Foreclosure Defense — Strategic Bankruptcy Options

Strategic Comment: There are two ways for you stop foreclosure, sale and eviction dead in its tracks. One is to file bankruptcy under Chapter 13 which is an opportunity for debtors to reorganize their payments to creditors.

  • An automatic stay goes into effect immediately upon filing with the Bankruptcy Court. Creditors who say or do anything in furtherance of collecting a debt are committing a federal crime from the moment it is filed, whether they know about it or not.
  • However, the payments include fees to the Court and Trustee which exceeds 10% of what you pay into the Court for the benefit of your creditors, so since you are strapped for cash it further impedes your ability to work out a realistic plan.
  • Also for secured debts like mortgages, the lender can come into Bankruptcy court and ask the court to lift the automatic stay which in the past has been routinely granted and for the most part still is, UNLESS YOU DO SOMETHING ELSE.
  • YOU SHOULD ALSO NAME, AS THE CREDITOR, THE ORIGINAL LENDER, and state the amount of the loan as a contingent liability to them. The fact is, in most cases, you have not been presented with proof of transfer of anything, nor seen any assignment, or what rights or obligations were picked up in transactions after your closing by third parties who own the servicing rights, or the mortgage or the note. The Trustee or other party coming into court or posting notices of sale on your property probably is getting his/her marching orders from someone who either doesn’t have or can’t prove they know the amounts you paid, to whom or what is currently due. PLACE THE BURDEN WHERE IT BELONGS — ON THEM.
  • Then you should state the present mortgage servicing entity to whom you are now sending your payments (this applies only where the loan has been sold which is true in 95% of the cases) as a contingent liability in an unknown or unliquidated amount.
  • Then you should add a creditor “john Doe” as also an unknown unliquidated debt as the possible owner of a security under which he has ownership of the mortgage and note.
  • Then you should file an adversary proceeding or action under TILA, RESPA, fraud etc. making all appropriate claims for rescission, refund of interest, points, loss of value in the property etc.
If your case is handled in this way there is a higher probability that you will survive the motion for lifting of the stay as the movant will have to prove the chain of title and authority on the mortgage and note, thus giving rise the the issue of legal standing for them to standing in the courtroom at all.
The second option, if you are faced with foreclosure, sale or eviction is just file the TILA action in Federal court and then go the State Court and ask the State Court to issue a stay because there is pending litigation in Federal Court. Usually State Court judges are more than happy to get the matter off their desks and thus grant your motion for stay, but they might not be under no obligation to do so.
Remember that whether you go straight into Federal Civil Court or Federal bankruptcy Court, which is a different division, and you are NOT represented by counsel, the Judge must do the legal research himself to determine the merit of your claims. If you are represented by counsel you need to make damn sure he knows what he is doing. Most bankruptcy lawyers don’t know an adversary proceeding or TILA action from egg on the wall. They have no experience with it. Very few lawyers or judges know this area since it only became important in the last couple of years.
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65 Responses

  1. Then you should add a creditor “john Doe” as also an unknown unliquidated debt as the possible owner of a security under which he has ownership of the mortgage and note.

  2. It is really good to read this summery thanks to share it.

  3. Thanks for sharing it with us. I truly appreciate your efforts.Good information.

  4. Aw, this was a very nice post. In concept I want to put in writing like this moreover – taking time and precise effort to make a very good article… but what can I say… I procrastinate alot and on no account appear to get one thing done.

  5. Thanks for sharing your info. I truly appreciate your efforts and I am waiting for your
    next post thank you once again.

  6. I foreclosed on my own property. BAC recorded a notice of recession of the NOD and NTS. All alleged real parties in interest responded in writing disclaiming any interest in the property. I decided to use this strategy to see if it works. And it works.

  7. Looking for an attorney who “gets it” in CT
    Can you help in CT paralegal,advisor,attorney
    Darrell
    dneilander@sbcglobal.net

  8. Litigation within the Federal District Court or Bankruptcy Court System

    A party seeking relief in any Federal Court ―bears the burden of demonstrating standing and must plead its components with specificity Again, the minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability.

    Furthermore, in order to satisfy the requirements of Article III of the United States Constitution, any claimant asserting rights in a Federal Court must show he has personally suffered some actual injury as a result of the conduct of the adverse party.

    In the past decade, electronic information and data transmission have increased speed at which we do business. These seemingly efficient tools have made it easier for banks to transfer funds and buy and sell notes without leaving a paper trail. However, now that the real estate bubble has burst, courts are demanding to see the paper trail for promissory note before allowing lenders to foreclose on real property. As required by the Constitution, courts must confirm that a lender actually has standing and will benefit from the court granting relief from an automatic stay before the court can do so.

    In re Hwang, 396 B.R. at 767, quoting 6A Wright, Miller & Kane, Federal requirement that actions be prosecuted in the name of the real party interest. [t]he right to enforce a note on behalf of a note holder does not convert the note holder’s agent into a real party in interest. “As a general rule, a person who is an attorney-in fact or an agent solely for the purpose of bringing suit is viewed as a nominal rather than a real party in interest and will be required to litigate in the name of his principal rather than in his own name.”

    Federal Practice and Procedure: Civil 2d § 1553. The real party in interest in relief from stay is whoever is entitled to enforce the obligation sought to be enforced. Even if a servicer or agent has authority to bring the motion on behalf of the holder, it is the holder, rather than the servicer, which must be the moving party, and so identified in the papers and in the electronic docketing done by the moving party’s counsel. It follows that orders granting relief from stay must do so to the holder of the obligation to be enforced — not the servicer or others, or the collective “Movant,” as in the proposed order UBS AG submitted.

    The Bankruptcy Court for the Central District of California reconsidered its denial of IndyMac Federal Bank’s (IndyMac Bank”) motion for relief from the automatic stay. Hwang, 396 B.R. at 760. In this case, IndyMac transferred ownership of the note to an unknown party, but never transferred possession of the note. Id. The court found that, despite IndyMac Bank being entitled to enforce the note against the debtors, it was not the real party in interest because it was not ultimately entitled to the payments made on the note, so the court affirmed its denial of IndMac Bank’s motion for relief from the automatic stay. Id. At 766-67.

    Unlike Hwang, the movant here asserted that it was the servicer of the note and acting on behalf of the holder,. In addition, neither UBS AG nor ACT had actual possession of the note and thus neither appeared to have any right to enforce it. Id at 370. While establishing that UBS AG is the agent rather than the note holder seems like it might be an easier standard to meet, it must still show it is the agent to ACT. Id. Even if it could, it must also show ACT is the real party in interest and join ACT as a party or litigate in its own name instead of its own name. Id. Because UBS AG was not the real party in interest nor could it show it was acting on behalf of the real party in interest, the court denied the motion for relief from stay. Id.

    In the case below, the courts discuss whether a party seeking relief from automatic stay has standing to bring the motion and/or is the real party in interest. More courts use the terms of standing and real party in interest interchangeable because the two concepts are closely related, but they do have distinct requirements.

    Standing has both constitutional and prudential (i.e, self-imposed) requirements. The real party in interest question is really the prudential component of the overall standing analysis, while injury-in-fact is a constitutional requirement. Both requirements must be met before a court can grant relief from the automatic stay.

    In Washington, only the holder of the obligation secured by the deed of trust is entitled to foreclose. RCW 61.24.005(2) defines “beneficiary” under a deed of trust as the holder of the instrument or document evidencing the obligations secured by the deed of trust. See also Fidelity & Deposit Co. of Maryland v. Ticor Title Ins. Co., 88 Wash. App. 64, 943 P.2d 710 (1997). Having an assignment of the deed of trust is not sufficient, id. at 68-69, because the security follows the obligation secured, rather than the other way around. This principle is neither new nor unique to Washington: [T]ransfer of the note carries with it the security, without any formal assignment or delivery, or even mention of the latter.

    Carpenter v. Longan, 83 U.S. 271, 275 (1872). It follows that, to have standing, UBS AG must establish its authority to act for the holder of Debtors’ note.

    Evidence: Some courts require a party moving for stay relief to provide admissible evidence tracing the identity of the various holders and servicers of the mortgage or deed of trust in question, and

    the holders of the note evidencing the underlying obligation. See Hayes, 393 B.R. at 269; and Parrish, 326 B.R. at 720-21. I need not here go so far, because UBS AG’s proof neither shows who presently holds Debtors’ note nor its own authority.

    A district court has the inherent power to assess attorney‘s fees against a party who has ―acted in bad faith, vexatiously, wantonly, or for oppressive reasons.‖ Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59 (1975) (internal quotations omitted). In this regard, if a court finds ―that fraud has been practiced upon it, or that the very temple of justice has been defiled,‖ it may assess attorney‘s fees against the responsible party. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 (1946). In such instances, the imposition of sanctions ―transcends a court‘s equitable power concerning relations between the parties and reaches a court‘s inherent power to police itself, thus serving the dual purpose of ‗vindicate[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent‘s obstinacy.‘‖ Chambers v. Nasco, 501 U.S. 32, 46 (1991) (quoting Universal Oil, 328 U.S. at 580).

    866-882-6767

  9. Bankruptcy Adversary Proceeding is the best way for anyone facing foreclosure. I suggest a chapter 7 filing. The reason for chapter 7 is the trustee must file abandonment of property, immediately thereafter is when you should file the adversarial complaint. If trustee fails to abandon the property and you win quiet title the trustee can pursue the property to pay off the creditors. The trustee can take over the adversary if the asset “real Property” hasnt been abandoned. More details are listed at http://www.bklawsuit.com.
    Finding an attorney that knows this strategy is like finding a needle in a haystack. I do not suggest anyone file such a proceeding in pro se. Bankruptcy Adversarial proceedings are very complex and are nothing like state court actions. So be careful, get educated and find experienced legal help in using this strategy.

  10. WHY DO WE ARGUE IMMATERIAL THINGS WITH LENDERS . . . .? WHILE WE GIVE AWAY OUR HOMES!

    COMMENTS: I have a countrywide home loan and now it’s serviced a bank of America it backed by Fannie mae.4 weeks ago i talked to the vp of Fannie mae and they gave me a loan mod BAC so i was served with a foreclosure . . . So why I’m dealing with Fannie mae and why did Fannie give me a loan mod?

    Your fraud is brought a clever angle played by lenders servicing agents.

    They can calculate the day you go into default in advance of the event. A $1,500 a month modified payment starting in January on a $2,500 proper payment will default in October by 120 days.

    It’s based upon illegally accepting partial payments in a default. It’s a misjoinder, estopple and claim of estoppel by lache. (Scholarly view – you know they cannot accept payments on a loan in default). .

    The lache is for timing the default with the month the pool rolls out of a trust investment. Then what gives?

    Maybe they do not own the loan …but foreclose anyway.

    M.soliman
    Expert.witness@live.com

  11. Bankruptcy lawyers available to challenge lenders standing in Bankruptcy adversary proceedings.’PRODUCE THE NOTE OR RELEASE THE LIEN

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  13. I need either a Bankruptcy Attorney that can handle an Adversary Proceeding per: TILA RESCISSION VIOLATIONS, TILA vIOLATIONS, Fraud Upon The Court, Forged Documents ,Quiet Title Action, etc… OR……an Attorney who can file a Complaint in Federal Court for the same as well as a Motion for an Injunction to stop the foreclosure sale ASAP!!! in Florida. Does anyone know an attorney who gets it and is available????????

  14. MY PROPERTY WAS SOLD FEBRUARY 8, 2010. I HAD PREDATORY LENDING. CAN I FILE A COMPLAINT NOW PRO PER – WHAT KIND? AND THEN NOT SERVE IT TIL I GET A LAWYER, AND THEN FILE A LIZ PENDENZ? WOULD SUCH A COMPLAINT BE A “QUIET TITLE” OR COULD IT JUST BE A GENERAL FORM COMPLAINT AND I COULD BE SEEKING A LAWYER?

  15. I’m in chapter 13 objecting to Motion for Relief from Stay. The judge allows a declaration by the bank as proof of claim (that they hold the note).

    Looking for a way to get the court to grant an evidentiary hearing, or force the bank to prove their claim when they have submitted nothing more than a copy of note signed with a detached copy, undated endorsement.

    Can one file a motion for evidentiary hearing in the Bk court?
    What are the alternatives here?

  16. 2ND DCA # 2D09-2671- READ THIS NEW MOTION A LENDER CAN FILE – Serious implications. Also after you have read the opinion, The 2nd DCA acknowledges there were failed attempts at mediation, it was failed because the mediator was forced to withdraw because of fraud, It was simply never scheduled ANOTHER BIG PROBLEM OF Judge BAIRDS’ but ordered on two occassions . The 2nd DCA are also aware a Written objection was filed, but it was never heard, The court contradicts itself, stating no objection was made until and for the first time on appeal. This is the same objection that had not been heard, was still pending, stated the issues, had the validity of the note questioned, and clearly stated, in part, discovery had been pending and unanswered for 4 years to correct the true figures, that plus I paid for the house and the court clerk would not stop the sale as per butler and hosches instruction.

    Doesn’t Rule 1.440. states no judgment can be rendered where there are material issues of law or fact still pending ? issues were raised but ignored in their rational of due process.

  17. ATTENTION ALL SUPREME COURT ATTORNEYS, QUICKLY, CERTIORITI … ALL HOMEOWNERS WILL BE AFFECTED THIS 2ND DCA- DECISION ……FORECLOSURE MILLS FOUND A NEW WAY OF GETTING A FINAL JUDGMENT…….NO SUMMARY JUDGMENT WILL BE NEEDED, NOT APPORTUNITY WILL BE AFFORDED BEFORE TRIAL TO REVIEW EVIDENCE OF ANY KIND, NO NEED TO SHOW EVEN A CONTRACT, MORTGAGE OR A NOTE. THE JUDGE JUST NEEDS TO SAY PRINTOUTS OF COMPUTER FORMS ARE EVIDENCE OF THE DEBT AND PROOF OF OWNERSHIP OF THE NOTE AND OR MORTGAGE The evidence is overwhelming and deep rooted. Also watch out for Judge Baird, see weidner law blog, he won’t hear Motion to Dismiss, even at court.

    Every closing document I have , save perhaps two, are forged. All fha docs, several fha numbers, title insurance, Even the Mortgage Insurance Certificate is in another name. Qualified written request done, bankruptciy strategies ready, but still need an attorney

  18. I AM IN DIRE NEED TO FIND AN ATTORNEY “WHO GETS IT” IN UTAH. ALL ATTORNEYS I HAVE CONTACTED SAY IT IS NOT POSSIBLE TO ACHEIVE THESE RESULTS OF HOME OWNER RECEVIEVING THEIR TITLE FREE OF MORTGAGE. ALSO, THAT THERE ARE NO CASES FOUND TO PROVE IT WORKS. CAN SOMEONE PLEASE GUIDE ME TO AN EXPERIENCED ATTORNEY, IN UTAH, THAT WOULD LITIGATE FOR ME IN A CHAPTER 13 BAKRUPTCY PROCEEDING, CONTESTING MOTION FOR RELIEF OF STAY.

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    IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGESee More

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  21. Anthony Amatrudi. Mortgage Declared Unenforceable I love this Bankster stealing the American Dream.Protect your self.The bankster will be after your home soon.Mortgage Decleare

    See Bellitri v. Ocwen OPINION below
    The following comments are from O. Max Gardner III
    QUIET TITLE GRANTED
    Mortgage Declared Unenforceable in DOT Case: NOTE DECLARED
    UNSECURED
    “When MERS assigned the note to Ocwen, the note became unsecured and the deed of
    trust became worthless”
    Editor’s Note:
    We know that MERS is named as nominee as beneficiary. We know that MERS is NOT
    named on the note. This appellate case from Missouri, quoting the Restatement 3rd, simply
    says that the note was split from the security instrument, and that there is no enforcement
    mechanism available under the Deed of Trust. Hence, the court concludes, quiet title was
    entirely appropriate and the only remedy to the situation because once the DOT and note
    are split they is no way to get them back together.
    NOTE: THIS DOES NOT MEAN THE NOTE WAS INVALIDATED. BUT IT DOES
    MEAN THAT IN ORDER TO PROVE A CLAIM UNDER THE NOTE OR TO VERIFY
    THE DEBT, THE HOLDER MUST EXPLAIN HOW IT ACQUIRED ANY RIGHTS
    UNDER THE NOTE AND WHETHER IT IS ACTING IN ITS OWN RIGHT OR AS
    AGENT FOR ANOTHER.
    The deed of trust, …did not name BNC [AN AURORA/LEHMAN FRONT
    ORGANIZATION TO ORIGINATE LOANS] as the beneficiary, but instead names
    Mortgage Electronic Registration System (MERS), solely as BNC’s nominee. The
    promissory note does not make any reference to MERS. The note and the deed of trust both
    require payments to be made to the lender, not MERS.
    a party “must have some actual, justiciable interest.” Id. They must have a recognizable stake.
    Wahl v. Braun, 980 S.W.2d 322 (Mo. App. E.D. 1998). Lack of standing cannot be waived and
    may be considered by the court sua sponte. Brock v. City of St. Louis, 724 S.W.2d 721 (Mo.
    App. E.D. 1987). If a party seeking relief lacks standing, the trial court does not have
    jurisdiction to grant the requested relief. Shannon, 21 S.W.3d at 842.
    A Missouri appellate court, without trying, may have drawn a map to a defense to foreclosures-if
    borrowers can figure it out before the Missouri Supreme Court overturns the decision in Bellistri
    v Ocwen. The opinion shows how an assignment of a loan to a servicing company for collection
    can actually make the loan uncollectible from the mortgaged property.
    This case concerns the procedures of MERS, which is short for Mortgage Electronic Registration
    Service, created to solve problems created during the foreclosure epidemic of the 1980s, when it
    was sometimes impossible to track the ownership of mortgages after several layers of savings
    and loans and banks had failed without recording assignments of the mortgages. The MERS
    website contains this explanation:
    MERS is an innovative process that simplifies the way mortgage ownership and servicing rights
    are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the
    need to prepare and record assignments when trading residential and commercial mortgage
    loans.
    MERS is the named mortgage holder in transactions having an aggregate dollar value in the
    hundreds of billions, and its service of providing a way to trace ownership of mortgages has
    played a large role in the securitization of mortgages and the marketability of derivative
    mortgage-backed securities, because it seemed to eliminate the necessity of recording
    assignments of mortgages in county records each time the ownership of a mortgage changed,
    allowing mortgage securities (packages of many mortgages) to be traded in the secondary
    market, with less risk.
    This case began as a routine quiet title case on a collector’s deed, also known as a tax deed.
    Following the procedure by which people can pay delinquent property taxes and obtain the
    ownership of the delinquent property if the owner or lien holder fails after notice to redeem,
    Bellistri obtained a deed from the Jefferson County (Mo.) collector.
    Because of the possibility of defects in the procedures of the county collectors and in the giving
    of proper notices, the quality of title conferred by a collector’s deed is not insurable.
    A suit to cure the potential defects (called a “quiet title suit”) is required to make title good, so
    that the property can be conveyed by warranty deed and title insurance issued to new lenders and
    owners. The plaintiff in a quiet title suit is required to give notice of the suit to all parties who
    had an interest in the property identified in the collector’s deed.
    A borrower named Crouther had obtained a loan from BCN Mortgage. The mortgage document
    (called a deed of trust) named MERS as the holder of the deed of trust as BCN’s nominee,
    though the promissory note secured by the deed of trust was payable to BCN Mortgage and
    didn’t mention MERS.
    Crouther failed to pay property taxes on the mortgaged property.
    Bellistri paid the taxes for three years, then sent notice to Crouther and BNC that he was
    applying for a collector’s deed. After BNC failed to redeem (which means “pay the taxes with
    interest and penalties,” so that Bellistri could be reimbursed), the county collector issued a
    collector’s deed to Bellistri, in 2006.
    Meanwhile, MERS assigned the promissory note and deed of trust to Ocwen Servicing, probably
    because nobody was making mortgage payments, so that Ocwen would be in a position to
    attempt to (a) get Crouther to bring the loan payments up to date or (b) to foreclose, if necessary.
    But this assignment, as explained below, eliminated Ocwen’s right to foreclose and any right to
    the property.
    Bellistri filed a suit for quiet title and to terminate any right of Crouther to possess the property.
    After discovering the assignment of the deed of trust to Ocwen, Bellistri added Ocwen as a party
    to the quiet title suit, so that Ocwen could have an opportunity to prove that it had an interest in
    the property, or be forever silenced.
    Bellistri’s attorney Phillip Gebhardt argued that Ocwen had no interest in the property, because
    the deed of trust that it got from MERS could not be foreclosed. As a matter of law, the right to
    foreclose goes away when the promissory note is “split” from the deed of trust that it is
    supposed to secure. The note that Crouther signed and gave to BNC didn’t mention MERS, so
    MERS had no right to assign the note to Ocwen. The assignment that MERS made to Ocwen
    conveyed only the deed of trust, splitting it from the note.
    When MERS assigned the note to Ocwen, the note became unsecured and the deed of trust
    became worthless. Ironically, the use of MERS to make ownership of the note and mortgage
    easier to trace also made the deed of trust unenforceable. Who knows how many promissory
    notes are out there that don’t mention MERS, even though MERS is the beneficiary of the deed
    of trust securing such notes?
    O. Max Gardner III
    In the Missouri Court of Appeals
    Eastern District
    DIVISION FIVE
    ROBERT BELLISTRI, ) No. ED91369
    )
    Respondents, )
    ) Appeal from the Circuit Court
    v. ) of Jefferson County
    )
    OCWEN LOAN SERVICING, LLC, ) Honorable Mark T. Stoll
    ) No. 06JE-CC00893
    Appellant. )
    ) FILED: March 3, 2009
    Introduction
    The appellant, Ocwen Loan Servicing, L.L.C.1, (Ocwen) appeals from a judgment
    of the Circuit Court of Jefferson County quieting title to real estate commonly known as
    1210 Airglades, Arnold, Missouri, 63010 (the property) in favor of Robert Bellistri. Both
    parties filed motions for summary judgment, and the circuit court held that Ocwen lacked
    standing to contest Bellistri’s deed. For the following reasons, we affirm.
    Facts
    On March 5, 2002, Glen Crouther purchased the property and executed a
    promissory note and a deed of trust. BNC Mortgage Inc. (BNC) was the lender and
    payee of the promissory note. In the deed of trust, Millsap, Singer & Dunn, P.C. was the
    1 Ocwen Loan Servicing, L.L.C. refers to Ocwen Loan Servicing, L.L.C., servicer for Deutsche Bank
    National Trust Company, as Trustee for the registered holders of the CDC Mortgage Capital trust 2002-
    HE1, as successor in interest to MERS, Inc.
    1
    trustee. The deed of trust, however, did not name BNC as the beneficiary, but instead
    names Mortgage Electronic Registration System (MERS), solely as BNC’s nominee.
    The promissory note does not make any reference to MERS. The note and the deed of
    trust both require payments to be made to the lender, not MERS.
    During 2002, 2003 and 2004, Crouther failed to pay taxes. At the second offering
    delinquent tax sale, Bellistri, the respondent, purchased the property and was issued a
    certificate of purchase on August 22, 2005. On May 12, 2006, Bellistri sent BNC a
    notice of redemption as required under the Jones Munger Act, Section 140.405 RSMo.
    (2006).
    On September 19, 2006, the collector of revenue of Jefferson County, Missouri
    issued Bellistri a collector’s deed. After the issuance of the collector’s deed, MERS, as
    nominee for BNC, assigned the deed of trust to Ocwen on April 4, 2007. The assignment
    of the deed of trust also contained language that this assignment also transferred any and
    all notes described in the deed of trust.
    Bellistri filed the instant action seeking to quiet title and eject Crouther from the
    property. Initially, Bellistri named Crouther as a defendant and published notice for all
    other unknown persons with an interest in the property. Later, Bellistri filed a motion to
    add Ocwen as a necessary, if not indispensable party. The circuit court granted his
    motion. Ocwen and Bellistri filed cross motions for summary judgment. The circuit
    court denied Ocwen’s motion and granted summary judgment in favor of Bellistri.
    Ocwen now appeals.
    2
    Standard of Review
    Whether a motion for summary judgment should be granted is a question of law
    and our review is essentially de novo. ITT Commercial Finance Corp. v. Mid-America
    Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is
    proper where the movant establishes the absence of any genuine issue of material fact and
    a legal right to judgment. Id. at 378. We will review the record in the light most
    favorable to the party against whom judgment has been entered. Facts set forth by
    affidavit or otherwise in support are taken as true unless contradicted by the non-moving
    party’s response. Id. at 376. We will affirm the trial court’s judgment if it is sustainable
    on any theory. Citibrook II, L.L.C. v. Morgan’s Foods of Missouri, Inc., 239 S.W.3d 631
    (Mo. App. E.D. 2007).
    Points on Appeal
    On appeal, Ocwen argues that the trial court erred in entering summary judgment
    in favor of Bellistri because (1) Bellistri lost his interest in the property by failing to send
    MERS any notice pursuant to section 140.405; (2) the notice Bellistri sent to BNC
    misrepresented the redemption period and was therefore insufficient; (3) summary
    judgment should have been entered in its favor because Bellistri failed to comply with
    section 140.405; and (4) Ocwen had standing in this quiet title action because it was the
    named grantee on the assignment of the deed of trust.
    Discussion
    We will address the issue of standing first, as it is a jurisdictional matter
    antecedent to the right to relief. Farmer v. Kinder, 89 S.W.3d 447, 551 (Mo. banc 2002).
    3
    Standing refers to a party’s right to seek relief. Id. It “requires that a party seeking relief
    have a legally cognizable interest in the subject matter and that he has a threatened or
    actual injury.” Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d
    43, 46 (Mo. banc 1989). Standing requires the party to be sufficiently affected so as to
    ensure a justiciable controversy. Shannon v. Hines, 21 S.W.3d 839, 841 (Mo. App. E.D.
    1999). Therefore, a party “must have some actual, justiciable interest.” Id. They must
    have a recognizable stake. Wahl v. Braun, 980 S.W.2d 322 (Mo. App. E.D. 1998). Lack
    of standing cannot be waived and may be considered by the court sua sponte. Brock v.
    City of St. Louis, 724 S.W.2d 721 (Mo. App. E.D. 1987). If a party seeking relief lacks
    standing, the trial court does not have jurisdiction to grant the requested relief. Shannon,
    21 S.W.3d at 842.
    The Jones Munger Act, RSMo section 140.330, provides that one who acquires a
    collector’s deed may bring an action to quiet title, naming as defendants “all parties who
    have, or claim to have, or appear of record in the county where such land or lot is
    situated, to have an interest in, or lien upon such lands or lots.” Section 140.330. Here,
    Ocwen appears of record to have an interest in the property because it is the named
    grantee on the assignment of the deed of trust.
    While this section allows broad joinder of defendants, a named defendant will not
    prevail unless the defendant has at least some interest in the property. Scott v. Unknown
    Heirs of Solomon Garrison, 235 S.W.2d 372, 374 (Mo. 1951). In Scott, the plaintiff
    claimed title by virtue of a tax deed. The plaintiff brought an action to quiet her title, and
    the defendant claimed he was the owner of the property. The defendant, however, failed
    to produce a recorded title. The defendant also never had possession and paid no taxes
    4
    on the property. He claimed he lost the deed, but had assumed a contract to purchase the
    property. The trial court found that the defendant had no right, title or interest to the
    property. On appeal, the defendant argued that the tax deed was void because the tax sale
    was so grossly inadequate as to amount to fraud. While the court agreed that the amount
    paid was so grossly inadequate as to be constructive fraud, they found that the defendant
    “did not have such an interest or claim of right to the property in question to challenge
    the sufficiency of the plaintiff’s deed.” Id.
    Essentially, the Scott court found that the defendant lacked standing to invalidate
    the tax deed. The defendant lacked a legally cognizable interest in the property, and
    therefore he could not challenge the issuance of a collector’s deed.
    The same is true in the instant case. While Ocwen is the recorded grantee on the
    assignment of the deed of trust, it has no legally cognizable interest. Lacking such an
    interest, Ocwen is not entitled to the relief it seeks, namely, to dismiss Bellistri’s petition
    and declare that the plaintiff has lost all interest in the real estate. Essentially, Ocwen is
    asking the court to quiet title in Crouther’s name.
    To seek this relief from the court, Ocwen must at least have an “interest” in the
    property. Scott, 235 S.W.2d at 374; Thurmon v. Ludy, 914 S.W.2d 32, 34 (Mo. App.
    E.D. 1995) On the assignment of the deed of trust, Ocwen is listed as the grantee, as
    servicer for Deutsche Bank National Trust Company, as Trustee for the registered holders
    of the CDC Mortgage Capital trust, 2002-HE1, Mortgage Pass-Through Certificates,
    Series 2002-HE1 (Deutsche Bank). We must turn to the law of mortgages to understand
    Ocwen’s interest.
    5
    Generally, a mortgage loan consists of a promissory note and security instrument,
    usually a mortgage or a deed of trust, which secures payment on the note by giving the
    lender the ability to foreclose on the property. Typically, the same person holds both the
    note and the deed of trust. In the event that the note and the deed of trust are split, the
    note, as a practical matter becomes unsecured. Restatement (Third) of Property
    (Mortgages) §5.4. Comment. The practical effect of splitting the deed of trust from the
    promissory note is to make it impossible for the holder of the note to foreclose, unless the
    holder of the deed of trust is the agent of the holder of the note. Id. Without the agency
    relationship, the person holding only the note lacks the power to foreclose in the event of
    default. The person holding only the deed of trust will never experience default because
    only the holder of the note is entitled to payment of the underlying obligation. Id. The
    mortgage loan became ineffectual when the note holder did not also hold the deed of
    trust.
    When the holder of the promissory note assigns or transfers the note, the deed of
    trust is also transferred. George v. Surkamp, 76 S.W.2d 368, 371 (Mo. 1934). An
    assignment of the deed of trust separate from the note has no “force.” Id. Effectively, the
    note and the deed of trust are inseparable, and when the promissory note is transferred, it
    vests in the transferee “all the interest, rights, powers and security conferred by the deed
    of trust upon the beneficiary therein and the payee in the notes.” St. Louis Mut. Life Ins.
    Co. v. Walter, 46 S.W.2d 166, 170 (Mo. 1931).
    When it assigned the deed of trust, MERS attempted to transfer to Ocwen the
    deed of trust “together with any and all notes and obligations therein described or referred
    to, the debt respectively secured thereby and all sums of money due and to become due.”
    6
    7
    The record reflects that BNC was the holder of the promissory note. There is no
    evidence in the record or the pleadings that MERS held the promissory note or that BNC
    gave MERS the authority to transfer the promissory note. MERS could not transfer the
    promissory note; therefore the language in the assignment of the deed of trust purporting
    to transfer the promissory note is ineffective. Black v. Adrian, 80 S.W.3d 909, 914-15
    (Mo. App. S.D. 2002) (“[A]ssignee of a deed of trust or a promissory note is vested with
    all interests, rights and powers possessed by the assignor in the mortgaged property”).
    MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen
    separate from the note had no force. See George, 76 S.W.2d at 371. St. Louis Mut. Life
    Ins. Co., 46 S.W.2d at 170.
    As Ocwen holds neither the promissory note, nor the deed of trust, Ocwen lacks a
    legally cognizable interest and lacks standing to seek relief from the trial court. See
    Scott, 235 S.W.2d at 374. The trial court was without jurisdiction to grant Ocwen its
    requested relief, and did not err in granting summary judgment in Bellistri’s favor.
    Conclusion
    Ocwen lacked a legally cognizable interest in the property, and therefore, it has no
    standing to seek relief. We hereby affirm the judgment of the circuit court of St. Louis
    County.
    ______________________________
    Nannette A. Baker, Chief Judge
    Glenn A. Norton, J., and Kenneth M. Romines, J., concur.


  22. 4closureFraud
    1-561-880-LIES

  23. The majority of violations under TILA & RESPA only have a statute of limitations of a year, and most have no teeth anyway.

    Under TILA you do have a statute of limitations of three (3) years for rescission, but that only applies to Refi’s and HELOC’s on the primary residence. So, in most cases, TILA & RESPA audits are basically useless for bankruptcy, any other legal proceeding, or settlement.

    Most are done by using software (“garbage in, garbage out”). Further, most of these so-called “auditors” are not qualified (no basic legal training, and the specialized knowledge & training on federal/state laws and regulations pertaining to mortgage transactions. A ten-minute software audit is no substitute for three years of law school.

    Everyone knows all software does is calculations. If “Joe the Auditor” doesn’t know what is, and what is not a finance charge, there WILL be miscalculations, that’s why lawyers who REALLY “get it” won’t even waste their time with software audits.

    Borrowers need the services of a firm that is qualified and knows contract (mortgage/deed of trust) law inside and out; and has the legal knowledge to carefully scrutinize the whole mortgage transaction. Moreover, a forensic appraisal is also necessary and imperative; we find appraisal fraud in four (4) out of every five (5) mortgage transactions we examine.

    I can’t tell you how many software audits we’ve seen that had no TILA or RESPA violations, or had nominal violations of no legal significance; and when reexamined, we found MAJOR problems with the transaction.

    Example, just last week we we reexamined a software audit prepared by an attorney who had taken $3,500.00 up front, and was charging $1,500.00 a month thereafter. All he had done was write a QWR, performed a software audit (approximate time 10 minutes), and wrote a demand letter over a four month period. Total $8,000.00. The only violation he and his software found was the borrower hadn’t received a “Good Faith Estimate” before closing.

    His demand letter incorrectly threatened rescission based on the lack of the GFE, threatened suit for wrongful foreclosure, and demanded principle reduction.

    Result: The borrower’s home was up for auction. Why? Because not receiving a GFE before closing is a useless violation of RESPA with no teeth!

    As it turns out there were no statutory or regulatory violations of any consequence, however we did find appraisal fraud. The bank understands what punitive damages are, so they no longer want to play ball!

  24. Hi,
    Call D. Graham Esq at 305-441-9185. He is an experienced Litigator an Foreclosure Defense Lawyer for Miami and West Palm Beach Circuit Court, Appeal Court and Federal Court. He is defending my foreclosure with Tila and Respa Defense. There are other options to fight foreclosure and cancel mortgage besides Bankruptcy option. Talk to him maybe he can help.

  25. Need a good TILA & RESPA Audit firm I have many of people I can Refer service to and a Good BK Attorney for west Palm Beach zone Fed court I need a BK Law firm that understands Rico,TILA, note and deed transfers and assignments.
    email BACWANTSYOURHOME@AOL.COM

  26. I have a Countrywide Home Loan and now its serviced a Bank of America it backed by Fannie Mae.4 weeks ago I talked to the VP of fannie Mae and they gave me a loan Mod i have been going on and on for 14 months so I have served with a foreclosure 3 months ago and BAC said on the complant they own my Loan so why im I dealing with fannie mae and why did Fannie give me a loan mod?So they dont lose 300k on my home.So BAC. is the servicer and they will not give the terms that fannie gave me.So yesterday I went to a Medation and BAC said they own my loan.They will not deal this is fraud they will not show assignments or mim # I need a TILA & RESPA Audit and a good Bk Attorney for West Palm beack Bk court.

  27. Steve,
    If I’m not mistaken it was you that answered my last question. Correct? If so I’m sorry for the delay. I’ve been asked to assist in another part of the before mentioned Rico case. I’ll try contacting you today (11-21) or I can be reached at 702. 7.8.2. 0.8.7. 6 anytime.
    Thanks
    I look forward to hearing your insight, on this matter.

  28. I’m sorry I posted an incorrect number:

    310.469.2666 is my efax.

    310.869.0269 is my business number.

  29. Steven,
    Can you give me your phone # ? I tried the one above but no answer.

    Thanks
    Kevin

  30. **IGNORE** Just a posting so I can receive comments via email.

  31. Steve,
    I should have the site done enough now.

    go to; http://trust-this.webs.com/

    You, and anybody else can view the complaint, as well as any developements, and comments received.

    Please feel free to share your opinion.
    Thank you.

    The People must be allowed to survive the economic meltdown, just as much as those who caused it.

  32. Steven,
    I’m finishing work on a website for this complaint.
    I’ll post it here A.S.A.P.
    Also, if you desire I’ll send you a copy via email (as efax has not been set up).

    Thank you.
    Kevin

  33. I am a bankruptcy practitioner of 30 years, and have in the past represented many bankruptcy trustees. I currently defend homeowners against foreclosure in BK court and in USDC. I have litigated many RICO claims as well.

    Please efax this pleading to 310.469.7778 and I will be happy to post my comments here.

  34. Neil,
    I would like to say the LIVINGLIES site is a must, for everybody (even if they have never had a loan) If they have or had a loan, they should visit daily.
    I’ve been assisting someone with a RICO COMPLAINT against some BK Trustees and their attorneys. I completed the RICO COMPLAINT, with Civil Rights and other violations, including the Demand. I would like to get your view on it. Also I was asked to find a way to get it on the web. In April 2009, a copy was sent via fax to a SoCal. trustee and the trustee’s attorney (they have the same fax #, and both are Defendants). As of today, there’s been no response from either.
    I have a copy of said fax, (41 pages, w/o the exhibits, and a few other components) which I can send to you, if you so desire.
    I spent a great deal of time on this (a win will be a heavy hit against the Defendants, and a BIG VICTORY for BK debtors, afterwhich I’ll realize a job well done, as per an agreement I have).

    Thank you.
    I look forward to your thoughts.
    K.H.

  35. to: Greene, on September 28th, 2009 at 7:13 am Said:
    file your motion! do not wait.

  36. I am not sure about this piece of advice posted above
    the reason for this is because even if the security holder has a real interest in the Note, they were not signatories to the deal. The bank that you used to apply for your loan is also not a real parry of interest because they were paid back already when they sold your Note so they no longer have any interest in your Note. As for the person that got slammed by the judge. This is not just about “producing the original Note” this is not some “trick” to get your house. This about, show me the party that has been damaged by your default. Not the original lender, they got paid and made money on your “promise to pay” not the investors, they too made money and should they catch wind of the fraud in the loan origination process and demand the banks pay them face value the banks can since they collected the billions in bail out money. What you need to show the courts is that 1. the assignments were not recorded and transferred with the deed. 2. that separates the Note from the security. 3. even if a MERS member has interest in your Note, they are not signatories to the transaction i.e. your promise, 4. They have not suffered any damages. 5. it is then an unsecured debt and fully dischargable.
    This has been found in Massachucetts Land Trust Court, The Kansas Supreme Court and US Bancruptcy Court District of Nevada and also courts in Ark, and Ohio that I know of so far. The issues have been found in favor of the homeowner using Constitutional Law, Contract Law, Federal Laws and more. Do not give up the fight!

  37. I was just in the federal court in the Central District of CA. for a hearing on my case regarding Producing the Note and the Judge slammed me and told me that I had no standing. The Judge would not even hear anything regarding the UCC codes and/or told me straight up that I was wasting time, the whole producing the note deal is just internet hype, and to pack up and get out of my house!

    What do I do in a situation like this is there anything that can be done? She granted the motion for relief of Stay, and told the attorney’s for Chase bank that they can Foreclose as soon as the end of the month. October 31st.

    I followed everything to a T and can send anyone who can help the Motions, and Adversarial Complaint I filed.

    Please Help is there anything that can be done in this type of situation?

    Thank You!

    Regards,
    EVH

  38. PLEASE HELP- BANKRUPTCY/ FORECLOSURE QUESTION !

    I filed Chapter 7 , and am under the automatic stay right now. I recieved the Motion for Relief from Stay from ‘ Wells Fargo Bank, NA Servicer for US Bank as Trustee for WFSASC 2002-22′

    The Courts have my home listed under Wells Fargo Home Mortgage Inc., which seems to indicate that the deed was never perfected.

    I have one attorney telling me that I should immediately file a motion to deny the relief from stay, and another saying that we should just wait until the hearing, because then the other lender will have to file a motion for relief, and that will buy me time to obtain a modification with them.

    I’m concerned that the Trustee will sieze the home and liquidate for the benefit of my creditors. Any ideas here?

    Also- the one attorney told me that the the actual ‘Secured Creditor’ does not have to be the one to request relief from stay, but that any entity with the right to collect on the debt can file for relief. Does anyone know where this comes from?

  39. I am looking for help with the process of filing a quiet title due to the fraud of my lien holder.

    I purchased my house with my mother, both names are shown on the mortgage, but ONLY her name is on a note. She died 7 years ago this month. After her death, I placed the house into a trust but have been making the payments ever since even though my name is not on the note.

    In learning about the fraud I have now since 6 QWR to the mortgage company requesting that they show me an original note that says I owe them money.

    As a beneficiary of the trust that holds title to this property, I have posted in the newspaper a legal notice stating I was disputing their lien on this property. I would like to follow through with a quiet title claim but I am not sure how of what paper work is necessary or the process.

    Please help.

  40. Hi, I need an attorney in Massachusetts. RESPA TILA violations, Fraud, Inflated Appraisal, Inflates Monthly income at IndyMac bank. thanks.

  41. Anyone have any other questions/suggestions they would ask a lawyer to make sure he/she knows what they are doing to attack a non-judicial foreclosure on a refinance within the 3 year time period for a TILA Recsission (Material Disclosure Violations) /CH. 13 BK strategy?

    1.Provide a list of TILA cases successfully litigated
    2.Do you own the NCLC TILA series?
    3.Do you own Neil Garfield’s materials?
    4.Have you or do you handle Adversary Proceedings or TILA actions?
    5. In addition to the TILA Violations, Lack Of Standing, etc. Can you present/argue: Article 9, UCC:
    A. Hypothecation
    B. Chattel Paper
    C. Automatic Perfection (or lack thereof)
    D. Intercreditor agreements (not a sale)
    E. Eagle 9 UCC
    F. Perjury By The Lender

  42. Please answer ASAP. I must file bk schedules on Tuesday! Should I put the mortgage as an unsecured or secured debt non priortiy debt? Also, can I put the payment at the fair market value and current low interest rate? Thanks!

  43. PHYL in Miami FL. My name is Mark, I live in Palm Beach FL. I have an awesome program to help people through their foreclosure situations. I would to talk to you to see if i can help you and your clients. Our program has helped numerous people stay in their homes as the battle is fought in the courts. I must assume that you are a Christian, as I am also. You can reach me at: isavehouses@hotmail.com

    I hope to hear from you. God Bless you and family

  44. This BK judge is a stud.

    UNIFORM COMMERCIAL CODE COMMITTEE

    WHERE’S THE NOTE, WHO’S THE HOLDER: ENFORCEMENT OF PROMISSORY NOTE SECURED BY REAL ESTATE

    HON. SAMUEL L. BUFFORD

    http://www.langleybanack.com/admin/newsfiles/Ayers%20ABI%20-20090212-113015.DOC

  45. focus on “intangibles”

  46. another key to the highway:

    EAGLE 9™ UCC INSURANCE POLICY
    First American’s new EAGLE 9™ UCC Insurance Policy provides important lien perfection and priority insurance coverage for the commercial loan and finance market segments. For the first time, lenders can obtain coverage for:

    •Lien Perfection
    •Priority of Security Interest
    •Creation and Attachment
    •Enforceability of Security Interest
    The EAGLE 9™ UCC Insurance Policy provides lender’s insurance for commercial loans secured by personal property under the Uniform Commercial Code. Collateral generally consists of inventory, furniture, fixtures, equipment, accounts, instruments, chattel paper, crops, timber and intangibles.

    With significant revisions to Article 9 of the UCC effective July, 2001, the EAGLE 9™ UCC Insurance Policy eliminates risk associated with the uncertainty of change. It is intended to provide coverage broader and stronger than Legal Opinions.

    Now, commercial loans in all amounts can be insured with the industry’s leading provider of title insurance. In addition, EAGLE 9™ UCC Insurance Policy benefits can extend to a full outsource of:

    •UCC Search
    •UCC Filing
    •UCC Document Preparation
    •UCC Tracking
    Policies are produced on a fully electric basis to guarantee coverage, accuracy, filing jurisdiction, efficiency and timeliness. A full staff of Commercial Loan Documentation Specialists, UCC Legal Experts and Insurance Representatives are available to evaluate and assist in completing transactions ranging from standard to highly complex.

    Policy Coverage:

    •Coverage against Fraud and/or Forgery
    •Priority against other Secured Parties
    •Effectiveness in Bankruptcy
    Insurance Benefits:

    •Indemnification against losses due to documentation defects
    •Defense Protection
    Title Insurance For Mezzanine Loan Financing in New York

    Commercial Applications Of The New UCC Insurance Policy

    For details and pricing please contact your sales representative at 800-437-1234.

    Home
    Place an Order

    Title Order

    Cooperative Apt Lien Search

    Eagle 9
    Forms / Documents

  47. Another Bankruptcy Court denies Motion to Lift Stay -

    “Only Note Holder has Standing to Lift Stay”

    Click Link for the Ruling:

    https://ecf.wawb.uscourts.gov/cgi-bin/show_opinion_doc?48,467960

  48. Neil, I am a 25 yrs plus practitioner in the California districts of the US Bankruptcy Courts. I give you thumbs up and great kudos not only for this site, but for this article on bankruptcy strategy.

    But you’re still missing a piece. I have some land mines to lay in Chapter 13 and Chapter 11 in what I call “The Bankruptcy Express to Mortgage Freedom”.

    I wish I could give it away free, but I have to keep the lights on too. Anyone wanting my secret sauce (okay for attorney to attorney I’ll take a small consulting fee – I know I can’t literally save everyone) call me at 818.917.3370.

    Oh, by the way, I’ve practiced before the right Honorable Samuel L. Bufford, US Bankruptcy Judge, USBC Central District of California (In re Hwang, NY Times article etc) for going on over 20 years now.

    Keep up the fabulous work Neil, I’ll see you in Santa Monica for sure.

    Maher Soliman says to say hello.

  49. My elderly in-laws were granted a $930,000 mortgage loan on a fixed income of $1,100 mo. SSI. The payments went from $2000. mo to a whopping $7000.
    a month! Their income was inflated to $15,000 mo. The original lender, New Century Mortgage just days before N.C. filed Bankruptcy! Loan transfer, Saxon Mortg. Of course the elders couldn’t pay the 7 G’s each month and defaulted. This was Feb, 2007, I began to investigate this issue further, it seemed like every day a new violation would appear on the net about N.C. meanwhile, hours before the 1st foreclosure sale, the elders filed chap 13, they were safe for a little while, just before the next foreclosure sale was to commence, the elders chap 13 converted to chap 7. Safe once again for a bit. Before Chap 7 protection was up, 10/27/08 the house sold at auction “back to bene” (beneficiary) for $613,700. By the next day 10/28/08
    the status was changed to “invalid sale” as Saxon in such a hurry to sell, didn’t wait to find out if the BK was dismissed yet! Meanwhile I’m still searching for answers on the net, soaking in ALL the info I could possibly find before time ran out. After reading article upon article about all the trouble New Century was in such as the “bad loans” they were selling to investors, facing claims of 8.4 billion by it’s backers, right down to the 700,000 doc’s they failed to surrender in their bankruptcy case! Putting 2 & 2 together, it all began to add up to “New Century can’t possibly have this note with all the ill-gotten games they’ve been up to”!
    WELL…..after two years of escaping forecl. sales, bankruptcy hearings, and close calls, last week, with the current forecl. sale set for today, March 2, our Bankr. attorney filed a restraining order and we went to court the next day. HERE’S WHAT HAPPENED!……………

    The Judge, the Honorable Arthur S. Weissbrodt, U.S. Bankruptcy Court, San Jose, Ca. Division, asked our lawyer, Marc Voisenat “have you ever done a case like this?” the lawyer replied, “no your Honor” the Judge said, “neither have I, have a seat counsel, we’re going to be here a while” The Judge then proceeded to look thru his law books.
    He then contacted Saxon Mortgage Company’s Attorney’s via land line and there in the court room had Saxon’s Attorney’s on speaker phone. As the Judge read the new mortgage laws to the Attorney’s while on speaker phone, Saxon’s attorney’s requested that the Stay be lifted and the March 2 sale commence, but the Judge wasn’t having that! In fact, well, let’s just say he really gave it to them good boy! Reprimanding them for not offering a loan modification, questioning why this elderly couple qualified for a $930,000 loan on a fixed income in the first place, and among many other issue’s, gave them until the 16th of March to produce the original Note! Can you believe the phone went dead! Saxon’s attorney’s actually hung up on the Judge!
    Judge made two attempts to get them back on the phone but there was no answer! The Judge said this was the first case like this in California, but I think he may have meant in this County as there was a case heard by Judge Bufford down south Ca. Anyway, it was the first time in two years of dealing with our BK att. that we seen him smile! While we’re still awaiting March 16, response by Saxon’s end, I find it hard to believe that they would have the Note after hanging up on the Judge that way! One would think the Attorney’s would have confirmed with His Honor that they will appear in his court room with Note in hand if that was the case, wouldn’t one?
    DON’T GIVE UP PEOPLE! YOU MUST CHALLENGE THOSE WHO ARE TRYING TO TAKE YOUR HOMES TO PROVE THEY HAVE A LEGAL RIGHT TO DO SO!!
    GOOD LUCK EVERYONE!
    AND THANKS NEIL FOR THIS GREAT SITE!

    Debra

  50. Hi everybody! not only am i a believer of this site but i am going through many of the same issues most of us here are. However i have put together a group of legal professionals who get it! and we are now in the process of defending multiple homeowners. right now we have a federal case started against New Century and Consumer Solutions REO LLC. If there is any body that has had their loans or mortgages that were taken over by these entities please email me with your name, phone number, email address I will contact you.

    We are also getting ready to the same with Indy Mac, Wamu, and Countrywide please respond. In addition we are doing settlements with other lenders, not Loan MODs. This is an epidemic and needs to be dealt with. IT works ladies and Gentleman our attornies are well versed in federal and State litigation under these laws. We are in California and have a precedented case here in the Fed courts. We can do settlements in any state. i have fought my lender for year and a half before putting together the defense group.
    I want to hear from as many of as I can, the more defendants we have the more leverge you will have.
    B.Michael White
    bwhite@icigroupinc.com

  51. Thank you
    Mr. Garfield for a volume of useful informatrion. However i’m already overwhelmed and over-perplexed over what directives to take for positive outcomes to keep my home from my dilemma of foreclosure.
    My situation is of a retired public education professional. I’m very actively involved with life though retired and now living on fixed income. I managed on my limited resources,
    but as you can imagine, with a lot of stressful times watching my resources dwindlikng down to danger point!
    I tried all of 2006,2007 and 2008 to refinance my mortgage for lower monthly payments; and taking out equity to cover some emergencies. During almost 20 yrs of living in my residence there has never ever been a “LATE PAYMENT! Now when difficulties came up I was denied by Loan Lender GM,ETC.ETC. ), which their rep said looked positive but was denied; not once but two yrs in a row! Why I can be perplexed? I had no bad credit/debts; reason given was that because I was not working two years fulltime!! Finally when i was denied close to end of year 2008, I wrote letters explaining my present predicament, and a rep told me to make “late payment” and then call back f14 days later for MODIFICATION PROGRAM! I did not wish to take that risk, and as it turned out they wanted to tag me for even under the 14 days “late fee “which I objected to strongly to be removed due to misinformation the Lender gave to me. They took off the”late fee” but they then claimed there is no modification program established to place me! This isafter they denied me “refinance” their suggestion was to help me out after which they rescinded help!
    Shortly after this i received a notice from them that they turned my account over to another Mortgage Lender, and even kept the $30.00 or so they vouched in the absence of not allowing Modification.
    Then the new Mortgage Lender put back on the original monthly cost, and gave me the impression I could not argue with them; “pay up or shut up” was their attitude, which makes me feel I’d be better off without that type of service!
    Now I cannot get a “refiance loan, with equity in my property/home, and i feel as if I now have sadly gone from unhelpful previous Lender who was unreasonable; now on to a second Lender who is not accommodating, and I cannot trust!
    My quandry for help is that I’m uncertain what proedure to follow for my best chance to keep my home, as I’m retired?? I am dialoguing with a Broker who may be able to get me refianced to get equity out and reduce payments of mortgage. But I’m not sure this acts in my best interest as a total business transaction unfamilliar to me! I consider whereas with GM I could have had “no closing cost,” I will have to pay this as well as other brokers fees, appraisal, etc.,. Already i paid for three appraisals and fees and noting ever developed to get equity out of my propery for emergencies!
    FINALLY MY QUESTION IS:
    DO I DEAL WITH BROKER FOR REFINANCE, LOWER INTERET RATE?
    DO I GO TO SOME PLACE SUCH AS LENDING TREE TO RENOGTIATE A NEW LOAN?
    DO I TAKE ACTION TO FILE CLAIM BEFORE UNDESIRABLE FORECLOSURE ?
    I DO NOT HAVE MONIES TO SPEND ON ATTORNEYS., AND COFUSED AS I WAS PRIOR TO READING STORIES ON HERE, I’M EVEN MORE TEPIC AND CONCDERNED I MISS GETTING THE BEST INTEREST TGO SECURE MY LIVELIHOOD! I HAVE VERY LIMITED FINANCIAL RESOURCES; VERY SMALL BALANCES ON PROPERTY; UNDER ONE HUNDRED THOUSAND, AND I DO NOT HAVE CREDIT CAR DEBTS! SO I DON’T FEEL THERE IS JUSTICE SERVED IN HAVING TO BE THROWN OUT OF MY HOME I PAID FOR ALL THESE YEARS! I NEED URGENTLY HAVING ANY RECOURSE AVAILABLE TO HELP ME RESOLVE THIS CRISIS.
    CAN YOU PLEASE HELP ME REGAIN MY STABILITY WHILE I’M STILL DEALING WITH SO MANY PEOPLE WHO ARE DEPRESSED AND COME TO ME FOR FREE COUNSELING. I’M PUTTING MORE TIME AND EFFORT INTO MY CHURCH AND COMMUNITY THAN BEFORE TO ABATE MY OWN LOSS OF SECURITY FACING ME IN THESE VERY TRYING TIMES TO COME UP WITH A PLAN. JUST NOT KNOWING WHERE TO TURN FOR SGTRAIGHT HONEST ANSSWERS I WAS HAPPY TO STUMBLE ON YHOR AMAZING HELP TO THOSE IN TROUBLE WITH ECONOMY!!
    I APPRECIATE ALL YOU ARE DOING FOR OTHERS, EEVN IF YOU CANNOT LEAD ME TO SOME HELP HERE IN MIAMI, FLORIDA. GOD BLESS!
    DR. PHL+

  52. Need a bankruptcy attorney in the Sarasota area. Email me back at insarasota2003@yahoo.com

    Thanks!

  53. Mr Garfield , Your advice regarding TILA audit is well taken.However, I sent in a completed form in since 12/02/2008 but I did not receive any response. Can you please look into it as I am very interested in the indepth audit you mentioned in your post.

  54. Neil, I know I saw an extensive definition of “default” on your site, but now can’t find it anywhere. You talked about the difference between a normal default, and one in the context of the meltdown, IE who owns the note, credit default swaps, etc.

    Can you please direct me to the right spot to find that again? Thanks.

  55. Everyone says they want a TILA audit, which is fine. But it doesn’t go far enough. If you want to put their backs to the wall, you need to have documented claims for non-disclosure of parties, fees, profits etc. all the way up the securitization chain. The mistake many people are making is they are going for the $400-$500 “audit” which only gets them a refund of a few thousand dollars and at best puts them into a court battle over rescission. Using a forensic review that includes the full review of all aspects of securitization, payment, co-obligors, insurance, cross collateralization, over-collateralization, reserves, federal bailouts, and appraisal fraud, to name a few, is what will get you offers of deep discounts off the principal of the note, deep discounts on the interest rate, converting an arm to fixed and maybe (in many cases) getting the house free and clear of all encumbrances. I’ll ask one of our volunteers to help you but if you go to the blog site “In Trouble Now?” download the intake form and fax it, you can start the review process with knowledgeable experts. The fees are higher (and so are the rewards) and you can make monthly payments.

  56. I recently was served with foreclosure papers. After reading this blog, I found that the plaintiff had failed to prove it was the loan holder, by their own admmitance. They state in their complaint that they want the court to help re-establish the note and mortgage.
    I filed a “Motion to Dismiss”. And now I will be scheduling the case for hearing. DO I have to coordinate with the other attorney? Also, if they don’t have any of the original paperwork what options do I have? I was told I should just as to have the whole case thrown out and that’s the end of the mortgage and note? Is this true?
    Thanks for the previous advice.

  57. Hello,

    We have successfully used your strategies to fight our PREDATORY lender, (initials “GT”) so far. We first filed a $500,000 Civil Complaint in our United States District Court, (it has been accepted and is pending) for numerous TILA violations, not only by the lender, but also by the mobile home dealership that paid our down payment for us; and we have now filed a Chapter 13 Petition. However, we need a TILA Audit before we submit our Ch. 13 Plan to the Bankruptcy Court, and cannot afford to pay for this.

    If anyone reading this can help us get a TILA audit, please contact us asap. We stand to gain more than a clear title to the mobile home, and we are fully willing to pay for the audit on a contingency basis.

    We live about 30 miles south of Birmingham, AL. Contact us if you can help – we don’t need an attorney, (thanks to NEIL GARFIELD!!!), but we do need a TILA audit ASAP.

  58. Need a bankruptcy attorney in the Sarasota area. Email me back. Thanks.

  59. Dear sir,
    unfortunately that I didnt no about this site before, I just read what you are saying about the state of missouri.
    Very true in my state Ocwen federal/Homeeq/Finance America/usbank association as trustee (the for isnt named). I contacted my attorney generals office before the foreclosure and no one told me to get an additional lawyer and I am nieve when it comes to these things. My husband always handled these affairs. We did a loan with these people in 05 and every couple of months requested our lending papers and loan docs as we didnt get a copy because they werent finished before we left the title co office. The mortgage services finally sent us a copy of the docs 5/22/08 and we closed on this loan in 3/05. The tila docs we signed 3 days before the loan the second time as they had us do a first loan 5 months earlier and said there would be know cost if they needed to give us the full amount we originally requested. Between both loans they took out around 120,000.00-140,000.00 that they werent entitled to. They never gave us the docs to prove what made up our loan amount because we contend our loan went from 380,000.00 to 638,000.oo and we got around 120,000. We were to ahve a conventinal mortgage and we were should it did but we did comment to the closing person the amount of the loan being financed was more then we thought it should be, she said she would call the lender who was in another part of the state and has closed down and cant be found. We received taped to our window a paper for summons and notice unlawful detainer actions. We paid so much more then the tila docs were e days before closing, isnt that fraud to change the documents and loan at the time of closing and not to tell the client. Dont we have rightseven though on 9/16/08 they supposedly sold our house, we were told know one was there and they refused to talk to the lawyer and his firm before the foreclosure took place for about 4 weeks straight they were trying to get them to resolve this issue. They just kept saying there was a problem with the title that didnt have it they lost it? Doesn’t that give us any leverage not to have them take our home we have all of the papers now and the ones they provided appear to have been doctored and they dont match the tila documents and made us take a different 30 year loan after we had a 6.75 fixed conv. mortgage at the closing they switched the one signed 3 days before to a 30 year replacing the one we had with one 5 % higher for no reason we werent late, we just needed money to help during my husbands recovery and were looking and expecting just the 15 year note we requested 100,000.00 which they put a ballon at the end for the $100,000.00 and we were to pay about $1300.00 month. What they switched it to we found out 5 months into the loan, an amr we disputed it from day one, apayment of $2900.00 and 1300.00.oo is close to the initial 5 months then it within the first year went to almost $6500.00. No on in our state has a true understanding of the issues. I really beleive that none of these people along with their lawyers care what people think about them. I can only assume they are all agnostic, because surely they dont plan on goning before God and having him say well done my good and faithful? I would like to say about my state that I am upset because I some how fill threw the cracks do the election but the state of missouri doesnt take people coming in this state and robbing their people. I hope that you will have some kind of word for me to encourage me. I hope everything I wrote wont appear out on your website. also these people made it impossible for me to secure a replacement loan as they listed to different loans in the amounts about $8,000.00 and everyone we would try to get a loan from would say you are over in debt? your debt to equity ratio is way out of wack. Therefore this destroyed our ability to even survive private small business owners. They also did about another 20 items I see you talk about in all of these other cases here, it sees they tried everything on us. If you have thought please email me back. We are up in age and now my husband cant work and they are stealing our home and our dignity? I didnt know that the mafia owned banks, and I didnt know that you just steal someones home and we just let you do it in our country and then on top of it when they are doing to many drugs/trafficking and money laundering and its up in their heads the federal government figures it should go on the back of every little boy and girl in the united states. There was a time that man would have been a shamed to walk down the streets with what these people did but instead they are bold and washington dc is crying for them as if they lost there toys. I highly doubt that god the Father is laughing, my other guess is they are hipacrits going to church and robbing their neighbors. These people need much prayer and so does our nation because the country that use to stand for something has become overrun with scum. Pattie

  60. Thanks for putting this straight forward information on your blog. So many families facing this situation have no idea what their options are and have no idea how to proceed.
    http://www.homesweetazhome.com

  61. I have been served for foreclosure. U made a obilgatory, pro se answer today, simply denying all claims in the action

    However, the lender originally presented us with a set of docs at $4300 a month then AFTER we had moved in said they had made a mistake and told us we had to sign new docs at $4900. The rate was the same to difference was interest only versus amortized.

    They of course sued based on the second set.
    We tried to modify but they, Wells Fargo, would not make any WRITTEN offer and we would not pay anything based on verbals.

    Now I am thinking there are numerous, RESPA, TILA, Fla Section 494 and maybe even FTC violations( under bait and switch). I need a SMART attorney FAST in the Ocala area.

    This is too complicated to go Pro Se. The home has lost 200k value because of the manipulated makert created by over securitization.
    Any direction very appreciated

  62. Yes Suzanne,

    I am a new yorker and I understand your plight. Please contact me at your earliest convience I had some professionals based in New York that can help you.

  63. I need help.I need a defense because I am still living in my house.Yes my house 9/10th of the law is possession. I need help in creating a defense against the bank. HELP. I live in New York any New yorkers out there? ledgister4@aol.com.send me the info

  64. Well I am testing your strategy right now. I have a paralegal working on the complaint for Federal court on TILA & RESPA etc. and have the motion to stay done for state court to stop the eviction proceedings that followed an illegal foreclosure on my home. I will let you know how it comes out, I would never have known about the possibility of fighting a foreclosure if it wasn’t for so much good information on the internet but would really like to find a way to reach more people with this information. That is my next quest. Thank you I will be in touch Cindy in Colorado

  65. I cannot wait until you post a sample of a proceeding online. Or a sample of a proposed TILA suit in federal court. When we see one crafted by your ingenious mind I think the ball will start rolling in getting more mortgages rescinded using your legal theories.

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