How To Stop Foreclosure

see how-to-negotiate-a-short-sale

see how-to-negotiate-a-modification

See Template-Lawsuit-STOP-foreclosure-TILA-Mortgage-Fraud-predatory-lending-Set-Aside-Illegal-Trustee-Sale-Civil-Rico-Etc Includes QUIET TITLE and MOST FEDERAL STATUTES — CALIFORNIA COMPLAINT

See how-to-buy-a-foreclosed-house-its-a-business-its-an-opportunity-its-a-risk

This is general information and assumes that you have access to the rest of the material on the blog. Foreclosures come in various flavors.

First of all you have non-judicial and judicial foreclosure states. Non-judicial basically means that instead of signing a conventional mortgage and note, you signed a document that says you give up your right to a judicial proceeding. So the pretender lender or lender simply instructs the Trustee to sell the property, giving you some notice. Of course the question of who is the lender, what is a beneficiary under a deed of trust, what is a creditor and who owns the loan NOW (if anyone) are all issues that come into play in litigation.

In a non-judicial state you generally are required to bring the matter to court by filing a lawsuit. In states like California, the foreclosers usually do an end run around you by filing an unlawful detainer as soon as they can in a court of lower jurisdiction which by law cannot hear your claims regarding the illegality of the mortgage or foreclosure.

In a judicial state the forecloser must be the one who files suit and you have considerably more power to resist the attempt to foreclose.

Then you have stages:

STAGE 1: No notice of default has been sent.

In this case you want to get a forensic analysis that is as complete as humanly possible — TILA, RESPA, securitization, title, chain of custody, predatory loan practices, fraud, fabricated documents, forged documents etc. I call this the FOUR WALL ANALYSIS, meaning they have no way to get out of the mess they created. Then you want a QWR (Qualified Written Request) and DVL (Debt Validation Letter along with complaints to various Federal and State agencies. If they fail to respond or fail to answer your questions you file a suit against the party who received the QWR, the party who originated the loan (even if they are out of business), and John Does 1-1000 being the owners of mortgage backed bonds that are evidence of the investors ownership in the pool of mortgages, of which yours is one. The suit is simple — it seeks to stop the servicer from receiving any payments, install a receiver over the servicer’s accounts, order them to answer the simple question “Who is my creditor and how do I get a full accounting FROM THE CREDITOR? Alternative counts would be quiet title and damages under TILA, RESPA, SEC, etc.

Tactically you want to present the forensic declaration and simply say that you have retained an expert witness who states in his declaration that the creditor does not include any of the parties disclosed to you thus far. This [prevents you from satisfying the Federal mandate to attempt modification or settlement of the loan. You’ve asked (QWR and DVL) and they won’t tell. DON’T GET INTO INTRICATE ARGUMENTS CONCERNING SECURITIZATION UNTIL IT IS NECESSARY TO DO SO WHICH SHOULD BE AFTER A FEW HEARINGS ON MOTIONS TO COMPEL THEM TO ANSWER.

IN OTHER WORDS YOU ARE SIMPLY TELLING THE JUDGE THAT YOUR EXPERT HAS PRESENTED FACTS AND OPINION THAT CONTRADICT AND VARY FROM THE REPRESENTATIONS OF COUNSEL AND THE PARTIES WHO HAVE BEEN DISCLOSED TO YOU THUS FAR.

YOU WANT TO KNOW WHO THE OTHER PARTIES ARE, IF ANY, AND WHAT MONEY EXCHANGED HANDS WITH RESPECT TO YOUR LOAN. YOU WANT EVIDENCE, NOT REPRESENTATIONS OF COUNSEL. YOU WANT DISCOVERY OR AN ORDER TO ANSWER THE QWR OR DVL. YOU WANT AN EVIDENTIARY HEARING IF IT IS NECESSARY.

Avoid legal argument and go straight for discovery saying that you want to be able to approach the creditor, whoever it is, and in order to do that you have a Federal Statutory right (RESPA) to the name of a person, a telephone number and an address of the creditor — i.e., the one who is now minus money as a result of the funding of the loan. You’ve asked, they won’t answer.

Contemporaneously you want to get a temporary restraining order preventing them from taking any further action with respect to transferring, executing documents, transferring money, or collecting money until they have satisfied your demand for information and you have certified compliance with the court. Depending upon your circumstances you can offer to tender the monthly payment into the court registry or simply leave that out.

You can also file a bankruptcy petition especially if you are delinquent in payments or are about to become delinquent.

STAGE 2: Notice of Default Received

Believe it or not this is where the errors begin by the pretender lenders. You want to challenge authority, authenticity, the amount claimed due, the signatory, the notary, the loan number and anything else that is appropriate. Then go back to stage 1 and follow that track. In order to effectively do this you need to have that forensic analysis and I don’t mean the TILA Audit that is offered by so many companies using off the shelf software. You could probably buy the software yourself for less money than you pay those companies. I emphasize again that you need a FOUR WALL ANALYSIS.

Stage 3 Non-Judicial State, Notice of Sale received:

State statutes usually give you a tiny window of opportunity to contest the sale and the statute usually contains exact provisions on how you can do that or else your objection doesn’t count. At this point you need to secure the services of competent, knowledgeable, experienced legal counsel — professionals who have been fighting with these pretender lenders for a while. Anything less and you are likely to be sorely disappointed unless you landed, by luck of the draw, one of the increasing number of judges you are demonstrating their understanding and anger at this fraud.

Stage 4: Judicial State: Served with Process:

You must answer usually within 20 days. Failure to do so, along with your affirmative defenses and counterclaims, could result in a default followed by a default judgment followed by a Final Judgment of Foreclosure. See above steps.

Stage 5: Sale already occurred

You obviously need to reverse that situation. Usually the allegation is that the sale should be vacated because of fraud on the court (judicial) or fraudulent abuse of non-judicial process. This is a motion or Petitioner but it must be accompanied by a lawsuit, properly served and noticed to the other side. You probably need to name the purchaser at sale, and ask for a TRO  (Temporary Restraining Order) that stops them from moving the property or the money around any further until your questions are answered (see above). At the risk of sounding like a broken record, you need a good forensic analyst and a good lawyer.

Stage 6: Eviction (Unlawful Detainer Filed or Judgment entered:

Same as Stage 5.

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23 Responses

  1. Extremely superb post, definitely educational information. Never ever imagined I would obtain the facts I want in this article. I have been hunting everywhere in the internet for some time now and was starting to get discouraged. Thankfully, I stumbled onto your site and got exactly what I was looking for.

  2. Urgent…
    Does anybody know if Nevada has a law like Calif’s 2923 disclosure law (that Dan E. mentioned below)?

    Furthermore does Nevada also require that;
    “The property must sell within 1 year of the NOD. (after 1 year do they have to start over with a new NOD?).”

    In my case:
    12/04 a broker (Genisys) did a refi on my loan.
    The loan Docs were done by J. Buss, Loan Closer, Chevy Chase Bank F.S.B. Aliso Viejo, CA

    TILA stated the “Lender is Chevy Chase Bank”

    DOT states the following;
    “Lender” is Chevy Chase Bank F.S.B.
    “Trustee” is Vicki L. Parry, and
    “MERS” a sep. corp. that is acting soley as nominee for the Lender and Lender’s successors and assigns.
    MERS is the “Benificiary” under this Security Insrument.

    My NOD was dated 5/3/07.
    The last sale date was set for 1/4/10 10am.
    At the time of sale, it was postponed until 1/6/10 10am.
    The reason for the postponement given was “At The Trustee’s Discretion”.
    On 1/5/10 2pm, I was informed the Trustee (TD Services),
    already sold my home to the Foreclosing Benificiary, US BANK (without notice).

    County Recorder shows US Bank Aquired the Trustee Deed.

    Side note:
    At no time did I give US BANK the POWER OF SALE.
    Furthermore they are not on any of my copy of the loan docs.

    BUT…
    On the back of the NOTE (their copy) I recently found a stamp which states the following:
    (“PAY TO THE ORDER OF US BANK NA as TRUSTEE / W/O RECOURSE TO CHEVY CHASE BANK”)

    HOW MANY PEOPLE REALLY HAD THE POWER TO FORECLOSE AT ONE TIME?
    —THERE CAN ONLY BE ONE—-

    ANY HELP WITH;
    WHERE I CAN GET HELP OR,

    TEMPLETES, POINTS & AUTHORITIES THAT WILL AID IN VACATING,
    INVALIDATING THE SALE, OR OTHERWISE MAKING THE SALE VOID,

    WILL BE GREATLY APPRECIATED

    Thanks,
    KEVIN,
    702-762-0876
    LV, NV

    I’ve also asked for help here under “Letters and Notices”.

  3. [...] Another great post by Neil Garfield. [...]

  4. Hello All,

    I found this about a mortgage. Curious to know what everyone thinks.

    ALL THINGS CONSIDERED REGARDING YOUR MORTGAGE:

    1. The PROMISSORY NOTE is our promise to pay at a future time, labor
    backing both the NOTE and all current funds circulating as currency.
    2. Monetizing or securitizing the NOTE turns it into a cash item.
    3. The Deed of Trust is security for the NOTE. Trust law reverses
    rules of evidence; Trustee must prove good faith, full disclosure
    and proper procedures for operations.
    4. Escrow is the transfer point between seller, buyer, Title Company,
    so called lender, where the NOTE is exchanged for deed.
    5. The so-called “lender”, issued check to escrow under an internal
    request procedure. At time of issuing of this check, audits will
    expose that there is no evidence verifying: a) the source of money;
    b) that is allegedly owned by bank; c) at that time, or later, of
    issuing of the check. All of this information is available as proof
    via public records of corporation.
    6. The so-called “lender” issued NSF (non sufficient funds) check
    because not funds xist in theaccount until the NOTE is created and
    transferred by you to escrow.
    7. The so-called “lender” never possessed the NOTE until after
    transfer between seller and buyer, deed for check.
    8. The so-called “lender” executed at closing of escrow is security
    for the NOTE.
    9. The so-called “lender” later records, as sent, the NOTE to offset
    the liability of check.
    10. The so-called “lender” records & audited statement shows
    conclusively that the so-called “lender”, loaned credit, i.e the
    “borrower’s” credit, which took place at escrow closing.
    11. The so-called “lender” did not loan its own assets; it loaned
    credit, an ultra vires act, illegal under law and regulating
    authorities.
    12. It is a FRAUD, FRAUD IN THE INDUCEMENT, FAILURE OF CONSIDERATION,
    CONSTRUCTIVE FRAUD, done in CONSPIRACY, to ISSUE A FRAUD-ULENT
    SECURITY, an utterly void and without value transaction.
    13. Transfer of Title to registry systems or second servicer is
    fraudulent.
    14. The so-called “lender” claims abandoned funds after three (3)
    years. This is double payment and never disclosed.
    15. Deed of Trust is fraudulent, resulting in defective Title,
    unmarketable title.
    16. Balance sheet relating to the original ‘loan’, shows ledgering of
    the account as required to be reported and open knowledge under 12 USC
    § 242, § 347 and proved by 1099 reports available from IRS.
    17. The 424 B-5 prospect reports shows filing facts concerning the
    security issued under the note and Deed of Trust without reporting the
    basis of the derivative.
    18. Securities and Exchange Commission Reports S 3 A show the sale of
    the ‘note’ and form of item sold.
    19. FASB (Financial Accounting Standards Board) forms 125, 133, 140,
    5, 95 guide an auditor to the liability side of the banks books,
    exposing exactly where the ‘money’ came from and shows where it went
    and under what procedure and instrument.
    20. The NOTE as negotiable instrument falls under UCC.
    21. There is never a receipt given to “borrower” for the deposit of
    value.
    22. 12 USC § 1813 (L) (I) discloses that deposit of a promissory note
    is cash to the bank. The so-called “lender’s” cash is house owner’s
    cash, not the so-called “lender’s”; the proof is the bogus loan paper.
    23. There was never a receipt issued for the cash deposit.
    24. The notes transferred at a transaction account creates an asset on
    the payable side of the ledger; while on the liability side of the
    ledger, the NOTE issued by the presumed buyer/borrower is sold after
    monetizing.
    25. First funds transferor (borrower – YOU) holds absolute right to
    the NOTE or cash equivalent.

  5. PLEASE READ THIS AND ACT ON IT

    928 – Executive Order 13519 – Establishment of the Financial Fraud Enforcement Task Force

    November 17, 2009

    Daily Compilation of Presidential Documents

    By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to strengthen the efforts of the Department of Justice, in conjunction with Federal, State, tribal, territorial, and local agencies, to investigate and prosecute significant financial crimes and other violations relating to the current financial crisis and economic recovery efforts, recover the proceeds of such crimes and violations, and ensure just and effective punishment of those who perpetrate financial crimes and violations, it is hereby ordered as follows:

    Section 1.

    Establishment. There is hereby established an interagency Financial Fraud Enforcement Task Force (Task Force) led by the Department of Justice.

    Sec. 2. Membership and Operation.

    The Task Force shall be chaired by the Attorney General and consist of senior-level officials from the following departments, agencies, and offices, selected by the heads of the respective departments, agencies, and offices in consultation with the Attorney General:

    (a) the Department of Justice;
    (b) the Department of the Treasury;
    (c) the Department of Commerce;
    (d) the Department of Labor;
    (e) the Department of Housing and Urban Development;
    (f) the Department of Education;
    (g) the Department of Homeland Security;
    (h) the Securities and Exchange Commission;
    (i) the Commodity Futures Trading Commission;
    (j) the Federal Trade Commission;
    (k) the Federal Deposit Insurance Corporation;
    (l) the Board of Governors of the Federal Reserve System;
    (m) the Federal Housing Finance Agency;
    (n) the Office of Thrift Supervision;
    (o) the Office of the Comptroller of the Currency;
    (p) the Small Business Administration;
    (q) the Federal Bureau of Investigation;
    (r) the Social Security Administration;
    (s) the Internal Revenue Service, Criminal Investigations;
    (t) the Financial Crimes Enforcement Network;
    (u) the United States Postal Inspection Service;
    (v) the United States Secret Service; (w) the United States Immigration and Customs Enforcement;
    (x) relevant Offices of Inspectors General and related Federal entities, including without limitation the Office of the Inspector General for the Department of Housing and Urban Development, the Recovery Accountability and Transparency Board, and the Office of the Special Inspector General for the Troubled Asset Relief Program; and
    (y) such other executive branch departments, agencies, or offices as the President may, from time to time, designate or that the Attorney General may invite.

    The Attorney General shall convene and, through the Deputy Attorney General, direct the work of the Task Force in fulfilling all its functions under this order. The Attorney General shall convene the first meeting of the Task Force within 30 days of the date of this order and shall thereafter convene the Task Force at such times as he deems appropriate. At the direction of the Attorney General, the Task Force may establish subgroups consisting exclusively of Task Force members or their designees under this section, including but not limited to a Steering Committee chaired by the Deputy Attorney General, and subcommittees addressing enforcement efforts, training and information sharing, and victims’ rights, as the Attorney General deems appropriate.

    Sec. 3. Mission and Functions.

    Consistent with the authorities assigned to the Attorney General by law, and other applicable law, the Task Force shall:

    (a) provide advice to the Attorney General for the investigation and prosecution of cases of bank, mortgage, loan, and lending fraud; securities and commodities fraud; retirement plan fraud; mail and wire fraud; tax crimes; money laundering; False Claims Act violations; unfair competition; discrimination; and other financial crimes and violations (hereinafter financial crimes and violations), when such cases are determined by the Attorney General, for purposes of this order, to be significant;
    (b) make recommendations to the Attorney General, from time to time, for action to enhance cooperation among Federal, State, local, tribal, and territorial authorities responsible for the investigation and prosecution of significant financial crimes and violations; and

    (c) coordinate law enforcement operations with representatives of State, local, tribal, and territorial law enforcement.

    Sec. 4. Coordination with State, Local, Tribal, and Territorial Law Enforcement. Consistent with the objectives set out in this order, and to the extent permitted by law, the Attorney General is encouraged to invite the following representatives of State, local, tribal, and territorial law enforcement to participate in the Task Force’s subcommittee addressing enforcement efforts in the subcommittee’s performance of the functions set forth in section 3(c) of this order relating to the coordination of Federal, State, local, tribal, and territorial law enforcement operations involving financial crimes and violations:

    (a) the National Association of Attorneys General;
    (b) the National District Attorneys Association; and
    (c) such other representatives of State, local, tribal, and territorial law enforcement as the Attorney General deems appropriate.

    Sec. 5. Outreach. Consistent with the law enforcement objectives set out in this order, the Task Force, in accordance with applicable law, in addition to regular meetings, shall conduct outreach with representatives of financial institutions, corporate entities, nonprofit organizations, State, local, tribal, and territorial governments and agencies, and other interested persons to foster greater coordination and participation in the detection and prosecution of financial fraud and financial crimes, and in the enforcement of antitrust and antidiscrimination laws.

    Sec. 6. Administration. The Department of Justice, to the extent permitted by law and subject to the availability of appropriations, shall provide administrative support and funding for the Task Force.

    Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
    (i) authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or
    (ii)
    (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
    (b) This Task Force shall replace, and continue the work of, the Corporate Fraud Task Force created by Executive Order 13271 of July 9, 2002. Executive Order 13271 is hereby terminated pursuant to section 6 of that order.

    (c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

    (d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

    Sec. 8. Termination.

    The Task Force shall terminate when directed by the President or, with the approval of the President, by the Attorney General.

    BARACK OBAMA
    The White House,
    November 17, 2009.

    NOTE:

    This Executive order was published in the Federal Register on November

    19.

  6. Heather:

    Notice: On November 26, 2008, LandAmerica Financial Group, Inc. and LandAmerica 1031 Exchange Services, Inc. filed for Chapter 11 bankruptcy. You can find information about the bankruptcy process and proceedings on the claims agent website.

    On December 22, 2008, Fidelity National Financial, Inc. directly and through its underwriting subsidiaries acquired from LandAmerica Financial Group, Inc. the following companies:

    – Lawyers Title Insurance Corporation and all if its subsidiaries
    – Commonwealth Land Title Insurance Company and all of its subsidiaries (including LandAmerica NJ Title Insurance Company)
    – United Capital Title Insurance Company

    For a complete list of companies sold to Fidelity, please click here.

    Due to the bankruptcies and the sale to Fidelity, much of the information on this website is not up-to date in regard to these developments. For a transition period, you can continue to find information about the companies sold to Fidelity on this site, with additional links to the various business sites and tools. Nonetheless, the businesses sold to Fidelity are now owned by Fidelity and not LandAmerica, and all inquiries and communications regarding these companies should be directed to representatives of the companies or Fidelity. Information related to current LandAmerica companies can also be found on the LandAmerica website.

    In addition, Fidelity National Financial, Inc. provided Reinsurance Agreements with Commonwealth Land Title, Lawyers Title, LandAmerica NJ and United Title.

    Former employees of LandAmerica: Click here for information and updates.

    For information on the LandAmerica Art Auction: Click here for information and updates.

    This page is from X_http://www.landam.com/index.htm

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  7. Dan,
    Is the originator Lawyers Title of Arizona
    c/o LandAmerica Default Services?

    Heather

  8. Hey, Neil. Good article….but I noticed that the template Complaint at “scribd” from the link above is missing pages, “hidden by the document owner.” Seems odd that you would have a complete complaint in the “pleadings” section here, but then post an incomplete one at scribd.

  9. Who is the originator?

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  10. It’s being assigned from the servicer to a real bank as trustee of a long-named/numbered security.

    And perhaps we asked for the wrong remedy, but my lawyer believed, and I did too, that the bank’s representative would negotiate a mod in good faith. Oh, well: live and learn. But although my position has slipped in time and strength, 2923 might be usable to vacate the sale, since foreclosure was clearly handled incorrectly, and definitely can be used for punitive damages against the bank for their knowing (since the hearing they still haven’t corrected it) violation of this provision.

  11. What could happen if the mortgage was not signed by both spouses as required by state law? What does having a void mortgage get me?

  12. Interesting. So what is the right remedy? It is my understanding that the NOD process is insufficient without this and it would need to be done again. Does this mean you don’t have a remedy or does it just mean you didn’t ask for the correct remedy (a “do over” for the NOD)?

    I am not a lawyer so I do not know what to do next. 2923 is not a silver bullet to win, it is just another one of many issues.

    In your assignment (done after foreclosure started), who is the party being assigned FROM (this is probably the originator)?

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  13. To Dan-
    In the 2923 disclosure, it is black-letter law that it must be declared under perjury, notarized, and that the notarization must conform to CA standards. In my case there was no declaration under penalty of perjury, but the judge said in essence “doesn’t matter, and a TRO is not the right remedy if it did” and denied the TRO after the lender’s rep made it easy by saying that they’d try for 2 months to negotiate a modification. They didn’t want to modify (they gave it a two-letter negotiation which were “n” and “o”) and waited two months.
    Now I’m facing a sale date next Tuesday, and wondering whether a BK will help more than a simple fight of the upcoming UD.

  14. Libra99,
    I understand the issues at stake. I know the odds of a “win” are low. But, they can only get better. The more people fight the more chances there are. My goal win or lose is to have the people who created, signed and recorded my assignments prosecuted to the fullest extent of the law. Some people go to jail for telling a lie (Martha Stewart comes to mind), some people pay a fine for telling a lie (William Jefferson Clinton comes to mind) and others get off scot free.

    I am working with others in California to gather as much evidence of criminal acts as I can. I don’t know what the result will be but please help us by providing a copy of your assignment(s). Anyone else who wants to join with us is invited. It doesn’t even have to be California. My goal is to show a pattern and practice of this behavior.

    I have also heard from somewhere (can’t remember where at the moment) that some banks are going in and clearing out the recording history for foreclosed homes. That sounds very much like a conspiracy theory. Can you confirm one way or the other? If it is true we would probably want to start documenting the recordings as much as possible for evidence.

    They didn’t and won’t listen to us individually. They probably won’t listen to us as a group. But I refuse to give up without a fight.

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  15. To all those below who posted from Cali. Having lived there in San Diego and fought [and lost] my own foreclosure, I can tell you Calif is a real b*tch of a state to even have a chance to win. The way the lenders sue us in UD [Unlawful Detainer] court strips you of your rights to argue title, which is what this is largely about. Add to that most of the judges in Calif Superior Court are either too stupid or too corrupt to “get it”. Try going it alone sans attorney and you’re screwed. Try finding one there that will even take your case. Sadly, I knew a couple dozen people in Calif who all fought like hell, and lost.

  16. If your loan relates in any way to IndyMac, read this article by Patrick Pulatie:

    Z_http://iamfacingforeclosure.com/blog/2009/12/01/anatomy-of-a-government-abet
    teded-fraud-why-indymaconewest-always-forecloses/

    Obama’s Foreclosure program run by Morons:

    Z_http://mandelman.ml-implode.com/2009/12/the-jury-is-in-obama%e2%80%99s-foreclosure-program-run-by-morons%e2%80%a6-and-trial-modifications-are-the-biggest-loan-mod-scam-ever/

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  17. Good job Neil! Here is only concern I have and how you and I and the others need to think about what to do. (I have some ideas that when you are healthy, we should discuss on phone). How do we get our “experts” past the Dauber tests? I have some ideas, but rather chat about in private when time is good!

  18. Actually in California the Trustee Sale must occur within 365 days of its posting; if it does not a new Trustee Sale notice has to be posted on the door and in the papers.

    I’m not an attorney but that is what happen in my case. They filed a NOD in Jan. 2008 and posted a Trustee Sale on April 30th. When the TRO was dissolved they reposted the TS and I had 20 days to get it stopped. (Which unfortuntely I had to do through a BK).

    California seems to have a lot of state judges that don’t care. They are not making the banks prove they have standing. They don’t care. Boggles the mind.

  19. Excellant information. One of the Federal cases those that qualify should consider is a a Fair Housing Complaint, doing it correctly gets results. Call me for details. 561-429-9550.
    Also a Retro-appraisal & audit showing that the value at the time of purchase or refinance was inflated automatically makes your TIL way off.

  20. Neil,
    Great article. I like how you’re “beginning from the beginning” with these “How to” articles. I’ve been reading up on all this for a while and have only now begun to really start to grasp some of this stuff. Or I should say, the intellectual aspects of this are starting to take root in my brain to back up my gut feeling.

    At any rate, my foreclosure sale was supposed to have been in August–it was cancelled by a TRO. I got a letter from the Trustee on my Deed of Trust back in July that said they’d have my house in 60-90 days. Of course, that was back when they thought I was a slave and wouldn’t stand up for myself. That was back when they thought I would never find a blog called Living Lies. That was back when they thought I’d get frustrated doing research and just give up and move on.

    So far they’ve been wrong–and the slave revolt is on (I may have to use that in a song)!

    Thanks Neil and I hope you’re feeling all right–can’t wait for the DVD!

  21. CALIFORNIA FOLKS
    read up on the SB 1137 which is now in effect. It provides some additional laws if you took your loan out between Jan. 1, 2003 and Dec. 31, 2007.

    This expires Jan 1 2013.

    Senate Bill No. 1137

    CHAPTER 69
    An act to add and repeal Sections 2923.5, 2923.6, 2924.8, and 2929.3 of the Civil Code, and to add and repeal Section 1161b of the Code of Civil
    Procedure, relating to mortgages, and declaring the urgency thereof, to take
    effect immediately.
    [Approved by Governor July 8, 2008. Filed with Secretary
    of State July 8, 2008.]
    legislative counsel’s digest

    SB 1137, Perata. Residential mortgage loans: foreclosure procedures.
    (1) Upon a breach of the obligation of a mortgage or transfer of an interest
    in property, existing law requires the trustee, mortgagee, or beneficiary to
    record in the office of the county recorder wherein the mortgaged or trust
    property is situated, a notice of default, and to mail the notice of default to
    the mortgagor or trustor. Existing law requires the notice to contain specified
    statements, including, but not limited to, those related to the mortgagor’s
    or trustor’s legal rights, as specified. Existing law also requires that the
    notice of sale in the case of default be posted on the property, as specified.

    Until January 1, 2013, and as applied to residential mortgage loans made
    from January 1, 2003, to December 31, 2007, inclusive, that are for
    owner-occupied residences, this bill would, among other things, require a
    mortgagee, trustee, beneficiary, or authorized agent to wait 30 days after
    contact is made with the borrower, or 30 days after satisfying due diligence
    requirements to contact the borrower, as specified, before filing a notice of
    default. The bill would require contact with the borrower, as defined, in
    order to assess the borrower’s financial situation and explore options for
    the borrower to avoid foreclosure. The bill would require the mortgagee,
    beneficiary, or authorized agent to advise the borrower that he or she has
    the right to request a subsequent meeting within 14 days, and to provide the
    borrower the toll-free telephone number made available by the United States
    Department of Housing and Urban Development (HUD) to find a
    HUD-certified housing counseling agency. The bill would require the notice
    of default to include a specified declaration from the mortgagee, beneficiary,
    or authorized agent regarding its contact with the borrower or that the
    borrower has surrendered the property. If a notice of default had already
    been filed prior to the enactment of this act, the bill would instead require
    the mortgagee, trustee, beneficiary, or authorized agent, as part of the notice
    of sale, to include a specified declaration regarding contact with the
    borrower. The bill would authorize a borrower to designate a HUD-certified
    housing counseling agency, attorney, or other advisor to discuss with the
    mortgagee, beneficiary, or authorized agent, on the borrower’s behalf,
    90
    options for the borrower to avoid foreclosure. The contact and meeting
    requirements of these provisions would not apply if a borrower has
    surrendered the property or the borrower has contracted with an organization,
    as specified. The bill would also require specified mailings to the resident
    of a property that is the subject of a notice of sale, as specified. In addition,
    the bill would make it a crime to tear down the notice of sale posted on a
    property within 72 hours of posting, thereby imposing a state-mandated
    local program.
    Until January 1, 2013, this bill would require a legal owner to maintain
    vacant residential property purchased at a foreclosure sale, or acquired by
    that owner through foreclosure under a mortgage or deed of trust. The bill
    would authorize a governmental entity to impose civil fines and penalties
    for failure to maintain that property of up to $1,000 per day for a violation.
    The bill would require a governmental entity that seeks to impose those
    fines and penalties to give notice of the claimed violation and an opportunity
    to correct the violation at least 14 days prior to imposing the fines and
    penalties, and to allow a hearing for contesting those fines and penalties.
    (2) Existing law governs the termination of tenancies and generally
    requires 30 days’ notice of the termination thereof, except under specified
    circumstances. Existing law also establishes the criteria for determining
    when a tenant is guilty of unlawful detainer.
    Until January 1, 2013, this bill would give a tenant or subtenant in
    possession of a rental housing unit at the time the property is sold in
    foreclosure, 60 days to remove himself or herself from the property, as
    specified.
    (3) This bill would set forth specified findings and declarations and intent
    provisions with regard to the above, and would provide that its provisions
    are severable.
    (4) The California Constitution requires the state to reimburse local
    agencies and school districts for certain costs mandated by the state. Statutory
    provisions establish procedures for making that reimbursement.
    This bill would provide that no reimbursement is required by this act for
    a specified reason.
    (5) This bill would declare that it is to take effect immediately as an
    urgency statute.
    The people of the State of California do enact as follows:
    SECTION 1. The Legislature finds and declares all of the following:
    (a) California is facing an unprecedented threat to its state economy and
    local economies because of skyrocketing residential property foreclosure
    rates in California. Residential property foreclosures increased sevenfold
    from 2006 to 2007. In 2007, more than 84,375 properties were lost to
    foreclosure in California, and 254,824 loans went into default, the first step
    in the foreclosure process.

  22. Neil,

    Can a Tow truck company be considered a debt collector, please?. The fact that the tow truck works for a debt collector does that make him a debt collector? please

  23. Good stuff Neil. Here is more:

    In California the 2923 disclosure (I think filed with the NOD) MUST be under oath. Also, I believe this oath must apply under California law. That means it cannot be notarized outside of California (I believe this to be true but it needs to be confirmed).

    The property must sell within 1 year of the NOD (I am not sure of the details of this requirement except that after 1 year they have to start over with a new NOD).

    Disclaimer: I am not an attorney and this is not legal advice.

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

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