Foreclosure Defense: Why People are Ignoring Their Rights

Sometimes this mission of mine gets frustrating. I’m trying to provide the necessary information for homeowners and their lawyers to defend their property, get damages from their lender, and potentially walk from the foreclosure house with free and clear title and no note instead of walking from their homes.

Lawyers are mostly skeptical and people are too depressed and beaten to take all this seriously. But you DO have rights, and it isn’t about delaying the inevitable. It is about getting relief you deserve and can legally obtain but only if you assert those rights. The bad guys are betting you will walk away like 57% of homeowners are doing. I’m betting on you — that you will stand up for your rights and stop the current disaster and turn it to your advantage.

Nearly all current foreclosure actions are legally improper in both procedure and substance.

Notice of Sale is not available where there are equitable and constructive rights of third parties (i.e., investors in the securitization chain).

ALL foreclosures involving securitized loans are required to be initiated as judicial foreclosures — not by non-judicial Notice of Sale. This forces the “lender” to prove it is a holder in due course and has the right to foreclose. It also gives the homeowner/borrower the opportunity to find out whether the insurance and other agreements attendant to the pooling and service agreements, actually created alternative sources of payment.

In many cases, the note has been paid in full by a third party AND the monthly payments are being made without contribution from the borrower. These third parties might have rights to collect against the “lender” or the “borrower” but that doesn’t give the “lender” the right to foreclose. Those rights go with the note, according to LAW, and a mortgage servicer by definition does not own the note even if they have possession of it.

In many cases the note was forged in advance of the loan closing in order to pre-sell it (the industry calls it selling forward). Thus there is no endorsement on the note showing a transfer of ownership, and yet the payee “lender” has received all of the principal balance PLUS a fee of around three percent, plus the fee for servicing.

Now they are coming into court, fully paid, and foreclosing on the house, so they want the property too. And they want a deficiency judgment as well. It is highway robbery and the news media is ignoring the black letter law and the rights of homeowners giving the misimpression that this transfer of wealth to the upper echelons of our society cannot be stopped or reversed. It isn’t true. Most homeowners are giving up without a fight (57%). They have rights and meritorious defenses.

They can turn back the tide if they have the information. I am a retired (OK, now semi-retired) attorney who is giving out information for free on my website. More than 100 homeowners nationwide have used the information contained on my blog and walked out of foreclosure proceedings with their house free and clear of the note and mortgage. Lawyers and pro se homeowners are using it. You can too.

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