The basic premise is that the debt is NEVER discharged. It is only the ability of the owner of the underlying debt to enforce that debt that is discharged. Thus the owner of a lien may still enforce the lien after BKR discharge. The only exception would be a finding in Bankruptcy court that the claim is not secured by the claimed lien in favor of a particular creditor.
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All laws and case precedents consistently state that the lien survives bankruptcy. That is because bankruptcy law was enacted for fresh starts on the part of the debtor and the protection of creditors as the bankruptcy estate is liquidated.
So the attempt to foreclose AFTER DISCHARGE could only be supported by proof of ownership of the underlying unpaid alleged loan account receivable WITHOUT RELIANCE ON THE NOTE. Proof of ownership can ONLY be payment of value (or proof of a gift). Keep in mind that the transfer of a note that is already claimed to be in default does not allow for the treatment of the note as a negotiable instrument (Article 3 UCC). Once again, the proponent must prove ownership of the underlying loan account.
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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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).
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.
Filed under: foreclosure |
The ability of a bank/servicer to establish ownership of a mortgage lien is found on the IRS form 8594 (Asset Acquisition Statement), whereby buyer and the seller MUST have filed the form. A requirement, PERIOD!
The Power of Attorney must be attached to the recorded contract to the note/ loan in order to assign a substitute trustee. If nonjudicial, upon assignment of deed or trustee resignation of the original trustee must be recorded in public record.
All collecting attorneys acting on behalf of bank must file IRS Form 56 showing “trustee” status.