Malpractice Lawyers Take Aim at Their Colleagues on Foreclosure and Title Issues


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Lately I have been receiving calls and emails from people investigating the possibility of suing a lawyer who was involved in either their foreclosure defense, bankruptcy, or even the closing on a resale, short-sale or modification. Some big names are looking at this area as the next big area for malpractice. The stakes are pretty high, since the starting point in damages is the amount of the loan — and may involve several loans.

Most lawyers have been telling clients that they borrowed the money and that the only real defensive actions they can offer are modifications, delay and potentially help with short-sales. But the real liability comes with people who are NOT in foreclosure. If the title includes “securitized” loan transactions there is a pretty good chance that title is corrupted. And THAT means some court action down the road. It is a ticking time bomb.

Lawyers who fail to advise their clients of possible defenses, statutes of limitations on TILA rescission, common law rescission, and lawsuits for breach of contract and fraud, are now in a position where the facts are so widely known that their ignorance may be their undoing. Those transactional lawyers dealing in sales of residential real estate are particularly at risk because the negotiations regarding the content of the title policy and the failure to advise clients that even with the title policy the new buyer could end up in court, might be actionable.

It is obvious that the question of title is a live issue now. Whether it will be settled by some legislative “reset” button or it is resolved on a case by case basis, clients are not likely to be very forgiving when they learn they had defenses, their bankruptcy schedules were filed incorrectly and their closings were incomplete. When the time comes that people end up in court long after they thought the matter was concluded by foreclosure, short-sale or modification, they are going to be unhappy — and they are going to look for someone other themselves to pay for the defense in litigation and any damage award.

A client who has been threatened with foreclosure should be told that there are cases and theories in which homes have been saved by raising issues relating to the authority of the party making the demand, the amount demanded, and that there are grounds for filing causes of action for appraisal fraud, violations of TILA and other factors. Lawyers whoa re unfamiliar with securitization and who have never read a pooling and servicing agreement will be caught broad-sided upon learning that the loan may never have been transferred, the lien may never have been perfected, and the loan is not even in default because the servicer agreed to make the payments regardless of receipt from the borrower.

Lawyers should contact their malpractice carriers and ask about protective language to insert in their retainer agreements, which, as every bar association will tell you, should be in writing.

A legal malpractice case consists of two cases in every instance. First there is the “mistake” that is alleged to have been committed by the offending lawyer. But then comes the hard part — proving damages. In order to prove damages you must prove that but for the error of the attorney you would have had a result that was far more favorable than the one you you got. At the very least you must show that there was a very high likelihood that you could have saved your house, received damages, or otherwise obtained relief.

And there is the rub. It seems that only those lawyers specializing in malpractice are actually mastering the details of securitized loans and the corrupting effect on title. Most lawyers are steering clear of the issues and still filing, for example, bankruptcy schedules that show the home as being secured by a perfected lien and admitting it is in default. In the world of securitized loans it is highly likely that their assumption is true, but that the admission produces the inevitable result of an order lifting the automatic stay which in turn is treated by state courts (improperly) as res judicata (the matter has already been litigated, and can’t be re-litigated under the Rooker-Feldman doctrine). The foreclosure goes through smoothly with the lawyer basically admitting the key issues that COULD be put at issue and require a trial on the merits and facts. But this example is not enough to make the case.

After proving the liability part by showing the error, the malpractice lawyer must then show that the borrower would have won or was likely to win. It is here that an interesting anomaly arises. The malpractice lawyers are scrutinizing each scrap of paper in evaluating these cases and finding that the the players don’t add up and in fact the record itself often proves that the wrong party foreclosed on a mortgage that probably was never perfected into a lien against the property. So far so good. That means the foreclosure was wrongful and the title and possession must be returned to the homeowner(s) who were foreclosed and evicted. That might be enough to complete the case, but the malpractice carrier for the lawyer who committed the error will probably raise an additional issue: would the homeowner have been able to keep the home in the long run?

Here again, it is only the meticulous work of a malpractice lawyer that reveals the answer, which in many cases, is YES, they would have — but that is only because they performed the work that was really necessary to analyze each of the four corners of every document. The obligation might exist, but there is no accounting from the creditor nor is the creditor identified. The fact that the obligation is not secured is in itself good evidence that the homeowner would have ended up with the home, free and clear of encumbrance and the ability to even wipe out the obligation in bankruptcy as being unsecured or otherwise negotiate it down to realistic levels after credits for lending violations, appraisal fraud etc.

With widely publicized fraud, forgery, fabrication and misrepresentation (by banks who have inserted themselves into the collection process) being heralded by main stream media, lawyers who take a brief history from the client and browse the paperwork are going to come to the wrong conclusion, give the wrong advice, take the wrong action and potentially end up with malpractice liability that could wipe them out financially.

41 Responses

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  2. @ Tim and Carie,

    Guys, how do you go about finding out whether or not your loans are part of a trust and which one? Declaring it is one thing. Proving it is another. Anybody here has done it and can share the steps to follow? Mine were originally Fannie Mae and are confirmed to be Fannie Mae but I cannot figure out how to go farther than that. Also, whether or not Fannie has anything to do with it makes very little difference: I did get letters from “trustees” (BNY among them) but never was given the courtesy of any answer to all the QWRs I sent (lender, servicers, trustees, collection agencies (yep, on my small mortgage…) So, no answer from anywhere and a file that seems to confirm that there are so many active loans attached to my friggin’ house, even pre-existing my purchase of it, that pretty much any bank could claim it as its own.

    I get to the point where I’m thinking that maybe the answer would be to go through the list of every single existing bank in America and sue them all as co-defendants in a “where has my friggin’ money gone and with whom should i deal with for my payments?” and let them fight it out amongs themselves. I was looking at that MERS affiliates list and everyone having a finger in my pot belongs to it.

    And by the way, has anyone ever lookid into that MERS affiliates list? I would expect that there were contracts drafted. Anyone got an opportunity to review the terms and conditions under which one was/is considered a MERS affiliate?

    The good thing is that when i get really, really, really fed up, I have two passports… But I’d hate to leave because this country doesn’t know it’s ass from it’s elbow any longer…

  3. @ ENRAGED

    The trusts are deficient in funding due to the fact that loan originators pledged or sold the loans multiply times.

  4. Yes…just collection rights sold over and over and over…and over.

  5. So, BofA purchased Countrywide for 4-billion bucks which included approx 9-million mortgage loans –

    4-Billion divided by 9-million equals 444.44 (Four Hundred Forty-four Dollars and Forty-four cents)

    Essentially, that means then that BofA should only have legal damages of approx $444.44 per loan thus SHOULD only be able collect from CW homeowners a max-amount of $444.44… right? They can only collect on damages due. They only PAID $444.44 per loan…

    Hmm – if they cannot enforce the NOTE (Promise to Pay) because they do not have the NOTE or it was never legally transferred or properly conveyed to the Trusts, then BofA should (legally) be SOL and forced to accept Four-hundred Forty-four dollars and Forty-Four cents as payment.

    If the Trust never received the NOTES, then the Servicer (BofA Servicing) has no authority (capacity) to collect payment – including the typical mortgage monthly payment…, right?

    Assuming as I believe Tim is correct – they are merely debt collectors…

    Just wondering…?

  6. In my humble opinion—the only way to get the housing/economy going again is to admit that it’s all false default unsecured debt—and let people either “restructure” it or file BK. It’s an individual choice. But they won’t do that—because it would mean admitting to fraud.

    Investors seem to know this is what happened…that’s why they are suing and winning…and the homeowners are left in the dark to fight blindly because our government and banks don’t care AT ALL what happens to us…we are their chattel.

  7. The liability that massive people whom have been victims of this fraud are not legally in foreclosure, and do not owe the debt and some have been tricked into alleged default, and were in compliance with the banks. Modification fraud, Told to purposely fall behind to qualify. I was and paid five mod payments before i was unapproved and the mod was turned into partial payments, to con and allegedly default me. Also all of us are victims of the economic collaspe, purposely caused by the banks and the government, and are owed more than the ammount of our houses for restitution and damages.

  8. Correct me if I am wrong, It is looking more and more to me that the government has set us all up to own all the property in the United States and become the landlords of many of us. They are taking over the banks. A video came out on this blog, by a woman whom stated this was a government planned design to cause a big bubble, and allow everyone to feel safe to invest, purchase homes at unreal inflated prices and put their necks on line credit chopping block, then chop our heads off. (Basically) and take over the wealth. From my point of veiw, this corruption is a well designed plan to make paupers of all of us to be controlled by the elite. Never to own anything. Fannie and Freddie dont care if it is all a farse. It is a con game the whole thing.

  9. This is the story I recieved from one of the many lawyers that I went to for advice. The fair foreclosure group supposedly helping Washington homeowners, told me they only have enough money to help in setting up a modification program and to give the bank $50,000.00 toward the loan, no money to help the homeowner in legal litigation. Another ploy to take misappropriated tax funds and give it to the bank, while patting us on the back to sign papers stating we owe an alleged debt we do not owe, and we are deliquent. I refuse their help, my sister just received papers to sign she owes the debt and is deliquent. She is asking them to bring the bankster to the table and prove whom is the real owner of the mortgage, and prove original documentation of an unbroken chain of title. To avoid misappropriated tax funds. That she objects to owing any debt to a party that does not prove the alleged debt is owed to them. They are screwing home owners and tax payers once again.

  10. @ DAVID

    Just a little help, if the loan is in default when sold, then the new servicer is a collection agency and isn’t protected.

  11. Questions

    If the PSA requires defective and/or defaulting loans be removed from the pool/Trusts, how can they continue reselling them and/or transferring to other entities, i.e. Fannie, Freddie, etc…?

    Example – our loan was allegedly sold to Countrywide – Trust – CWALT 2007-7T2. CW was sold to BofA then our loan was eventually sold to Maiden Lane. However, the mortgage was already in default prior to BofA purchasing CW – prior to the Trust (CWALT) being purchased by the FED and/or placed in Maiden Lane.

    If a majority of these loans are defective and/or in default, how can they continue transferring and selling them???

  12. Anonymous,

    Somehow, it is impossible for me to suscribe to the theory that ALL the trusts are devoid of ANY loans and that we are staring at huge black holes. Trying to use my common sense (or what’s left of it but it’s so damn difficult to analyze what Carie and you are saying!) I can’t understand it for the following reasons.

    Freddie and Fannie were primarily the trusts for subprime. Right? And a lot of subprime went awry. People defaulted, filed bankruptcy, houses repo’ed, etc. Yet, our government not only bailed them out but took control of them. If nothing was salvageable in either outfit, would the feds have done it? Common sense dictates that if nothing is salvageable, you simply let it disappear and die on its own. What sense does it make to pour money into the problem if the problem cannot be solved?

    How different is it from bailing out AIG, Chase, BofA, etc? I expect (common sense…) that the feds bailed those out because somewhere, some of their divisions were profitable. Isn’t the same with Fannie and Freddit?

    Am i so incredibly naive? It is a possibility, don’t get me wrong, but I can’t fathom going through life with a feeling of living inside a big, huge vacuum and an illusion. What’s the point of going on living if it really has come to that? What’s the point of fighting? Naw, I will not endorse any sweeping declaration until I am satisfied that they are absolutely true, without exception. Keep in mind that, in my way of thinking, a proposition is only true to the extent that it hasn’t been disproved… And right now, this is a theory (trusts funds being completely empty). I haven’t yet seen any hard proof of it.

    By the way, how do you find out if yours, the one your loans were supposed to be securitized into, do, indeed exist? Still waiting for Carie to give us some pointers.

    Thanks guys.

  13. Hi Barry in Tacoma,

    Just because on schedule — does not mean it is there. Just means that there was an “intent” for it to be there. Removals by repurchase and default. But, schedule will not reflect removal.

  14. Hman,
    Your loan info sounds identical to one of mind. I may be able to look up your loan in the schedule I have for mine with Aurora/RALI/Deutsche etc. What’s your email?

  15. enraged,

    Oh – no no – no. Trusts were set up as waterfall structure. Once that waterfall structure in gone — the trust is gone. It is called a “trigger event” — ie — default for the trust. A certain percentage of loans defaulting — triggers the default event — swaps kick it. Trust is dismantled — no servicers any longer conveying any “advance payments” — it is over — gone — done — KAPUT.

    But, you ask a very good question — where do the loan cash payments — for borrowers still paying — despite massive default trigger — GO??? Not to that Trust — most likely went to Maiden Lane — ultimate purchaser of default Trust remnant tranches. All of which were restructured into a BIG government Trust — sold to — you guessed it — default debt buyers — with collection rights attached.

    That Trust – you think still operates — is in no where man land — tranches long restructured — and governed by the US government.

    Hmmmm—- government just waiting for those “restructured” to default. But, you have to remember — securities holders are not the creditor — despite security restructuring — collection rights remain elsewhere — and if “bank” could not dispose of those collection rights — government is here to help. That was the goal — and continues to be the goal. — clear the balance sheets. Unfortunately — for some banks — not happening.

    Title — not a concern to US Government. At least, not yet. .

  16. I’m talking subprime refinance/purchase only.

    As ANONYMOUS says:

    “The Depositor owns the Trust — and while the Trust was performing – the Depositor, on behalf of the Trust would be the party to bring the action. However, these Trusts have now been brought back on parent corp. (to Depositor) balance sheets because the Trusts as “off-balance sheet” SPVs — have been effectively dissolved. The only tranche holders to remnants of the Trusts is the US Government or the Depositor (parent) itself. Of course, you should be preparing to demonstrate that the loan was not validly conveyed to any Trust (which they were not). Do this by requesting the Mortgage Schedule which should accompany the Mortgage Loan Purchase Agreement (MLPA) — and the MLPA cannot be an “intent” to sell — it must be validly executed and notarized (we know about those notaries). And, importantly, if MLPA and Mortgage Schedule can be proven, servicer must prove that all default payments have been paid to the trust on borrower’s behalf. If not, loan has been removed from the Trust with collection rights sold/swapped to a Third Party.”

    My PSA has no MLPA and no Mortgage Schedule.

  17. And Carie, as bad as the economy is, you can be assured that there are still loans in trusts, even if it’s just a few, I would bet my life on it. Otherwise, the system would already have completely crumbled. And that’s what makes these times so difficult and the solutions so hard to come up with for government and congress. Not everything has been irremediably destroyed. So, stop trumpetting that it has until we know it for a fact.

    Just a friendly piece of advice.

  18. Carie, you’re looking at the issue from the worst possible angle. You want to go from a generalization into specifics, without having defined beforehand what your strategy is.

    Are you on the offensive toward the banks? From the tone of your posts, you would appear to be. Yet, a lot of your actions seems to indicate that you are on the defensive or, at the vely least, prepared to be attacked. You can’t be both: it will completely confuse you and you won’t get anywhere. What happens is that you end up pleading both sides of the issue, neither very well. And you are digging your own grave: it absolutely garranties that you will piss off the judge and you will be ridiculed by the banks attorneys.

    Neil can do that because it is the mission of his site. He intends to give as many amunitions to everyone, on both sides of the issue, as a defense and as an attack, for those who have opted to attack first and see how the banks react.

    You need to decide if you want to attack the banks and then put together a plan of attack. Tila? Respa? Conversion? Based on what? On what documents?

    Or do you want to wait it out after having gathered a maximum of facts and docs until the banks file for foreclosure, in which case you can plead standing (or lack thereof)? The strategy is completely different.

    That’s what I mean. And either way, stay away from sweeping statements. Again, how does one prove that a mathematic theory is false? By finding just one single example contrary to said theory. All it takes is for one loan to be in one trusts and your are completely toast.

  19. Well, I don’t know of anyone who has proof that the trusts AREN’T empty.

  20. Marie,

    Malpractice of any kind is the costliest litigation to undertake. Class actions against entire lawfirms (mostly foreclosure mills and lawfirms acting for JDB) are being filed all over the country by reputable lawfirms who have much more at stake than homeowners, in their mind: the future of the entire profession depends on ridding it from scumbags.

    I wouldn’t get into that until the camps have been much better delimited: proven good guys v. proven bad guys. For the next 2 or 3 years, I would let attorneys go after each others until I am satisfied that certain attorneys are, indeed, completely wormy and have been proven to be so. Just concentrate on fighting your own battle for right now. Ultimately, anyway, i do believe that the scene will get seriously cleaned up.

  21. Thank you Nora. It’s that thing again about not being killed and coming out stronger… even tougher. Not a way to live.

    I understand what you’re going through: I kissed my retirement
    a while back when it simply vanished and i figured that, unless I start fighting, i would also lose the rest: house, income, etc. Granted, we all are born owning nothing and we’ll leave the same way but ending this life worse off than we started it is not a pleasant prospect.

    @Carie: I understand where you’re coming from but i am very concerned about certain things you write and which are just sweeping statements that will, ultimately, cause your fall. I think it is extremely dangerous to state that there are no loans in any of the trusts. With such a statement, you completely discredit yourself if just ONE loan is found in any trust. It would be different if your qualified your statements as: “In MOST trust, there are no loans” or “in the majority of the trusts”. And even then, you’d better make sure you have the docs to back it up. Over 50% of the trusts being devoid of any loans is a serious accusation to make.

    What you need to do is find out in which trust(s) your own loan(s) have supposedly been put according to your lender/servicer/trustee(s) and verify that what you are stating is true for what your loans are concerned. Prove that it is true for you and you will be listened to. I realize that you want to vent and a lot of what you say may be true but you need to focus on your own situation and your own loans and start from there. Otherwise, I can promise you that the judge will kick your defense out and dismiss every single one of your arguments without bothering to listen to you. This is a very dangerous game you’re playing. Get a judge pissed on one statement and you won’t be allowed to make a second one.

    Also, those sweeping statements are extremely misleading and can seriously induce other readers into error. The minute we write anything, we have a responsibility toward whoever will read it. Affirming facts without anything to seriously back them up is extremely dangerous.

    I am sure that you see some wisdom in what I am telling you. Please let us know if and how you found out which trusts concerned yopu, how you went about it and if, indeed, you were able to confirm that your loans weren’t in them. That will give readers a “how-to” much more valuable than throwing affirmations we can’t verify.

  22. Who’s got the money and lawyer to sue for malpractice. Just as difficult and costly as trying to save your home

  23. Carrie Thanks for the response. I guess my comment was kind of funny. I meant I would not take any replies as legal advice but rather as opinions of the poster.

    Anyway, thanks I am plannnig on sending a cease and desist attached to my Ammended DVR if they refuse to issue the documents I request.

    Your comment “There are NO LOANS in any trusts. They are empty and always have been.” I believe this to be true but where do I go to prove this or verify this info?

    Good luck everyone! I agree with some of the other comments. I’m fighting for principle. I’ve already lost 2 properties because I didn’t fight.

  24. Enraged,

    I admire you, your strength and guts and the loyalty to your beliefs, and you should fight for all those reasons and more. I think most of us are fighting on principle as well, and for the house, yes a house is just a house, but for some of us it’s more than that. I am fighting for both, I put quiet of my own money into this house to pay it off and more since I purchased it. I invested not only money but myself as an independent woman, and my pride of being able to maintain it for all the years and for making it home.

    I should be retired soon, but instead I work over 120 hours a week, because the very same people who caused the housing crisis caused the market to collapse and causing people like me to lose everything. So fighting it will be regardless with or without the lawyers. My son thinks I can do it without one, and since speaking with you and getting to know just little bit about you I may just do that. Thank you!

  25. What’s interesting though is that a malpractice case will require expert witnesses to testify as to whether or not the atty committed malpractice. Without a doubt there will be plenty of “experts” coming out of the woodwork despite their near extinction levels now.


    Please, please let me restructure my unsecured charged off false default debt!!

  27. Nora,

    My pleasure. Before I finally found a top notch attorney who not only understands but teaches foreclosure defense, I had to learn the hard way with Rauser and Assoc. (got bilked over $1000 for a botched Chapter 13 that, ultimately, was unconfirmed by the trustee and dismissed. Rauser sent me a few bills afterwards that i didn’t pay and i filed a complaint with the Bar assoc. and with BBB. Haven’t heard from them since…) and I payed $3,500 a law firm for a loan mod. That firm folded after pocketing thousands and thousands from trusting ignoramuses like me (ongoing complaint with the Bar assoc. and my state AG.) i learned my lesson and I learned it right. Plus, I wasted 2 years.

    What it did teach me, though, is that, in the big scheme of things, the house doesn’t matter. What matters is the principle. I’m in it for the principle and i won’t agree to a mod. Too late for that! I’ve set my mind on having my days in court and on letting the chips fall where they may. Might not get me what i want but it makes a difference inasmuch as people in my situation see that it is possible to fight. And in the process, I have learned that we were complacent and we relied on attorneys as though they had all the goods, the same way that we rely on doctors, tender our body to them and tell them: “Fix it.”

    Costly and painful lessons but what doesn’t kill us… You know!

  28. Hi enraged,

    I thank you for responding to my post. Yes I understand what you are saying, and you are right, but I did not just consult with any BK attorneys only those who advertised that they defend homeowners facing foreclosure, (Max Gardner’s) and such, that’s why I was furious.

    Many attorneys says they do but when you talk to them then they say not really, or not that easy, etc. I wanted to litigate before a foreclosure notice was filed, but could not find an attorney who was willing to work on my case.

    As you can see I am somewhat angry at lawyers and the system as a whole. I like so many people need help, but find it difficult to get it. I understand quiet bit about the issues involved but don’t want to take a chance on my own. I am upset with the fact that there aren’t enough attorneys in my area willing to take my case, and those that can they are overwhelmed.

    Also just recently I found out that the bank filed the NOD 13 days ago and had to find out through some broker wanting to buy my home. Life would have been much easier if the banks were willing to work things out with the borrowers when they cried for help from the beginning, but things are what they are and I am trying to make the best of it.

    And once again I thank you for taking the time to advice me, it’s most appreciated.

  29. This is what’s been in the back of my mind. If it’s not right, it’s not right. There is no clear title, securization is off, or none existant. It is what it is. What is a modification, a short-cut to cover or mask (truth)the inevitable. Corruption has taken place, that’s the fact of the matter. So getting an attorney,and I learned that can also be achieved on contingency, as well as the thoughts of looking for and attaching to one of the class action suits out there; look just look their out there, they exist. How does one put confidence in legal suport when you are more informed than they are?

  30. Hi Nora,

    One of the mistakes I have seen being made by many homeowners is to consider bankruptcy as a first line of defense when foreclosed upon. From experience, i have learned that bankruptcy attorneys specialize only in that field and do not know much else. In fact, i consulted two attorneys originally: a bankruptcy one who clearly stated that he didn’t touch any of that foreclosure defense stuff and a strictly foreclosure defense attorney who told me that he didn’t touch bankruptcy. The touchy part is to figure whether one wants to go the bankruptcy route (federal court… and quite a few good rulings favorable to homeowners…) or the foreclosure defense route (state).

    That’s why I chose to attack rather than be reactive. The advantage of the attack is that we much better control the events and we can always fall back on defense and/or bankruptcy later, if push comes to shove.

    Just my opinion.

  31. HMan—you said:

    ” I am not looking for legal advice but rather intelligent answers.”

    That’s funny.

    My two cents: There are NO LOANS in any trusts. They are empty and always have been. They are lying to you. Somebody owns “collection rights” to charged off debt…and they are trying to get you to pay them money they are legally not entitled to.

    I believe they are attempting to collect on unsecured debt. I would send them a Cease and Desist/Dispute of debt letter…but that’s just me.

    And I’m not a lawyer.

  32. Wow, I am actually glad this is happening! So many attorneys at least the ones I spoke with either by phone or in person, had told me that no matter what, unperfected title, trust issues, fraud, etc. that I have no chance at winning. The last BK attorney I spoke with told me that “the banks have big pocket”, he told me that I should be making enough money to pay all late payments, bring loan up to date and have enough to live securely within the BK in order to keep my home!

    Many times I had a feeling that the attorney I am speaking with works for the banks not the borrowers. It’s bad enough that here in CA we cannot find attorneys wanting to take on the banks, or knowledgeable enough to take on the cases. And by the way there are guys out there pretending to be attorneys they ask you to send them all the info. and then you never hear from them, what’s that about!

    So for those people who lost their homes because their attorney did not do his/her job properly or neglected to look into important issues and raise them on behave of his/her client then yes they should be sued! this whole housing crisis is going to linger on for a very long time, and other issues will emerge and it will be a vicious cycle.

    What I don’t understand is why the banks’s attorneys keep getting away with their crimes. They know their clients are committing fraud, time and time again. These attorney get slapped on the rest by the judges and they go back and commit more crimes. They are the ones that should be sued also by the borrowers for misrepresenting the truth, cover up of fraud and deceitful practice.

  33. Thank you Thank you, Neil. This is GOLDEN!!!

  34. tn—just hypothetical stuff.

  35. Hunting season in full speed…

  36. Thank you everyone for your support and advice. Thank you Neil for your blog.

    I am of need of some advice. I submitted a DVR and QWR to my servicer Aurora. I got a response from MTW (McGinnis Tessitore Wutscher LLP) The response was written by Barbara Tishuk. The majority of my questions went unanswered.

    The letter claims Deutsche Bank Trust Company Americas, in trust for Residential Accredit Loans, Inc. is the “owner of the debt”. It also lists my trust. I have read the Pooling and servicing agreement and FWE. It specifically says on behalf of the certificate holders.

    First how can the “trustee” also be the “owner of the debt” Isn’t that a conflict of interest? The MERS database on this loan reads ” Deutsche Bank National Trust Company Americas as Trustee”. Should I ask for a list of the certificate holders? I have read many times that the certificate holders are not the owners but this is over my head and I can’t imagine a judge would allow me to get that far.

    Furthermore, they sent me a disk with copies of my loan docs “evidencing the debt”. One of the documents is a checklist for the collateral file. It shows that the assinment of the loan is not in the file but they are requesting it from MERS.

    The letter reads “We include but not limited to copies of the note, security instument, payoff statement, and payment history. First, the note is not in their name and there is no assignment to anyone. It is indorsed in blank. I don’t know what they are refering to when the say “security instrument. I am assuming the DOT which again does not bear their name. Payoff statement, OK? and finally payment history only goes back part way not from origination. I think all this should be responded to and challenged as well?

    I have less than 30 days to dispute this so I am sending a follow up DVR. I think I will also draft a letter to the IRS showing that the SPV violated many tax codes. Does anyone have a sample letter of how these trusts are in violation of tax codes?

    Thanks again for all your help! I am not looking for legal advice but rather intelligent answers. I know the courts can’t even agree on these unlawfull forclosures.

    Looking forward to your responses.

  37. This is a learning process for ALL of us, including… defense and banks attorneys. I don’t believe defense attorneys will be held to today’s knowledge for yesterday’s actions, especially if banks are not held to past and previous fraud. something to do with what being good for the goose being good for the gander too.

    What I find remarkable is that, when a society is ruled by lawyers, as soon as the economy becomes really lousy, they literally get at each other’s throat. Reminds me of a documentary about Australia’s rat plague: out of nowhere, every so many years, they suffer a horrendous field mice invasion, everywhere in the fileds, the homes, the farms, the silos, etc. Everything is decimated in just a few weeks and, eventually, when all the food is gone, the rats start killing and eating each others… which, ultimately, depletes their population for a few years, until the next rat invasion.

  38. I admit that I don’t know about that carie. Could be state specific that an originator needs a securities license or maybe threatening BOA hoping it trickles over to their investment arms as well. Do you have a hearing coming up? Ive seen a log of references to what you will say to the judge

  39. Hey tn—forgive me if you have answered this before— there was a commenter post a while back that said she knew a “saint of saints of a real estate attorney (in Huston—with 7 wins already),…who did not just stop the foreclosure, he threatened their securities licenses and they ponied up with EVERY single dime the homeowner had paid to the servicing company from the date the securitized audit showed the ‘loan’ had been assigned to a REMIC Trust and according to the PSA…”

    Do you know exactly what she meant by “threatened their securities licenses”—and do you have any idea how this attorney accomplished this—and why aren’t more attorneys doing this???

  40. Very interesting…

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