APPROACHING A RESISTANT JUDGE

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Connecticut is one of the last states to confront the deluge of foreclosures so they are behind the curve. The usual evolution is that pro se litigants and lawyers who have little experience in litigating, much less litigating securitized loans, present arguments that immediately run against the grain of the sitting Judge. They use buzz words rather than arguments and attempt to win their case in the first hearing rather then get the case to the next stage. What is important is to couch arguments in the context of language and concepts that the Judge does understand and show where this foreclosure diverges from the usual foreclosure.

The biggest mistake is telling the Judge something that implies that the homeowner is looking for a free house and is just trying to take advantage of the obvious paperwork problems to get out of a debt that should be paid. The objective should be simply to get to the merits of THEIR foreclosure and require that they plead and prove the facts required as elements of a judicial foreclosure — with admonition that nobody should be able to use expedited foreclosure rules if they cannot prove up their case with a proper accounting and the right paperwork.

I usually tell lawyers to say out loud what the Judge is already thinking. That the usual perception is that borrowers are merely trying to use technicalities to get out of legitimate debt. What YOU are litigating is whether this would-be forecloser is the right party to foreclose, whether they have the standing and status to submit a credit bid at auction and whether they have correctly stated the amount due.

The other mistake that is too often made is to concede the default of the borrower. The pretender lenders have a strategy that focuses the attention of the Judge on the words and concept that the borrower hasn’t made a payment in X months. Thus the default is assumed by BOTH sides and the only question left is procedural as to when and where the sale will take place. But the usual pooling and servicing agreement provides for payments to the creditor by third parties who expressly waive any interest in the loan, note, mortgage or obligation.

Thus the borrower may still owe money to the creditor, but it less than the amount demanded in the foreclosure, AND if the servicer is making payments, then there is no default with the creditor, thus the foreclosure is inappropriate. If the payor (other than the borrower has a claim against the borrower) it is based in some other cause of action and not subject to foreclosure because they are neither on the note or mortgage. They have an unsecured claim.

In that scenario both the servicer or other third party (credit default swap counterparty or insurer) AND the creditor have claims against the borrower. The creditor may be secured, but the payor/claimant is not secured and unable to foreclose without first getting a judicial judgment, recording it as lien and enforcing it as any other civil judgment. If the Court insists on treating it as all one debt, then the Court must also direct the parties as to who may submit a credit bid at auction and in what amount. This would lead to the novel result of adding creditors to the note and mortgage based upon conduct rather than proper documentation.

The litigation is intended to clarify the amount due to the creditor because without the identity of the creditor and the calculating the actual amount due to the creditor under the mortgage loan, the borrower has no way of knowing the appropriate offer to modify under HAMP. Thus the possibility for settlement is completed blocked.

Thus the borrower is seeking a FULL accounting of all payments received by the creditor, with full knowledge that he might also have a different liability to third party payors — if they are allowed to pursue those claims despite their waiver of subrogation or claims against the homeowner.

To allow the would-be forecloser the right to foreclose on the entire amount is to reward a fraudulent creditor with more money than is due to the creditor and potentially even a double payments, leaving the borrower with both no chance to settle and owing more than the contract amount as stated in the loan documents. This is why we recommend that the borrower secure as much information as possible to counteract the representations proffered by counsel for the forecloser. The borrower should immediately object to such representations in that they are offered without reference to anything in the record (especially the default).

The use of the COMBO (see above) title and securitization report is a first step. The borrower’s attorney objects to the proffers and presumptions offered by the opposing side and says that neither side should be allowed to proffer representations instead of evidence. Then he holds up our report and says we have evidence there is no default and he would would want to proffer in an evidential hearing that will show that the creditor(s) are other than the the forecloser and that the amount demanded is incorrect.

None of these cases are decided in trial. A skilled lawyer approaches these cases as a ground war, and ultimately wins when he gets a Judge, now annoyed with the stone-walling tactics of the other side, to enter an order requiring the answering of interrogatories, the production of documents and the production of competent witnesses with personal knowledge at deposition. At that point, it appears to me that virtually all cases settle under seal of confidentiality on terms that homeowners consider favorable.

Adding claims for appraisal fraud, slander of title and quiet title, as well as the many other causes of action reported on this blog, broadens the potential scope of discovery — including, most importantly following the actual money trail and not just the documentary trail which contains recitations of transactions that were never completed or never occurred.

22 Responses

  1. 9999 & jve – thanks for taking the time to inform re: CT

  2. re: overstatement of performing loans in a pool. I called a friend who understands some stuff. Servicing is big business. Each loan pays 3/8ths to the servicer as long as it’s alive. This I knew. His contribution was that by overstating the performance ratio in a pool,
    the servicer can get more moolah for the servicing when it sells the servicing rights and transfers them in the typical big blocks. That’s one reason, altho I’d think they’d get sued for this. Another he came up with is that in order to service for FNMA or GNMA, there’s a net worth requirement. Fall below and you’re toast. Non-performing loans and no servicing fees eat away pretty fast at net worth. I didn’t ask him, but that seems weird since I thought they got svcing fees til the loan was over one way or another, but if what he said is true (option 2), then that must not be true: no payment, no svcing fee? Maybe that’s part of the reason there is a servicer and a master svcer:
    net worth requirements. But, not enough info for anything beyond a guess.

    I heard Aurora Loan Services filed bk, but couldn’t find it anywhere.
    Sure like to. Then I heard they were absorbed or bought by Aurora Bank, a parent co., I think, as part of the bk deal. Maybe ALS fell below the net worth requirement for servicing the loans it claims to own. They don’t own them. They created loan programs including liar loan programs (just like wf and boa, et al) and then sent those programs out to their network of brokers and correspondents (plus their in-house staff), underwrote the loans, approved the loans, (so don’t let those guys and their buddies claim they’re innocent as to TILA and RESPA violations because they are not – they more than participated) funded them with God-knows whose money thru title, and sent them to Lehman Brothers Holdings, Inc. (which filed the biggest bk in history and didn’t Barclay’s end up with their “stuff”?) which securitized them, by way of Lehman Bank nka Aurora Bank or thru FNMA or GNMA or private affairs. (ALS is trying to pretend generally that they portfolio’d these loans, which is crap. They didn’t – they went off down the road like the rest.) So I give, how did ALS come to “own” these loans? Why if the notes are actually sold to pools (and not just the payment stream) is FNMA talking about loans IT owns which we know were (at least purportedly) securitized?
    We’ve got some serious double talk going on here with those players.
    We need to find out what their other other hand is doing and what their other face is talking because it doesn’t appear to be what’s coming out this side. This speculation stinks.

  3. thats my gut feeling—so who gets screwed if the servicer keeps submitting claims as cds or insurance etc on same property as many as 6 times———-and have large numbers of previously liquidated loans on which losses were booked——those still on end of period loan list as performing?

    investors getting screwed or insurer? which or both?

    npv any thoughts? t99 ?

    this is significant

  4. @dcb – dunno about anyone else but I can only speculate because I don’t get that whole deal. I would hazard a guess that the reason is untoward, like everything that gang does. Probably found a way to rip someone else off.

  5. QUESTION
    Would ths encourage overstatement of performing loans in a trust today

    One reason that a third party would pay with unsubrogated CDS is that they have bet on the performance of a pool of asset. They receive a premium payment based the value of assets. They measure their return based on limited number of defaults. Hence, a pool of 3000 loans averaging $200,000 = $600 million. 1% premium is $6 million per year. However the monthly payment on the pool is approx 1500 per month per loan or $4.5 Million or $54 million. However, traditional defaults on mortgage loans are around 2.00% or less. Therefore, The exposure is less than $1.08 million. If the loss is less than the premium the counterparty profits, but the protection buyer can protect the pool. It’s like betting on a football team. If the team wins, the gambler wins. If the team loses, the gambler loses. What the gambler doesn’t get is a piece of the football team

  6. @T9 et al;
    below is point made—would overstatement of loans in the surviving diminishing trusts alter this computation to increase insurance proceeds today–or did this fall away in the past–im seeing trusts with listed performing loans that were fc 2 years ago—5-10% of performing loans on trust records today–not there–now closed acct REO or liquidated

    thoughts pls–why do they overstate the number of performing loans

    “One reason that a third party would pay with unsubrogated CDS is that they have bet on the performance of a pool of asset. They receive a premium payment based the value of assets. They measure their return based on limited number of defaults. Hence, a pool of 3000 loans averaging $200,000 = $600 million. 1% premium is $6 million per year. However the monthly payment on the pool is approx 1500 per month per loan or $4.5 Million or $54 million. However, traditional defaults on mortgage loans are around 2.00% or less. Therefore, The exposure is less than $1.08 million. If the loss is less than the premium the counterparty profits, but the protection buyer can protect the pool. It’s like betting on a football team. If the team wins, the gambler wins. If the team loses, the gambler loses. What the gambler doesn’t get is a piece of the football team

  7. The PSAs require the servicer pay re taxes-they like this because the sheriffs then cause checks to be written to them rather than the trustee on the deed/mortgage—–slight of hand. The PSAs also suggest that the servicer is to make the loan pmts until there is a default——–so they want a default to cutoff pmts to trus investors–and starts operation of the seizure of assets and liquidation/monetization of the home and note

    in some cases the servicers bought rights but not subject to duties like this inconvenience of paying investors–so bankruptcy dockets slips in on top of the securitization morass–real brain teasers -not likely that it all happened by accident

  8. fti9999 – I’m not sure I followed everything you just said, but if I get the drift, you just cited one more reason for (non-contractual) third party payments and imo one less reason there is a cause of action against a homeowner in regard to those risk-assuming voluntary payments.

  9. One reason that a third party would pay with unsubrogated CDS is that they have bet on the performance of a pool of asset. They receive a premium payment based the value of assets. They measure their return based on limited number of defaults. Hence, a pool of 3000 loans averaging $200,000 = $600 million. 1% premium is $6 million per year. However the monthly payment on the pool is approx 1500 per month per loan or $4.5 Million or $54 million. However, traditional defaults on mortgage loans are around 2.00% or less. Therefore, The exposure is less than $1.08 million. If the loss is less than the premium the counterparty profits, but the protection buyer can protect the pool. It’s like betting on a football team. If the team wins, the gambler wins. If the team loses, the gambler loses. What the gambler doesn’t get is a piece of the football team.

  10. @dcb – “squatter’s rights”. That’s funny, because it appears to be what’s actually happening mol. A thief, aka a person who is not supposed to be in possession of or enforce a bearer note, may nonetheless enforce it, it’s my understanding. Bearer notes are dangerous as hell imo. For all I know, bearer notes are prohibited by NY Trust law. If not, those investors really got the shaft imo. Alleged possession and attempted enforcement of a bearer note by miscreants is like squatter’s rights, I’d say and everyone loses x the criminal.

  11. Well, I’m certainly glad we’ve got some discussion going here! So we have some agreement, at least, that tird party payments are (routinely?) made….? Here’s what I couldn’t get out before:

    Any payment on a note reduces the note by that amount. If third party payments have reduced a 100k note to 97k, that’s all a note owner or anyone may come after a borrower for under the note. That’s also the amt owed out of the collateral: 97k, not 100k. But banksters are coming after the 100k, and we agree on this, right? I still say these guys are volunteers (no, I can’t say I know why those guarantees were made, but I sense it was to sell the deal and or get around the seasoning requirement), but as to the note and the collateral, no matter how it’s sliced, only 97k is owed.
    What has to be sorted out next is the right, if any, of the third party against the homeowner and his property as to the third party’s 3k contribution to the homeowner’s 100k note. But, and this is their rub and it’s actually huge, even if there is a path against the homeowner under any equitable theory, that is a separate and distinct matter from the note and its collateral, as Mr. G first stated in his post. Once a note is reduced, it’s reduced. The third party does not have rights under the note, per se, as a result of his payments, voluntary or contractual. He (3rd party) may have a right to be reimbursed by the note owner (who should also be the beneficiary) at some point, like upon f/c and re-sell or he may have a cause of action against the borrower (which I still don’t think he does), but it does not lay in the collection on the note or the property. As Mr. G said, the third party would have to bring a separate action against the homeowner and said third party has at best an unsecured claim, because that’s all it can be. And that’s what’s been torking me about this. Those advances are being included in figures owing on the note presented in notices of default and to the judiciary and they are patently false. It’s probably criminal, also.
    Either way, volunteer or not, there is no recovery available by a third party under the note and its collateral.

  12. “why would a third party make such payments? It must be that they got something of value either before, during or after the payment from someone”

    Not exactly–we are referring to the servicer here now right? Well the servicers bought servicing rights in the bankruptcy procedings, etc

    In the worst application, post-default—the servicer bought the right to foreclose, wreck the house, collect casualty loss insurance, and sell the stripped interior parts, the lot, the deficiency judgement. Post-default so called servicing rights are often overlooked. No accounting is made to the trustee consistent with the idea that the counsel are not authorized. The trustee is out of it —the servicer may or may not report the events with accuracy–abandonment?

    the question is whether the process by which servicers acquire control is ignored as much as the proper securitization steps. Is the servicer accounting to the trust as the PSA requires–or are the proceeds stolen by a volunteer?

    Just paying REtax on a property should not entitle the servicer to have checks made out to it in its name–but that is what happens when they convert a title in name of a trustee into a check–moneylaundering if not authorized.

  13. “If the servicer has no contractual agreement with anyone for reimbursement for advances, he is in fact a volunteer.”

    If a volunteer then no right to recover fees–so if notes were in fact abandoned by the trustee–without expectation of recovery of proceeds, nor documentation—-a thief can be a volunteer.

    in the example that i used re a person paying taxes on a deceased property the volunteer was effectively trying to steal the property from the proper state escheat by adverse possession and paying taxes for 20 years. There were unknowing heirs around too–that the volunteer did not want to pay–he wanted a free tract. But I was a neighbor too—-because this volunteer had no title, he could not restrain me from sending in a bulldozer and leveling his minor installations designed to establish adverse possession with minimum effort.

    The property was subsequently sold at estate auction and the heirs paid. I bought their interests by quit claim before using the dozer—but before obtaing title–the wrongful possessor cannot control the property. does this bring anything to mind about reo’s and subsequent takers at low prices? squatters rights may be all a servicer can claim really in some instances

  14. John Gault. Your comment is well stated. Just FYI. Unjust enrichment presumes there is NO contract but that the circumstances would reasonably imply that the volunteer expected SOMETHING FROM SOMEONE OR WHY WOULD HE MAKE THE PAYMENT? So there is a possibility of that action although I think that the language of the CDS and other credit enhancements is fairly daunting to break through to the borrower. If you get away from the abstract question and go to the concrete, why would a third party make such payments? It must be that they got something of value either before, during or after the payment from someone. That someone is least likely to be the borrower since the borrower is ostensibly broke so collection is problematic at best. The answer lies in the inner workings of how the actual money was actually handled and distributed without contracts hat would create footprints for investigators to follow. A partial answer might be the allowance for the servicers to take the property in foreclosure without advancing a dime. By submitting a credit bid in lieu of cash, they get property worth x dollars which presumably is worth far more than their advances. So if they advance $15,000 and get property worth $100,000, they are more than satisfied.

  15. @dcb – yeah, that’s a question which begs an answer all right. If the servicer has no contractual agreement with anyone for reimbursement for advances, he is in fact a volunteer. He certainly doesn’t have one with the borrower.
    An investor’s end of the deal is evidenced in the psa, I suppose. Where else would it be?
    I don’t know why these advances (aka guarantees?) are made in the first place….contractual agreement with reimbursement?
    And if so, reimbursement when? contractual agreement without reimbursement? sales inducement so I’ll buy that stuff? WS trying to get around statutory seasoning requirement for allegedly secured investments? (this last one seems like a good candidate)

    If there’s a contractual agreement as some form of subrogation, which again I don’t believe, it only makes sense that the guarantor / payment advancer gets reimbursed after f/c or loan payoff, else what’s the point? (and speaking of subrogation, didnt’ I read that the pool insurers waived subrogation? Got me why they’d do that. Maybe they took insurance on their insurance.) And he gets his moolah back out of any proceeds he forks over to the investors (but only if there’s an agreement about that). One way or another, the payor is illegally socking it to the borrowers with those bs figures which do not reflect true balances. If a guarantor / payment advancer has no contractual agreement, he has no right of subrogation and he sure has no right to go after the collateral to get his first or even last.
    I tend to think he’s the volunteer I smell and just doesn’t want to continue making his voluntarily guaranteed payments. But I am missing a lot of info, like everybody else, to actually know how those guarantees work. (And I still don’t know who owns those notes in the first place even if everything to be done had been done in sec’n) What I do know is volunteers can’t take homes and they have no cause of action against the borrower.
    With a contractual agreement, if gets fuzzy for me. Let’s see. John guarantees Sam’s payments to Downtown Bank, but not as part of Sam’s contract/note with the bank for whatever reason (at commerce, there’s probably a name for this and a reason – like maybe with car dealerships and car lenders, for instance). Sure enough, Sam quits making his payments. John has to pony up. Every dime he pays reduces Sam’s liability (on a note), but he is out the money. With no right of subrogation or some other contractual right, he’s just sol. It was a “voluntarily assumed risk” and ftr, as I recall, that’s a defense against a note holder who is not a holder in due course.
    And I’m thinking that distinction between a holder and a holder in due course is just-cause for discovery. We have a right to know what our defenses are against an alleged note holder, so iz you, mr bankster, a holder in due course or a mere holder? (and you don’t have to tell the court what your defenses against a mere holder would be prior to learning by way of discovery which status your opponent has) There are other reasons one isn’t a holder in due course but a biggie is that the note was “taken with notice of its dishonor”, i.e., it was in default when (allegedly) transferred to the current pretender. But then again, that may be little help when it’s claimed some trust owns it and has for years (prior to alleged default) But one could still try for discovery under “I need to know if they’re a holder or holder in due course so I can properly frame any available defenses.”

  16. He is what is called a ‘volunteer’, which is a recognized and legitimate legal term. He has no cause of action against the borrower for his volunteer payments – none. Now, a right to recovery against the collateral could be implemented by contractual agreement, probably the right of subrogation, (but it’s my understanding there is no right to subrogation on these deals)

    open issue i think–i tend to think of a “volunteer” in legal terms as one who has no contractual right or duty to front anything—example some John Doe knows a property owner died intestate and then makes payments of RE taxes on property for some years–he gets nothing by so doing—or driving by a house he sees with a hole in roof and decides to be a good samaritan and fix the hole–then thinks about later and decides to file a claim

    whether these servicers can claim a right under contract follows all these other things–is the servicer authorized etc?

  17. “In that scenario both the servicer or other third party (credit default swap counterparty or insurer) AND the creditor

    have claims against the borrower.

    The creditor may be secured, but the payor/claimant is not secured and unable to foreclose
    without first getting a judicial judgment, recording it as lien and enforcing it as any other civil judgment…..”

    No, I don’t think so. Any payment on a note by a third party first of
    all retires a like amt on the note, as Mr. G says. The third party payor of payments on a note has no recourse against a borrower and
    never has a right to foreclose based on his own advances paid on the note.
    He is what is called a ‘volunteer’, which is a recognized and legitimate legal term. He has no cause of action against the borrower for his
    volunteer payments – none. Now, a right to recovery against the collateral could be implemented by contractual agreement, probably the right of subrogation, (but it’s my understanding there is no right to subrogation on these deals) between the note owner and the third party, but in the absence of that (and it seems even by Mr G’s account that has not occurred), the third party cannot act against the borrower, not even to collect as an unsecured debt the amts the third party has advanced. A legal volunteer has no cause of action in the absence of a contractual agreement which expressly states otherwise. If there’s an agreement to to the contrary, which there isn’t that I have ever run accross, then the third party would not be a volunteer. But he is. Unjust enrichment, for instance, is a contractual claim, (I’m pretty sure) and there is no contract between the third party and the borrower as a vehicle to make this claim against the borrower.
    The borrower certainly never agreed to reimburse voluntary guarantees or advances. That leaves the noteholder to have done so. And in order to come after the collateral, that contractual agreement would have to recognize an interest in the collateral as well as the note based on those volunteer payments, I would think.

    When third party payments reduce a note by say 3000 dollars, from 100k to 97k, that is the only amt a note owner may collect from the borrower – the 97k. But that, of course, is not what’s going on. Someone files an action against the borrower for the 100k plus accrued interest on the note as if the 3k hadn’t been paid, which is fiction and submitting false figures. (Add it to the list.) It doesn’t really do much good to recognize these facts if courts don’t, and until we find in-roads to discovery, these acts which I’d call fraudulent will
    continue. I think FNMA’s own website provides insights into these
    payments. We care if there’s info out there because we need something other than what a court will perceive as dribble as a basis to move the topic along in our cases. While a court may take judicial notice of web-stuff, I’ve seen some judges get torked if they’re directed there, without the homeowner attaching anything at all from the website, fwiw. At any rate, to borrower a phrase, we need to make something clear to courts: “This is not your father’s car, your honor.”

  18. I am not sure that I agree with all of the statements in the prior post. I don’t know the last time I have seen a case brought by Reiner & Reiner. I know that a firm Reiner & Reiner existed several years back, but I don’t think they exist right now. Further, I went to the Connecticut Judicial Branch Website to locate the firm (www.ct.jud.gov) and I did not see a firm listed by that name.

    My personal experience is that there are two major firms bringing foreclosure actions: Hunt Leibert Jacobson and Bendett & McHugh

    Connecticut has a number of very fair Superior Court judges and some judges that appear to be less open to arguments by foreclosure defendants. Furthermore, since non-arguable short calendar motions are split between several judges, you often never know which judge is going to rule on a decision. However, the Connecticut Appellate Court and the Connecticut Supreme Court is generally pretty good, if you present quality briefs. Therefore, as a practical matter, based on the discretion given to a Superior Court Judge, you have to write for and be prepared to go to appellate court when adverse decisions are ruled against you. This adds an additional burden to your pleadings, where procedural informalities allowed by a superior court judge can potentially be harmful.

    Connecticut has taken several steps to assist the homeowner defending against foreclosure actions in the last several years. Further, the Connecticut Legislature has enacted mandatory mediation. (However, as discussed below, you don’t even know whether the party claiming to have a right to foreclose is the right party. You cannot believe the argument that because no one else is foreclosing then the party appearing is the right party.) Bottomline, the parties need good counsel or at least good experience as a pro se to properly defend actions. They will attempt to beat you with the law or through procedure or both.

    You generally cannot come into Connecticut court’s with the failure to assign the mortgage or split of mortgage from note arguments. Connecticut General Statutes Section 49-17 allows the real owner of the debt to bring a foreclosure action regardless of whether they have ever been assigned the mortgage note. You cannot totally rely NY or MA cases, because the foreclosure process is different. Connecticut courts are of course only bound by the decisions of the Appellate or Supreme Court of Connecticut. I see a lot of pro se litigants bring decisions from other states as if they are precedent.

    Connecticut is a note state and not a mortgage state like MA or Note and Mortgage State like NY. In Connecticut, you can bring an action on the note or on the mortgage or both, but generally you have to be the rightful owner of the obligation to prevail.

    Most importantly, you have to get behind the documents. You cannot admit things that you do not know. You do not know that you are in default even if you personally were late on your payments. You do not know that the note has been properly accelerated even if you have received a letter from the alleged servicer or owner of the debt. Further, you do not know who actually owns the alleged obligation or whether the obligation actually even still exists. And you do not know that the party claiming to be the party with the right to foreclose is the right party.

    You don’t know these things because you cannot know these things, even if the other side tells you or produces documents that appear to proclaim these facts. You were not there to personally witness the truthfulness of any of these allegations.

    Plaintiff’s are not required to produce the mortgage note when the complaint is brought like NY requires. Hence, they simply allege that they are the holder of the note and mortgage, note is default, it has been properly accelerated, and the party has complied with the applicable laws. If you default by failing to plead or appear, then all of the facts necessary to admit liability are assumed based upon the default, the party moves for strict foreclosure or foreclosure by sale.

    If you do appear and plead, you absolutely have to get evidence through discovery to support your case before Summary Judgment is argued. Summary Judgment can be brought at anytime. If you do not you are likely to lose, because the foreclosure Plaintiff often produces a note in blank via allonge. The note in blank via allonge generally is considered to sufficiently support a prima facie case of foreclosure. It, thereafter, shifts the burden to the Defendant to produce evidence. If you cannot produce evidence to challenge the propriety of the Plaintiff’s note in blank or produce a valid special defense, you will likely lose.

    If a party brings a summary judgment before you have completed discovery, you can, under Connecticut Practice Book 17-47, allege the need for additional discovery. You have to submit an affidavit to that effect and have had requested written and oral (deposition) discovery before you can invoke this provision. (It is not clear that this requirement exists from the practice book, but the case law stands for this proposition).

    Generally, I believe that you have to find a good attorney to defend you in a foreclosure action unless you can truly dedicate yourself to challenging the action over several years. If you choose to represent yourself, you can get free access to Lexis or WestLaw from the Connecticut State Library or UConn Law School. You should visit the courthouse to examine successful pleadings and arguments made by others–you will read arguments that you have never thought of. Further, you have to get discovery and be prepared to fight for that right.

    If you decide to get an attorney, it is my belief that the attorney should understand securitizations, real estate law, the Uniform Commercial Code, and strongly understand the rules of practice. Further, you need an attorney who does not accept the statements of the Plaintiff or Court as true, if they are not supported by competent evidence or case law.

    Finally, paying for this level of defense is an issue. It will be very expensive. However, under Connecticut General Statutes Section 52-150bb, if you win your attorney can be paid his attorneys fees. However, the court will not generally compensate you for the time you commit to your foreclosure action if you win or not. However, please be careful regarding the Attorney that you hire, their level of knowledge, and their experience and success. Remember, the attorney speaks for you. His statements in most instances are your statements. His waiver of your rights is generally your waiver of your rights. If he is a poor attorney or inexperienced, you will still be bound as if he were Johnny Cochran. However, he or she still may be better than your effort.

    For full disclosure, I am current foreclosure defendant. I am not an attorney. I also work for the firm of Guest & Associates,LLC. I personally have a lot of experience with foreclosure cases over the last several years. The firm is very busy. It has had a number of positive outcomes in foreclosure cases. As far as I am aware, it has never had a foreclosure defendant that it was representing lose their property under its watch.

    The firm has not given me permission to submit this post. So it is not written as a representation of firm policy, procedures, or positions. Further, this post is not intended to give legal advice to any party. I write this on my own behalf based on my personal experience as a pro se litigant for the past two and half years. (I was not an initial party to the foreclosure action)

    I felt compelled to wade into the discussions to provide additional information based on my experience.

    Hope that you find this helpful.

  19. “strict foreclosure” where title passes”

    Yes this pattern will be increasing as more people are stressed in a wider range of states. The servicers rush the defaulted asset through the system in order to squeeze up front cash ASAP before the house gets past them with beaten properties, broken credit records, stress-induced family breakups, losses due to distress sales of cars furniture etc that result from unlawful foreclosures. The OCC has already admitted that these damages are recoverable. If there was a defective forecloure using false source material and you can prove it—–then there may exist in the most grevious cases right to recover the property from REO or other persons who took title as purported good faith innocent buyers. The published sales will often show 4-6 transfers in a year or two——-obvious problem with transfers there just by looking in the paper.

    So people that may be out of possession might be able attack the title chain —depends on how the courts see what you present.
    What is going to hammer REO is the new title insurance increased standards of warranty—-the title insuers wont kick in to defend title on any foreclosed property without huge fees and their bad experience will be mounting.

    Thus in a year or two a flipper who bought a house at 20cents/dollar is maybe not really a good faith innocent purchaser–especially if they pass off a lot of properties. I would think the bank-plan to be landlords allows them to sidestep the title insurance poisoning of the REO pool.

    The flipper must make warrantees for the buyer to get insurance–the judges do themselves harm now by moving foreclosures through too fast—–the insurers cant take the time to provide large risk changes based on an individual state court law. different risks for different statutes MAYBE. The problem will occur when the flippers refuse warranty–or the whole chain collapses into a lawyers’ bonanza.

    The result will be unmarketable properties unless the servicer finances the sale himself almost as a land contract.

    Its going to hurt their appraised value—these new rules just in effecr yesterday.

    The county auditors should be educated that all foreclosed propertes must be severely written down—I think that property taxes usually pay the floks in the courthouse. Show them the effect on local values and their tax take–especially as the BAD properties pull down neighboring properties.

    Dont play by theior rules–think outside the box.

  20. EXACTLY THE FORMULA

  21. Connecticut is a very difficult State to litigate in as it suffers from (1) a poor quality of judiciary, and (2) a less-experienced and hence uninformed Appellate level court system. Foreclosures are handled by two large mill firms, Hunt-Leibert-Jacobson, and Reiner&Reiner. Both firms are obnoxious and abusive. Richie Leibert instructs his associates to “serve” to falsified addresses, routinely manufactures documents, and even once Offered a Pleading to the trial court stating that the original indenture documents “proving” his case were destroyed in the collapse of the World Trade Center! That the signatories to that Instrument were a trust outfit in Delaware and a bank in California did not explain how the only copy of the document ended up in the WTC only 11 days later, nonetheless the Court thought that this was just fine. Connecticut is also difficult for defenders as it, together with Vermont, have a peculiar concept known as “strict foreclosure” where title passes on a court-set “law day” of redemption, where if the owner does not redeem, the title passes. Hunt-Leibert routinely uses fraudulent “appraisals” where the photos of the “comparables” are found to be years old, and not even at the addresses represented. the CT Courts do nothing about these abuses. Again, Neil is quite correct in that the Judges have a certain “mind-set” that the facts do not budge. I recommend anyone enmeshed with these outfits to head over to the US District Court, the Bankruptcy Courts, and to file suits and adversary proceedings in those courts. Ultimately, the best solution is to not own property within Connecticut, as the Courts will not protect you.

  22. If the payor (other than the borrower has a claim against the borrower) it is based in some other cause of action and not subject to foreclosure because they are neither on the note or mortgage. They have an unsecured claim.

    would not the servicer be subrogated to the secured claim?

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