LAWYERS TAKE NOTE! COURTS ARE ALLOWING TITLE QUESTIONS IN EVICTIONS

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“The mere fact that the pretenders are avoiding trials at all costs is proof unto itself that they do not have the goods, they do not have title, they are not the creditor and they are merely sneaking into the system to fill the void created by the the real creditors (investor/lenders) who want no part of the foreclosure process nor any need to defend against predatory, deceptive or illegal lending practices. ” — Neil Garfield

OREGON COURT DENIES EVICTION: SHOULD HAVE BEEN A QUIET TITLE LAWSUIT

EDITOR’S NOTE: The eviction laws were mostly designed for landlord tenant situations. Once again, pretender lenders are using questionable practices using laws that don’t apply to the cases they are bringing. But ever since Judge Shack in New York and Judge Boyco in Ohio started questioning whether the homeowners were actually getting their day in court, the courts have been shifting away from the old rules.

The old rules basically prevent a tenant from questioning the title of his landlord as a defense to an eviction. The reason is obvious. You sign a lease with someone, pay them for a while and then stop paying — the issue of who has title title is  basically irrelevant. You have a  contract (lease) either oral or written, you breached it, and so the summary procedure for eviction makes it easier on landlords to get tenants out and begin renting the apartment, condo or house. The only real defense is payment and some issues like retaliatory eviction for reporting health problems, and similar landlord tenant issues. You see these laws in Arizona, Florida and every other state I’ve looked at.

Along comes massive foreclosures and instead of having a contract with the landlord you have a claim by someone you never heard of, with paperwork you’ve never seen, much of it unrecorded, and claiming default without being the creditor or even establishing that they represent the creditor. So in non-judicial states for example, this is the first time you have seen, met or had any day in court and you are told that you are in a court of limited jurisdiction and that if you want to raise issues regarding fraudulent or wrongful foreclosure you need to do it in another court. In the meanwhile, the court is going to evict you no matter how much proof you have that the party doing the evicting obtained title illegally and may never have obtained title.

As I have been saying for 4 years, eviction is not a remedy to anyone claiming to have a right to possession of a foreclosed home unless there has been an opportunity to examine all the claims of the pretender lenders to actual ownership of the obligation and the possession of the proper paperwork. Even in judicial states this is not working right because the foreclosures are considered clerical by judges and many of them don’t believe, or at least didn’t believe until recently, that the banks would be so arrogant and stupid as to make claims on mortgages that were never perfected as liens and never transferred to them or anyone else.

So here we have an Oregon judge that spots the issue and simply states that this is not an eviction, it is a quiet title issue and if you want possession you need to prove title. If you want to prove title, considering the defects that are apparent and alleged by the homeowner then you need to file a quiet title action. This is the same as I have been saying for years. If they really had the goods and they really could prove that US Bank, or BOA was going to lose money because of the alleged default on the obligation, then all they needed to do was go to trial on a few dozen of these cases and the issues raised by homeowners would go away. Instead the issues are growing in volume and sincerity.

The mere fact that the pretenders are avoiding trials at all costs is proof unto itself that they do not have the goods, they do not have title, they are not the creditor and they are merely sneaking into the system to fill the void created by the the real creditors (investor/lenders) who want no part of the foreclosure process nor any need to defend against predatory, deceptive or illegal lending practices.

Categorized | STOP FORECLOSURE FRAUD

Court rulings complicate evictions for lenders in Oregon

Court rulings complicate evictions for lenders in Oregon

“Those issues give credence to Defendan’t argument that this case is better brought as one to quiet title and then for ejectment.”

OregonLive-

Another Oregon woman successfully halted a post-foreclosure eviction after a judge in Hood River found the bank could not prove it held title to the home.

Sara Michelotti’s victory over Wells Fargo late last week carries no weight in other Oregon courts, attorneys say. But it illustrates a growing problem for banks  — if the loans’s ownership history isn’t recorded properly, foreclosed homeowners might be able to fight even an eviction.

“There’s this real uncertainty from county to county about what that eviction process is going to look like for the lender,” said Brian Cox, a real estate attorney in Eugene who represented Wells Fargo.

Michelotti’s case revolved around a subprime mortgage lender, Option One Mortgage Corp., that went out of business during the housing crisis. Circuit Court Judge Paul Crowley ruled that it was not clear when or how Option One transferred Michelotti’s mortgage to American Home Mortgage Servicing Inc., which foreclosed on her home and later sold it to Wells Fargo.

19 Responses

  1. Elizabeth Warren running for Senate in MA.

    What we need — if you live in MA — support.

  2. one Oregon court bucking the statutory law and making new law is not exactly a groundswell of change….

  3. the aforementioned is slightly whacked…pay no mind.

  4. why would WordPress take down the site? i’ve thought occasionally that articles and parts of articles have been lifted without proper or complete attribution, but those are pretty few and far between. as i understood it, that’s why foreclosureblues went away.

    what were you referring to @foreclosureinfo?

  5. foreclosureinfosearch

    If WP were to check me out — would welcome. I am not shill — work for no one — only for here for the truth.

    But, you have a nice day -too — with your temperament — that might be difficult.

  6. Who is the debt collector
    What is his role?
    Why is accounting the single most important aspect of a defense ?
    Why do people call the US government a Pretender lender?
    How can you foreclose on a moral obligation?
    Why is Dan E charging some people $1,500 and others $500 per report ?
    Who is the Grantee in a HUD 1 at closing?
    Why are people organizing clubs to make money off desperate consumers and calling people at home to join their LL club…
    Why is Word Press taking so long to bring down this site ?
    What is a salvage value ?
    Why is the QWR the beginning of the end?

    Get mad and fight back Write WP today !

  7. Anonymous

    What in Gods name are people talking about here.
    A Living-lies Shill?

    Get on with it …

  8. Original Anonymous,

    I look forward to your comments and so glad you clarified the recent comments. I like Carie’s idea of the newest Anonymous poster to change their name or you could put *Anonymous so we know it is you.

    As far as this post goes I hope all readers here make many copies of this post and sends it to all their judges, AG’s and local attorneys and even post this article on your face book so others homeowners see this and start to think hey could this be happening to me or y neighbors!

    Keep Fighting

  9. Maybe you could start your comment with clarifying that you are the “original” ANONYMOUS…
    Or, to the “new” ANONYMOUS—if you are reading this—perhaps you could come up with another name, so we can avoid confusion—we would greatly appreciate it!!

  10. Neil and others:

    Please note that I am not the ANONYMOUS posting below — for all of you who have known me for years (friends and foes).

    Neil — how is someone else using the name I have used for years (all caps)?? There was another “anonymous” posting a while ago — but, that was small letters — and not all caps — which I have continuously used. That – small letters – anonymous — posted something that was very derogatory regarding 9/11. I was outraged at that time. That person never surfaced again.

    The post below is not mine. (Admit I should have used a different name — but, used for first comment — and stuck with it — for all these years). And, many have come to know me as simply – “ANON.” It stuck. Bad enough that I have stuck my neck out — by numerous comments — for all these years — – I do not need imitation. If I change my name — will anyone know it is me??? Do not want to sound like a “baby” — but I was first!!!.

    On a different note — Alleluia — to Neil’s comment above — Quote — “they are merely sneaking into the system to fill the void created by the the real creditors (investor/lenders) who want no part of the foreclosure process ”

    Have been saying for a long time that the (debt buyer) “investors” — are the creditor. And, those “investors” — can also change with the wind.
    Security investors — are not the creditor.

  11. @HMan
    Call JFK Law Office

  12. @BSE

    Yes, I know who you are talking about and she needs to be removed from the courts

  13. Does anybody know of an attorney in AZ that is doing opinion of titles? I’ve been searching and can’t find one. Most won’t even call back.

    I’ve been told that “any” real estate attorney can do this but everyone I’ve called either hasn’t responded or doesn’t do them.

  14. If your bank violates a TRO and your home is sold at the Trustee sale.
    The Bank registrar agent was server before the Trustee sale. However, the foreclosure attorney office said they did not received the TRO and lawsuit. We found out today our Servicer removed out case to Federal Court. I believe we should be seeking sanction and damages as well as having our case remove back to state court. My question do we have a chance of our case being remanded back to state court.

  15. Hopefully someone will explain to a certain Federal Judge located in Arizona. She either is a simpleton and thinks the banks are within the law and can do no wrong. Or she provides cover for the criminals at hand. Either way she needs to be removed the judicial chambers.

  16. Thanks for the flow of informing homeowners about the true issues, and why servicers really have no power, but they don’t want that to become know. Quiet title is just what it says,get your facts and go with them.

  17. Tuesday 13 September 2011

    Not post related, but has anyone challenged, or does anyone know
    how to challenge, attorney representation of its purported client?
    The plaintiff “lender” against me went BK two years ago. The atty
    representing them withdrew from the case, and just in time, a new
    atty law firm filed an appearance on behalf of its “client,” the BK
    entity. There is no way the BK entity could hire a new atty.

    I have my idea of how to proceed, but in case someone has some
    knowledge or experience, it wouild be helpful.

    Thx…

  18. I live in AZ and I’ve been searching for an attorney to give me an Opinion of Title for a while now. I’ve read quiet titles and requested several Title Companies do this but forget about it. They’ve been instructed not to do this by…who I don’t know.

    Anyway, does anyone know of an attorney that would do an Opinion of Title in AZ? My Deed of Trust still shows a Lender that has went out of business 3 years ago. There’s been no other assignments (on record) on the County Recorders. MERS system shows the parties claiming to be the lender and trustee that is different than what’s currently on my DOT.

    Please if anyone knows an attorney in the Phoenix Area that is doing these send a name.

    Thank you!

  19. Wilbur Ross loses ANOTHER case using his “WF as trustee” strawman.

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