In a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.
In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company. Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package. The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.
Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder. In addition, the owner of the note, if different from the holder, must join in the motion.
Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder. See, e.g., Tex. Prop. Code §51.0001. However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments. This status is certainly open to challenge. The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act. If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note. See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y. Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008. In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.
Now when you go to Court either because they sued you or you sued them, in addition to simply asking for a Temporary restraining Order, you are arguing for an order (based upon a separate motion filed with the court and served upon opposing counsel) that they be required to answer your very reasonable questions, as required by statute.
The likelihood is that the Judge will grant your motion and might even feel compelled to grant your petition for temporary restraining order at least until the “lender” validates the debt and validates that it is the true creditor (holder in due course). This will result in a delay of any collection or foreclosure proceedings but more importantly, from what we have seen, these interlopers simply slither away and move on to another unwary debtor.
That’s right. Just by getting them in the position where they know they have to prove their status as a creditor, they are likely to walk away. If they don’t, the time usually comes when they stop pretending they are entitled to do what they are doing.
Need help in assessing your case? Does your attorney need our help? Use our services to help guide you through the process early enough to avoid mistakes that can cost you your home in an illegal foreclosure action. Call our office today at 844.478.6774 to inquire if we can help. You can also submit a case statement here and get a complimentary recommendation as to your best course of action.
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.
Filed under: foreclosure, securities fraud | Tagged: bankruptcy, foreclosure, foreclosure defense, lance denha esq. |
Our work is based on Neil’s research and teachings over decades and rests on basic juris prudence; that claimant must have “legal standing” to bring forth and prevail in a foreclosure actions. Legal standing is so central to our legal system that even the US Supreme Court threw out cases this year due to lack of Standing. But remember, anyone can Make an argument but to Have an argument, and win in court, you must have it prepared and presented properly. That’s why we work with so many lawyers who use our litigation support services. Sometimes it’s Who is presenting to the judge that matters even with identical cases as unfair as that seems. Yes you do need a lawyer if you want to increase your odds of persuading a judge. As for case law see one of Neil’s last posts on this very issue here: https://livinglies.me/2023/02/07/ct-supremes-slam-bank-of-new-york-mellon-and-clarify-law-in-favor-of-homeowners/ Hope this helps to clarify that the color of the sky is not what matters when Foreclosure Defense is done properly.
Correct Java. Debt collector. Those old PLMBS REMICs and invalid trusts – torn apart and dissolved with debt collection sold to debt collectors who called themselves “servicers.” Torn apart because they were never valid in the first place. Neither was the so called ‘loan’ valid for that matter (no accounting or funding). Judges don’t care because they don’t understand. They trust that government would fix it – if something is wrong. Government did not fix anything. We need case law. If attorneys do not have case law to back up – then you have to deal with “The Sky is Green.” Find one politician who is interested.
Debt Collector. Your Honor. The Sky Is Green.
Homeowner. Your Honor. The Sky is Blue.
Judge. I rule for the Debt Collector.
Lance, I tried to obtain TRO to validate the debt. Judge Hala Jarbou (appointed by Trump who is sued for racket in Georgia) twice denied my Motions, never allowed me to validate this “debt”, lied non-stop and twice told me to make payments to irrelevant parties fake corporation PennyMac Loan Services, LLC. Judge Kent fabricated its own facts and did not allowed me to validate anything. Judge Dales denied my request to inspect my original Promissory Note as “impractical” even though the law requires otherwise.
Law and The Constitution are IMPRACTICAL for judges