Many thanks to Amazon for making it easy. Livinglies now beamed directly onto your Kindle with the latest posts, news, forms, cases and statutes. This is the #1 Site on the Internet for resources and research on the Mortgage Meltdown, Foreclosure Litigation, Forensic Review and Analysis, CLE Seminars for Attorneys, Forms for Pro Se Litigants, News, Cases, Statutes, Comment and Opinion. The simple theme is DON’T LEAVE AND DON’T GIVE UP! YOU HAVE FAR MORE RIGHTS THAN YOU THINK. BEWARE OF HUCKSTERS SELLING BOOKS, “AUDITS” OR OTHER THINGS WHEN THEY ASK FOR MONEY AND PROMISE YOU THE WORLD.
This is hard work, but then it is your house and your life-style you are saving isn’t it? This Blog gives you the ammunition to present a credible threat of success in defeating collection or even enforcement of the note, mortgage or obligation. It gives you the power to set your own terms for settlement or re-structuring the “loan” (if there is one, legally speaking) and even to collect damages for the false statements they made about underwriting, appraisal, and viability of the transaction — and to avoid silly modification schemes that simply put you back into default 6 months later after waiving all the defenses you had. GET SMART!
There is no silver bullet. “Show me the note” and other simple devices are no longer having much effect. You need a coordinated strategy combined with knowledge of the scheme of securitization to understand why your loan might not be in default even if you have missed payments. You need to know about ownership of your “loan product” to challenge the authority of someone who sends you a notice of default, service or notice of foreclosure, or offers you a modification. They probably have no more authority than your neighbor. You probably don’t know who your lender was at closing nor who your lender is now — you just think you do. That’s what the pretender lenders are counting on — an ignorant consumer is their best target.
Read a little of this blog every day for a few moments, think about it, and start digesting it. You will come to realize that you are entitled to far more than you think and far more than the media is telling you. Cases are being decided with increasing frequency saying that the securitization scheme was improper avoidance of recording statutes. what does that mean to you? It probably means that you might owe money (if the feds or insurance haven’t paid off your obligation) but that there is no encumbrance on your property. That means there can’t be a foreclosure. It means that you might owe the money and they can’t take your house. More cases on MERS and other “nominee” show the split of the note from the mortgage making both unenforceable. Why should you get the benefit? Why should they — after being paid multiple times on the same obligations?
Welcome again. For more information on Neil F. Garfield, MBA, JD, author and editor of this Blog and co-author of upcoming book, see About Livinglies and Neil F Garfield
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Instead of using the popular “Produce the Note” defense, we should be championing a “Prove the Debt” defense.
The Note is just one part of enforcement of a mortgage security instrument. Many attorneys for Pretender Lenders will try to claim to possess the Note endorsed in blank and then Claim to Hold Bearer paper. Bearer paper can be properly held by “possession alone” and if not challenged, a Judge will likely allow such a claim. However, there are many factors to challenge:
1. How did it come to the possession of Plaintiff? Ask for notaries and certifications.
2. ALWAYS DEMAND A POWER OF ATTORNEY. Nothing is REAL without a Power of Attorney.
3. Assignments and a chain of title are a right under Due Process. If there is a flaw in the Chain of Title then there is a MAJOR PROBLEM as seen in recent Mass. cases. DO NOT ACCEPT ASSIGNMENTS for face value. There is common language on the face of most “Mortgage Assignments” that claim NO Representation. ANY MORTGAGE ASSIGNMENT WITHOUT A POWER OF ATTORNEY IS A NULLITY. (Tawil v. Finkelstein Bruckman Wohl & Rothman, 223AD2d, 52,53 [1d Dept 1996] See also Judge Shack of NY
4. Challenge ALL Agents and their authority. No endorsement that is in Blank and without certification or notary witness and POA should be acceptable.
5. Do not allow the Plaintiff’s Counsel to REPRESENT the Plaintiff without a Power of Attorney. Until this is established, they are just an average Joe off the street. Treat them as such.
A Promissory Note cannot be passed around “like a whiskey bottle at a Frat party” even indorsed in Blank, without proper consideration paid, and proof that a Mortgage assumption and debt was transfered.
We all know that over 90% of mortgages were securitized and the Notes are all likely in possession of a Document Custodian and NOT IN THE POSSESSION of the Plaintiff Pretender Lender Attorney. Yet, they will lie to the Court and provide “true copies” to the Court and purport they are good as gold. OBJECTION! A copy is a copy, and without all proper evidence, NOT HEARSAY, but actual evidence from a competent fact witness, these documents are not valid PROOF that you have defaulted, that the Plaintiff is the Real Party in Interest,
Fact: at least one another entity has title to your Mortgage and/or Note, unless your mortgage was originated by a local bank. However, if you come in day 1 and try to explain this complicated banking scheme to a veteran Judge…he will simply dismiss it. BUT if you carefully craft your pleadings and request very strong discovery in the form of Interogatories and Admissions and ask for Job history affidavits……THE PRETENDER WILL IGNORE these requests. This is their admission to the Court by their own acquiescence to the FACTS, that they are presenting a Fraud on the Court.
Give the Pretender enough rope to hang themselves. There is No Silver bullet ….but there is a lot of rope.
The concept that the Note might be good, but the
mortgage (the encubrance) is not legal is a very important concept which could lead the Nation out
of the “mortgage crisis”. Lots of unlicensed lenders
have made mortgage loans in the last few years. Unless they were a 100% owned subsidiary of a nationally chartered bank (FL. law), they had to be licensed at the State level. Licensing is important in
keeping predatory “fly by night” lenders out of the mortgage business. MERS was often used by these
unlicensed lenders which adds further ammunition in
getting the “mortgage cancelled”. The Notes are often
traded at substantial discounts to face value once it is clear the “mortgage” is unlawful. This should make the modification and cram down of the debt principal a much easier thing to do even outside of bankruptcy court.
I knew that this would last next to forever, but I am beginning to see huge change, as the system implodes common reasoning become more evident, this is to say that more and more the Judges are starting to understand the issues and rule in favor of the victims. However I also believe that handling this as an administrative fight in part also helps, it is an art of how to deal with these banks, much of what I think I know I have learnt here some of the lessons came from many other places, I personally am still going through the learning process. this site does have alot of material to help someone to understand the issues but make no mistake that you need a good lawyer, without the good lawyer it will never be safe.
The difficulty comes with the good lawyer, it is so hard to make the correct decisions, even some of the times the field is so large and the issues are many. Reading is the most important thing, in order to understand the issues.
There is no reason why any person given the correct situation should ever lose their home, most of the people who have lost their homes were for the lack of proper knowledge and a proper lawyer, its just good to have a lawyer signed on to the case in the least, if you are a good administrative fighter , got in on time, have the elements correctly lined out, and fight with brains and lots of it, you can be very successful, at least to starve off the plaintiff until help arrives or until the time limit comes which ever comes first.
I would hold on for dear life, fight day and night and never give up.
I do not see another way out, I never did to this very day, at first the government would solve the issue, but they made it worst, they gave the bankster more money to pillage more victims than ever before, people are broke, afraid, and walking away from the home, and Lawyers are still a huge problem for homeowners to find, the amount of homes being lost is staggering.
But think of this for a moment, many banks are going out of business, would you like your fake lender to go BK?, I would then I can file a proof of claim, I think I read that some 1000 banks are going under by 2011, (if my memory served me right) how are they ever going to handle this is a huge think to see.
Anyways sit tight and fight on forever, if you put up a good fight you will do well, let me tell you if you fight a Crocodile for long and hard enough, he usually will give up, banks are walking away too, did you know?, now that is the fun I like, the fight is so huge that they are folding, this is the chance we now have to get at them on the down side baby, that last few strikes is all it may take to stop this beast.
Cases now need experts ,audits, regulator actions, other administrative actions and correspondences, its a huge job, the money you pay the good lawyer is more than worth it. In more ways than one the money flow on the street have decreased making life difficult for so many people, but the best idea is to stay away from the courts as much as possible stall the thing with the letters and the regulator, and get a good lawyer to sit on it, just hope that the foolish plaintiff and the no good regulator will much up their own lives while the victim gets help, or the time passes away.
I call it the art of fighting without fighting, the lazy mans fight to home ownership,thank god Neil is here.
I need more knowledge the fight is getting closer to the body more than ever and other defenses are needed, mind you standing still is the first line of defense I stay at, then come the whole armada, plus the kitchen sink, Troy has some new projects he is doing and promised to hook me up, but then he did not come tru yet, am I babbling?.
Jose,
A simple Cease and Desist and a debt validation letter could do the trick.
I have one on my site:
http://www.mainefairhousing.org
its universal, and uses FDCPA language. check it out.
I agree Mr, Grafield there is no silver bullet, however, we have lots of heart and the US Constitution on our side.
Perseverance and do not take no for an answer. If you lose a battle, appeal, appeal and appeal. If the lawyer is lazy and there are many lazy ones out there, that will make any one sick, well hire another one, do your homework, research their credentials and push them.
Push to have all the principals of the transaction present in court with you. It is a confusing time and the threat of being kicked out of your home is a very powerful force, but I can tell you that after applying This Blogs Strategies and learning a little everyday, I have prevailed for over two years of pushing forward.
I tell everyone I meet about my fight, my struggle and have them visit livinglies.wordpress,com. Do not wait for the judges, lawyers and media to help you you have to challenge the status quo, it is you who must wake up everyday and make the effort to change the paradigm.
The government had their chance and they blew it. Mr. Garfield and everyone who contributes to this blog are heroes in my home, work and will be in my prayers at everymoment. You out there fighting!, you are a hero as well, considering the odds, you are the true spirit of America, and you all should feel proud. We will never give up, we will never surrender.
You have an excellent resource site!! Our friend is challenging her lender and servicer – they are in default. Her servicer — Green Tree — has stooped to an all-time low by calling our friend’s ‘tenants’ on another property she owns, and leaving her threatening messages on their phone or to them directly. They have been documenting these calls. Yesterday, they told the tenants that Green Tree was going to file sue and ‘lien’ her other properties!! She’s looking for a letter that can be used to shut them down. Any suggestions? Thanx again for all you do…
jose
why the hell is there not any silver bullet for our advantage. the opposing counsel and courts for non-judicial foreclosure states have thier’s Rule 12(b)(6) with prejudice that seems to reigning in a hail of silver bullets killing all our hopes and implicating that the judiciary (most of it) is now PUBLIC ENEMY #1