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.
- WHEN YOU FILE YOUR PETITION STATE THE MORTGAGE AND NOTE TO BE CONTINGENT LIABILITIES BASED UPON TILA VIOLATIONS. You will need a TILA audit before or immediately after filing to support your position.
- 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.
Filed under: CDO, EMS, Eviction, GTC | Honor, Investor, Mortgage, Obama, bubble, education, foreclosure, securities fraud | Tagged: automatic stay, bankruptcy, chain of title, Chapter 13, foreclosure defense, TILA action, TILA audit
Hi, I need an attorney in Massachusetts. RESPA TILA violations, Fraud, Inflated Appraisal, Inflates Monthly income at IndyMac bank. thanks.
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
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!
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
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
focus on “intangibles”
another key to the highway:
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Forms / Documents
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
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.
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
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
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+
Need a bankruptcy attorney in the Sarasota area. Email me back at insarasota2003@yahoo.com
Thanks!
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.
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.
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.
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.
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.
Need a bankruptcy attorney in the Sarasota area. Email me back. Thanks.
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
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
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
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.
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
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
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.