Mortgage Meltdown and foreclosure defense disinformation

“If you don’t read the newspaper you are uninformed, if you do read the newspaper you are misinformed.”
Mark Twain

Pitfalls and advice for consumers and homeowners:

  • Don’t believe what you read in the newspapers or hear on TV. Reporters are just as lazy as lawyers and everyone else. They don’t know much about economics, they know less about foreclosure and even less about the whole mortgage meltdown process. Even the so-called “economists” that write columns are largely misinformed. 
  • The situation is much worse than is being reported. Housing prices will continue to decline. The dollar will continue its downward spiral and oil will continue to climb upward regardless of supply and demand — because the oil companies are bound and determined to get the price of a barrel of oil over $200 before the the next president takes office. The media is spitting out what they are told in the hope of avoiding a panic. The best we can hope for is that the crash will be elongated in time so we can adjust to it. 
  • Don’t believe the government is going to help you in time for it to mean anything. If you want to keep your house, preserve your credit, and go after the lenders and their pals that screwed up the credit markets all over the world then get to work on it yourself. Get the TILA AUDit. Rescind the transaction where appropriate. Recover all closing costs and interest paid since the closing. Negotiate to lower the principal on your mortgage because the lender was part of the “team” that fooled you any everyone else about fair market values.
  • Don’t use credit consolidators, debt re-relief and or tax relief organizations. They are selling ice in the winter. It costs money and they rarely do anything productive. 
  • Don’t believe lawyers who tell you how limited your options are in defending the foreclosure. Nobody taught them Truth in Lending, Respa or RICO standards in law school and few of them have ever run across it. They are wrong — the odds are stacked in your favor not the lenders. But you must use the remedies available to make that work for you.
  • Don’t believe anyone that tells you they know how to do TILA audits or how to negotiate with lenders over TILA claims. Most of them are full of crap. Make them prove it and ask for references and then check around on the internet for more references.
  • Don’t believe that someone has authority to speak for the lender just because they say so. Demand proof of authorization by getting a letter from some lender or owner of a mortgage backed security that represents that they are in fact the owner of the mortgage and note, and that you may speak with their representative (by name, address and contact information and signed by authorized person). You should demand to see copies of assignments, sales or encumbrances  and indentures based upon your mortgage and note. 
  • Giving notice of rescission removes the mortgage and removes the liability on the note. There is nothing to foreclose because the lender has no lien and has no note.
  • Don’t rely upon the automatic stay in bankruptcy unless you are prepared to do battle, challenging the authority of the entity seeking to lift the automatic stay. It is highly likely they don’t have the authority and they don’t have the documents to back them up. 
  • Don’t allow the mortgage lender or trustee to be named as creditors of a liquidated claim. You want to state it as an unliquidated claim, contingent upon the adversary proceeding, and contingent upon the real party in interest (owner of the mortgage and note) showing up. If you file your initial petition correctly, you will name the original lender and trustee as nominal creditors with an asterisk and note stating that upon information and belief this lender and this trustee no longer own or have authority to speak for the the true owner of the note and mortgage by virtue of an assignment that took place soon after closing of both the servicing rights and then substantive rights under the mortgage security agreement and the indentures of the note. 
  • Don’t rely on just any bankruptcy lawyer. Most lawyers are deficient in litigation skills and intimidated by the process — especially in Federal Court and even more so in Bankruptcy Court. If you have a foreclosure or loan issue, you want to convert the mortgage and note to a contingency that must be proven by the lender in an adversary proceeding. Get references from the lawyer that shows experience in adversary proceedings and a working knowledge of TILA, RESPA etc. 
  • Don’t rely upon the advice that it is all over when the “lender” takes title in a non-judicial or even judicial sale. First, you still have all your rights against the lender for refunds and damages. Second, you can file a quiet title action or motion to set aside order of sale or foreclosure on the basis of fraud — the fraud being that the Plaintiff/Petitioner lacked ownership of the mortgage and note, therefore lacked standing, and had no legal authority in writing to go forward with the sale and foreclosure and that that in any event, the amount demanded was wrong because of refunds due to you through violations discovered in your TILA audit. 
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