Foreclosure Defense and Offense: Common Law Liens

At the suggestion of a certain non-lawyer I know, I did some research and uncovered the following, which is now resting comfortably in Garfield’s Glossary:

Common-law lien

Created by a sworn affidavit, and filed for a few dollars at the recording office where your property is located, it is a lien under common law giving a creditor (You, as a bailee) in possession of property the right to retain possession until payment of the amount due. In the context of the mortgage meltdown, this device might be available in certain states, but you need to follow the rules for filing liens very carefully. In this case, the foreclosure sale would have already occurred (although there might be a case for pushing this device to ANYTIME including before the sale). You would state all your claims for fraud, appraisal fraud, TILA violations, usury etc. against anyone and everyone who had anything to do with your loan that you uncovered through research. It forces ALL the parties to go to court to get rid of your lien and it forces the party who allegedly foreclosed on your property to bring the lawsuit against you, thus enabling you to file an answer, affirmative defenses and counterclaim — or, in other words, converting the non-judicial sale to a judicial sale.

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