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By Dale Wiley

So much of the discussion over the sites that cover the foreclosure
crisis tends to focus on very large-picture issues.  Is MERS legal?
Can a foreclosure happen without the note?  The discussion is so macro
that it tends to overlook the obvious:  We’ve got people who are
losing their houses NOW.  A decision from an Obama-packed Supreme
Court in seven years may be great, but they’re not going to be any
warmer on the streets in the mean time.  That is why I see our
practice and our biggest victories as being on the “micro” end of
things.  We still want to take on big picture issues, mind you, but we
need to understand that we can’t let that cloud our duty to the
clients who stand in front of us today.

When I look at the various foreclosure systems that I have
encountered, after spending some time in the nuances, I discover much
to work with.  It’s not as great as if God himself would come down and
smite MERS with a bolt of lightning, but enough to help my clients.
Here are a few places I look:

MERS: Say what you will about MERS, but most courts are pretty
comfortable now with the concept that MERS transfers the deed of
trust, but not the note.  In many cases, that’s all you need.  Now, my
reading of Bellistri v. Ocwen is very narrow:  an agent/servicer might
still be able to use the Deed of Trust to try to foreclose.  But
that’s okay if the noteholder who has not made a transfer is now in
bankruptcy or otherwise merged.  Then you can clearly show that they
didn’t transfer the note by the deed of trust.  So how did it get
there? There are a number of cases where I am perfectly happy to have
MERS involved, because it puts two things in two places where they
can’t come back together.  Not every time, mind you, but enough to

Also, is your MERS representative able to transfer to THAT entity?
This is another source of plenty of progress.  They may have been
MERS-authorized for one entity, but not another.  Make sure to check.

BANKRUPTCY:  You need to know who held your note.  Where are they now?
Chances are, they may well be in bankruptcy, or defunct.  Check the
dates of any purported transfer against their own timeline.  Were they
able to transfer anything?  Sometimes, in a Chapter 11, they may have
some ability to transfer day-to-day assets, but this is where you need
to triple-check their authority under MERS.

Bankruptcy is an excellent source of useful material for homeowners
under the gun.  Make sure to use it.

UNLAWFUL DETAINER:  Be careful in these proceedings.  Their rules tend
to be strict, and the lawyers will quickly point out that you can’t
“try title” in their cases.  Judges will quickly tell you that they do
NOT want to see your securitization report.  In most cases it is true
that you can’t try title.  But is that what you are doing?  If you
have a peaceable claim, you may be able to show that they must at
least show how they acquired their title.  If you can get them to
trial, hire a lawyer to help and get away, lest they use your own
testimony against you.  Have the lawyer procedure them to death, about
foundation and ethical rules about what lawyers can testify to.  You
may be able to pull a rabbit out of a hat.

JUDGMENTS: Even when judgments are obtained, many times the lawyers
getting them don’t know what to put in them.  A judgment without all
issues from the petition resolved is not a final judgment.  You can
use this to your advantage to try to stretch the timetable to where
you want it.

I love the big picture.  I try to arrange my cases to aid in its
creation.  But if you have a hearing next week, you need to think
about that family’s short-term and long-term needs.  They are to be
your interests in those cases.  And sometimes, they’re all you need to
greatly impact the lives of a family.

17 Responses

  1. Marie

    They do — you just need to find them. The ones that do — are most versed in the law — and, therefore, confident.

    Admit — they are few and far between — most not that “versed.” .

  2. Dale; where are you? Need help. Thanks

  3. Anonymous

    Attorneys don’t generally do contingency work where the law is so unsettled

  4. If you know the rules, you can win even a bad case. I am proof of that statement. House foreclosed in February 2009. UD trial held in June 2009. In order to be sure I was able to get everything about my case into the record for appeal, I submitted a Trial Brief minutes before trial was to begin. Since the judge was not assigned until that day, right before the trial was the proper time to submit the brief. The judge hearing the case could read the trial brief quickly rather than try to figure out what is going on in the court file. Since the Plaintiff had no trial brief, my defenses and story were what was most prevelant in the judges mind when trial began.

    Knowing that I got my record in, my next step was to get this judge top actually write his reasoning for the decision he makes in the case. In California, the judge does not have to explain his ruling unless you ask him to before the end of trial and on the record. (CCP 632). So I had prepared a written Request for a Statenebt of Decision and submitted the request and made a verbal request on the record. When the judge failed to write a statement of decision, I was served with the 5 days notice by the sheriff thereafter. I immediately filed a Writ of Mandate that ended up taking a year to get decided in my favor.

    We grant the portion of the petition challenging the trial court’s failure to issue a statement of decision and direct the trial court to vacate its judgment and issue a statement of decision. Petitioner’s request for sanctions is denied. Real Party’s request for judicial notice is granted as to Items 4, 5 & 7. The request is denied in all other respects. Petitioner’s request for a stay pending appeal is denied as premature. However, the trial court is directed to calendar any such requests to be heard by the trial court judge in accordance with Code of Civil Procedure section 1176 if an appeal is filed.

    Dated: APR 26, 2010


    The Remittur was filed on June 9, 2010 which made the decision final.

    While all of this was going on, I moved forward with my civil case and right before trial and after I filed the appeal in the UD case in July 2010, they agreed to settle with us and sold us back the house which was purchased by my parents. That was the offer we made them since the beginning before anyone had filed a lawsuit. So, the moral of this story is procedures matter more than anyone can imagine. My parents closed escrow on the house at the current value in November 2010.

    Here is the link to my Trial Brief and to my Writ of Mandate if anyone is interested. The Writ includes the transcript of the UD trial as well.

  5. What we need is more attorneys willing to take on contingency — or pro bono. Win your cases — educate as to fraud — then do your class action and make your money.

  6. @Dale Wiley

    That has been my position all along: knowing the ins and outs of the securitization may be helpful to realize that homeowners did not create that havok and remove their guilt. That step is absolutely necessary if they are to start fighting. So far, only a minority has taken on the fight simply because the great majority feels responsible for defaulting. Deep down, people want their words to mean something and have value: it is, after all, the basis for any civilization and relationship. The idea that they signed a document (and a promise) and that they defaulted on it is unbearable to many of them, which is to their credit.

    That being said, we must keep in mind that judges are not any more sophisticated than most homeowners in securitization matters. Their approach is much more simple: follow the money. I keep harping on the fact that people throw tones of info on this site that few of us understand and/or would know how to use efficiently. The fact of the matter is that, whenever homeowners won in district, BK or state courts, in the great majority of the case, it resulted from: 1) a very condescending and snotty attitude on the part of the banks’ attorneys, which offended the judge and gave him the incentive to ask the hard questions and a reason to kick them out or 2) the ability of the homeowner to show that money was paid to who-knows-whom and certainly not the people on the original documents or even the people supposed to receive it.

    That’s my two-cents but, as I said, the French approach to every whodunit is “Cherchez la femme”. In America, it is: “Follow the money”.
    We need to stick with that.

  7. Mr Wiley

    No offense intended. I just don’t have much faith in the “system” anymore. Look where it got us. If it worked why are we 5 years into this crisis with no clear legal direction and everyone still befuddled about how to proceed.

    Chris says proof of forgery is not enough. Well on that I rest my case

  8. You too Mary, didn’t mean to forget you!

  9. Hey Dale, thanks, I appreciate all the help I can get. Will share details via email: newenglandblonde@yahoo.com….

  10. I have tried to convince Homeowners facing foreclosure to hire an attorney who practices and understands Civil Litigation. The defenses of “show me the note” only work if you know what to do with the note once its produced.

    The majority of Homeowners approach Bankruptcy Attorneys, Domestic Relations Attorneys, or Criminal Attorneys who charge their standard rates and do not regularly work with the Rules of Civil procedure. Other Homeowners approach their local legal aid society and are walked through the process of a standard modification.

    However, there are civil litigators who understand not only the law but also the financial situation of Homeowners facing foreclosure. These civil litigators are also learning to create new payment plans that make defending a foreclosure affordable.

    Keep up the good work Dale.

    Bruce@brucebroyleslaw.com and http://brucembroyles.blogspot.com/

  11. Chris:

    I have some New Century docs that I would be happy to share with you. Hard to know exactly what to do without knowing more of how your case is poised.

  12. Thank you Dale Wiley.
    With the continued pounding of the rules, the judges should start seeing their negligent discretions will not be tolerated.

  13. I am in a “quiet title” legal battle with Ocwen, the servicer for New Century, supposedly. Indeed, I have proof of forgeries of signatures, on the substitute trustee papers, although this is not enough. We are still digging through the thousands of documents to prove our case, it is daunting. It is also clear with Ocwen , the servicing rights were not transferred to the buyer, Ellington. The reason I have filed the complaint is Ocwen raised my payment, added escrows (had a waiver), asking for payments of $7,000 prior to them foreclosing and is asking me to waive my rights to claims, forever, to get a modification. I want my “original” loan terms back and be allowed to pay back the arrears only. This is what I have found so far it may help someone else:

    New Century filed for Chapter 11 bankruptcy protection in on around April 02, 2007. In that 2007 year there were numerous cease and desist orders from various states. In that same time frame, March 13, 2007 they filed a 8-K with the SEC, there is some language about them in violation of their financing arrangements and possible defaults and paperwork has been filed for exemptions to filing. There is also complaints of not funding mortgages in this time frame. New Century entered into an agreement to sell the of the mortgage assets with Ellington for 57.9 million dollars approved by the bankruptcy court.

    I know the truth, but what do I need for Evidence? Any ideas out there? This is a Pro Se case, cannot afford retainers.

  14. Wow, Marie!

    Sure seems like I’m living in the real world. It’s the world that’s actually winning cases.

    And as for how much it costs, you’re welcome to call me at 877-945-3952 and find out.

    My point about “procedure to death” (and I did intentionally create a new verb; my apologies to both Strunk and White) was not to indicate anything other than to use the long-standing rules of civil procedure and evidence to keep them honest. When I tried that case in Kansas City last week that was reported here, I was able to limit their ability to put on much of any evidence not because of any knowledge of securitization but because I forced them to play by the rules. They are not used to doing this.

    My point with this article was not to offend anyone but to offer some practical tips that could be explored by any lawyer, perhaps not just ones who do this all day. There are more winnable cases than we sometimes realize.

  15. So if originating lender is out of business and under bankruptcy (liquidating) since 2007 and an assignment of mortgage is recorded in county records in 2009, such as jow blow/servicer as vp mers officer as nominee for originating lender (wink, wink) to ***national association, by merger to *** as trustee under the pooling and servicing agreement date **/**/2007 HE2, no proof of authority attached whatsoever, (mers agency not in effect, because principal died??

    Doesn’t the bankruptcy court’s permission to assign said mortgage in 2009 need to be given and attached??

  16. Whoever wrote this piece likes to opine about  the real world but doesn’t live in it.  Like the Great And Glorious Oz.  

    Few people can afford to “procedure” [sic] a case “to death”.

     Have any notion of what that costs?  

    Who would devise all that procedure?  

    Have any notion of the judge’s ire if he or she perceives a paper “interposed for delay?”. (check your court rules. The judge can impose SANCTIONS. The poor ole homeowner gets hit again)   

    Have any notion of the level of competence of the average lawyer?  Have any notion of even how to FIND a competent lawyer?  Or an expert willing to work with you if you don’t have a lawyer?

    “micro” cases turn on their facts. Every case has a different twist.  I would expect  most cases to be a combination of “big picture” and individual facts/issues.   Just like all the zillions of cases in the law tomes

    I find this posting worse than useless.  Some very bad advice mixed in with glittering generalities

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