2009 Round-Up: What We Know, How to Go, and What’s Next

It’s time to consider the year 2009 and to plan 2010. At the beginning of this year most homeowners, lawyers, judges and legislators were still blaming the borrowers for their excessive borrowing. Our mission of reaching out to more people has been more successful than we planned. Caught by surprise, we were challenged by excessive demand for services and a very shallow pool of resources to draw on. This continues to be a problem but, as you will see below, we are working on it.

Nearly everyone still agreed that a debt is a debt and it must be paid without uncertainty floating into the marketplace because of “technical defects.” Foreclosures continued at a brisk pace, properties were seized (many times before the foreclosure or before the writ of possession was issued) and the pretender lenders were considered real banks, real lenders, who had lost money because of these “bad bets.” Foreclosures continue to move briskly but there is a growing resistance amongst members of the judiciary to letting them go through without any scrutiny.

Now we know differently as we discover scant evidence that any of the investors who put up money to fund mortgages ever received the proceeds of a foreclosure sale. That of course is because the party who foreclosed had nothing to do with either the investor or the borrower. But the power of myth lives on and most homeowners confronted with the threat of foreclosure drop their keys on the kitchen counter, or take some bogus cash for keys deal, and leave their homestead forever, unaware they still own it, still have a right to occupy it and that the people doing the threatening are at best unauthorized interlopers and at worst, simple thieves.

The possibility that the note, the mortgage, and the obligation may have each or all been extinguished by multiple payments that are undisclosed to investors and homeowners alike is just dawning now upon the judiciary, and is just now getting some attention from mainstream media. The Bankruptcy Bar is awakening to a new world where even the apparently smallest bankruptcy estate might be worth hundreds of thousands of dollars arising from UNSECURED debt and an unencumbered valuable asset (i.e., the home) which has probably been paid by third parties who are not making any claims. Gretchen Morgenstern deserves special honorable mention. As a reporter for the New York Times, she has systematically dug deeper and deeper into the mortgage mess, taking nothing at face value and requiring proof and corroboration of everything. A breath of fresh air.

Yet Homeowners face the continuing problem of navigating through the maze of regulation, compliance issues and securities issues that could help them because the legal profession, as a whole, has not caught on to the main points. Even the list published on this blog yields mediocre results and inconsistently satisfying relationships, despite attendance at our seminars. We are constantly plagued by demands that outpace our ability to provide service because lack of time, lack of staff, lack of money or a combination. The “donation” model implemented a year ago has yielded….well, let’s just say <$100/month.  So we are are looking at new models of how to help you (and us) through this process. Brad likes to say “feedback is the breakfast of champions,” so we want yours.

  1. The first one, which I want you to give feedback on, is where we provide you with the direct telephone help on filling out the intake forms, collecting the right documents, and creating a folder that a forensic reviewer (or compliance auditor) or attorney can use to make sense out of your case. This would establish whether your loan is securitized and whether you may have compliance issues. You will also have an opportunity to purchase the video presentation of the homeowner’s seminar, the homeowner’s workbook currently in revision , the video presentation of the lawyer’s seminar, and the lawyer’s workbook, currently in revision. I have been in touch with a group of people who are able and willing to perform these tasks and give you a live, responsive voice in getting your “act” together. The idea here is not to guide you into some agenda of “loan mod” or “short-sale” or whatever, but to give you an opportunity to present an unvarnished view of your mortgage situation and some potential options that are available to you. TELL ME WHAT YOU THINK OF THIS!
  2. Second, we could encourage you to go to one of the hundreds of forensic reviewers (“auditors”) who perform  varying degrees of compliance audits or reviews, prepare qualified written requests, prepare debt validation letters, and who might even negotiate a modification or short-sale for you if it is possible to actually get one done. A new model is emerging that is interesting to me which is a direct relationship or even employment of attorney(s) by the forensic review or auditing company, which would hopefully bypass the frustration of getting lawyers all too eager to take a retainer but confused by the process of saving your home. TELL ME WHAT YOU THINK OF THIS!
  3. Third, it might come back to us, and we would have one a select group of a few lawyers, accountants or other qualified experts act as expert witnesses to sign a declaration or affidavit that can be used in or out of court, creating issues of fact about the status of the loan, the parties in the securitization process, the information that is still required from the pretender lenders etc. This would provide support for your demands for answers in discovery or under Federal Law. The signatory of the affidavit or another expert could testify with respect to the content of the expert declaration and defend it under cross examination at deposition. This would alleviate the need for the lawyer or the homeowner to master the basics of securitization, UCC, negotiable instruments, recording, etc. TELL ME WHAT YOU THINK OF THIS!
  4. And fourth, we would encourage you to go to competent licensed legal counsel familiar with local law applicable to your property. This has been a troublesome part of the equation so in addition to encouraging forensic review (“audit”) firms to enter into semi-permanent relationships with lawyers, we will publish a list of lawyers and rate them according to your feedback. We’ll do the same thing with the forensic reviewers or auditors. Perhaps that will enable you to avoid the nagging problem of disappointing relationships. TELL ME WHAT YOU THINK OF THIS!

As for the resumes and emails we have received, from potential auditors and reviewers, we are testing out some models that will enable professionals to obtain direct referrals from our sites. You will all soon receive an invitation to attend a conference call so we can discuss the logistics.

18 Responses

  1. Martin,
    I did send a FOIA request to Fannie Mae. They acknowledged receipt of the request on 11/23/09. I don’t know how long it’s supposed to take to get my info, if they’ll even give it to me.

    My case is stayed pending a ruling by a federal judge whether to keep it in federal court (where Bank of America would like it to be) or to remand it to state court (where I would like it to be). The judge has had the case for almost 3 months now, and I’m told that is a longer than usual amount of time for a decision on a remand.

    How’s your case going?

  2. All four options cover important areas. Your expertise and feedback forum is the best we have; each state must rally to develop an arena for its state reps to get consistent feedback then realize we’ve been scammed
    with 1998 $50,000 upstart named MERS as the Straw
    Man, used in a Shell Name-Game; their internal Rules
    8 & 9 evidence preset evasions of tax payments and recordings designed to avoid Title and responsibility … thus MERS acts as a negative black-hole or void in the transactions after we buyers/borrowers access credit they use us & our homes & keep us out of the picture (disclosure, TILA, RESPA, bearer paper, etc) thus it will help us all to contribute herein and fund you too.

  3. I am a home owner. I would love to be able to research how many times attorney use the lost note in the original foreclosure filing. I think it would be really nice evidence to go to a judge and have the stats on how many times they have said it (in your county) and how many times they have reported it. I know if someone stole my car I would report it, if I was robbed and someone stole my jewlery I would report it, but a bank loses a promissory note worth in our case $585,000.00 and no one notices until they are “not be paid on it”? How much credibility would they lose?
    I would like to be able to start a log from people who are in foreclosure as to the county, state, bank and if they claim to have lost the note. Where can I access this type of information in our county? I can only see the Les Pendins on line – I can’t see what the actual foreclosure says.

  4. Neil/Brad,

    I think one of the things that might be very helpful on the site itself would be a forum in which we can exchange status and recent cases on a state and federal level with those in our areas.

    Dan has been fantastic in sharing info with alot of us as he finds it and it would be helpful for us to have a place to archive the info we find or share it with others to save them time.

    I know that some of the info I have uncovered as to WAMU and their bankruptcy as well as some of the originators BKs is very interesting. The way in which the sellers agreements to sell loans to WAMU are riddled with concealment issues etc. This info has taken months to find but if posted could save alot of people time in uncovering the issues.

    Could an amicus brief be used effectively to start the case moving in the right direction for Pro Se cases to at least help the judge wrap his mind around the true issues and get away from the fairness and free house prejudice?

    I truly believe we need to organize and stand together on this to support each other. I have recently seen the politicians in CO have started to wake up to the fact that all is not what it seems and believe we can get organized and pressure this fraud to be exposed.

    The Denver Post reporters have been exposing the actions of one of the larger bank failures and it has led to a push for a criminal investigation. This needs to be taken up a notch and if organized we can share our cases and help others so that they can stand and fight to be heard.

  5. #3 is a really great idea. A group of trained experts would have the biggest impact on courts and lawyers.

    I would frame it as a non-profit association of mortgage/securitization experts. Free basic membership, and paid membership fee for advanced services. Then get some corporate sponsors to chip in with promise to mention they have joined a noble cause. You can do a membership drive ONLINE and take the names to Congress. We have to shame them and expose the wrong before anyone will start to stick their neck out and support the effort.

    Sounds much like a homeowners union. Think of how much power a group like that would have against lenders. They got together and got organized. MERS is a prime example. Homeowners should too. Just add the optional fee to every HUD-1 in the country!!

    Sign me up.

  6. Mark

    our attorney is licensed mo/illinois

    very reasonable and we get it

    314 961 7600

  7. P.S. – I’ve never been able to figure out how to easily find the rest of the older articles under ‘Recent Posts’ on the website, unless I remembered the name. The website, and all of the great content- could really use a work-over to make it easier to find things. I’ll do it for you free of charge if it’s something you’d like to do.

  8. Yes to ALL. Especially the videos or … there was a new book you’d mentioned you’d been working on months ago.

  9. Gentlemen, your blog contains a lot of excellent information! Sadly for me, it is both encouraging and discouraging. Encouraging in that it is given me a lot of hope and a lot of the information that would be required to defeat the mortgage company after my house. It is discouraging in several ways: I am so far unable to assemble the information in a form that I am able to use pro se and I’m unable to get an attorney who understands and is willing to take this type of case (most attorneys around here will just want to stretch out the process rather than actually win); the costs involved in in hiring an attorney willing to learn enough to conduct this litigation exceeds my capacity to pay (they want thousands of dollars in retainers and I have multiple cases, I might as well just pay the mortgages current if I had that kind loot!); the courts in my state of Illinois, so far have recognized standing of these mortgage companies and the time required to get this information together and prepare a case is very limited. In other words, I need to act fast or I will lose these homes. I have already lost six homes and since the judgments are passed, the only way I would be able to challenge or appeal these decisions would be based on jurisdictional concerns of the court. Taken as a whole your blog seems to indicate that because these banks do not have standing. If this is true, they may not sue and therefore the court should not have jurisdiction over the matter, which is the only issue I may raise in order to unwind some of these foreclosures.

    With this in mind, I’ve read your 2009 wrapup with great interest in your bullet points. Since you are asking. I will tell you what I think of them in order.

    1) Much of my work is going to have to be pro se. The attorneys I’ve hired so far aren’t “in the game” with regard to your arguments. I may need to discharge them and do the work myself, if they won’t do what I ask or don’t understand the arguments present. Therefore a direct telephone helpline would be an awesome addition to my ability to accomplish the Herculean task of fighting the mortgage company on this issue. My concerns are that the help is available expeditiously and affordably. If I can’t get this kind of help now at a price I can pay, I won’t need it because the house will be gone and far too difficult to get back.

    2) A professional audit of the information would be excellent! Would this mean that they would review the information I retrieved through discovery? My cases are certainly not TILA and while they may have RESPA violations and such, most of the arguments you present on the blog do not involve those types of violations. This makes that type of forensic audit important but less valuable to the case. On the other hand, if you think that mortgage company would give up their mortgage claim preemptively before cases filed because of the results of an audit, that’s a different situation. Again cost of these services is of utmost importance. My funds are extremely limited.

    3) Having an available expert is incredible! Knowing that one is available at a very low cost might be what it takes to convince an attorney to take the case. Or at least to pursue it in the proper manner. My personal concern, and I’m sure that of many of the readers here is that action needs to be taken quickly. I found your site because I was desperately searching for information to fight a lawsuit pro se. At stake is $100,000 cash on the note for a second mortgage on a house that is already been foreclosed on. No attorney in town wants this case because they see it as a loser. Even if I pay them hourly they don’t want it. My next status date is January 11, 2010 at which point I’ll need to begin asking for discovery. Is the service going to be available in time to assist me? Will I be able to afford it?

    4) I really don’t think that this step will be in place in time to help me in my particular circumstances. It will certainly take time to set up a nationwide network of attorneys to handle these issues.

    All the services sound really great. The question is will they be ready in time for the people who need them and will they be affordable for the people who have homes in foreclosure? These people will have less money and maybe behind on credit cards and automobile loans and searching for this desperately to save their bacon. Speaking strictly for myself, I only have a few thousands of dollars. Others may only have a few hundreds dollars in order to accomplish this task. I understand that in order to do it pro se, they’re going to have to be very smart and very well prepared but it may be their only choice unless a competent attorney can work out some way to make it contingent fee.

    Thank you again for everything on the blog! I really appreciate that you have the information available to me that you’re potentially willing to respond to the comments people make regarding the blog.

    Best regards,

    Mark

  10. I love the first one best, better get a pad for your ear. but all are good, and helpful.

    Thanks for all you and Brad have done. And I and others need to donate. There never seems to be any left. But soon I hope to at least buy you two a dinner.

    A better new year for us all.

  11. I think all of the ideas are great.

    I do believe having the support of an expert would be extremely beneficial.

    I really like the state based teams as well as a lot of the info on this site doesn’t necessarily apply to certain states. Having local people going through the same course of action or similar would be very helpful.

    Here in CO I feel as though I am going it alone with only one person that I have been in contact with that is in CO. I would be willing to help with anything that keeps the movement and pressure on the corruption.

    I think the intelligence of many of the contributors on this blog is absolutely amazing and the more of us that fight through this even on our own hopefully will help pave the way for others that need to help.

    Here’s to making 2010 the year of the homeowner!

  12. Looks like the Florida Supreme Court may have come across your blog…

    “”As reported earlier, the Florida Supreme Court has just mandated that all residential mortgage foreclosure cases be referred to mediation prior to the plaintiff seeking a final judgment. Importantly a borrower may (and absolutely should) demand that the Plaintiff produce the following:

    Documentary evidence the plaintiff is the owner and holder in due course of the note and mortgage sued upon.

    A history showing the application of all payments by the borrower during the life of the loan.

    A statement of the plaintiff’s position on the present net value of the mortgage loan.

    The most current appraisal of the property available to the plaintiff.

    The borrower must deliver a written request for such information to the Program Manager in the format provided by the Supreme Court no later than 25 days prior to the mediation session.””

  13. I agree on ALL points and will send you ideas to expand at start of new year! Have a great one!

  14. I love the idea of #3.

    I could use a supporting affidavit or Friend of the Court brief to further the Court’s knoweledge of the scheme.

    Hey Zurenarrh,

    How is your case going? Did you send a FOIA request to Fannie?

    -Martin

  15. Makes a lot of sense to me too. One of the trickiest elements of this process is determining WHO is a good Forensic Auditor and WHO is a good attorney.

    The comradery of the very learned contributors on this site is very valuable.

    Because every state is different I put forth there should be a mechanism here that allows contributors to organize and post their thoughts in a section SPECIFIC to their own geographic area and form teams.

    There is an effort underway to do just that on Lisa E.’s excellent blog.

    Xhttp://www.foreclosurehamlet.org/ (remove x)

    For anyone who hasn’t joined I urge you to do so.

    Because of the well-deserved credibility of Livinglies..I have submitted my docs for a Preliminary Review and will follow up here with a Full Forensic Audit. My concern is that due to such high demand…I may have to wait quite a while for completion…maybe too late. I’d love to know the expected response time!

    That’s why I think we need to organize locally. Working as a LOCAL team we can compare notes, educate ourselves and discover additional resources (attorneys and auditors who “get it”) in our own particular geographical area and the laws that go with it.

    Dave

  16. Ok so what to do with a nightmare? Besides just being a homeowner whose had their home stolen Who can you get to do criminal complaints when you’ve done everything your suppose to but no one else will?

    There ar e judges, attys, trustees all the way to the top involved in this crap. I’ve got a good starting list of whose but should be where and no-1 to help…Not to mention I also have bankers ready to do business which seems to be impossible anymore

  17. 1. if it were up to me I would be dropping the video’s out of a helicopter.

    2. makes a lot of sense.

    3. agree with zurrenarrh…..this is most important and should have highest priority. Having an expert at a disposition is crucial, and the written avidavit would help to tremendously.

    4. The feedback may have a bias to it, depending on the outcome of the case. To put it another way, a brain dead judge will nullify the best legal argument.

  18. 1. I like it. This would be VERY useful.

    2. I think this is useful but would want to avoid the short sale/mod route.

    3. YES! YES! This is CRUCIAL! Please get this going ASAP. For those of us already entangled in litigation, this is probably more urgent than #1.

    4. I love the idea of having a rating chart for attorneys/auditors. Other than Neil’s passion, expertise, and info gathering/dissemination, the most important thing about this site is the info that the readers/posters feed each other.

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