Beware of Magic Bullets

Departing from my usual format, there are a few things I want to say to people who are looking for relief from foreclosure and are hearing what they want to hear.

  • ONLY A COURT ORDER CAN STOP A FORECLOSURE. THERE ARE NO EXCEPTIONS
  • YOU CAN’T GET A COURT ORDER UNLESS YOU FOLLOW THE RULES AND THE LAW.
  • NOBODY HAS EVER OBTAINED SUCH AN ORDER WITHOUT A PROLONGED COURT BATTLE.
  • If someone tells you “just do this” they are partially or entirely wrong or worse.
  • Like everything life is complicated and that includes litigation. Any thought you are entertaining that you have some magic elixir in which you will summarily get a court order is delusional.
  • Every plan looks good on paper until it is implemented.

I am worried that those who in good faith are trying to find the magic bullet are promoting a misguided set of principles that will continue to make bad law. I admit that I contributed to this initially back in 2008 when I proposed that a quiet title action should wrap things up. I was dead wrong and the people who continue to pursue that strategy are always getting the same result: the homeowner loses and another case is either decided badly or worse, makes bad law with a legal opinion issued by a judge or panel of judges.

The truth is that a successful quiet title action is a rare bird along with similar strategies. And remember that an unenforceable document by one party is no reason to lift an encumbrance from the chain of title. In order to remove an encumbrance from the chain of title, the instrument must be completely void and no voidable. That means it should never have been recorded in the first place or that it is now void by operation of law. That is the ONLY circumstance in which a mortgage or deed of trust or assignment of mortgage can be lifted out of the chain of title.

I do agree with the strategy of attacking the assignments in a lawsuit or motion. The motions don’t get much traction but the lawsuits tend to do better if they are pursued aggressively and persistently, with full recognition that no bank or service is going to roll over and play dead even if you are completely correct on the law. Your opponents and their lawyers will do everything in their power to wear you down, undermine your confidence and the undermine the confidence of the lawyer representing the homeowner. Your strategy must be laser-focussed, supported by substantive law and procedure.

But I don’t agree that any lay person can accomplish an attack on assignments without a lawyer representing them. If the practice of law was just about the contents of a statute we wouldn’t need courts. It’s about procedure, rules of evidence and basic notions and biases of fairness.

It’s true that the substitutions of trustee, the assignments, the indorsements etc. are probably legally void. For the most part they are fabricated. An assignment of mortgage probably lacks any foundation.

But what you’re up against, for example, is the fact that an assignment of mortgage is often assumed to be an assignment of the debt and the note. An indorsement of the note is often assumed to be an assignment of the debt. Possession of the note is often assumed to be possession of the debt. Possession is then assumed to be the result of delivery. Delivery implies authority. Transfer of the note implies a transfer of the debt. Transfer of the debt implies the assignment of mortgage was proper under state statutes. And a proper assignment supports a declaration of default and foreclosure. A proper assignment means that party foreclosing is going to get the proceeds of sale on foreclosed property. End of story.

So that is where you stand when your challenge begins. Don’t kid yourself. The task is daunting.

Those conclusions are all legally valid assumptions and presumptions because that is what the law says should be done with these documents and events. Facial validity is like possession — it’s 9/10 of the law.

If you think you can simply challenge these assumptions and presumptions and events and quickly get an order that completely undermines the parties attempting to foreclose — without going through a grueling court battle — you are simply wrong.

That said, thousands of homeowners have indeed won based upon such challenges. Nearly all of those cases have been buried under seals of confidentiality. The way they won was by educating the judge, one small piece at a time, using persuasive court techniques that nobody other than an experienced trial lawyer knows how to use. By the time the case ended, the court, unwilling to strike all such foreclosures, was careful to detail the specific abuses and gaps in the case against the homeowner.

Bottom Line: If you have the money and the time and the commitment to oppose these illegal foreclosures, by all means do it. And if you must do it pro se, know that the opposition will steamroll you on procedure and the laws of evidence. So you must have some knowledgeable lawyer giving you specific guidance as each point becomes an issue. Don’t pursue any strategy that promises to be a quick fix.

 

10 Responses

  1. Start suing foreclosures BUYERS for possession of stolen properties,and their real estate agents and lawers for negligence, and aiding and abetting fraud, ect.. When an agent who listed fraudulent foreclosures and lawyers who sell it on behalf of bogus Trusts will know that they are facing law suits, it will change a lot. They also obligated to conduct due diligence and determine who is the seller. Also, sue Title Insurance companies, they all have a provision for loss of the property due to the fraud which includes a fraudulent litigation.

  2. It is all a lie. Suggest you follow AAF and read the Bill presented to Congress to declare the “power of sale” clause in a deed of trust as null and void.

  3. SCOTUS came down on decision for FDCPA and non-judicial states and foreclosures. BAD. Unanimous decision.

    I am going to come down hard again on CA and other non-judicial foreclosure states, and their representatives, for promoting the foreclosure fraud. Non-judicial foreclosures needs to be abolished given the massive fraud enabled by the “financial crisis.” This is not to say judicial states are any better, but judicial states FOLLOW CA law. CA representatives and others in non-judicial states have failed the country, and cannot be taken seriously.

    Link to decision – https://www.supremecourt.gov/opinions/18pdf/17-1307_7lho.pdf

    The final paragraph reads:
    “Finally, Obduskey fears that our decision will open a loophole, permitting creditors and their agents to engage in a host of abusive practices forbidden by the Act. States, however, can and do guard against such practices, for example, by requiring notices, review by state officials such as the public trustee, and limited court supervision. See supra, at 3–4, 9. Congress may think these state protections adequate, or it may choose to expand the reach of the FDCPA. Regardless, for the reasons we have given, we believe that the statute exempts entities engaged in no more than the “enforcement of security interests” from the lion’s share of its prohibitions. And we must enforce the statute that Congress enacted. For these reasons, the judgment of the Court of Appeals is Affirmed.”

    For everyone in CA — and other non-judicial states, get to your representatives, and demand accountability. They have done NOTHING. (I am not in a non-judicial state — but I stand up for all people across the country). Too much partying in CA. Heads are in clouds. Sorry CA. (This was a Colorado case, but the spillover is always from CA and it’s lack of control to help the people). .

    This is a disgrace.

  4. usedkarguy,is correct — bad court decisions are being used over and over and over. I have said that this started in CA and spread across the country like CA’s wild fires. Where was Congress then? All sat back and let it happen. Government KNOWs these foreclosures are fraudulent and did nothing to stop it. In fact, they concealed it. And, Trump is doing the same thing instead of calling the Dems out on their role in it.

    Waters and others drilling Wells Fargo on other issues — not the massive foreclosure fraud. State pensions are so bad. It was insane for any state representative to rely on people labeled “subprime” to pay adjustable rates up to 15% to fund the pensions. INSANE. When the ponzi scheme failed, house prices fell, and no one had an incentive to pay these rates just to keep the state pensions propped up.

    The problem is not just courts, but politics.

    I agree Neil is extremely knowledgeable, an excellent attorney, and has the ability and heart to help people. But, when peoples’ lives have fallen apart it is very hard to pay anyone for help. With or without an attorney – the reliance continues to be on bad precedent court decisions used over and over by courts. Under the rug “settlements” do not help others.

    Have the bank stopped? We don’t know because we don’t know who is really claiming the right to the property or money. WE DO NOT KNOW. We know the banks name is WRONGLY being used. And, that is what the government must stop. This should be a 2020 campaign election issue RIGHT now. I see no potential candidate even discussing. Not even Warren — who KNEW this was all fraudulent. She knows.

    Criminal.

  5. Nobody in their right mind wants a pro se status – the attorneys need to pick up the sword – they’ll make money if their hearts and goals are true – Neil is one of the best attorneys in this field – if those of us in the trench could afford Neil we would gladly . . . it’s not our fault we’re being preached to about having to stand up for ourselves – when there is a consortium of attorneys who should be helping us right here – take a risk and step up to the plate – there’s got to be at least one case in the bunch of us that Neil et al can help…. Geesh. We love you Neil but we need YOUR help. Thanks for all you do.

  6. Appeciate this blog for all the great info but the corrupt process that has caused so much damage must be challenged. Congresswoman Waters with House Finance Committee is challenging not only lenders but the agencies as well. She should hear our stories about cfpb occ etc before and after Trump. We have been denied due process and deprived of property and life by their corrupt rules enriching the criminals at every level.

  7. The District Court judges not only turn a “deaf” ear, but they misconstrue timelines and facts to fit the narrative they want to create.

    Here’s a little ditty from my appellate brief…….

    This error is continuously repeated by the prior Court rulings obtained by Respondents through the cognitive dissonance of the Courts. For instance:
    (R.84,¶2)Judge McGarrity ruling against Appellants:
    The Court denied the Debtors’ motion to strike. The Court quoted Judge Stadtmueller’s previous decision explaining that “it is clear that HSBC is entitled to enforce the mortgage. Any potential irregularities in the assignment process were addressed by the state court, which had before it several assignment documents, and which concluded that the assignment passed muster. Moreover, the bankruptcy court was also correct in concluding that any issues in the agreements between the banks assigning the mortgages do not permit the debtors to challenge the validity of the note.” Rinaldi v. HSBC Bank United States, No. 13-CV-336, 13-CV-643, 2013 U.S. Dist. LEXIS 156327, at *18-19 (E.D. Wis. Oct. 31,2013).

    The manifest error in this Court’s reasoning, and throughout the entire litigation history, is that somehow Judge Schroeder could have adjudicated that any “Assignment of Mortgage” passed “muster” when none of those Assignments were ever before him? Judge Schroeder granted foreclosure to HSBC without any evidence of standing to foreclose (undendorsed note and unrecorded security interest.
    (R.27, Page 2)
    “Plaintiff filed a foreclosure action against the Defendants on 02/3/2009, Case No. 09-CV-353. Defendants initially moved to dismiss the action and when that was unsuccessful, they continued to litigate for at least eight (8) months. Eventually, this Court granted summary judgment in favor of Plaintiff on 09/04/2009.”
    The forged ultra-vires assignments of mortgage to three different entities in different capacities appeared in the following order:
    1.) (R.10,R.46 pgs. 5-10, R.159 Def.Ex.A.) AOM from Wells Fargo Bank, N.A., (with no address)to HSBC Bank USA, National Association, as Trustee for Wells Fargo Asset Securities Corporation Home Equity Asset-Backed Certificates, Series 2005-2 (with no listed address) drafted March 1st, 2010,and recorded April 5, 2010, FOURTEEN MONTHS AFTER THE FORECLOSURE WAS FILED.

    This assignment transferred NOTHING to the TRUST. It transferred the mortgage only to the CERTIFICATES. The Certificates are trust property sold by the Securities Underwriter to the INVESTORS. This assignment is faulty and of no legal consequence. This was pointed out by the Appellants, and the reaction of the Respondents was to create and record
    2.) the SECOND AOM (R.9,R.46 Pgs 5-10) created after Appellants first Bankruptcy proceeding (R.61), Appellants Chapter 7 filed October 14, 2011. The document was drafted October 31, 2011, and recorded November 1, 2011. The attempted transfer from Wells Fargo Bank, N.A., 1 Home Campus, Des Moines, Iowa, to HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET-BACKED SECURITIES 2005-2 TRUST, HOME EQUITY ASSET-BACKED CERTIFICATES, SERIES 2005-2, at an address of 636 Grand Regency Boulevard, Bradenton, Florida, but to be returned to Wells Fargo Bank, N.A., at 3976 Stateview Blvd, Fort Mill, South Carolina (the address of Wells Fargo Bank, N.A., d/b/a Wells Fargo Home Mortgage) was also of no legal consequence. Even though this was alleged to be a “Default Assignment”, the Bankruptcy filing makes the assignment of mortgage a fraudulent conveyance in contravention of the Automatic Stay in effect with the filing of the Bankruptcy Petition October 14, 2011 by Appellants.

    The second AOM, although void because of the bankruptcy action filed by Appellants, was shown to be ultra-vires, and executed well outside of the closing date of the Trust alleged to be the holder. Appellants railed against this AOM as well, leading to the creation of the THIRD AOM being drafted and entered with Proof of Claim #6:

    3.) The THIRD AOM (R.11, R.46 Pgs. 5-10) purports to assign the mortgagee interest of Wells Fargo Bank, N.A., 7001 Westtown Parkway, West Des Moines, Iowa. This third AOM was filed with Proof Of Claim #6 dated November 4, 2011 in the Appellants Bankruptcy Case #11-35689. Although two previous AOMs had been recorded, the continued objections by the Appellants forced Respondents to create the third-appearing void, ultra-vires AOM purporting to effectuate a transfer on September 14, 2005 just in case the Bankruptcy Court recognized the falsity of the two previous AOMs. This AOM, relied upon in Proof of Claim #6 (first racketeering act) constitutes wire fraud.

    Appellants produced the EX-99 (Collateral Term Sheet aka Mortgage Loan Schedule) for the Wells Fargo Mortgage-Backed Securities 2005-7 Trust which lists Appellants loan #0145099792 at 7 locations throughout the document.(R.112, Exhibit 9, Pages 102, 374, 510, 645, 781,872,943).

    I don’t care how much FACTUAL information you put in front of these judges, they are ruling for themselves and their own stock portfolios. We all know that if the courts took the tact of following the real property laws on the books, most of these foreclosure actions would have been unsuccessful.

    The judiciary has been bought and paid for by these criminal banking entities.
    Read it and weep!

  8. Thank you Java Gold. I think that most attorneys are in business to make lots of money (example is the :so-called” class action suits where the attorneys make millions and the members of the class get pennies when the lawfirm finally gets enough actual evidence to convince the lenders to settle and them agree to seal the case confidentially and bury a lot of great evidence.
    Most of these lawyers and companies like Fraud Stoppers are all out to make money for what they provide which is ok to a degree, but just not sure home many people have benefited from all this.
    I have been fighting nasty old Bank of America and old Brian Moynihan for over 9 years now and the CFPB and our branches of our own goverment and they all like to avoid, stall, and continue to proivde fasle, fabricated, phony and even “robosighed” documents like they did to me on one totally wrongful foreclosure and the judge would not accept any evidence into his court as he was part time and really really bad!!
    We need lawyers and congress preople with balls to take on this giant swamp that continues to this day.
    On my remaining four loans i was able to sell and avoid foreclosure, but had to accept much less than fair market value. Two of my loans have changed hands 4 times now going from Countrywide, to Bank of America, to nasty old “debt collector Seterus” and now phony, crooked old Seterus has sold out allegedly to Nationstar AKA Mr. Cooper. You should check out the leaders of Mr. Cooper with all past employees of Bank of America, Bear Sterns, Washingtion Mutual, and other crooked lenders!! They change the loan nunbers and further try to bury the phony facts of these pretend, phony loans that don’t exist and they now claim that Fannie Mae is the holder in due course!! Fannie Mae won’t even respond or get back to letters acking importnat questions and NO ONE has been able to provide any, actual and factual paper trail, chain of title, or more importantly ANY MONEY trail because there is NONE.
    Thanks for your input.
    Although I to do not agree with Neil’s latest post, I so acknowledge that he has been a great and invaluable asset to me in ALL that I have done to fight all this. Our Congress people are really terrible on this and either don’t reply or new ones get in trouble quickly and then you never hear from them again like crooked, inept members like Corey Gardener and Scott Tipton. Don Corran is making lots of money off his invetments in Hemp over in the Nucla, Nataria (sp) area. I would not be surprised to see old Gardener taking money from lenders as well.
    Now I find out nasty old Bank of America, yes there crooks, are in with Zillow so little wonder there is so much totally false and inaccurate property information on Zillow and Trulia to keep the prices down to benefit the lenders!!!! Semper Fi.

  9. This is Neil’s worst post ever. I would suggest he delete it.

  10. I wrote this a while back and it was reposted by another a couple days ago… I still hold it to be true as to “Bad Law”…

    along the lines of what you said, we representing ourselves get accused of “creating” bad law, and yet, in reality, it is NOT we that has created it, it is the system in an attempt to hide the correct facts as well as create a smokescreen to deceive us into thinking we lose in a valid way, and that includes both judicial as well as non-judicial states.

    To this point, John Reed said it all so well – – and worth repeated to those reading your post! (my only disagreement with John, based upon my research, it is not 70% of foreclosures that are fraudulent, it is high 90’s if not 100%) – – – – – – – – – – -> “Bad Law” or “Bad Case Law” – – I want to restate something I’ve stated many times before… as it relates to pro se’s and bad law… 20 million foreclosures since 2008… nobody knows the real amount but I’ve seen it estimated that 70% of all of those foreclosures are actually, legally VOID…. all bad law! Committed by Legal Professionals… ALL BAD LAW!!! Doesn’t seem to be hurting them… does it?

    And about those pro se’s creating bad law? I’ve heard this “Bad Law” BS coming from the few that are always in the “I’ve been studying Law for months/years now” group…. who now, all of the sudden are self made professionals worrying about everyone ELSE making “Bad Law”… and underneath it all… it seems actually to be their own their want and desire to “fit in” with the people they’ve been researching (attorneys and the written Law) for the past few months… who also believe it’s “their duty” to propagate the concept of pros se’s creating Bad Law!

    If it’s Bad Law… then the Judge has the responsibility to rule against it!
    If it’s bad law… then the appellate court has the responsibility to rule against it.

    If it’s a pro se ANYTHING… then it’s the DUTY of the entire membership of the BAR to use every contrivance at their convenience, which probably might well include writing and privately passing around papers on new, inventive and even underhanded methods they can think of to convince all pro se’s of their need to pay the BAR…. and the threat of a pro se creating “bad law” is just another underhanded method of doing so.

    It’s 9 years since we all found out about the illegalities being brought against American homeowner’s by these big banks and their attorneys and the collusion of our courts… and it goes on to this day.
    Have we seen the Court’s call a halt to it? No. Have we seen Plaintiff’s Attorneys prosecuted for entering false and fraudulently created documents representing impossible transferences of notes and mortgages into our court’s proceedings and property records? NO! Have any of us actually seen where any Bank has actually PAID any of those almost $300 billion in fines and penalties that they have been charged for all of their illegal actions? NO! Have the Banks stopped? NO!

    So… attorney’s are, for the most part, paid Liars, our Court’s are proving daily that for the most part our judges are, again not all but for the most part, just cheap ole paid off liars and most of our govt. agencies that are paid by “We The People” have also proven to us all that they are also, for the most part, just more sleazy paid off Liars. The proof is undeniable and gargantuan.

    So, if you’re one of those Attorneys, a Judge or a member of some Govt. Agency that’s colluding (either knowingly or not) with the terrorist Banks… Sometimes the truth does hurt. Awwwww.
    So does someone losing their home.

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