The NY legislature is reponding to the decision referenced below with a proposed “new law” that returns us to where we always were on the statute of limitations. If you can’t bring a foreclosure action within 6 years, forget it.
see “Bill would protect homeowners from endless foreclosure cases” —
Under the rubric of “the homeowner MUST owe the money” — despite the absence of any foundation, courts continue to rule as though they know something about homeowner transactions whose only attributes as “loans” come from the label that everyone seems to use when describing them.
Let’s be clear: up until the “new laws” on mortgage foreclosure, any claimant wanting to force the sale of property — especially residential homestead property — had to meet rigid requirements.
And it was very often the case that even without the homeowner showing up and even without the homeowner having any lawyer to represent them, the homeowner won. Ask any lawyer who practiced before the year 2000).
This was because the lawyer for the foreclosing party had not produced the evidence showing that the client was the claimant and the claimant owned an unpaid loan account receivable on a ledger that it produced in court along with a live human being or sworn affidavit that warranted the truth of the matter asserted.
The recent NY Appellate court decision on the statute of limitations wrongly uses the attempt of the homeowner to avoid foreclosure against him. Since the homeowner made a payment under a temporary settlement, the homeowner was “reaffirming the debt” and starting the statute of limitations from scratch.
No, that is NOT what happened. The homeowner was coerced into making those payments to buy time while he or she figured things out. During that period of figuring things out, the foreclosure mill plowed ahead and usually secured a foreclosure judgment and sale. The property was sold, and the players all divided up the free money because none of them was owed anything.
Two things emerge from this absence of logic posing as reasoned judgment. first is that the fraudulent actors in foreclosures get to come back again and again forever while they attempt to create the illusion of ownership of an implied (but nonexistent) unpaid loan account due from the homeowner.
But the homeowner’s claims of fraud and violations of RESPA, FDCPA, and common law rescission are quickly barred by the statute of limitations. This bar nearly always arises before the homeowner has any idea that there is a claim for setoff in affirmative defenses, a counterclaim, or a collateral action.
All this is happening because judges, lawyers, and their client homeowners all believe that since it was labeled a loan, it must be a loan. And if it is a loan, they must owe the money. These are all reasonable presumptions that arise from the past history of similar-looking transactions. But past history is no guarantee or even relevant to the current circumstance.
I have reviewed thousands of cases. I haven’t found one case since around 2004 in which the company designated as “servicer” in a self-serving statement could ever produce a record (ledger) showing that a loan account was created, maintained, and administered through the present.
So here is the spoiler alert: if you are one of the hundreds of homeowners who take this concept to heart and pursue it aggressively, you will probably win the case, and there will be no foreclosure, there will be no claim, and the path may be opened for quiet title.
The case that foreclosure mills are heralding as a game changer is
FEDERAL NATIONAL MORTGAGE ASSOCIATION, & c., Appellant, v. Maxi JEANTY, & c. et al., Respondents, et al., Defendants.No. 84 Decided: November 17, 2022
Given the above, one might challenge Fannie Mae to produce an authorized officer who asserts and swears that it has ownership of an unpaid loan account on the ledgers of Fannie Mae — because it paid for it. It can’t and won’t, and neither will US Bank, Deutsch or BONY “as trustee.”
There are two reasons why homeowners keep losing homes to false foreclosure claims. First, they don’t challenge it because they think it is futile. Second, they believe everything that the dark side is saying.
Only a few hundred homes are saved each year by people accepting the idea that all trial lawyers accept: if you have a claim, then prove it, don’t just tell me about it. It doesn’t even matter if the debt IS real or due. It only matters whether the truth of the matter asserted (or implied) can be proven by competent evidence. The answer is that it can’t when challenged.
Filed under: foreclosure |
Good points here – 1) SOL is horrible. 2) Yes, coerced for payments under threat. But John Reed is correct. The courts are so bad that it does not matter what one calls the transaction. And that is all it is – an undefined transaction. People want to keep their homes. They will play the games to keep homes. But few “banks” are open to keeping people in homes – too much corrupt money involved. Neil is also correct – pre-2000 it was the norm to keep people in their homes. The only reason no longer done is because the transactions were bogus from onset and no one knows who is making decisions. No one knows who really claims rights – valid or not. We do not know. This IS pursued in courts all the time as to standing. Routinely denied. This affects precedent law which greatly reduces chances of getting an attorney or winning to save your home. The consequence is devastation on our culture and our economy. CFPB settlement with Wells Fargo announced today is a drop in the bucket from the bogus settlements a decade ago. But it is an important start. Can’t go on as is. MAYBE more attorneys will take cases now. Just a thought.
Hello Mr. Garfield, I’m one of those who will be benefiting from this law if signed, what are the probabilities? Banks are putting up a campaign trying to discredit the author of the piece accusing him of being in FS since 2009.
Nice hard- hitting facts Neil, thank you once again.
If the Court’s weren’t soooo completely Biased towards the Banks… I would agree. But they are! So it really isn’t mattering in real life, what homeowners are doing in the Courts. When our Court’s are corrupt, We The People only get the “illusion of justice” portrayed by extremely over rehearsed actors. Equality be damned, justice be damned…. the ruling class have decided.