaction. In fact, they might not be a Trustee at all if there is no “Trust Instrument.” And if they are a Trustee, odds are the beneficiaries under the Deed of Trust are (1) not the originating lender, (2) not the mortgage wholesaler/aggregator and (3) probably not the owners of the securities that were issued. In the evisceration of the security instrument by playing fast and loose with the assignments, proceeds of notes, over collateralization, cross collateralization, insurance, credit default swaps guarantees and federal bailouts, the relationship of the Trustee to the actual mortgage transaction appears to have been cut or at least reduced to a gossamer thread with powers so limited, that they can only be exercised if the Trustee proves a proper foundation of his/her/its actions — i.e., by the inclusion of necessary and indispensable parties.

    2. after the world is put on notice through a defendant’s recorded lien filed against subject property BEFORE a mortgage on same was securitized, claiming that there has been fraud in the inducement, a forgery, unclean hands, etc. what does that do to a party claiming to be a ‘holder’, or a ‘holder in due course’ — this produces a requirement that any party intending to foreclose must remove that cloud on title before proceeding. If you succeed in getting something like that recorded, you have succeded on putting the burden on the “lender” to file judicially and make actual allegations in a foreclosure lawsuit that they have to prove before the burden shifts to you. This they usually cannot do and the case is very often dropped.

  5. Worthy Counsel,

    Why is it illegal or prejudicial to a plaintiff trustee’s case for it to have acquired rights or be assigned a mortgage AFTER a borrower is in default?

    Also, after the world is put on notice through a defendant’s recorded lien filed against subject property BEFORE a mortgage on same was securitized, claiming that there has been fraud in the inducement, a forgery, unclean hands, etc. what does that do to a party claiming to be a ‘holder’, or a ‘holder in due course’?

    RSVP

    Allan
    BeMoved@AOL.com

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