Foreclosure Defense: Cash for Keys Offer and TILA Defenses

Cash for keys is an offer from somebody that basically says that you are no longer the owner of the property, we can get an order of eviction, we can get the sheriff to throw you out, or you can accept $1,000 (or whatever the amount is in the offer) and get out on your own.

If you accept such a deal do not sign anything except a document that says you are acknowledging payment and that you will vacate the property. If the offer contains any language that looks like a release of other claims, do not sign it unless you have decided, after consulting local counsel, that you are willing to give up what might be very substantial claims against the lender which can always be brought after the sale. 

Cash for keys is a good option if you are giving up anyway. And nobody can blame you from walking away from a fight that you don’t understand, that you can’t match the resources or power of your adversary, and where you don’t know what to do and have no knowledge of the outcome of fighting this. Being out of money doesn’t help either.

 

So whatever decision you make is understandable and RIGHT FOR YOU because you made it. There is no right and wrong here except that what the lenders did here in conspiracy with Wall Street was clearly wrong.

 

ALL THAT SAID —- MY SUGGESTION IS THAT YOU FIGHT ON AND HAVE AN EMERGENCY PLAN B READY IF YOU NEED IT. AND CONSULT WITH COMPETENT COUNSEL BECAUSE THIS IS GENERAL INFORMATION AND NOT LEGAL ADVICE IN YOUR PARTICULAR CASE.

If you delay the eviction through bankruptcy (you can get one of those do it yourself kits) you should probably send a letter registered mail return receipt requested to the lender and file a Chapter 13, along with an adversary proceeding which says basically that the lender committed many violations of the Federal Truth in Lending Act (TILA), that you are entitled to an accounting for all interest paid, all points paid, and a refund of all out-of pocket expenses associated with finance charges or the costs of closing on the loan, and that you hereby rescind the transaction.

Under TILA (see my recent BLOG posts) this eliminates both the security interest and the debt.

 

You must allege that the lender procured title through trickery and fraud, that they have no security interest, that they have no entitlement to payment, and that they are NOT the owner of the actual security instrument nor the debt which has been sold as a collateralized mortgage obligation to a third party investor who has never been joined in the prior proceedings; thus they failed to join an indispensable party which means that the prior procedures which resulted in transfer of title were not only procured by trickery, fraud on the court, and overreaching, they did so without properly or legally invoking the jurisdiction of the local government that authorizes judicial and non-judicial sale.

 

Thus the taking of the title was an unconsitutional denial of due process, void ab initio (at inception) and therefore unenforceable by any court.

Hence when they (the lenders) move for relief from stay, you can point to their lack of standing because they did not legally or properly obtain title and you have rescinded (attach copy of your letter) so they don’t have the option of clearing it up.

Now here is the kicker.

Under TILA, when you are NOT REPRESENTED By COUNSEL the Judge, especially if it is in Federal Court (which is the case in all bankruptcies) MUST in essence act as your lawyer and review the facts, the allegations, the case law and the circumstances to determine if there is ANY basis to support the relief you are asking for or to deny the relief the lender is asking for.

In other words you are better off not having a lawyer than having one who barely knows what he or she is doing. The bankruptcy judges are almost universally well-schooled in the law and very sharp. You couldn’t have a better lawyer! Of course if you DO know a very competent attorney who is familiar with these concepts, then you are better off going with the lawyer than without one.

About these ads

8 Responses

  1. FRAUD VITIATES A CONTRACT…. Edgrrr…

  2. By what right do these hustler pretender lenders, get to, reattach, the spun off the mortgage, note, back to the mortgage, so as to defraud the court, as if the notes were not marked PAID IN FULL, as the cost of entry by the Bankster into the multisale scheme of MERS , wherein the only explanation for voiding the note and the mortgage, is the scam of cheating at world trade. ? No wonder, the world trade center, is, no longer with us, whatwith all the spontaneous combustion, of those hot bundled notes,. And, why do the lieyers get to embezzle, with impunity, from those who are being defrauded by, pretender lenders, and their foreclosure mills, as well as crooked judges [are there any other kind?], who bring their 12 I.Q.s to the job, and, having taken an oath to uphold the law, turn a blind eye, to, a steady stream of lieyer scammed, criminality, and, malpractice..?

  3. Unfortunately, we don’t get to kill, all the lieyers, who’ve infiltrated, every aspect of our socalled rule of law; nor do we get to have open season, on scofflaw judges, who twist the law, to fit their delusions. Until then, there will be no justice. I say that lieyer/politician generated wars, should put these parasites, right out there on the front lines… Where, in this Country of, by, and for the lieyer, is the Department of Constitutional Rights; to, arrest lieyers who embezzle, all they can extort, then, tell a client: you’re free to go get another lieyer, after ripping off the money they stole, so as to see to it that the fleeced sheeple, couldn’t possibly, keep supporting the UnAmerican BAR asses….or have the stolen money, to defend themselves from other lieyers’ criminalities ??? Edgrrr… Stalag Skew, Concentration Kamp Kounty… Ahnolds’ Gulag, Schizofornia…

  4. Thank you! This answers a few questions & solidifies a gut instinct – (release of all claims doc). Finding a lawyer is very, very difficult especially in the local good ol’ boy network. The question often arises: Who ISN’T paid off?

  5. Rose says : I absolutely agree with this !

  6. Dell says : I absolutely agree with this !

  7. Can a mortgage be voided or canceled if the contracts, promissory note, deed of trust, TILA nd RESPA disclosures were not produced in the native language of the purchaser or owner, e.g. Spanish?

  8. [...] See also Foreclosure Defense: Cash for Keys Offer and TILA Defenses [...]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,362 other followers

%d bloggers like this: