Foreclosure Defense: Forcible Detainer and Eviction

We have received several urgent/emergency requests from people who are so far along in the process of this mortgage meltdown, that they feel hopeless and helpless. We can’t give you a magic bullet, but things are not quite as bad as they seem.

As for stopping the eviction —-

Yes, it is POSSIBLE: It depends upon whether you get a lawyer and it depends upon whether the lawyer knows how to throw some weight around at the courthouse. NOTE: You WILL STILL NEED A TILA AUDIT AFTERWARDS.

1. File petition for emergency temporary injunction alleging fraud: that the lender is not the owner of the mortgage and note, that the trustee is not properly authorized to post the sale notice and that they did so illegally and with intention to deceive the borrower and the Court, causing the Borrower and the Court to reasonably rely upon the statements of facts and procedures used by the Lender/Trustee is posting the notice of sale and going through with the sale. 

2. File complaint alleging the above fraud and denial of due process in that this non-judicial sale forces an unsophisticated borrower to get a lawyer and fight with the lender on sophisticated grounds of lack of standing, TILA violations, RESPA, RICO and other legal theories that a lay person would not be likely to know or know how to use even if they were aware of the theories. 

3. Rescind the transaction and file in the above complaint(s) that you have been denied your right to rescind which you hereby do so, and file lis pendens based upon the rescission. Arguably the lien form the mortgage and liability on the note will be extinguished, but you still need the TILA audit to back up your general allegations and you still need to follow TILA procedures. 

4. File complaint, along with the above for refunds of interest, points, closing costs, attorney fees, court costs etc.

5. Contest the eviction as void or voidable because the correct procedures were not followed or were fraudulently presented such that the court system and infrastructure supporting the non-judicial sale were applied improperly. This is called alternative pleading.

6. If the due process argument is turned down then the Court can still strike down the sale because the lender was not the real party in interest and therefore the Trustee was proceeding based upon “authority” from someone who had neither any interest nor even any information on the payments.

7. NOTE: In most cases the servicing rights to the loan have also been sold to yet another party which means that only they know what the real payment history has been. But if the documents don’t show clear authroity of the new servicing agreement (frequently Countrywide) to receive payments and accountability therefor, the argument can be made that the servicer can only account for the payments they received but can’t guarantee to the Court that the servicer knows if those payments were the only payments made.

8. The borrower could take the position that ALL interested parties — the original lender and the servicing agency and the CDO investor, who is the real party in interest on the mortgage and note, would be required to show documentation of assignment, authorization etc. In most cases this documentation either does not exist, cannot be found or is too vague for them to use. There have already been instances where the result was that the borrower ended up with clear title to the house and no mortgage or note to pay.

9. File Quiet Title action as alternative pleading so that lender, investor and trustee are forever blocked from asserting claims.

10. Consider Bankruptcy — Chapter 13, with an adversary proceeding alleging all of the above.

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2 Responses

  1. File Quiet Title action – what is this and what does it mean?

    how can you fight to rescind after the three years? ex- first mortage with ABC bank was four years ago, but second mortgage with same ABC bank was increased less than a year ago. can i ask to rescind since they are the same bank?, even though the first is four years old?

  2. this situation i am in has been going on for eight years. your website has been very helpful as i could not find an attorney to represent me.

    even legal aid said, they didnt have the monies or attorneys to go to bat for me.

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