It’s Not Difficult: Parties Who Pursue Foreclosure Must Be the Same Party Who Has A Stake in the Outcome

Foreclosure litigation is actually quite simple. But lawyers from foreclosure mills are attempting to make  it complex. If you let them you will lose. If you confront them it is likely you will win.

the assignment made by Arthur M. Bressler to A. H. Kleiser was made
without consideration from the assignee and that Kleiser did not take
or claim to take any title to the mortgage or note, but that he
understood that as a matter of accommodation he was taking the title
as trustee for Mary A. Bressler. (e.s.)

Smith v. Kleiser, 91 Fla. 84, 87 (Fla. 1926)

But —- you can’t simply say this is the case, you must show it to be
the case. So you might need to try to issue subpoenas for documents
and even deposition testimony in order to establish that either (1)
there was no consideration paid and therefore no interest in mortgage
was conveyed or (2) they refuse to answer the question  thus raising
the inference that no consideration was paid.

Be careful with Streicher case., The court ruled for US Bank on
procedural grounds. BUT the Federal Judge did correctly state elements
that are critically important to your position:

The Court: Here we have a case where the evidence being presented is
by a party not even named in the pleading.

” Streicher v. U.S. Bank Nat’l Ass’n, CASE NO.:14-cv-80265-KAM, at *3
(S.D. Fla. Mar. 14, 2016)

When filing a complaint, it is important for
the party with the interest in the outcome to have the case filed in
its own name rather than in someone else’s. Wells Fargo Bank, N.A.
(“Wells Fargo”), the mortgage servicer for U.S. Bank, learned this the
hard way when it initiated a state-court foreclosure action against
the Streichers not “as agent for” nor “as servicer for” but simply as
U.S. Bank.

Streicher v. U.S. Bank Nat’l Ass’n, CASE NO.:14-cv-80265-KAM, at *1
(S.D. Fla. Mar. 14, 2016)

no one questioned where U.S. Bank was or why a lawyer for a non-party was conducting the plaintiff’s case-in-chief. In any event, the
witness explained that Wells Fargo serviced the loan. (Trial Tr.
7-24.) At one point, during the Streichers’ counsel’s voire dire of
the Wells Fargo employee, the employee explained that “[w]e’re the
servicer for U.S. Bank” and “[t]hat’s who we’re foreclosing in the
name of.” (Trial Tr. 12:22-24, 15:24-16:3.) She also stated that she
was not an employee of U.S. Bank.

Streicher v. U.S. Bank Nat’l Ass’n, CASE NO.:14-cv-80265-KAM, at *3
(S.D. Fla. Mar. 14, 2016)

“During argument on the motion, the issues of Wells Fargo’s absence
from the complaint and U.S. Bank’s absence from trial finally became
crystalized:” Streicher v. U.S. Bank Nat’l Ass’n, CASE
NO.:14-cv-80265-KAM, at *3 (S.D. Fla. Mar. 14, 2016)

The Court: Here we have a case where the evidence being presented is by a party not even named in the pleading.

” Streicher v. U.S. Bank Nat’l Ass’n, CASE NO.:14-cv-80265-KAM, at *3 (S.D. Fla. Mar. 14, 2016)

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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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3 Responses

  1. If the note was sold and transferred properly to the REMIC as they say, what would be the need for MERS, other than to track movement? Just asking…

  2. Yep, the instant Assignment of most mortgages to MERS as a mortgagee was made without MERS consideration or acknowledgement. I doubt if MERS even ever answered anyone’s inquiry about their consent to be a Mortgagee (I asked about my loan, zero respond)

    Yet, JUDGES ignore this fact. No matter how much evidence of fraud perjury and forgery you present them.

    They just fix cases for the better funded party.

  3. There is broad misrepresentation by servicer attorneys across the country. If you don’t point it out, most judges will ignore.

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