Upon reflection, I think part of the problem is that most people including judges, don’t truly understand the meaning of the word “default.”
- A default does not exist just because someone declares it. If it isn’t a creditor known to the debtor then it is not even facially valid.
- A company named as a designated “servicer” is not necessarily working for the named creditor and probably is not. So anything that said “server” sends out is lacking in facial and substantive validity. Watch for more news about FINTECH. Those companies are the “real” servicers in the sense that they physically collect homeowner payments and deposit the proceeds into posting accounts controlled by the investment bank — not the named “creditor” and not the named “servicer.” As such the records of the putative creditor and servicers are hearsay and do NOT meet the elements of a business record exception to the hearsay rule. Those”records” are not even “records” in the sense that they do not reflect any business on any debt conducted by that company.
- Here is the tricky one. The fact that a homeowner failed to make a scheduled payment is NOT a default unless it is owned and due to an identified creditor who will suffer a financial loss arising from its ownership of alleged unpaid loan accounts receivable. Non-payment is not a default. Non-receipt of a payment due IS a default for the creditor who is supposed to receive it.
- A default ONLY exists, for purposes of foreclosure, if a creditor — one who owns the unpaid loan account receivable due from the homeowner is not paid — fails to receive the payment and suffers a financial loss as a result.
- Defaults can be cured by payment to the creditor or an authorized collection agent that is designated by the creditor (i.e., not designated by third parties claiming the right to make such appointments). This one fact provides the foundation for a legal strategy that will give angina to your opposition:
Demand proof that the named creditor has paid value and owns the unpaid loan account receivable if it exists.
Demand proof that the named servicer has been appointed or hired by that servicer.
Refuse to pay anyone else. In fact, sue anyone else demanding payment for interfering with your right to cure the default.
Do not accept documents from a putative creditor unless there is a warranty or acknowledgment of ownership of the unpaid loan receivable.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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Filed under: foreclosure |
Judicial Complaints are “heard” by Judicial Inquiry Boards and usually closed unless said Judges sleep with lawyers who appear before them or drive under influence. The same with mill lawyes who lie to judges about their “clients” Disciplinary Board in Illinois does not even accept Complaints against Big Banks lawyers.
Going to disagree with one thing here — do not believe dealing with investment banks anymore. Yes — that was originally the scenario, but things changed after the crisis and settlements and PPIP (Public Private Investment Program) — (all fake garbage sold off cheap) dealing now with unidentified entities. Who may not even be entities. Yes as to Fintech – claimed servicers a front.
The underlying problem for homeowners being attacked is that Judges do not understand even one whiff of what Neil has carefully laid out here. So, additional to the steps set forth, your big task is to educate the Judge. And some Judges refuse to hear anything. There is the dramatic case of an old, cranky judge that stated: “Mr. X, you may have prevailed here today (in Motions Hearing), but you are living in that house for free, and I am going to make sure that you will lose that house.” Note, this was way before trial, and with zero evidence on the Record. Hard to beat off that mindset. Just lovely. (Practice hint: File a Judicial Complaint and file a Motion to Recuse, based on that statement).