Leveraging Mediation to Win Foreclosure Case: Getting a Pre Mediation Order

After reading my blog a client shared with me the details of how he won his case. This win followed up on my previously announced strategy of using mediation to flush out the fraudulent nature of the claimant and the claim for foreclosure.

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The idea of a pre mediation order had not occurred to me until I received this email. I have edited his story to present the following:

1.  CURRENT STATUS:  Last mortgage Payment was June 2008

2.  FORECLOSURE CASE:  Won Pro Se in June 2011 as a Dismissal With Prejudice.

3.  HOW THE CASE WAS WON:
A.  At the 2009 beginning of the court hearings, a state-wide order from the Florida Supreme Court was in effect which required MEDIATION between the parties before any foreclosure case could proceed.
B.  The local court having ordered the mediation, I suspected a scam on the part  of the REMIC TRUST Plaintiff, BONY, as being the legitimate owner of the mortgage.
C.  I therefore moved the court for a “pre-mediation order” requiring the Plaintiff bank to provide the following:
                         1.  the name of the mediating bank representative who would attend,
                         2.  the description of his/her official position with the bank,
                         3.  his /her formal title, and
                         4.  all of the above disclosure must be provided on BONY letterhead.

D.  Two scheduled mediation sessions later, without the mediator information provided, I then moved for An Order To Compel Mediation Credentials.
E.   The Order was signed and issued by the Chief Judge, which at the time put the attorney (the Marshal gang) in jeopardy of state sanctions if disobeyed.
F.   Regardless, that Order to Compel was disregarded by the attorney who
proceeded to attempt a mediation appointment with me for the  third time anyway.
G.  After I once again refused to attend the mediation without the discovery in hand, the attorney said over the phone, “Ok, we will just tell the Judge that you refused to cooperate with the mediation Order.”
H.  I was elated because they had already failed to comply with the earlier Order to Complete Mediation Credentials.  I was afraid that they would drag some “taxi driver” into the mediation session saying that he “represented the bank!”
I.  So the attorney informed the judge that I had refused to mediate.
J.  A few months later, I moved for a thorough “Evidentiary Hearing,” during which the mediation failure on my part came out.
H. When the judge saw that the Chief Judge’s Mediation Credentials Order had been disobeyed, AND THAT the Plaintiff attorney had lied to the court blaming me for the mediation failure, the judge dismissed the entire case on the spot and issued his written order a few weeks later with the “with prejudice” designation for “egregious” conduct on the part of the Plaintiff!  Game Over.

4.  So now you know why and how I got the only foreclosure attempt dismissed with prejudice in 2011 and why I have stayed in my home without making mortgage payments since 2008.

5.  The pretender lender was Countrywide who gladly accepted my first 12 on-time payments,  it then assigned the loan executed through Marshall Fields to BONY.

6.  BoA serviced the “dismissed” loan for a few months and then transferred servicing to Ocwen, who made their monthly attempts to collect until they discovered that BoA had “written off” the loan altogether.  Ocwen washed their hands of the account and it now resides with Shellpoint Servicing who has been trying to collect ever since about 2014.  As you might imagine, I have paid only for the first 12 payments on the loan, after which I got the 13th month bill for more than I had been told on that fateful phone call with the broker.  I have made no payments since June 2008.

7.  A few months before the 3-year RESCISSION deadline, I did send that letter to BoA in 2010, citing failure to provide “pre-closing “ loan terms disclosure before the loan closed about two weeks later.  The loan broker grossly misrepresented the terms of repayment on the initial phone contact by me.  Had I known what was coming, I would have been forced to reject the suicidal loan altogether, even after their Landsafe appraiser set a highly inflated value on the property to “help me to qualify.”

8.  No action was taken to refund my first- year payments and other fees, so I have been waiting ever after for a second foreclosure attempt or for the courage to file a Quiet Title suit.

9.  I almost prefer to wait for another foreclosure action so that I can clean their clock as an informed Defendant.

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Editor’s Note: The problem could have been corrected if there was a bona fide claimant with a bona fide claim. As I have repeatedly stated on these pages, in most cases there is no bona fide claim or claimant. There would not have been a problem designating a records custodian or other officer to appear at mediation with full authority to settle the case. The truth is that in foreclosure litigation there is never a person with complete authority to settle the case because whoever has been selected to show up at mediation was paid to show up, not to settle the case.
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But is only through the aggressive use of procedural steps that you can create footprints in the sand that the court will not ignore. Judges don’t like it when their roders are violated. They might gave a bank a few chances to comply but in the end, if pressed, the judge will always levey severe sanctions against the fake claimant with the fake claim.
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The Judge might think he is delivering a slap on the wrist of a financial institution for failure to comply with court orders, but in reality the judge is dealing a deathblow to a fake trustee of a fake trust that was a fictitious name for an investment bank who controlled but did not own the debt and had sold off more than the sum of the parts.
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Practice hint: Any servicer who claims the right to administer or enforce the loan under such circumstances is making a false claim. If the servicer is saying it represents the trust or the trustee or even the investment bank (which they never do) they are still not asserting authority from the owner of the debt. Thus any records or testimony from the purported servicer should be struck since they are the records of a volunteer who was being paid to present false evidence. The payment history and other ‘business records” then fail to establish the required exception to the hearsay rule. 
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But without making tracks in the sand — i.e., by filing motions and making timely objections and a motion to strike — the testimony and the putative business records come into evidence and provide the basis for a judgment of foreclosure. Once stricken, that foundation is no longer present.
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If they can’t prove the records through some other presentation of admissible evidence, the proper motion is for involuntary dismissal with prejudice for failure of the evidence to establish a prima facie case.
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Renewing the motion to dismiss based upon standing weakens your position — as it provides the opposing party with an opportunity — getting a dismissal without prejudice and the ability to harass your client in the future with renewed demands for collection and enforcement. 

6 Responses

  1. Brian the Independent Foreclosure Review ended in July of 2013, but it was a sham operation to begin with, with payments as little as $300 each to many illegally-foreclosed homeowners. At the end, over 400,000 checks sent to homeowners bounced. It was just window dressing.

  2. Great great info. Thank you

  3. This is great. Much sent to mediation — been there — oh so many times. Yeah – I paid – for nothing.

    But, most important here is the beginning – REPRESENTATION.

    Who the Heck is representing WHO???

  4. Cripes, this sounds awfully familiar…did you nail OCWEN for the LPI Fiasco as well?

  5. Is the mediation order/requirement issued in 2009 still in effect?

  6. You lost me after # 4.

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