Several steps should be taken to attack any document that does not include a warranty of title to the lien and authority to enforce.
You attack the title to the lien under the premise that no transfer of a lien is legally valid or even recognizable unless there is a concurrent transfer of the underlying debt.
Transfer of the note is only evidence of the transfer of the underlying alleged debt. My premise is that there is no underlying debt.
You show that by asking for and NOT receiving the proof of the existence, status, and ownership of the underlying implied (but never stated) unpaid loan account.
If there is no loan account, there is no debt — at least for that creditor.
Do NOT accept a payment history as a substitute for the loan account. The payment history only implies the balance due. Only the actual loan account (if there is one) will show the actual balance due. You should only rely on the unpaid loan account receivable on the accounting ledgers of the designated “creditor.”
Do not use the QWR or DVL as a substitute for discovery. It creates multiple excuses for them not answering the basic questions about the existence, status, ownership, and authority to enforce the alleged unpaid loan account. Keep your questions to what is expressly provided by RESPA (QWR) and FDCPA (DVL).
The administrative process or strategy includes the QWR and DVL and hones in on the statutorily mandated transparency as to the existence, ownership, and authority to enforce the underlying debt (i.e., the implied — but never stated — loan account).
Their failure to answer the most basic questions about why they are making any claim can be used to file suit and obtain a judgment successfully. More importantly, it opens the door to discovery that might otherwise have been barred by court orders or rules.
If the discovery window is open, you should also hone in on those questions, although you can ask others. Stay within the maximum number of questions allowed by the rules of civil procedure, including subparts.
If the discovery window is not open, then find a way to create the window, including, if necessary, a collateral lawsuit.
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Neil F Garfield, MBA, JD, 76, 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 14 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 |
Sorry Neil – none of this will change bogus title. Can try – but it is too late. The settlements nixed for the people. All they got after settlements is — “you don’t deserve a loan, you never deserved a loan, you don’t deserve title, you can’t refinance and only WE will decide if you can get a modification.” And the people did nothing wrong. You pay for mortgage – you should get a mortgage – and that means paying off the prior claimed mortgage by YOU with FUNDING by SOMEONE. That did not occur. No funding ever occurred. So Correct – there is no “mortgage” loan account. And that means – NO MORTGAGE. Whoops — We then have a problem. Where is the mortgage??????? Never left the state of origination – many moons ago. Title cannot be fixed. Subject to debt collection modification – whether you get it or not. That is all we have left. Who will pay to adjudicate this when there is no case law??? Tough.