What do I do now?

A majority of the questions asked on this blog boil down to “what do I do now?” While there are several emergency situations where the suggested steps must be taken out of order, I thought I would post the most common answer I give to people who are angry and ready to fight.

Your situation is not uncommon. We suggest the following actions:

a) Complete an intake form. This can be found on our blog. The purpose of this form is for you to get all your information together in an organized fashion so a forensic analyst, expert or lawyer can review it without spending too much time interviewing you.

b) select a forensic analyst to review your documents and produce a report that will summarize TILA violations, discrepancies caused by securitization, evidence of fabrication of documents etc.

c) select an expert to provide you with an expert declaration that can be used in litigation

d) select an attorney familiar with securitization of mortgages

e) attack the actions already taken against you and your home and file the necessary lawsuit and motions to prevent further deterioration in your situation. Many times the sale has been overturned and the homeowner restored to ownership and residence.

There are no guarantees for success. While we feel the laws are clear and favor the homeowners, Judges are reluctant to apply the law if they believe that the homeowner is merely trying to use technical violations to make the process more expensive for who they perceive the lender on a loan that appears legitimate and where the eventual outcome (foreclosure and eviction) appears inevitable. It is the task of homeowners and those representing homeowners to address this misconception at the outset of litigation. We believe the laws, rules and regulations of Federal and State authority favor the homeowner and provide a path to a successful result. It is apparent though that the homeowner must have the staying power and determination to win, since the pretender lenders are not going to make it easy for you.

57 Responses

  1. Here’s my situation: I’m in Southern California, we were able to get a tro granted against fanniemae until mid jan.

    my concern is, how do we get around the fact that our mtg hasn’t been paid in over 2 years(not being deadbeats, literally NO money, loss job etc)?

    now, we are in the a good position financially, CAN afford home….we had already submitted ALL financial info to indy/onewest when they foreclosed, they were giving impression that they were working with us only for us to get default notice in july ’10.

    TRO was almost denied because judge was simply looking at the fact we havent paid(not taking anything else into consideration)…he said MERS does not play a part in this..WHY?

    My question is: how to we get judges to see that the only issue IS not the fact, and to look at the broken chain of title to at least look at our paperwork for modificatioin. It seems to truly be an uphill battle!

  2. Here’s one for the folks in Colorado. Found this while researching my next move with my man Jan. Kind of puts MERS in it’s place.

    C.R.S 38-38-100.3

    (10) “Holder of an evidence of debt” means the person in actual possession of or person entitled to enforce an evidence of debt; except that “holder of an evidence of debt” does not include a person acting as a nominee solely for the purpose of holding the evidence of debt or deed of trust as an electronic registry without any authority to enforce the evidence of debt or deed of trust. For the purposes of articles 37 to 40 of this title, the following persons are presumed to be the holder of an evidence of debt:

    (a) The person who is the obligee of and who is in possession of an original evidence of debt;

    (b) The person in possession of an original evidence of debt together with the proper indorsement or assignment thereof to such person in accordance with section 38-38-101 (6);

    (c) The person in possession of a negotiable instrument evidencing a debt, which has been duly negotiated to such person or to bearer or indorsed in blank; or

    (d) The person in possession of an evidence of debt with authority, which may be granted by the original evidence of debt or deed of trust, to enforce the evidence of debt as agent, nominee, or trustee or in a similar capacity for the obligee of the evidence of debt.

  3. Jan,

    My email is rdpappraisals@aol.com in est. I am in early stages of foreclosure and was hoping to converse with you a few ideas. Thank you.

  4. to tony brown:

    Be sure to never part with the wet-ink note you have. If you need to present it anywhere, first go to a Notary and have the Notary certify that the photocopy is a copy of the original; then leave the notarized copy with wherever you need to leave it (cops, court, whatever)). Keep that inked Note very very close to your chest. Fireproof safe or safety deposit box. It is the only thing between you and disaster.

  5. to Deb Wynn:

    As I understand it, you have sued Indymac as a Plaintiff in USDC, but Indymac went into receivership as an insolvent federally-insured institution, was seized by the FDIC (as “receiver” as you indicate) and the assets, or the loans, placed with One West Bank. So the question arises: does the liabilities to suit that Indymac would have as a defendant in your suit carry forward onto the shoulders of One West bank, or do they stop at the threshold due to the receivership by the FDIC?

    I do not know the answer to that.

    Has anyone attempted to file suit against you for foreclosure since Indymac? In particular, has One West Bank? If One-West did, then I would argue that the defenses you have against Indymac carry forward to One West insofar as the Note was not current with Indymac and One West took it in a state of non-currency (maybe a state of default, maybe not), so One West is NOT a “holder in due course,” but at best a Holder, and maybe not even that.

    It starts to look like One West may only have the status of an assignee. Did One West pay anyone for the Note? If not, then they may not even be the “owner.”

    And that is the problem; these things get so screwed up. Hard to offer any thoughts when the picture is so cloudy.

  6. to tony Brown:

    You are definitely rock solid; their “allonges” are not only invalid, they are a fraud and a full-frontal assault upon the integrity of the Court where they were presented. You do have to defend the suit, but since you have the Note, you simply File a Motion to Dismiss on the basis of Standing (they are not the owner nor the Holder of the Note).

    Sue their pants off; ask for 50 million. Go to the jury, show the jury the Note, and clean their clock. While you are at it, see if the cops in your town will accept a Complaint for fraud and issue an arrest warrant. they may decline on the grouds that it is a civil dispute; however, the attempt to wrest your property when you have the Note is basis for criminal fraud complaint, in my opinion.

    You have the best case on the planet for cleaning their clock; you have the Note! And all they have is a separated “allonge” which they are attempting to use to steal your property! Sue them!

  7. May I put this out there I’m in district court there are multiple defendants and maybe need to add more and ammend the suit. One of the defendants yeh you guessed it indymac now one west bank so at the 11 th hr here comes the receiver FDIC bossing me around stating I must take indymac out of the suit because there will be no money for such USECURED claims isn’t that rich! Then if I don’t they will motion to dismiss and go aftr me for costs. There’s much more to that letter but Im asking this do they have standing since they have no interest and we are talking about mortgage fraud I. The factum. Indymac being integral party to the fraud and illegal attempts to foreclose Your thoughts anyone please .

  8. to tonybrown:

    You have the Note, they do not, they have an “allonge” which was never attached to the Note, not only is the allonge invalid, they have perpetrated a fraud upon the Court.

    You still have to defend the suit in foreclosure, but you have a ton of affirmative defenses, and you can clean their clock on compensatory and punitive damages. Sock it to them

    Your analysis is very lengthy, cannot get to it until tomorrow, but on first glance you look rock-solid.

    Back to you soon, chum.

    Jan

  9. how allonges are not valid, UCC code,also proof that I could not be packaged into the securities. Mers was named nominee on the mortgage and filed at the Register Of Deeds in Greenville SC, supposedily according to a lost note affidivat the original lender RBMG sold the note and according to MERS servicer ID the loan was transfered off of the MERS system and MIN# deactivated because of a sale to a non-mers member in 2002. NO ASSIGNMENT WAS RECORDED.Now the new owner EMC sold the loan to Bear Stearns which deposited into the Asset Backed Securites which did an assignment/sell to JP MORGAN CHASE as trustee. Now there has been a foreclosure started on the loan in March 2009 by The Bank OF New York Mellon as successor trustee for JP MORGAN CHASE who claims to be the real party in interest and hold the note. By way Of an assignment which was recorded at the ROD after the LIS-PENDENS and after the filing of complaint.Here is more fraud because the assignment was from MERS on behalf of the original lender RBMG which is defunct and has been since 2005 to the THE BANK OF NEW YORK MELLON. MERS has no authority to do an assignment because the loan was transferred from them in 2002 and Mers was Longer the mortgagee as nominee of record.Now are you with me( no chain of title) the BANK OF NEW YORK MELLON produced in discovery to me an allonge RBMG to EMC along with the lost note affidivat. EMC showed an allonge to JP MORGAN CHASE which skipped BEAR STEARNS. BEAR STEARNS was the depositer into the securities. First let start with the allonges: according to the UCC an allonge is only used when there is NO ROOM ON THE ORIGINAL NOTE FOR ENDORSEMENT and must be firmly attached as to become a part of the note. AN ALLONGE cannot be used to transfer interest and is invalid if there is room on the note for endorsements and is invalid it not attached. A lost note and two allonges that were not signed and not dated and even skipped BEAR STEARNS that desposited it into the securities is the purported chain of title , now let’s look at the prospectus:Bear Stearns Asset Backed Securities Inc · 424B5 · Bear Stearns Asset Backed Certificates Series 2003-2 · On 6/30/03
    Document 1 of 1 · 424B5 · Prospectus
    . Assignment of the Mortgage Loans; Repurchase At the time of issuance of the certificates, the depositor will cause the mortgage loans, together with all principal and interest due with respect to such mortgage loans after the cut-off date to be sold to the trust. The mortgage loans in each of the mortgage loan groups will be identified in a schedule appearing as an exhibit to the pooling and servicing agreement with each mortgage loan group separately identified. Such schedule will include information as to the principal balance of each mortgage loan as of the cut-offdate, as well as information including, among other things, the mortgage rate,the borrower’s monthly payment and the maturity date of each mortgage note. In addition, the depositor will deposit with Wells Fargo Bank Minnesota, National Association, as custodian and agent for the trustee, the following documents with respect to each mortgage loan: (a) except with respect to a MOM loan, the original mortgage note, endorsed without recourse in the following form: “Pay to the order of JPMorgan Chase Bank, as S-40——————————————————————————–
    trustee for certificateholders of Bear Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series 2003-2 without recourse,” with all intervening endorsements, to the extent available, showing a complete chain of endorsement from the originator to the seller or, if the original mortgage note is unavailable to the depositor, a photocopy thereof, if available, together with a lost note affidavit; (b) the original recorded mortgage or a photocopy thereof, and if the related mortgage loan is a MOM loan, noting the applicable mortgage identification number for that mortgage loan; (c) except with respect to a mortgage loan that is registered on the MERS(R) System, a duly executed assignment of the mortgage to “JPMorgan Chase Bank, as trustee for certificateholders of Bear Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series 2003-2, without recourse;” in recordable form, as described in the pooling and servicing agreement; (d) originals or duplicates of all interim recorded assignments of such mortgage, if any and if available to the depositor; (e) the original or duplicate original lender’s title policy or, in the event such original title policy has not been received from the insurer, such original or duplicate original lender’s title policy shall be delivered within one year of the closing date or, in the event such original lender’s title policy is unavailable, a photocopy of such title policy or, in lieu thereof, a current lien search on the related property; and (f) the original or a copy of all available assumption, modification or substitution agreements, if any. In general, assignments of the mortgage loans provided to the custodian on behalf of the trustee will not be recorded in the appropriate public office for real property records, based upon an opinion of counsel to the effect that such recording is not required to protect the trustee’s interests in the mortgage loan against the claim of any subsequent transferee or any successor to or creditor of the depositor or the seller, or as to which the rating agencies advise that the omission to record therein will not affect their ratings of the offered certificates. In connection with the assignment of any mortgage loan that is registered on the MERS(R) System, the depositor will cause the MERS(R) System to indicate that those mortgage loans have been assigned by EMC to the depositor and by the depositor to the trustee by including (or deleting, in the case of repurchased mortgage loans) in the computer files (a) the code in the field which identifies the trustee and (b) the code in the field “Pool Field” which identifies the series of certificates issued. Neither the depositor nor the master servicer will alter these codes (except in the case of a repurchased mortgage loan). A “MOM loan” is any mortgage loan as to which, at origination, Mortgage Electronic Registration Systems, Inc. acts as mortgagee, solely as nominee for the originator of that mortgage loan and its successors and assigns. S-41——————————————————————————–
    The custodian on behalf of the trustee will perform a limited review of the mortgage loan documents on or prior to the closing date or in the case of any document permitted to be delivered after the closing date, promptly after the custodian’s receipt of such documents and will hold such documents in trust for the benefit of the holders of the certificates. In addition, the seller will make representations and warranties in the pooling and servicing agreement as of the cut-off date in respect of the mortgage loans. The depositor will file the pooling and servicing agreement containing such representations and warranties with the Securities and Exchange Commission in a report on Form 8-K following the closing date. After the closing date, if any document is found to be missing or defective in any material respect, or if a representation or warranty with respect to any mortgage loan is breached and such breach materially and adversely affects the interests of the holders of the certificates in such mortgage loan, the custodian, on behalf of the trustee, is required to notify the seller in writing. If the seller cannot or does not cure such omission,defect or breach within 90 days of its receipt of notice from the custodian, theseller is required to repurchase the related mortgage loan from the trust fund at a price equal to 100% of the stated principal balance thereof as of the date of repurchase plus accrued and unpaid interest thereon at the mortgage rate to the first day of the month following the month of repurchase. In addition, if the obligation to repurchase the related mortgage loan results from a breach of the seller’s representations regarding predatory lending, the seller will be obligated to pay any resulting costs and damages incurred by the trust. Rather than repurchase the mortgage loan as provided above, the seller may remove such mortgage loan from the trust fund and substitute in its place another mortgage loan of like characteristics; however, such substitution is only permitted within two years after the closing date. With respect to any repurchase or substitution of a mortgage loan that is not in default or as to which a default is not imminent, the trustee must have received a satisfactory opinion of counsel that such repurchase or substitution will not cause the trust fund to lose the status of its REMIC.
    I’m not a MOM loan the loan transferred off of MERS, Mers no longer tracked the assignments and let’s not forget I HAVE IN MY POSSESSION THE ORIGINAL NOTE STAMPED FULLY PAID AND SATISFIED NEGOTIATED TO ME FROM RBMG. The note is date stamped MARCH 2002 and has been in my possession since 2004 along with a letter from the RBMG stating the loan is fully paid and satisfied address to me which is the declaritory letter. Come on let’s put these people where they belong…. Federal prison.

  10. to Ian:

    Typically, the missing or forged or screwed-up assignments come after the Note is in the trust, the Trust is blown up, and then somebody comes along and tries to siphon the Notes back out of the trust and into their grubby mitts.

    BUT: in general, observe the following. All transfers of a Note have to follow “The Rules” (like in that Dating Book put out by the Rules Girls of New Jersey). The Rules require that the Assignor places his Indorsement upon the Note and puts his signature on the Indorsement. Andd that is the first place the problems begin.

    If there is blank space on the original Note, then under the No-Space Test you have to have all the blank space used up with successive assignments BEFORE you start adding “allonges” or additional sheets to the Note. The clowns never do, mostly because they intend or fust do remove successive Indorsement sheets and go substitute new one. Do not delude yourself that there is anything less that a consistent pattern of fraud here – especially by large NY “Wall Street” outfits running sham Delaware front corporations, which is typically what these trust deed operations are.

    If the allonges are added and there is still blank space on the front or back page (the back sheet usually blank of the Note itself) then typically all the allonges are Invalid and unenforceable. So then the last party that could enforce the Note is that last Indorser on the actual Note, but that party is no longer the Holder as they are not in possession, so the Note becomes unenforceable. Of course, ti could get sold back to that Indorser, which would be interesting. But then you sue the parties to that transfer for fraud.

    What is more prevalant is that the allonge sheets are not “firmly affixed.” The requirement for firm affixment goes back to the old “law merchant” days of hundreds of years ago, when the additional sheet was glued on to the end of the Note. But this is America and nothing is firmly affixed. So you get traction on that argument. As soon as you see old staple holes, then you can argue that the Note and Allonge have been separated and re-stapled, so by definition it is not “firmly affixed.” Bye-bye allonge Indorsement.

    The reason this stuff is missing or unstapled or forged is typically that the blown-up trust had an insurer by virtue of a Private Mortgage Insurer (PMI) or had a credit-default swap pay off the Notes when Fitch’s lowered the rating out of AAA status. Of course, the Wall St guys never passed the insurance payment on to the buyers of the trust shares; they just pocketed the cash (and that is where the bonus cash comes from, folks). Now the investors got burned, and when the dust settles, the Wall St guys are sitting on a pile of defaulted Notes, paid for, but sill not stamped “Paid.” So they got the bright idea to then sell the paper to the opportunist bottom-feeders and those clowns then go file your foreclosure suit, arguing with a straight face that you did not pay your note (and you did not, of course), so they should take your house. what they fail to tell the Court is that someone else paid someone else (the guy that sold your Note to them) for your face value by virtue of the insurance. See? Cute, huh?

    Typically the Indorsements are screwed up going “into” the trust when MERS is involved. Remember, MERS is a Nominee, it never advanced funds and did not finance the loan or the Note, it has murky if any Standing for anything, and is an artifice contrived by bankers to confuse the issue and clarity of who owns what. And that is why attacks on MERS on mortgages, not just notes, is so virulent.

    After it is all screwed up, then the “mechanics” just go forge documents, re-manufacturing them to try to clean things up for the Court system. So you look for Notary Stamps that aver that someone was before the Notary three years before the Notary was appointed as a Notary (yup, I had this happen to me) or for people at trial swearing that their firm is the Holder of the Note and you find out later that they sold it to another outfit seven weeks before trial (yup, that happened to me also, – Countrywide, natch), or that the affidavit contains blanks in the body in which someone fills in dates after the affidavit is sworn (yup, happened to me – Credit Suisse Bank, no less). There is a lot of fraud out there. So that is where the term “forensic analysis” come in.

    Does this help a bit?

  11. to usedkarguy:

    That “Jan” is a “Mr.” Got to get you trained on these European names….

    Good to hear you plan to go sue the bastards. makes you proud to be an American!

  12. Can anyone please clear this up for me? In post after post, commemt after comment, everyone mentions the missing assignments, broken chain of assignments, forged or manufactured assignments, etc. The note has to be endorsed and assigned at least twice just to get into the trust, doesn’t it? Are these the assignments that are always missing? If not, which ones, fraudulent or not, are missing- If anyone posting a comment would be more specific, then readers(like me) could better link the consistencies from case to case. Thanks.

  13. Jan:

    My appologies AGAIN. I meant to leave my email for you in the last post but got in a hurry and forgot.
    (khenry51@hotmail.com)

  14. […] County Clerk of Courts Polk County Clerk of Courts Lake County Clerk of Courts Related blogs What do i do now? « livinglies's weblog Tbi, state auditors investigating county clerk employee for … Tbi, state auditors investigating […]

  15. ANONYMOUS and Ms. Van Eck: Thank you for that. I have spoken with another attorney (non BK) and he suggests a Federal action could be successful. I will be conferring with him tomorrow. I have discussed this proposition with my spouse and we have concluded that there is more “fight” left in us. The judge mentioned the opportunity of appeal, and also suggested bankruptcy. He then said, again, “get an attorney, Sir.”
    And Neil, thank you, too.

  16. to Kevin: Not a problem, nobody overstays their welcome if they are fighting off the slime that are the pretender lenders trying to enrich themselves off your back. Sock it to them. One relative of mine has flatly stated that my tombstone will be engraved: “Here lies Jan. He would have sued you…”

    All jokes aside, due to factors quite beyond this website I do not post email address. However, if you send yours either by post here or to the address llve4753@aol.com I will send you a phone number and you can call in if you like, or I will then send you an email address if you like. That other address is not mine and stuff is generously sent on every few days. Very sorry to be circuitous but there are reasons for that well beyond this forum. J.

    Note: it is now 11.05 and I am signing off for the night. J

  17. To Jan Van Eck

    I too would also like to contact you.
    Not sure of results because we are
    on opposite Coasts.

    PLEASE email me:

    deontos dot is @ g mail dot com

  18. Jan:

    Boy, you are a patient soul! And I appologize for the mess. I get myself confused on this half the time. Actually in Colorado the “owner” has his attorney contact the County Trustee to conduct the sale (in County Court.) I filed suit in State Court against them. Then the Lis Pendens, then the attempted TRO that failed and now I’m trying the TRO again since the sale date only gets pushed off a week or two at a time and I don’t want that looming over my head. I was just contacted by a new attorney from Denver that is now representing all Defendants, BONY, BofA and Countrywide, I am the Plaintiff in that one. BONY is the supposed “owner” of the note and the one who foreclosed on me. Countrywide was the original servicer picked by the original “lender, MILA Inc. Then when BofA took Countrywide over, they became the servicer. I had never heard of BONY till they foreclosed. If you don’t mind sending me your email, I’ll send you the complaint. You’ve been a gem here in the forum and I don’t want to “overstay my welcome”.

  19. Jan,

    EST.

  20. Jan, rdpappraisals@aol.com eastern.

  21. Jan,

    My e-mail is onemorexx@yahoo.com

    Thanks

  22. Just post your email and time zone and I will send you a telephone number. Free now.

  23. Jan,

    How can you be contacted?

    Thanks

    Jeff

  24. to PJ:

    Nope, I’m from New England, next states over. The clown lady was one of those sharpies that studied those late-night TV commercials on get rich without cash in real estate, but instead of buying properties in foreclosure et al, she simply buys up left-over Notes that were paid by the Credit-default swaps, for ten bucks each (literally), and then goes and sued on the Notes (after first running them through yet another Indenture with tranches, and then buying it back from the Indenture for ten dollars, thus first scarfing off yet another level of “investors” [no sympathy on them; they were all greedy bottom-feeders and got burned by an even slyer one].

    I do not name the clown woman as I will eventually track her down and file suit to relieve her of that 100MM, and do not want to set up a straw man defense of libel. Later on all that.

    I cannot advise you on qualified written requests, that is a new area to me. My instinct is to serve a QWR on everybody and anybody that is involved, so that you have it all on record against the day you go to court. You can bet that the slime servicer will fabricate documents. watch particularly for fabricated and substituted Allonges (see other posts on that subject) and any allonge where there are multiple staple holes in the allonge and the note, which is a tell-tale that it was taken apart and something removed and substituted. All that is ripe grounds for fraud and should be approached with the idea that the allonge is now invalid. And that once again raises the “Standing”issue of the person suing you. If the allonge is invalid, then the last person on the Indorsement on the actual Note would the the proper Owner of the Note, and since he has already been paid, you end up with the house for…zippo more. Always nice. So shoot for it!

  25. to “Anonymous” and “usedkarguy” :

    The rooker-feldman doctrine is used in the Federal Courts, typically the bankruptcy courts, to defeat your attempts to get a re-hearing on getting slammed by a foreclosure suit in the State Courts. However, note that there are excellent counters to this use.

    Rooker-Feldman can be foiled IF there is even the hint on the record that the judgment in state court was not a “final judgment.” So: if there was even a discussion on the record, or if somebody said anything at a Hearing on the record, of going to appeal, then R-F is not actionable (the federal judges will likely invoke it, but you can derail this by going to Motion for review). the big case on this is ExxonMobil v. saudi basic Industries. there are other cases that set forth the limits on rooker-feldman. So R-F is NOT cast in stone!!!

    Anybody who need s lengthy treatise on how to pierce R-F just contact me; I can send you a pdf with a sample set of pleadings.

    Jan

  26. to Kevin: your case is getting so convoluted that I am losing the thread of how it all developed.

    As best as I can make of it, you have been sued (in foreclosure, with BofA as Plaintiff). You have filed your own Complaint naming a ton of defendants (good for you) and attempting to insert a TRO to restrain the defendants from proceeding with the foreclosure. Yet: it appears that the suit against you is in a State Court, and you have proceeded against the defendants with your TRO Complaint in federal Court. Maybe that works, and maybe not. I would caution you to err on the safe side.

    You have a State Court complaint against you. You do need to answer that complaint. You can start with a Motion to Dismiss with Prejudice. typically under state court rules you can file such a Motion without having to Answer the Complaint. In old-law state like New England you can do this.. In some newer-law States (e.g. Georgia State Court) you have to actually Answer the Complaint within 20 days. You have to check this out for where you live so that you do not get tripped up and end up with a technical default.

    A “motion to dismiss” challenges the “standing” of the plaintiff as a true party in interest. “Standing” is one of those hydra-headed monster issues that Courts loathe, because “everything grinds to a total halt” until the Standing issue is resolved. Standing can be brought at any time in the proceedings, but if you bring it up right up front as a first Pleading, then it sets the other side on the defensive.

    Your “standing ” claim is that the Plaintiff is not the real party in interest and has no right to invoke the Court’s authority to proceed against you. So: who is the real party in interest? Why, the individual holders of that complicated monster pass-through certificates jumble that these clowns created.

    Now, the counter-argument to all that is that the bankers as “trustee” of the certificate holders has the authority to act on behalf of the individual tranche holders. And, historically, that type of argument gets traction, simply because Judges don’t “get it.” What your argument distills down to is that, by securitizing the Note with the certificate slices and then parcelling out the slices all over the globe, and then not recording the slices owners on the mortgage, then the Note holders in slices and the mortgage have become separated, so the Note is no longer secured by the mortgage; hence, the Note is now a mere unsecured promissory Note, held by a hundred different people; hence, the cannot foreclose. Now maybe all that gets traction in the State Court, and maybe not (probably not).

    But once you raise the issue, it has to be ruled on, and that provides grounds for Appeal to the next court up, if you lose. And that causes its own sets of problems for the banker clowns.

    So: in a Motion to Dismiss, you argue:

    1. The nominal Plaintiff is not the real party in interest as the Note in controversy has been sold in segments, known in the trade as tranches, to numerous individual purchasers, who are not before the Court.

    2. the named Plaintiff herein has not demonstrated any authority by resolution of the individual Note Holders to proceed on their behalf (maybe that is a good idea to toss in, maybe not. You have to mull on that one a bit).

    3. The Note has been separated from the Security Instrument, the Mortgage, by failure of the new owners of shares of the Note to record their interests. Thus, the Note is no longer secured by Mortgage on the property and this foreclosure is a nullity.

    4. the Note in controversy has, upon information and belief, been paid by virtue of insurances purchased and issued concurrent to the issuance of the Certificates: (a) private mortgage insurance, or PMI [if you were billed for that, and you likely were]; (b) by a credit-default swap purchased by CHL upon the formation of the pass-through certificates. Accordingly, as the Note is Paid, the party herein has no Standing to pursue a claim. [this is not strictly a Standing issue, but instead a Defense to the Claim, and would be found in an Answer, but if you toss it in in a Motion to Dismiss it certainly muddies the waters a bit further, and causes heartburn to the bankers].

    In fact, of course, your Note has long since been paid out, probably by AIG which in turn got their dough from the bailout fund. what was left was Aa Note that never got stamped PAID since the holders of the note never had possession of the note (that bank did), so the note never got stamped off. So these guys see the un-stamped Note and say: AHA! Let’s go sue this guy and grab off the property and get rich. And they do. And since YOU did not pay the Note, typically neither you nor the Judge are the wiser that the Note was long since paid (just not by you). So you get sued, and typically they take your property, sell it, and enrich themselves.

    Just lovely.

    On to the next: in your suit, you are attempting to head off their proposed sale. So you ask for an Order to Show Cause why injunctive relief should not be granted. You state:

    1. The plaintiff is in imminent harm as the defendants who are not the true parties in interest as respects either a certain Note or a certain Mortgage once issued as security to that Note are proposing to imminently seize the plaintiff’s oproperty located at ___ and sell same to another to inure to their own enricvhment.

    d2. the plaintiff’s losses will be irremediable as all real property is by its nature unique, and the plaintiff and his family would be ejected out of the unique property should the scheme of the defendants bear fruit.

    3. The Plaintiff has no other adequate remedy at law in that the proceedings against him are proposed by extra-judicial deed of trust sale which the defendants do not have a true ownership of, having sold same in tranches to other persons unknown to the Court and who in turn have been paid for their ownership of their tranches by virtue of the proceeds of a credit-default swap with a non-recourse feature therein.

    4. Wherefore, it is appropriate for this Court to issue an Order to Show Cause, commanding the Defnenda ts and each of them to appear before the Court on ___ day of ___ to Answer to the Compalint and Show Cause as to why an Order of Injunctive relief should not be granted against them, restraining these defendants and each of them from proceeding with the attempt to assert control of the subject property in controversy, attempting to vend same and have the proceeds inure to their benefit and the detriment of the plaintiff.

    and you can blah some more if you like.

    And then you go file this, get the Judge to sign in the dte of the hearing by attaching a Proposed Order in which all that is re-stated, and then you go serve the Order onto the defendants, which you can have some disinterested person do by personal service on any local bank branch, or on the head office by ceerttified mail green card, or whatever.

    And then you get a Day in Court, for which you need to prepare further, but this gets you out from underneath for now.

    Let me know what your reactions are to all this. Sorry not to respond earlier, but I have my own busy days too….

    J.

  27. OK let’s get this straight. My loan modification from Countrywide was in Sept. 2008. My last payment to them was Feb. 2009. BofA took over servicing in April 2009. BONY filed foreclosure 6/12/2009. I have been in “trial modification” with BofA since 8/1/2009.

  28. Jan:

    Correction to my earlier post. I getting caught up in the “who’s on first, what’s on second” senerio. Actually, BONY filed the foreclosure (first time I had ever heard of them). BofA took over servicing from Countrywide. However, it says on my mod. from Sept. 2008 that Countrywide is “the Lender”. Lie? Fraud?

  29. Jan:

    I noticed in one of your posts to annie green that there may be an issue with how the loan is viewed if it was bought when in default? A little more info on my situation is that I made my last payment to Countrywide in Feb. 2009 because they kept adding fees and taking it upon themselve to escrow my taxes even though my contract said no impounds. Anyway, in April 2009, BofA notified me that they were taking over servicing from Countrywide and that my loan was “seriously delinquient”. Then filed foreclosure on 6/12/09. BTW, Countrywide modified my loan in Sept. 2009 after I told them I couldn’t afford their rediculous ARM adjustment. So that mod. was the last signed agreement with anyone and it has never been recorded and if it HAS to be recorded, would that make it subordinate to the second lien that was signed in 2005 with the original first lien(the one that was modified)?

  30. ***Jan van Eck***

    Thank you for your recent posts … what an eye opener! I’ve got a few questions for you that I’d rather not post here. Would it be possible for you to email me (MrsDiamond@msn.com) so that we can have a more private line of communication?
    Thank you.

  31. usedkarguy

    I am not a lawyer and this is not meant to be construed as legal advise. But I see too many cases like yours. The Rooker Feldman Doctrine is liberally used in federal courts. Did you have counter-claims in state action? If so, these would likely be considered addressed – even if they were not actually addressed and dismissed.

    I would try to find another bankruptcy lawyer. Excerpt from CNNMoney.com

    “Some states, such as California, are “non-recourse” and don’t allow deficiency judgments. But, even there, if the original loan was refinanced, some or all of it may be subject to claims.”

    “People shouldn’t have a false sense of security that a deficiency judgment may not be later sought,” Zaretsky said.

    He expects many will be filed over the next few years, based on the fact that banks have sold many of these accounts to collection agencies and other third parties, at discount.

    “The parties who bought those notes wouldn’t have paid money for them unless they had the intention of acting,” Zaretsky said.”

    Me speaking. If the foreclosure was filed by the wrong party, opening up a bankruptcy could force the identification of the right party and, possibly allow the state action to be reopened.

    In my opinion (I have not seen this addressed), when mortgage loans are in default, technically it is no longer a mortgage but, instead, a “debt”. Debt collector/buyers have ways of resurfacing. Particularly, if you have any other debt – I would find a better bankruptcy lawyer.

    Since I am not lawyer, I hope a lawyer will address this for you.

  32. If you are in VA/DC you are encouraged to contact attorney Gregory Bryl through bryllaw.com regarding pretender lender issues, especially if you are facing or are likely to face a foreclosure. bryllaw.com

  33. I’ve been told that since I lost to a summary judgment and that I wouldn’t qualify for a bankruptcy (non-deficiency state and not enough income to qualify for a repayment plan), I should “pack it in”. The financial decision to accept the foreclosure and “move on” is not sitting well with me. Rooker Feldman Doctrine says you can’t re-litigate a claim settled in the state court. My problem is that NONE of the claims were addressed or heard, only dismissed. Neil, do you think a Federal action would be allowed to proceed if the Federal claims were raised against the lender, as the foreclosing entity was represented as the “trustee” bank that hid behind “holder in due course” law? And, no, I would not go at it as a pro-se again.

  34. thanks for the advice.. I will let everyone know how it goes.. the last filing at the court was an order/scheduling order from what i can understand that is the court telling the plaintiff that they need to finish up, discovery , interrorgitories, med… etc.. waiting on them I think I would like for this to go before a jury…

  35. The note is stamped “fully paid and satisfied” i also have a letter and envelope addressed to me that states the loan is fully paid and satisfied.

  36. Jan,

    Are you an attorney? If so, are you in the NYC area?

  37. Jan:

    Wow, where were you a month ago when I decided to do this? Here’s the short version. I filed a complaint on 2/12/10 and served The Bank of New York Mellon as Trustee for the Certificateholders CWALT, Inc. Alt Loan Trust 2005-j12 Mortgage Pass-Through Certificates, Series 2005-j12 (the folks claiming ownership and the ones that filed the NED through their foreclosure mill attorneys), Bank of America HL (servicer) and Countrywide HL (just for grins).
    Since at that time the sale date was set for 2/17/10, I kind of incorporated an preliminary injunction into the complaint which the judge said was moot since they changed the date to 3/10/10 a day after I filed. He also claimed that I hadn’t served anybody since I hadn’t got the affidavits back yet. Next I filed a Lis Pendens just because. Then came the TRO. And that about brings us current. I love the way you lined out the arguments in your last post to me, but does that all go into the TRO? Do you actually argue all the points in the TRO?
    Sorry but I’m about as “lay” a lay person as you could get.

  38. Good to see a fellow NY’er posting here Jan!

    “We have one clown (a woman) up here in Westchester County NY who is now about 100 million richer, foreclosing on houses on Notes that were paid by the CDS insurers. She has skipped out and is lying low with the booty”

    Well that’s nice, was the clown with a law firm, inquiring minds need to know!
    Getting ready to submit a QRW to the “Servicer”, as of today there has been no assignment listed with the County Clerk, other then one from the local lender who sold/assigned the obligation to the servicer in late 2005.

    As they are a GSE servicer, Fannie Mae in this case, is it wiser to submit the QWR to FM, which the servicer say’s (in an e-mail in fact) now owns the loan though there is no assignment to them between 2005 and now, in the County Clerks office.

    Simply put I would like to know who owns our loan, prior to legal action. Guess just following the rule, dont ask the question without knowing the answere.In fact I am very wary that once we submit the QWR the servicer will attempt another fabricated default on our property. This happened last year and without the knowledge I have today, managed to get them off our backs.

    Needless to say many things have been learned since then, again thanks to Livinglies and all that post here. I want to submit a QWR that answers’ the questions to the many suspicions that I have , which information here has confirmed.

    As the adage goes fore warned is fore armed.

    Just learned today about “allonges” and staple holes, who knew!

  39. to Kevin:

    A TRO is in effect an injunction, as you are asking the Court for temporary injunctive relief. General rule: when in doubt, incorporate everything. Your Motion for Injunctive Relief should contain the following:

    1. The Note in controversy was securitized by Countrywide H L into the xxx Real Estate Asset Trust, xxx, and the shares of the security were sold to multiple others by percentage shares in interest. Those persons and parties are not Plaintiffs herein, are and remain the true parties in interest as respects any claim of ownership of the Note, and, as strangers to the Court, remain unknown.

    2. Upon belief, the Note was paid in full by an insurer pursuant to a credit-default swap [hereinafter: “the CDS”]. The CDS nor its agent has, by neglect or error or omission, failed to mark the Note as Paid.

    3. The Plaintiff is not the proper party in interest inasmuch as, first, they have not established either to this Court or to the Defendant that they are in actual possession of the Note. Further and additionally, upon belief, the Note does not contain a proper Indorsement to the Plaintiff.

    (be sure to spell that as Indorsement, not Endorsement. That is strictly technical)

    4. Consequent to the Asset Tust formation and the sales by tranching thereof by Countrywide HL, the shares of ownership interest in the Note were dispersed and not recorded on the Land title records ofzzzzz, and the Mortgage instrument (Deed of trust) as recorded fails to reflect the tranched ownership interests of the true owners; hence, the Mortgage and Note are now separated, and the property in controversy no longer is security for the Note shares. As an unsecured Instrument, no foreclosure can be maintained thereon.

    5. Upon public information and belief, CHL is no longer an entity in its own right and, to the extent it may have had some ownership assertion in the matter in controversy, no longer maintains such right. There is no Recordation upon the Land Records of XXX County of a transfer of ownership interest, and there is no Indorsement upon the Note of a transfer of ownership interest to BofA. Wherefore, BofA cannot maintain any cause of action hereon, and Defendant Motions for Injunctive relief to restrain and enjoin Plaintiff for attempting to enforce herein.

    You may need to clean this up a bit. Sure, you can borrow from other filings liberally; it is a great source of info. Note further, BofA nor CHL has the original Note any more, and if they do, the Indorsements sure as ahooting are all screwed up. Check through this website to see how to attack “allonges” to the Note, look out especially for staples a d holes that indicate the Note and the allonges have been removed and re-stapled. an Allonge is from the French “to lengthen,” and requires to be “firmly affixed.” there is a ton of good case law out there on that issue. For sure, these clowns have taken it apart, thus defeating the claim of “firmly affixed.” If the allonge is invalid, and it is if it hase any of the defects as you find in this website, then the last Indorsement on the actual Note would be the proper party in interest. except; those guys have been paid, have no enforceable interest, so the house is all yours. No further charge, have a nice day. Don’t you love it when they screw it up?

    Of course, remember that you still have to convince the Judge. And that remains a big toughie.

    Be sure to hammer away that your Note has been paid. It may not have been paid “by you,” but that is not the issue before the Court. For sure there was a CDS and the CDS paid out, probably without recourse, to the purchaser, which was the asset trust (because these clowns couldn’t sell the trust shares without the CDS to back it up). So the CDS paid the Note (although admittedly the slick guys who set up the trust probably never paid it through to the ultimate buyers, probably in Norway or wherever, and kept the dough). What was left over was the “paper,” and so the slicks simply re-sold the paper and are attempting to collect on it from an unsuspecting Obligor (that’s you) with the help of a clueless Court (that’s your Judge). And so they get rich twice, multiplied by about 14 million homes. Nice work if you can get it.

    We have one clown (a woman) up here in Westchester County NY who is now about 100 million richer, foreclosing on houses on Notes that were paid by the CDS insurers. She has skipped out and is lying low with the booty.

    If you are responding to a suit brought by the bankers, then you are the Defendant and you need not incorporate4 a Complaint. If you are filing “in the blue” then you are the Plaintiff and you need to file a Complaint with the TRO so that the COurt has something to work with. the COmplaint should then ask for temporary and permanent injunction against the “trustee” or whoever is claiming the right to go sell your home, ask for money damages in addition, and declare as above that the people representing that they have the right to proceed against you are not the Owners or the Holders of the Note, that the Note is already discharged by virtue of being paid in full, and that their actions are violations of the Fair Debt Collections Practices Act (you need that if you are trying to get into Federal Court – you did not say what Court you are going in), 15 USC 1692ff, that they are engaging in unfair trade practices (toss in the State Statute you are working under, you can find it on-line for your State), and (if they are already in Court) that their acts and practices are a fraud upon the Court (and that should perk up some ears).

    Keep us posted on your progress. We are here to help each other.

  40. to Kevin:

    A TRO is in effect an injunction, as you are asking the Court for temporary injunctive relief. General rule: when in doubt, incorporate everything. Your Motion for Injunctive relief should contain the following:

    1.

  41. Jan:

    Thanks again! I’ll get busy re-doing the next TRO. BTW, should the TRO be a stand alone or incorporated with a preliminary injunction like I had. As you probably guessed, I have “borrowed” quite a bit from other cases, including the title. Also the 1. in thew middle of the doc was really a footnote, just didn’t format right when I pasted it here. That was an after thought I saw in another Colorado TRO, although their’s said they wer not licensed instead of might not be like I put. (I wasn’t sure so I opted for safety).
    As far as the securitization issue, this was a CWALT ALT Trust blah blah blah that was filed through Countrywide originally (2005) and in 2006 they filed a 15-15d?? and I can’t find anything after that. Don’t know if Bank of America had to re-file, close and set up something new, etc. And I have not been able to find my loan listed in the filings.

  42. to tony brown:

    After the dust settles and their case is dismissed with prejudice, be sure to file suit against the bank for fraud, unfair debt collection, the whole nine yards. Easy win. Any good consumer law firm will take that one on a contingency. Sock it to them.

  43. to Tony Brown: if you have the “wet ink” original Note than you are both the Owner and the Holder of the Note. Is the Note stamped “paid?” Is the Note “assigned” to you?

    The circumstances of your coming into possession of the Note are important. If it was handed to you freely, then you are the person in legal possession. As long as you posses the Note, nobody else can “enforce” the note, allegations of assignment as recorded on land records notwithstanding. If you obtained it by fraud or inadvertence (someone left it sitting on a desk and you walked by and scooped it up, for instance), then you have the usual problems. I am assuming that is not the case.

    All this is a very good reason never to “burn the mortgage.” ALWAYS preserve the original wet-ink Note and mortgage documents, stamped paid, in a fire-proof box or safety-deposit box.

    Now you have a suit filed against you. Respond by filing a “Motion to Dismiss with Prejudice” stating that the plaintiff is not in possession of the Note and has no Standing to enforce the Note.

    This is really basic stuff. Only the person in possession of the Note and the right to enforce the Note is the “Holder” of the Note. Look it up in Black’s law Dictionary if that is not clear to you. By the way, you cannot enforce against yourself. You are in possession of the Note; as long as your possession is not wrongful or the fruit of crime, as long as you sit on it, nobody else can “enforce” on it. end of story!

    Let us know how you make out.

  44. why am I in foreclosure, I have the note so I have the right to enforce the note, but i can’t get anyone to see that, everyone said that the bank who went and did a fake assignment at the ROD is the owner because they have an assignment . My question is how? How do they have an assignment from the original lender through Mers to them when I have the WET INK Original Note in my possession from the original lender?

  45. to PJ: Looks like you are going to have to park yourself in the waiting room down there. I got my hands on the trial transcript of the Paredes Hearing and it is a blockbuster. Still all thumbs on this computer stuff so I haven’t figured out how to post it; but it is great stuff. happy to send it on to anyone who wants it.

  46. to Kevin:

    You are on a good track, but watch out how you phrase things. Since you are in Colorado I assume you under a Deed of trust on the home. You use the term “title” when I suspect you really mean the Note or the Mortgage as security instrument for the Note. the “Title” is the ownership of the house, which is YOURS, the title is to you, but a claim against the title comes about from your signing of the mortgage as security for the Note.

    I think you are going to have to re-phrase it just a bit.

    Para 2: instead of “lien and title,” how about “lien and claim against title”?

    Para 3: “based on an assertion of a claim against the Plaintiff’s title to the property…”

    After (4), (1) you need to re-number. Spell BONY out as Bank of New York. Unless you write “Bank of New York [hereinafter: “BONY”] “, you have to use the full name of the adverse party.

    NOTE: probably BONY is a national Association under the Bank Act and might not need to be registered to do business in the State. It is nice to toss it in, however. Also, do they have a registered Agent for Service of Process in the State? If not, then you toss that tidbit in, also. You find registered agents for service at the Sec of State business corp registry, typically on-line. All business must have an agent for service of process. BUT, some national associations operating under Federal Charter can get away with using the Sec of State as their agent. Usually, they cannot. typical agents for service are “The Company Corporation” out of Delaware.

    5: it is not that the title is clouded; the title is to you. The ownership of the Note is what is clouded. You caould also argue that due to securtization the ownership of the Note has been separated into “tranches” or slices and can no longer be determined from public records, and requires an evidentiary Hearing to determine who is the proper party to have Stranding before the Court. And that is a very interesting argument. Do you have any copy of the Indenture or Securitization Sale? Some are posted as SEC 8-K Filings. those are on-line. If BONY did a hack job and kept it under the radar, then it never made SEC. However, most of the bigger banks did theirs as SEC 8-K filings, just to avoid being arrested later by the cops.

    Remember that a TRO requires three showings: imminent harm, irrevocable loss, and no other adequate remedy at law. You have to plead all three. You have imminent harm in that they are proposing an auction in a few days. You have irrevocable loss in that all real property is unique as to character and the loss is not “fungible,” or remediable by money damages (you are removed from your abode and are living on the street). You have no other adequate remedy at law in that only by the TRO is the groundwork laid for you to explore their claims to the Note and the Right as holders to proceed to enforce the Note.; without the TRO you are deprived of your rights to and possession of the property without due process.

    Keep plugging away!

    Anybody else out there. be sure to chime in; our man is under serious time pressure.

  47. Thanks Jan, did think about calling him, but sure the office is swamped after the October ruling but will give it a try. Have done most of the research, most in part thanks to Neil and all of the people on this site so willing to share and help! You all are fantastic!!!, and really just need someone to help me put it all together since there are a few missing pieces that can not be located, Fannie Mae stuff, etc.

    Wish I could afford to attend the workshop this month and meet everyone!

    Also would someone be kind enough to post the link to the “intake form” referenced above.

    Thanks again!

  48. Jan:

    The info you are providing is great and probably just what I need. Since I’m not quite sure how to answer your question about my motion, I’ll just post it.

    Now comes the Plaintiff, XXXX XXX appearing pro se, and files this Motion for Temporary Restraining Order and Injunction and states as follows:

    1. Plaintiff filed the action in this Court, due to, inter alia, the Defendant’s failure to show standing and capacity to commence foreclosure action and failure comply with the provisions of 15 U.S.C. 1601 et seq. 1
    2. The underlying issues to be decided in this matter relate to a lien and title purported against the
    Plaintiff’s property by the Defendant(s), such property being designated as xxxx xxxxxx xx, Xxxxxxxxx xxxxxxxx
    3. Based on a purported title to the Plaintiff’s property, the Defendant(s), have a pending foreclosure action filed with the El Paso County Court against Plaintiff’s property located at xxxx xxxxxx with a current sale date of 3/10/2010.
    4. The consequences of allowing the sale to proceed would result in the Plaintiff being permanently and unlawfully displaced from his home.

    1. On information and belief, BONY is not registered to do business in Colorado as required by
    C.R.S. 7-90-801(1)

    5. Due to securitization of loans, indiscriminate transfer of ownership, and lack of proper filing,
    among other things, the title has become clouded and true ownership of the Deed is unknown to anyone at this time.
    6. State law, Federal law and all conceivable case precedents preclude an action to take possession
    of a person’s real property prior to an absolute determination of any and all outstanding title
    questions that relate to such person’s real property.
    7. Colo. R. Civ. P. 120 expressly preserves the right of property owners to present their defenses in
    a separate action. See Colo. R. Civ. P. 120(d)(“The granting of any such motion shall be without
    prejudice to the right of any person aggrieved to seek injunction or other relief in any court of competent jurisdiction.”) Complaint attached as exhibit A
    8. Pursuant to Rule 65(b) it is appropriate that an order be issued by this Honorable Court restraining any further action in any other court until the matters pending In this Court have been fully adjudicated.
    9. Plaintiff XXXXX certifies to the Court that on the day of filing this Motion for Temporary Restraining Order and Injunction, he has notified the Defendant’s counsel by phone and certified mail of such motion and further, filed a copy with the Clerk of the El Paso County Court.

    Wherefore, Plaintiff XXXXX asks that this Honorable Court grant the herein motion forthwith restraining or enjoining any further proceedings against Plaintiff XXXXX residence until the issues before this Court have been finally adjudicated and any further relief this Court deems appropriate.

    Respectfully submitted this 8th day of March, 2010.

    ___________________________
    XXXXX XXXX, pro se, Plaintiff
    Xxxxxxxxx
    Xxxxxxxxxx
    xxxxxxxx

  49. I have been trying all kinds of approaches for over two years. Loan Mod, court cases and bankruptcy. I have gotten pretty much no where except to delay moving out of my home. I am now studying here on living lies and other sites to take matters in to my own hands. I am currently producing a course that will put all or at least most of the steps people can use on their own. Most attorneys do not get, sorry the list that used to be on this site was mostly outdated or the attorney really did not get it. I would like to start more of a conversation with others trading information and stories that will help us all. Want to chat call Robert Ponte 860-599-5557

  50. Note: that should read “NY UCC 302”, not “USS”

  51. General memo to posters on this forum: keep in mind that a “holder” of a Note is not necessarily the “Owner.” Most people get that confused. Usually they should be the same party, but not necessarily. And each category has different rights, including different enforcement rights.

    Just because someone claims purchase of your Note, that does not mean that they are automatically either a Holder or an Owner. They might merely be “in possession.” Or some other category, e.g merely an “assignee.” This is where you really have to put the transaction under the microscope.

    Assume nothing. If the transfer was done by “allonge,” a sheet of paper added to the Note, then was there still blank space on the front or back side of the Note? If there was, then the allonge is arguably invalid (see; NY USS 302(2) ). If there is a staple, but a huge bunch of staple holes in the original, then the allonge is not “firmly affixed” and is probably invalid.

    Allonges also have to have the original loan number, the name and address of the Obligor and property, the date, proof of authority to sign, and a whole bunch of stuff on them to validate. Look through this website to see how it all plays out.

    You have to educate the Judges on all this. Most of them are never confronted with these issues, and they don’t “get it.” Always an uphill battle.

  52. to PJ: try David Shaev in Manhattan. He is the attorney who successfully advanced the conclusion of “In Re Paredes,” where the entire claim of $455,000 by a creditor was tossed by the Court. Great work, that!

    You can google In Re Paredes and see the result.

  53. to Kevin:

    File a new one. Your first one is Denied, so it remains in that status until it is re-heard and Granted. It will offer you no protection,. A new Motion will (or should) stay any further action until it is heard.

    How are you structuring your Motion? Are you asking for a TRO with an Order to Show Cause (why relief should not be granted)? If your Application for TRO includes a Motion for Order to Show Cause, and you include a proposed Order to Show Cause with it, with the dates of the Hearing in the proposed Order in blank so the Court can fill it in, then the Order to Show Cause will stop any further action by the party plaintiff until the Hearing has come and gone (and only then if your TRO is further denied).

    Orders to show cause are routinely granted. Such an Order, without a TRO, will by itself not technically stop or stay creditor action, but a creditor that moves forward in defiance of a show-cause Order is really nuts. Large fines and vacating of the sale, etc, are real risks. If you ask for TRO with an order to show cause, you may not get the Order. If you file suit against the creditor, alleging some theory of lender liability, and include an Order to Show Cause, then that Order would typically be granted without a first Hearing. Then you have the sheriff or process server Serve the Suit and the Order.

    You have a lot of work to do to get this moving. Yes, judges typically loathe pro-se litigants. That is because most pro-se litigants do not understand the Rules of Court. At your courthouse law library you will find a book title “(name of state) Rules of Court” there is probably an Annotated version there, perhaps in several volumes (civil, criminal, etc) plus a Book of Forms that you can use as a guide to fill in the blanks. the Annotated version will have case-law cites of prominent cases, so you can look those up and see what some previous judge in your State did in a previous matter. Then, if applicable, you can cite those cases in your case matters.

    Remember the maxim: when in doubt, file a lawsuit. Makes you proud to be an American.

  54. It would be helpful to have a list of pertinent questions to ask a legal advisor before you hire them, since this is such a new frontier in case law. And if anyone knows of a legal advisor in NY that “Gets It” that would be greatly appreciated.

    Thanks for everything!

  55. to Annie Green [Florida]:

    You are actually in an interesting situation, one that works (a little bit) to your advantage. Since the new (claimed) purchaser of the Note knew at the time of purchase that a “default” condition was declared, or at least apparently existed, then the new purchaser is no longer a “Holder in due course.” At best, the purchaser could be a “holder,” and this gives you additional defenses against him/them. this is a technical difference, but in simplist terms a “holder in due course” can assert directly against the Note Obligor and the defenses that you had against the original creditor, such as fraudulent inducement and so forth, cannot “stick” against the due-course holder.

    However, if the purchaser bought something apparently in default, and he knew about it, then at best he is only a “holder.” A Holder of a note has the right to attempt to enforce the note, if he is found to be entitled to do so (more legal barriers, but usually the case) but all of the defenses that you could raise against the original party now flow over to the new guy. So that works a little bit to your benefit.

    As to your question: is a “default” note still in default with the new guy? Well, depends. See, a “default” does not exist in a vacuum. If you did not make a payment, or sent in an NSF check, or whatever, then a condition that looks like a default exists. But it is not really a “default” until someone makes a declaration that there is a “default,” and does so by issuing you a Notice of Default, in which the Holder of the Note (or the contracted Servicer who has the legal authority, that he has to establish, makes the Notice on behalf of the Holder) states in detail what the default is, what you need to do to cure the default, and sets forth a time limit to do it in (known as “performance”). Now after all that, if you do not cure, then you are in “default.” Of course, this presumes that what is being claimed as a default actually is the case.

    Although generally a “default” is over money, typically non-payment, many other things can lead to a declaration of default. For example, the Note and Mortgage may have a prohibition against sale of the property to another. If you sell and try to let the existing note flow forward, then you are probably in default. If you decide to run a business, e.g. a car wash, on a home in a residentially-zoned neighborhood and the Note and Mortgage prohibit that, then you are in default. And so forth.

    If you are in a money default, and they can prove it, e.g. it is legit, then you remain in that condition until you cure. So that default simply carries over to the next guy. However, I suspect the next guy does have to issue his own independent Notice of Default (maybe not; you have to check with a man who knows the ins and outs of Florida legislation and case-law litigation history to be sure on this). I am not from Florida so I do not know for sure.

    Typically, what somebody else did or did not do as a Holder does not inure to the benefit of the next Holder. So, if a Holder sues you claiming breach, and then sells the Note, then that suit does not “carry forward” to the next guy, unless the next man Motions the Court to “stand in the shoes” of the party plaintiff and become the new party plaintiff. The Court would have to approve that. Some courts do; some do not.

    However, here is the big problem that these new purchasers have to face: in litigation, you ask the new guy: “Why on earth would you go spend your cold cash to go buy a Note that is in Default? Because that looks like a crazy thing to do. What economic justification is there to do that?” And the real answer is: “Because I am a greedy unscrupulous bastard and I see a possibility of picking off a nice property – your house – and selling it off and running ways with the equity, for my own unjust enrichment.” So that demonstrates that the Buyer of the Note is NOT a bona-fide buyer or investor in Notes and mortgages, but a slime-bucket who is trying to manipulate the Court system to obtain unfair advantage. So you sue him for that abuse.

    It is my proposition that the abuses by the pretender lenders in the secondary market are only stopped when they consistently get sued for perpetrating economic fraud. Unfortunately, only a small minority of judges are able to “get it” at this point, so it remains an uphill battle.

    And, Miss Green, keep in mind that the “mortgage” is not being sold. It is your Note that is being bought and sold. the mortgage is merely a security instrument that should follow the Note around. Sometimes it does not; at that point, when the Note and mortgage are separated (like when the Note goes into a securitized trust) you may end up with an unsecured Note. That works to your advantage.

  56. I just had my TRO shot down because of some goofy technicality that I don’t quite get except the judge seems to hate pro se plaintiffs.(in Colorado) Anyway, do I need to file a new TRO or do a motion to re-consider the first one? New sale date is 3/17/10. The judge is pushing for a status hearing which I tried to set up but the process server just got the affidavit back to me and they wouldn’t set up the hearing until they had that. It was filed yesterday.

  57. I live in Quincy, Florida. What I would like to know, is there anyone who can answer the following questions: If I had a mortgage that went into default, and that mortgage was sold while in default. Once that mortgage is sold am I still considered to be in default status with the new mortgage company?

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