Foreclosure Defense Forms « Livinglies’s Weblog

199 Responses

mike, on November 4th, 2009 at 8:43 am Said:

this is a letter i started in 2001 and i keep updating it

PAGE 1.well 8 years ago I was self employed my company generated about 1 mill a year I had a credit score of 720 and $130.00.00 in equity in my home …well since the beginning of our loan its been messed up like the wrong info on my wife ss# occupation & income also my name was not put on the loan when we jointly applied .the contract came to our home 3 days later and was completely wrong we went back to despute it we were told it went past the 3 day retraction law we were also told that we will be able to get our payments lowered and fix everything after 6 months all lies. well when the time came we wanted to lower our payments and do a refy I wanted to lower my payments and pull 16.000 out of my equity for my companies insurance .that’s when things got real bad we found out about the pre penalty fees they stopped talking w/me and wouldn’t take my payments well
I was then looking for another mortgage co to take over my loan and got approved for 1 @6% with $40.000.00 cash out $900.00 less a month with (qmar mortgage ) by this time I needed it. thats when me and the other mortgage co asked for a payoff we had 6 weeks to get it and complete the signing with the new mortgage co needless to say we never got it (the payoff amount letter) witch cost me that loan and some of my credit and my company no ins no work. the whole time I was getting phone calls like what do we have to do to keep you as a satisfied customer and were working with you to straighten this out etc.i then went back to ameriquist in braintree ma were we signed and talked with gineene bland again who was very helpful she got me in touch w/the office of the president @amc and once again got me approved for a loan all they had to do @ this point is the paper work through the office of the president now my credit was around 600 the guy justin told gineen in a 3 way conversation that he was going to call me right back is that ok we both said yes .well he called me back 4 hours later 10 minutes before closing and said qoite I didn’t want to say nothing w/that b*tch on the phone but this company is ripping off everyone that he and a friend that owns a mortgage company they are taking all of ameriquist customers and getting them great loans the people are so happy and that his friend will call me in the morning his friend Greg did call telling me that they have been stealing customers for a while with great results .I then called gineen back and told her what had transpired then I got a phone call from mike Justin’s boss claiming that if I tell him what had transpired he would personally see my loan through so I told him every thing from the beginning and once I told him what company was stealing the work and who was responsible (Justin)I said that I just wanted to straighten my loan out not get people in trouble that’s when I realized I was on speaker phone and that mike had several employees there listening including Justin who said thanks for throwing me under the bus scumbag I started yelling back saying if you people would just do your job I would have my loan with another co. they all started saying stuff &laughing @me that ill never get a loan there going to take my house etc. when I talked with the a.g’s office they were eager to help us because Romney was running against Patrick for gov Patrick who I tried to contact only to be told that he cant help me in any way by his assistant so I said what does he do for us citizens anyway and his assistant couldn’t tell me anything the governor does to help people ..Anyway he was on the board of ameriquist (owner) I also called roland arnol (the owner of ameriquest)direct and told him 3 days before he had to answer to congress about his company saying that he had no idea they were doing the stuff they were (I told him) and he said to go f*&%my mother and hung up. now they don’t really want to talk w/me since that time and president bush after the lawsuit made him the ambassador to the Netherlands I was in contact w/a-generals and amc ameriquist who was very interested in helping me before.. I fall into the 325milion lawsuit and that’s great in 5 years but whats going to happen to my family in the meantime I have been in contact with ameriquist this whole time they say there going to make things right and over look credit score and give me a loan but not my equity I got a letter from a lawyers office saying foreclosure so I called amc they always say don’t worry about foreclosure & there not doing that then I seen it in the paper still don’t worry its procedure they say then this morning im taking my mother in-law to the hospital and some guy is in the driveway asking if my house is vacant yet I asked him who he was and he gave me a # with a fake name said that ameriquist sent him out to see if my house was on the market @ one time I did list my house and was getting offers Oscar burger @(amc)made me take it off promising me the loan so I can keep it /another time to get me away from the attorney generals office Oscar burger sent me a discloser agreement knocking $93.000.00 off my loan once I got away from the a-g they forgot all about it said it was a second loan for the equity .now they have fired everyone that was supposedly helping me 1 Oscar burger 2 Clyde botzner 3 Rebecca conti they have said in the past that I don’t work with them they cant reach me ect all lies I leave messages for them all the time…they never reported any of this to our credit agency(payments) in 2 years till just recently 03-12-08 we need help and everyone should know whats happened to us the girl(Sonja sedano) that’s supposedly helping me @acc just told me not to worry about the foreclose again but couldn’t tell me a pay off or what I need to straighten out the loan…..now I pay close to 4000 a month have no equity & no credit & I did lose my company god bless America .now in march of 07 they called me(acc) and said they want to knock off $100.00.00 on my $376.000.00 mortgage if I work with wells fargo to buy them out I said ok when wells fargo wouldn’t call me or Lisa cavin @ (acc holdings) back she asked me to find my own guy to bye them out I contacted Jeff blais from (the mortgage group)Jeff got me a mortgage @ $240.000.00 June 2008 and PAGE 2. asked fci &acc if they will accept that as a payoff they . said no so I called Joe sedano back telling him the loan I went for was approved @ 240 but acc wont take it he said that he didn’t understand why acc didn’t have me deal with Dan sweeny the guy that’s been getting all of acc’s loans that he wanted to call me back he did stateing that he has great news Dan sweeny will get the loan done and even better news he got acc to take a payoff of $180.000.00 on my home and sent me a copy of that pay off letter July 16 2008 and I said ok Dan sweeny called me and we got started after a while month or so he thought he had it done through a hard $ lender (eastern bank) eastern bank sent there own appraiser (George Brenner) to look @ the house and my living situation Dan sweeny told eastern Beth Yeager that I moved away from my wife & kids and that I rent to them as an investment property. so eastern denied the loan when they found out I live with my wife & kids I tried to get Beth to do it with me direct and Beth said that she can see I can defiantly afford it BUT with the new laws its impossible to write home owner occupied loans in my state and that ameriquist never reported payments history on my loan so she cant do it. I then went back to Jeff blais with the new payoff $180.000.00 he was mad that they didn’t take the $240.000.00 payoff he had done 2 weeks earlier that he will try and get it done @ 180k and he did try and couldn’t that acc let it go to long and finally reported late payments as of march of 08 this whole time I tried to get Joe sedano fci & acc to get my re payment plan done so I didn’t fall behind they kept telling me that I would be throwing $ out the window because im refinancing .now Im getting threatening letters about foreclose (from joe sedeno fci) if I don’t come up with $65.000.00 within 90 days. and they don’t call me back .I think they cooked this new scam up to get me to be late again because I was paying 3000 a month on time and they make $ off the tarp ..im currently waiting to hear from citi bank it’s been a week now and there not calling me back. they are one of the banks that got some of the bail out $ from obama and it turns out there the ones that hold my mortgage this whole time? They say that acc are my investors?……….ALL I WANT IS THEM TO HONOR THE $180.000.00 PAYOFF AND SET PAYMENTS TO THAT EFFECT….. I don’t understand how they can get away with all this crap over the years if I rip someone off on a car it goes to court and they get 3 fold when they prove there case . but on a home you can prove the mortgage vultures wrong and nobody does nothing makes no sense I caught them ripping me off over the years and proved it and I can still now .but yet they get away with it .im a guy that caught them lying on the original app and can afford my payment .. They just never straightened it out and don’t have to answer to no one.3/2/09 CALLED CITY GAVE THEM THE ACCT # FROM FCI AND THEY HAD NO RECORD GAVE THEM MY SS# MY LOAN CAME UP AS FORCLOSED ALL READY STEVE EMPLOYEE #SS25554 ASKED ME TO HOLD ON SOMETHING IS WRONG CAME BACK ON SAID THAT CITI TOOK OVER MY LOAN 2/14/09 LOAN #’S 0152392700 & 0152374864 AND THAT FCC WAS INSTRUCTED TO SEND CITI MY PAPER WORK BUT DIDN’T YET THAT ACC IS MY INVESTER AND THEY HIRED FCI THE SERVICING COMPANY I CALLED THEM AND SPOKE WITH ANDY THERE HE SAID THAT HE WILL NOTE THE ACCT BUT WOULDN’T TELL ME IF ITHEY WILL RELEASE MY INFO TO CITI ON THE PHONE WITH CITI AGAIN THERE SAYING THAT THEY PUT IN FOR MY PAPERWORK TO BE SENT TO THEM AGAIN AND HAVENT GOT A REPLY FROM ACC OR FCI THAT FCI IS PROBLY HOLDING ON TO IT BECAUSE THEY WILL MAKE $$ IF IT GETS FORCLOSED BUT WONT MAKE $$ IF THEY SEND IT TO CITI WHO OWNS ITCITI IS TELLING ME THAT IT TAKES UP TO 3 WEEKS FOR THEM TO GET MY PAPER WORK AND A SUPERVISOR IS TRYING TO GET ITI SAID WELL WHAT HAPPENS IF THEY DON’T SEND IT & CAN THEY CALL JOE SEDANO AND TELL HIM TO BACK OFF THAT CITI OWNS THE LOAN NOW AND WILL BE WORKING WITH ME AS SOON AS THEY GET MY PAPER WORK ,CITI SAID THAT I JUST HAVE TO WAIT & THAT THEY CANT REWRITE MY LOAN UNTILL THEY GET THE HISTORY FROM FCI IT IS MY FEAR THAT FCI & ACC DONT HAVE IT well citi is going to contact joe sedano today and demand the paper work and tell fci that they have our loan now and to back off and stop forcloser or contacting me /sending me letters & citi will call me back within 3 days 3/110/09 devi from acc just called me and says that she cant give me any info on any of my accounts that I have to deal with the servicing co joe sedenothat he has had the power to accept or decline any and all offers to do with my loan since feb 08 (why didn’t he just take the 240.000.00)… now 03/15/2009 the guy from fci don’t call me just emails me with ridiculous demands and wont talk about the repay plan he promised to get done several times while I was waiting to here from dan sweeny(who I just found out was not even licensed in my state to write loans) also citi got a call from devi @ acc she has been with ameriquest since the beginning and she has always’s been ignorant to me & my wife she called citi who was supposed to get my loan and now they say theres no loans in my name now and that they don’t have any further info for me theres no record of it even thow they had my info and told me that they were waiting for my paper work from the old citi & acc a day ago and they (citi ) sent us a welcome to citi letter ? they wiped us out of there system …still no paper work from my original loans and I called all of them and asked for any and all history records or paper work in writing back in January 09

Now in 10-20-2009

Several months ago my lawyer sent them a request for proof of the debt and loan docs from the original loan and the second loan they replyed sending a letter on the 07 loan with currant stamps and signatures as if they just did it (dates don’t make sence) so my lawyer sent them another letter demanding the docs stating the obvious mistakes on the ones they sent he also sent another letter @ the same time giving them 10 days to reply or release the debt which they never replied to 3 months later I get served court papers from the land court ameriquest funding ii reo subsidiary llc claiming to be the lean holder of the mortgage dateed aug 23 07 has filed with said court complaint for authority to forclose said mortgage by entry and possession .my lawyer suggest fileing a injunction or bankruptcy I have contacted every where that supposed to help protect us and its as if no one wants to get involved

I gave all this stuff to my attrny and he is having a hard time getting anywhere on it they sent me certified letters stating

I gave all this stuff to my attrny and he is having a hard time getting anywhere on it they sent me certified letters stating that there moving to foreclose

Today me and lisa from barney franks office contacted d.o.b’s (div of banks) they told us that this makes no sence because citi group purchased ameriquest September 2007 as far as he knows they should be the ones I have to deal with
gary, on November 2nd, 2009 at 1:54 am Said:

ucc statements for the interested

i am using the new ca law to recind claiming bad faith from
servicer or malpractice – in having not midigating because they
lack the authorty to midigate, they are not the holder so they just stall –my objective is to force quit title and we know where that leads

3-305—An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.

§ 3-306. claim to rescind a negotiation and to recover the instrument

3-305. DEFENSES AND CLAIMS IN RECOUPMENT.
(a) Except as stated in subsection (b), the right to enforce the obligation of a party to pay an instrument is subject to the following:
(1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
(2) a defense of the obligor stated in another section of this Article or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract; and
(3) a claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.
(b) The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a)(1), but is not subject to defenses of the obligor stated in subsection (a)(2) or claims in recoupment stated in subsection (a)(3) against a person other than the holder.
(c) Except as stated in subsection (d), in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (Section 3-306) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.
(d) In an action to enforce the obligation of an accommodation party to pay an instrument, the accommodation party may assert against the person entitled to enforce the instrument any defense or claim in recoupment under subsection (a) that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy, and lack of legal capacity.

§ 3-306. CLAIMS TO AN INSTRUMENT.
A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds. A person having rights of a holder in due course takes free of the claim to the instrument.
Sharon Woodard, on October 31st, 2009 at 10:50 pm Said:

Wanting to know if the list of “FDG Attorney Network Expands to Over 150 Lawyers in 32 States” is current as I know Attorney’s are added and removed. and if there is a more current list please send it to me at: sharon4459@gmail.com Thank you
DyingTruth, on October 22nd, 2009 at 8:41 pm Said:

Cormac J Carney District Judge California Central District
angry&not taking it, on October 22nd, 2009 at 7:45 pm Said:

iF the ca judges are denying you “due process” PLEASE POST their names here,
We will all then know who they are. and can start to post it in online in other places .. i’m sure when you can goggle a judges name & get back …
” the Dis-honorable Judge Loin-Pull of San Diego Ca ” partners with banks stealing Families homes for phun & profit! the JUDGES will be thrilled!
Oh yea try find the golf country club they are members at..
fuk these guys.. i sick of this shit!
Dan Edstrom, on October 18th, 2009 at 5:35 pm Said:

BP,
Have you rescinded and are you able to rescind? This seems like a very powerful argument (if it applies to your case).

Again, I am not an attorney – hopefully your attorney knows what you need to do. Make sure though because from what I have heard rescission means different things to different attorneys.

There is good information on this site about TILA and Rescission – you can check out this article if you haven’t learned about this already:

http://www.scribd.com/doc/15522201/Tila-Disclosure-Req-Viol-Remedies

If the judge is rubber stamping it probably won’t matter but it may make a big difference to the appeals court. (assuming you made the argument already).

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan Edstrom, on October 18th, 2009 at 5:29 pm Said:

BP,
My case hasn’t been filed yet. However, it seems to me that these “first round” judges are swamped and it will be very difficult to get anywhere (this probably also depends on the judge you are going in front of). If it is not too late you should appeal. Is your case over or is it proceeding (with the house sold)? You probably filed a lis pendens? You may be able to appeal the TRO (I am not an attorney so that is just a guess). Remember – even near me I have heard that one county is pretty much denying TRO’s but my county is granting them (or at least some). Again I am not an attorney but these are my observations. I don’t know if it helps but I plan to state that I have not, can not and will not give up my rights to due process before having my property taken away. The Power of Sale is unconstitutional (that probably won’t fly but at the very least I should be afforded a hearing on the merits of my case without having to pay a fee).

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Deontos, on October 18th, 2009 at 3:30 pm Said:

BP,

If it doesn’t interfere with your on going litigation
can you publish the TRO case number better yet the file
so we can learn more about what the SD COURTS
are doing?

Thank you.
BP, on October 18th, 2009 at 2:18 pm Said:

Neil

Have you found any sucessful quiet title actions in California? I lost a TRO with a prominent Foreclosure Atty and lost the home. Was looking for sucessful cases that have worked in CA.

In San Diego the courts are assigning these cases to a “Special Judge” who will not hear the merits of these cases and will deny TRO’s immediately so I need to try something new so I was thinking a Quiet Title.

Please post these cases on yoyur website if they are available or let us know how to find them. Thanks.
DyingTruth, on October 15th, 2009 at 10:58 pm Said:

NICK my case is very similar in many ways to yours. i’m not an attorney but i will give you my personal advice. first & most importantly your attorney FIRE HER trust me at this point she can and probably will do a lot more harm than good trust me i know from experience, my attorney filed a non-opp to a motion to dismiss without my autorization or consent, and as far as what to do for her replacement you know what they say if you want something done right you have to do it yourself. secondly DO NOT enter into negotiations for 1)forbearance 2)modification 3)settlement. all three will always most likely begin with or contain stipulations requiring you to release all claims known and unknown against the parties that you seek relief from. and third be prepared that’s my motto, study up on all relevant statutes and case law that support your claims, it’s always good to have the law that helps you handy.

I Wish us both Luck in our Quest for Justice
Philip
NICK, on October 15th, 2009 at 9:23 pm Said:

I would like some advise on what I should do. I filed a complaint against my lender and broker Pro-Per back in October 2007. The basis of my complaint is that my loan documents were forged and was the victim of predatory lending. I filed Pro-Per because I was unable to afford a lawyer. I have been able to survive two different Demurs and Motions to Strike and Motion for Judgement on the Pleadings and have a trial date in March 2010. Over the past two years I was always careful to follow the court’s procedures and comply with all deadlines. In May 2009, I hired a lawyer that read my story that I posted on this website. When I met with her, she was confident that she could help me and was very convincing. I felt she had the same passion that I did to fight against predatory lenders and win my case. I informed her up-front that I did not have much money. I paid her a retainer and she said I could work on her home and also file court papers as she needed me. At the time that I hired her, I was about to attend a deposition by defendant. She attended the depo with me, but she stated that she was unaware of the details of my case, so she was not objecting to anything, so I left the deposition feeling that it did not go well. When I first met with her, I informed her that I needed her to send out discovery and set up depos, She stated that she wanted to Amend the Complaint to add additional defendants and Causes of Actions. None of this has been done as of today. Seven days after I paid her the money, she was threatening to withdraw from my case because she said that I was not complying with her requests for my documents, which was not true. I gave her all the documents that I had. She also said that she was unable to get in touch with me, which was also not true because I had been to her house numerous times to do work. Defendants served a Request for Production of 22 different documents, and the day before they were due, she called and informed us that she was not able to prepare the documents and that we needed to do retrieve the files from her home, which is at least 25 minutes from where we live, put the documents in order and make copies and bring them back to her. She was very verbally abusive toward us and after a confrontation occurred between my girlfriend and her she informed me that I was not to discuss my case with her or she would resign. This made it very hard for me because my girlfriend has helped me from the beginning. She never should have had us doing her job to begin with. We are not attorneys’ and that is why I hired her. She became very negative and said that I was going to lose my case and the judge was going to dismiss it.
After her first CMC (which she filed the statement late), the judge required a status letter to be filed by a certain date with she did not do. Over the next several months, I was at her home at least every other weekend and during the week, filing documents, all over the bay area, never missing any of her deadlines for her other clients, always available when she needed me. I had requested more than once that we discuss the details of my case and our strategy’s and she refused stating that there was no time for that and she was not going to waste time listening to me. As the next court date approached, she did not file a timely CMC statement or a status letter. I sent her a lenghly e-mail with my concerns that she was not properly representing me and did not treat me with respect. After several attempts to contact her, she finally telephoned me and informed me that she wanted to withdraw from my case, and that I needed to sign a Substitution of Attorney and that the judge would most likely be dismissing my case and trying to intimidate me by saying that I was going to lose my home. I refused to sign anything and told her that I would see her in court. This was the third time she had threatened to withdraw and it had only been three months since I hired her. By the day we appeared in court, she had not filed a substitution of attorney or had she filed the CMC statement. She arrived late to court and immediately informed the judge that she would be resigning. The judge wanted us to try to work it out. As soon as I requested to speak, my attorney said that she would be willing to step outside and talk to me. We worked out our differences and informed the court that she no longer was resigning and the judge assigned my case to mediation. Again my attorney stated that she wanted to amend the complaint to add additional defendants. The judge said that she should do this immediately. The judge ordered that we choose a mediator and inform the court within 30 days and set a Compliance hearing. My attorney again did not comply with this request even though I worked for her again and sent her a reminder email to notify the court. She not only didn’t send a status letter, she also failed to appear at the compliance hearing and now is subject to sanctions. The judge has ordered both attorneys to appear to show cause why she should not sanction them further or dismissal of the actions/striking of the pleadings pursuant to CCP 177.5 and 575.2.
This is where I stand now. I sent her an e-mail asking her why she had not complied with the court and that I was very concerned because she had not done anything she said she was going to do. I also asked her what the judge meant by that. She said that she had chosen a mediator and did not know why the court did not receive any documents from the mediator. It is not the mediator’s responsibility to notify the court. It was hers. She then informed me verbally of the mediation date. The OSC hearing is set for 11/05/09 and she is to file a declaration by 10/29/09. She has not filed anything in my case since June 8, 2009 which was one week after she was retained. She has not provided me with the legal representation that I am entitled to, nor has she conducted any discovery or responded to any of my requests. I don’t know what my legal rights are. What happens to my case, if she continues to be noncompliant. Would the judge actually dismiss, and if so, what is my recourse?
I have worked so hard fighting lenders, brokers, and their attorneys. I have gone to the Department of Real Estate, Department of Corporations, District Attorney’s office, Department of Justice, and even appeared on Channel 7 on your side with my story. I have stopped the illegal sale of my home five times, with the last time on the court steps at 12:05 p.m. on the day of the sale. I have never given up and am still in my home and intend to remain here for a long time.
I believe in what I am fighting for and intend to try to help innocent homeowners who are victims of Predatory Lending Practices and against crooked lawyers who are misleading and taking their monies.
This is why I am asking you for your advise as to what I should do. I am posting this on your site because this is where she found me and I don’t want this to happen to anyone else.
I want you especially to become aware that this is happening on your website. I was told that I should not make a complaint with the State Bar while she was still representing me. I do not have money to hire a different lawyer, but can I proceed with a lawyer that I do not trust.

Neil, thank you for taking the time to read my story. I anxiously await your reply and the comments and advise of your readers.
Chizzy, on October 7th, 2009 at 10:27 am Said:

Hello All,
I am looking for recommendation on legal assistance or someone who “gets it” for a possible foreclosure in Georgia. If you are a someone who understands all of this or knows someone who “gets it” please drop me a line as soon as possible at whyx@gmx.com

Thank you for all who post on this blog. This has been a big eye opener and I want to fight for my home!
J. Stewart, on October 5th, 2009 at 1:05 pm Said:

Does anyone out there have a good example for a motion to compel for the QWR and DVL? Please contact me at stewartj110@hotmail.com.

Thank You
carol shavers, on October 2nd, 2009 at 2:12 pm Said:

Hello,

I have a lawsuit filed against People’s Home Loan,
MERS, and Litton and Law firm for defendants. Please check web Shavers vs Litton
we have been moved from District Court to the Federal Court because Lawyer for defendants request a motion to dismiss. I have a few questions. Can you call me at 281.251.6972. This law suit is filed in Houston Texas
Thanks……..Carol Shavers
Michael, on August 29th, 2009 at 7:59 am Said:

To Whom It May Concern:

I have a question concerning the legality of the Note and Mortgage. Lender, who stated in the Note and Mortgage claim that they are the Lender, a corporation, organized and existing under the laws of the State of California. However, preliminary investigation revealed that the Lender does not exist (confirmed in writing by the California Secretary of State).

Assuming the Lender does not exist, how it is legal when its assigns to MERS (as nominee for Lender and Lender’s successors and assigns) when the Lender does not exist?

If the Lender does not exist, what the legal status of the Note or Mortgage? It is voidable?

The property in question is located in Florida.

Thank you in advance for your assistance

Michael
mike linton, on August 26th, 2009 at 2:05 pm Said:

I read somewhere he practiced in DC at sometime
Alina, on August 26th, 2009 at 2:04 pm Said:

My research indicates that Mr. Kessler is not an attorney. I looked him up in the Florida Bar and there is a Richard M. Kessler listed but not Richard F. Kessler.
Truth, on August 26th, 2009 at 11:14 am Said:

Mr. Kessler and DCH may be well meaning but I get the impression that he thinks he has raided the Lone Ranger’s ammunition stock. I suspect it may be useful in a particular state, whichever one he practices in or the motion contemplates being filed in but it seems to me the variations in facts from each case and parochial nature of the practice of law from state to state would necessitate alot of editing. That said a practicing lawyer that could adapt it might find it useful but I can also see where unsuspecting homeowner in non-judicial states would buy this thing and then try to file it a UD hearing or something….Hi O Silver Away….
Alina, on August 26th, 2009 at 9:13 am Said:

DCH states, “…DCH simply is providing a legal form for sale. DCH cannot and does not practice law or provide legal advice.” As a paralegal, if I were to provide someone with a form regarding any type of case and advised that person to use that particular form, it would be considered the unauthorized practice of law (UPL). Depending on the state, it could be a criminal offense.

I have checked out DCH’s website and run a search on Richard F. Kessler. Mr. Kessler appears to have done a study of foreclosures in one of the counties in Florida. His study was the basis of a newspaper article in the Sarasota Times. so it appears that Mr. Kessler is somewhat knowledgeable.

However, I remain wary of Mr. Kessler’s motives and claims.
mike linton, on August 26th, 2009 at 7:29 am Said:

so maybe if we all pull our noodles together, we can find this magic motion filed in a court somewhere and have it critiqued here
Foreclosure Fraud, on August 25th, 2009 at 6:52 am Said:

I inquired about the omnibus motion to DCH and this was their response:

As you may know, the Omnibus Motion is specifically offered to attorneys. However, a person who has elected to proceed pro se can still operate the purchase button on the web page and purchase a copy. Our disclaimer says that a person in foreclosure should consult an attorney and be represented by an attorney. DCH simply is providing a legal form for sale. DCH cannot and does not practice law or provide legal advice. We know that the Constitution protects the right of each American to defend themselves in court if the person insists upon so doing.

DCH realizes that there are persons who cannot afford to purchase the Omnibus Motion. Accordingly, DCH has made it a policy to contribute the Omnibus Motion to any organization which represents defendants in foreclosure without compensation. If you are affiliated with such a group, please ask them to get in touch with DCH or me.

We have so far contributed the motion to one large non-profit in Southwest Florida as well as two out-of-state. The Florida organization as asked us to not disclose their name.

If what you are doing is conducting an investigation without doing us the courtesy of disclosure, do so on your own time. Stop wasting mine. If you have some group DCH can help, please let me know.

Richard F. Kessler
bt, on August 24th, 2009 at 4:05 pm Said:

yes, i have heard and read about it, but it costs $599 for an individual for the PDf doc. I guess some firm did 9 months of work to make this generic docuemnt yo ucan file, who konws if it is real or has success to back it up yet. NEIL shoudl do a story on this.
Alina, on August 24th, 2009 at 11:19 am Said:

Mike,

I have heard of that “Omnibus Motion” and I have serious doubts as to its credibility.
pdx, on August 24th, 2009 at 10:21 am Said:

I wonder if its more snake oil…
mike linton, on August 24th, 2009 at 7:23 am Said:

Has anybody heard of this “Omnibus Motion to Cancel the Mortgage” that is going around the internet?
pdx, on August 24th, 2009 at 12:37 am Said:

My house is scheduled for auction in mid november (2009) I have already sent an objection of sale and dispute of debt. I am preparing the QWR this week and will send it certified.. But how do i stop the auction? What do I need to file? I live in Oregon and its a non-judicial state. Let’s pretend I get an audit done and there are violations… and they securitized the note and can’t prove they own the note… how does this help me if the dang house is going to be auctioned? I have a beautiful wife, darling daughter, and teenage (troll) son that will be scurried out of here in the middle of winter.

Let’s pretend they dont have the note AND there are respa violations… so what? If I can’t stop the auction what good does it do me? What do i need to do to slow things down? Is bankruptcy the only way?

thanks!

portland
doug schwartz, on August 19th, 2009 at 1:21 am Said:

i have forms and pleadings that can be done pro se, i am not an attorney, but these have worked on mine and other friends i have helped, flcommercial@bellsouth.net
Beth D., on August 17th, 2009 at 12:09 pm Said:

Do you know how to determine if a note is securitized- where do you look and what questions do you ask.

I understand MERs has a large percentage of the notes is that true? and I understand they know what notes are securitized. How do we get to them and how do we get them to release this information
Lily M, on August 15th, 2009 at 11:54 am Said:

I need an attorney in NC who “gets it”. Our home has been sold and they are trying to evict us. Even though we were never served never knew about the hearing or the sale.
Steven Robinson, on July 30th, 2009 at 5:01 pm Said:

We are residents of Missouri where non-judicial foreclosure is a
standard > of business,.. which sucks.
> So far I have not found an attorney in Missouri with the gonads to
take on > my case.
> Most of them recommend bankruptcy and then throw up their hands when
I > suggest we work toward a modification on favorable terms.
>
> I am a stroke victim,.. 30 months ago,.. and I’ve found nothing but >
contempt, cold behavior and outright rage against me as I’ve tried to
keep > a roof over my family’s head from BOTH the lenders and the
“counselors” > who routinely suggest bankruptcy.
>
> We took a loan out with Fremont Loan in July 2005, in July 2007 the >
payment jumped nearly 100 percent.
> We could not pay!
>
> We are presently in negotiations with Litton Loan Servicing under the
HAMP > guidelines after banging our shoe loudly on the desk with
evidence of TILA > and RESPA violations and further proof that Fremont
Loan, (our originator) > closed the loan with a false Missouri Loan
Broker number.
> We sent our complaint to C of C, Federal Reserve, MERS, and of
course, > each of the lenders and banks who claimed to have an interest
in the loan > including Fremont, HSBC, Wells Fargo, Titan Solutions,
and of course, > Litton.
> DOJ and C of C tell me I may actually have them in a corner as to the
> RESPA and TILA, (possibly other regs. as well) and may not owe them
a
> dollar. Further the argument seems to be going in the direction that
they > now want to modify my note but are uncomfortable discussing the
regs at > all.
> Why?
> What’s wrong with a forensic audit of my loan
> to assess the legality of my docs?
>
> We have managed to avoid foreclosure now for two years using this
argument > but have yet to figure our how to get them off the
> “foreclosure or modification” stance.
> As well, we have not made payments and have argued the payment is not
due > until they show us the note, the paper trail, and the process
proving the > closing was “clean” and the docs are correct.
> Three months ago Litton finally referred us to the Executive
Resolution > Department,..(where the few people Litton has with
experience, knowledge, > and a reasonable business etiquet work). They
stopped all action on > foreclosure, (they’ve tried twice now),
> and are suggesting we modify the note. Waterfall techniques, 31%
ratio > of payment to income,.. PRESENT income?
>
> I want to know if they did a legal loan ! At the very least if they >
needed a license to close the loan why did they use someone else’s
number?
>
>
> Since we’ve worked with our agent at Litton we’ve received reasonably
> courteous service,..something new considering how we were treated,..
> we are working thru the terms of the HAMP program but do not know the
real > details still of our Note and where it is, who has it, and
NOTHING has > been mentioned as to our RESPA and TILA claims..
> Still, we have had a few scares,.. about four weeks ago we received
yet > Another “Notice of Foreclosure” scheduled for July 22 this year
which was > “missed” as it was up for automatic refiling and had to be
called off > “manually”.
> That done, the agent sent us the forms for HAMP and we proceeded to
effect > dialogue as to our qualifications, filled out his forms. We
went on and > went on until today when a real estate agent came to our
door and left a > card notifying us “Call Immediately – This Home has
been Foreclosed”.
>
> Needless to say we are again confused, angered, and feel threatened.
>
> I would LOVE to speak with you or April Charney as to the “produce
the > note” process,.. I’ve asked and asked Fremont, then Wells Fargo,
then > HSBC, then two or three other “agents” until I’ve gotten to
Litton Loan > Servicing,.. who tells me the note doesn’t exist,.. that
the debt is in > the name of a trust and is fractionalized among many
investors, (I believe > these are “tranche-holders”),.. so now I’m
informed that the note is not > in existence,.. doesn’t this mean the
UCC law affecting the “show me the > note” argument should apply?
>
> Our state has no judicial process for foreclosure,.. so HOW DO I GET
THESE > FOLKS TO BE ACCOUNTABLE AND “SHOW EM THE NOTE”???? I’ve offered
to fly > to Texas but Litton says they don’t have the note there.
WHERE’S THE > NOTE? !!
>
> FURTHER; I am on to the assignment trail presently and have been
denied > ANY evidence of the proper assignment protocol from originator
to lender, > to lender, to lender, to lender to investor pool,.. I Have
been told > finally it IS in a pooled Trust.

Consequently, it is my understanding there may be objections from any
of the 30 or so investors who own a tranche interest in my note. How
do I know everyone is on board?

> I’ve sent a long complaint to C of C, Treasury, Mo Div of Prof. >
Registration and the state DOJ – AG, mentioned RESPA, TILA, and the >
rest,.. this is how I got to the “Executive Resolution Department,..
but > what now?

Once I’ve finally gotten it accross that the regulatory issues are a
valid argument they seem to want to have dialogue,.. but I don’t trust
them.
>
> If a note HAS been foreclosed, without judicial review,.. can I have
it overturned by a court for failure to show proper protocol in
assignment of the note? We’ve asked for the note, where it is to go to inspect the epistle itself,. they sent a copy of it but never advised of where we could go see it.
>
> How do I get them to prove out the process of note assignment,. the
paper >trail? Today I ran across a series of assignments, affidavits of trustee change, etc. online at the courthouse.. I am going tomorrow to look at them.
>
> Please do not ignore this email,.. we need to get a resolution to
this matter soon and would like to speak with an attorney who
understands the underlying issues.

I would love to hear from someone on this.
What is the forensic review and what does it cost?
I’ve got my own ideas what they’ve done wrong but with the letter on my door asking us to take money to leave,.. I am not sure what’s up now.

steven Robinson
314 220 2498
michelle, on July 28th, 2009 at 1:27 pm Said:

How much is your Forensic Audit? Where can I find your forms to get it started?
Kelvin Davis, on July 28th, 2009 at 12:48 pm Said:

I need a lawer n GA.I have a calm against my leading company.
admin@borrowerhotline.com, on July 17th, 2009 at 3:51 pm Said:

QWR Letter “Failure to Respond” Sample

Under Section 6 of RESPA, borrowers who have a problem with the servicing of their loan (including escrow account questions), should contact their loan servicer in writing, outlining the nature of their complaint.

————————————————————————-
July 17, 2009

Servicing Supervisor
Servicing Department
Washington Mutual
PO Box 44090
Jacksonville FL 32231

Dear Loan Servicing Manager:

Your office received from the borrower a notice of a Qualified Written Request. The request was delivered to you pursuant to HUD published borrower-lender guidelines.

You have passed the 20 days threshold for compliance. You have failed to honor the request within the term of fulfillment as outlined in accordance with HUD regulatory criteria.

Therefore we are asking, on behalf of the client that you agree to an indefinite forbearance. Will you kindly cease and desist with any further threat of a foreclosure or recovery proceeding until such time you can determine why the borrower was denied their rights.

Respectfully,

MSoliman
Secondary Examiner
(As Authorized by Counsel)
Tel. 310-765-7388

CC: HUD Office
Los Angeles, CA Office

——————————————————————-

The servicer must acknowledge the complaint in writing within 20 business days of receipt of the complaint.

Within 60 business days the servicer must resolve the complaint by correcting the account or giving a statement of the reasons for its position. This does not absolve borrowers from continuing the payments. They are no defense to payments.

msoliman
admin@borrowerhotline.com.

What is a Qualified Written Request?
kathleen w., on July 15th, 2009 at 11:04 am Said:

Neil,
I sent a QWR to Bank of America who I guess is now my servicer after the buy out of CW. My lender listed at the recorders office is Impac funding. B of A , after 3 1/2 months sent me an answer to my QWR. They will not allow me any information regarding the lender’s general business practiced, relationsship with government sponsored entities, its mortgage servicing accounting, or any document that may support a claim or a pretext designed to force the lender to accept a mondification request rather than incour the ecpense of responding. They did tell me that Bank of New York is now the ower of the loan and they service the loan on behalf of them.
I asked for the pool servicing agreement, front and back cert. copy of my note, and other items along those lines, as well as your “holder in due course” letter.
Now I am more confused, are they hiding something. I wanted to have someone look at all the doc’s due to problems I have had tring to do a short sale, loan modification, ect.
Kathleen w.
Delbie, on July 8th, 2009 at 5:35 pm Said:

Does anyone know of a “lawyer who gets it” in the Atlanta area. I can be reached at 770-262-7815
A Better Live Soon., on June 10th, 2009 at 4:47 pm Said:

Does anyone have a Motion to dismiss the sale of a foreclosure for CA? I tried to file a TRO with the court to prevent the sale and the court wouldn’t accept it. Thanks.
please email at Melanie@NewBlueMoon.com
Delia Aguilar, on May 31st, 2009 at 10:39 am Said:

FOR ANYONE NEEDED AN ATTORNEY IN NORTHERN CALIFORNIA.

Dear Mr. Timothy McCandless:

Thank you! Thank you!, Thank you! so much for standing up to the Pittsburg Superior Court in the Contra Costa County. The homeowners you represented last Friday, were amazed and impressed on how you stood up and fearlessly faught for their rights.

This court has been ordering evictions like traffic tickets and treating homeowners as if we are the criminals.

Again, Thank You Mr. McCandless
From Contra Costa County, CA
Shelia, on May 6th, 2009 at 2:32 pm Said:

I have a property in Washington DC that BB&T was the Mortgage Company. In June 2008 I had a foreclosure sale that was stopped by filing bankruptcy (eventually closed/dismissed). Then in August 2008 I received a letter from BB&T charging off the mortgage debt. In January 2009 I received a 1099A from BB&T for the charged off mortgage and they sent it to the IRS for which I now am liable for taxes. Now I have received a foreclosure sale notice for the same property from BB&T for May 13. How can they charge it off, send me a 1099A and now try and take the property from me in a foreclosure sale. Does anyone know a good Washington DC Attorney that “gets it”?
Alfonzo Stevens, on May 4th, 2009 at 5:50 pm Said:

I am looking for a Lawyer who has took the work shop in the Atlanta, Ga area can you help I can be reached at 770-912-3163
gary, on May 1st, 2009 at 5:49 pm Said:

need a tampa attorney
wes carlson, on April 29th, 2009 at 9:50 am Said:

I am in foreclosure on second home, with hearing for summary Judgment next week. I am filing a request to produce original note. We have documentation from 1st note holder to 2nd note holder but were foreclosed upon by a 3rd (or maybe 4th, who knows). We attempted to work out with representatives of 2nd note holder and listed for short sell toward deed in lieu. The real estate agent implied sale more difficult with tenants so we got rid of them (no problems there). When no interest from buyers after 5 months, we were entered into an agreement to rent property to a young newly married couple from church, on month to month, pending foreclosure. Tenants had taken possession by moving in belongings and one day came to find locks changed. Calls to attorney for plaintiff in foreclosure resulted in keys being sent aprox. 24 days later after many calls and emails. What can I do in my request to produce/motion to dismiss/ cross-claim, to help my case using this unlawful action?
livinglies, on April 26th, 2009 at 8:34 am Said:

Rich Rosenthal: Deficiencies vary from state to state. There are usually restrictions on the ability of the lender to collect a deficiency. Your fist move though is to challenge whether there is a deficiency at all and make a claim for damages. The sale may well have been fraudulent and illegal. Generally speaking no deficiency exists unless and until there is a bona fide sale in an arm’s length transaction from the lender to the new buyer where there is no affiliation between buyer and seller. Check the statutes and consult with Az lawyer for your answer.
Larry, on April 25th, 2009 at 7:52 pm Said:

Does an Assistant Vice President has the authority to make promissory note assignment?
My note was assigned in blank with no date. Is that valid assignment in FL?
Rich Rosenthal, on April 25th, 2009 at 4:44 pm Said:

Is there any state law or federal law for that matter that prohibits a deficiency on a mortgage in the event it isn’t spelled out in the Note? See this interesting article:
http://works.bepress.com/george_kuney/1/
I’m facing a deficiency in an anti-deficiency law state because I refinanced a purchase money mortgage and used the cash to fully improve my home and no cash at any time went for anything but improvements. I can’t believe there isn’t a legal theory or statute in a federal court that prohibits lenders from seeking a deficiency unless it is disclosed up front or at the time of closing. Any help would be greatly appreciated.
bt, on April 25th, 2009 at 11:40 am Said:

i did not know there was a timeframe for the plaintiff to repsond to a motin to dismiss teh foreclosure? what statue are you referring to?
Rik, on April 22nd, 2009 at 2:01 pm Said:

A little guidance would be appreciated….

I have filed both a NOTICE OF FILING MOTION TO DISMISS and a MOTION DISMISS FOR A LACK OF SUBJECT MATTER JURISDICTION and the plaintiff’s attorney has failed to respond in the 20+ days required in Florida for both.

What is the next step to finish this off? Do actually need to do anything, or will my motion(s) be granted/accepted by default?

I have some experience with filings in the UK, and it is generally the practice to enforce a motion or lose the advantage of getting the motions granted through a late filing by the Plaintiff’s.

Thank you for any assistance provided.

Rik
Delia Aguilar, on April 18th, 2009 at 12:21 pm Said:

Mr. Garfield:

1. Investment property foreclosed 04/2007.
2. As of todate no taxes have been paid by new owner.
3. City official advised me to find out about squatter rights. According to city official, home was sold twice in an auction, but was thrown back after finding out there was violations to property. I knows those violation it relates to alot of remodel work that we did. Easy to fix and correct.
4. Called US National Association, they have no record. Referred to trustee, trustee has no record. Referred to Aurora Serv/Lehman Bros. said to view their web for listed reos in market. This home is not list in market or in their web. However, a real estate agent from Prudential has a sign on it as a management entity for this property. They never returned my call.
5. Can I file a “Quiet Title”, since there is bonifide buyer. The home is all boarded up, along with others in that same street. Please advise Delia
Email: delia.paguilar@yahoo.com
Cell: (925) 726-9551
Home: (684-9523
bill, on April 17th, 2009 at 11:39 pm Said:

need help to stop foreclosure VA.and NY Do i start with summons and complaint -as plaintiff or defendant have not recieved official notice from bank (citi mort) VA(-AHS) NY.
Josh M, on April 12th, 2009 at 9:13 pm Said:

My Deed of Trust was signed by myself and my wife (now ex-wife) but the Note that goes with it was only signed by me (2.5 yrs ago).
I am now in foreclosure and filing personal bankruptcy, and wondered if she could still be liable for the debt? (this is colorado)
It was our intention to have her removed from all loan documentation when we did the re-finance 2.5 yrs ago, but she ended up signing the DoT anyway. (I’m not really sure how this could be possible.)
Doris, on April 4th, 2009 at 9:06 am Said:

Original mortgage was from ameriquest. Our house went to sheriff sale in August 26, 2008. It was adjourned. We heard nothing from anyone till March 4, 2009. The day the Obamas stability plan came out. That same day we were delivered a modification package from American Home Mortgage with papers to sign for modification. American home Mortgage got our mortgage from Citi. We had till March 27, 2009 to do the modification. I just found out they sold our house at sheriff sale on March 10, 2009. Deutsche sold it to American Home Mortgage. We were never notified. Aren’t they supposed to post it? I think they have done something illegal. How can they sell it when they sent us papers for modifcation, and with no notice of the sale. PLEASE HELP ME! Do I need to get a lawyer. I think maybe something is wrong with the paperwork. Why would they wait 7 months to go to sheriff sale, if everthing was in order.
Jose, on March 18th, 2009 at 6:23 pm Said:

I am in the middle of a foreclosure litigation, I have a court hearing coming up next month. The mortgage bank filled an affidavit of Lost Note and Mortgage in January 09 but they are still persisting in summary judgment against me. What are my affirmative legal defenses? It is my understanding that without the promissory note there can’t be a claim.
Thanks
L, on March 10th, 2009 at 7:38 pm Said:

Hello Neil and all,

I’m very sorry to hear what happened to JD, I truly hope that case could be Invalidated somehow.

I want to know if the lender has been sent a DEMAND FOR VALIDATION OF DEBT via certified service and they DO NOT respond within the 21 days, therefore…”technically extinguishing the debt”… HOW DO YOU PROCEED TO ENFORCE THAT AND WHAT ARE THE NEXT STEPS and what is the wording or paperwork to present to the judge to vacate judgement and the case?

Also, a copy of the Demand for validation of debt is filed in the courthouse.

Please inform since I am getting mixed and varied info here in Florida. God Bless
intrigued..., on March 2nd, 2009 at 7:29 pm Said:

correction…..

“Cancel By Lack of Representation”
intrigued..., on March 2nd, 2009 at 7:24 pm Said:

Hi,

I wanted to know if a sale date is scheduled and a demand for validation is recorded on the same date of the sale before the sale with the court, then the court later on states

“canceled for lack of representation”

does that mean the demand for validation is canceled or the actual sale? If an attorney for the plaintiff does not show up for the sale is the sale allowed to continue or is it canceled?

Thanks in advace.
Paul, on March 1st, 2009 at 4:39 am Said:

For those in Florida, here are some additional examples of answers/defenses/counterclaims:

http://tinyurl.com/cld398

And other pleadings in Florida foreclosure:

http://tinyurl.com/bmmawy

http://tinyurl.com/dmz3gq

http://tinyurl.com/bah4cc

http://tinyurl.com/b7ex9p

http://tinyurl.com/bmfy89

http://tinyurl.com/b8rgt7

http://tinyurl.com/dn9nuw
Sonia, on February 26th, 2009 at 6:27 pm Said:

I also found this …any Floridians who need to know which court to file your lawsuits in go here
http://www.flcourts.org/courts/circuit/circuit.shtml

OR
General Information
Brief Description of the Circuit Courts
Court Jurisdiction Chart (Colors match appropriate jurisdiction)
Distribution of the Circuit Courts

Links to the Circuit Courts:
First Circuit – Escambia, Okaloosa, Santa Rosa and Walton
Second Circuit – Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla
Third Circuit – Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee and Taylor
Fourth Circuit – Clay, Duval and Nassau
Fifth Circuit – Citrus, Hernando, Lake, Marion and Sumter
Sixth Circuit – Pasco and Pinellas
Seventh Circuit – Flagler, Putnam, St. Johns and Volusia,
Eighth Circuit – Alachua, Baker, Bradford, Gilchrist, Levy, and Union
Ninth Circuit – Orange and Osceola
Tenth Circuit – Hardee, Highlands, and Polk
Eleventh Circuit – Dade
Twelfth Circuit – DeSoto, Manatee, and Sarasota
Thirteenth Circuit – Hillsborough
Fourteenth Circuit – Bay, Calhoun, Gulf, Holmes, Jackson and Washington
Fifteenth Circuit – Palm Beach
Sixteenth Circuit – Monroe
Seventeenth Circuit – Broward
Eighteenth Circuit – Brevard and Seminole
Nineteenth Circuit – Indian River, Martin, Okeechobee and St. Lucie
Twentieth Circuit – Charlotte, Collier, Glades, Hendry and Lee
Sonia, on February 26th, 2009 at 6:17 pm Said:

Or Writ of Prohibition…

A writ of prohibition, in the United States, is an official legal document drafted and issued by a supreme court or superior court to a judge presiding over a suit in an inferior court. The writ of prohibition mandates the inferior court to cease any action over the case because it may not fall within that inferior court’s jurisdiction. The document is also issued at times when it is deemed that an inferior court is acting outside the normal rules and procedures in the examination of a case. In another instance, the document is issued at times when an inferior court is deemed headed towards defeating a legal right.

In criminal proceedings, a defendant who has been committed for trial may petition to the superior court for a writ of prohibition, in this case on the ground that his conduct, even if proven, does not constitute the offense charged.

Prohibition: is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction. A writ of prohibition is used to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is issued by superior court to inferior court, preventing inferior court from usurping a jurisdiction with which it was not legally vested ( or to compel inferior court to keep within the limits of its jurisdiction). The Writ of Prohibition cannot be used to undo any previous acts, but only to prohibit acts not completed.

“Thus it was held that notwithstanding the right to an appeal, if the situation disclosed be such that to take the ordinary course by appeal would of itself subject the complainant to irreparable loss, the writ should issue notwithstanding no objection was made below; that the matter of judicial courtesy should yield to substantial personal rights of litigants, such as a sacrifice of their liberty.” See “Extraordinary Legal Remedies” by Forrest G. Ferris, 1926 edition. See also Hargis v Parker 27 Kentucky L.Rep 441, 85 s.w. 704,69 L.R.A. 270.

A writ of prohibition may be issued both in cases where there is an excess of jurisdiction and where there is absence of jurisdiction. Prohibition has much common with certiorari. Each is issued with the object of preventing the inferior courts from exceeding their jurisdiction.

Difference between prohibition and certiorari: When an inferior court takes up for hearing a matter over which it has no jurisdiction , the person against whom the proceedings are taken , can move to the superior courts for a writ of prohibition, and on that an order will issue forbidding the inferior court from continuing the proceedings. Prohibition to prevent the court to proceed further.

While in certiorari…

If the court hears the cause or matter and gives a decision , the party who aggrieved would have to move the superior court for a writ of certiorari on that and order will be made quashing the decision on the grounds of jurisdiction. (ie. In this the inferior court has a jurisdiction). Certiorari for quashing what had already been decided.

Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do not lie against public authority in an executive or administrative capacity nor a legislative body.

Neil, I really appreciate all the info on your site available to PRO SE/ For Self defense however its impossible to find info on appeals here. What about people who’ve received a final order of foreclosure but were unaware of any of the laws pertaining to their case until visiting your site? There needs to be a link for if the judge refuses to hear your arguments after the 30days given to respond – this I’m sure pertains to a lot of people on this site. I would be willing to donate my time and efforts to create and maintain that portion of your site. I am a homeowner who paid my lender $31k (12mts of advanced pymts)of my hard earned savings to put into an escrow account so that my account would be paid “on time” monthly – instead of escrow it went to principle – for 5 mts I called daily to get the error done correctly and all I got were reps in India who didn’t understand what I was saying. I placed the home up for sale but the values in the area have decreased dramatically. I couldn’t lower the price because of what I owe. When I did get a guy on line he told me he would fix it. Couldn’t get another “good” english speaker online for another 2 mts. Finally started taking the mailings seriously when I saw that they were not trying to correct the error they have charged me over 180k in late fees to date and still haven’t properly applied my payment. Now the judge wants me to mediate or sell my home since it’s been over a year that this has been going on. I look bad as the home owner for not having resumed payments while the previous payment was been resolved. I’ve hit a brick wall. I called the county courthouse to find out how to file an appeal because no one on the site has gotten back to me regarding my post on what to do next. A clerk at the courthouse told me about filing an Emergency Writ of Prohibition. I just want someone of legal stature to look it over and verify that it’s correctly formatted and accurate in verse. Thank you in advance. I refuse to send Ocwen another dime until they apply my payment right or give my money back so that I can get another home. My credit has been ruined by their neglect and malicious lies and tactics. I intend to fight this til the end.
Sonia, on February 26th, 2009 at 6:01 pm Said:

Allan or anyone in Florida needed for doc prep to do a emergency writ of prohibition and or writ mandamus.

Definition below;

A writ of mandamus or simply mandamus, which means “we command” in Latin, is the name of one of the prerogative writs in the common law, and is “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly”.[1]

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.[2] It cannot be issued to compel an authority to do something against statutory provision.

Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. It must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.

Also;

The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:[3]It must be a duty of public nature and the duty must be imperative and should not be discretionary.

Normally, a writ of mandamus does not issue to, or an order in the nature of mandamus is not made against, the private individual. It is not necessary that the person or the authority on whom the statutory duty is imposed be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by statutes. A mandamus would be equally applicable for a company constituted by a statute for the purposes of fulfilling public responsibilities. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal from the decision of the administrative authority and will not examine the correctness or otherwise of a decision on merits.[4] The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise of the discretion. There is an illegal exercise of discretion where:

The order is made without, or in excess of, jurisdiction
The order made is mala fides, or
The authority is influenced by extraneous consideration.
R2, on February 26th, 2009 at 2:44 pm Said:

To Mike – my thought? I don’t know if yours is a judicial or non-judicial state, but from what I’m going through in MI, when in doubt, file what you think you need to, the judge will either grant it or not – just remember to keep them as separate motions or filings. Once a ruling is made, it’s a moot point to back track.
In terms of what I’m going through, though judge has essentially ignored my affirmative defenses and triable issues and granted summary judgment/possession in 30 days, my strategy is to file an appeal in circuit court and as we get closer to the expiration of the 30 days, file a qualified written request to plaintiff’s attorney to produce the original notes on both mortgages. In the meantime, I have the hearing in 15 days on the other home that was involved and my thinking is that if the judge granted summary judgment on the mtge tied to both homes, then, in essence the foreclosure action on the other home should be dismissed, i.e. can’t foreclose on same house twice. When I present my triable issues to the court on this one, I am thinking of also filing a motion to dismiss on these grounds and requesting a copy of the original notes (there were two first mortgages on this house). The judge may laugh me out of court, but it’s worth a try. To sum up, if you think (Mike) that you should, do some research and then do it. All they can do is say no and where have we not heard that before. R2
mike linton, on February 25th, 2009 at 11:10 pm Said:

Question – I have filed a complaint against all of the companies listed in the prospectus for the pool that my mortgage was in. There was a 30 day summons which many of the companies have not filed an answer or appearance. I am going for an order of default. My question is should I file a Citation to Discover Assets against the defaulting companies along with the motion and order?
R2, on February 25th, 2009 at 5:10 pm Said:

well, triable issues as sto breach of contract, material issues of fact, tila respa violations didn’t work in court today when the judge denied my request for a jury trial, denied postponement of sum judgment to seek/retain legal counsel and denied my request to transfer case to another district court where a 2nd pending action on the same matter will take place. I have 30 days to appeal or get out what to do? Need attny to work pro bono or contigency here in MI
R2, on February 24th, 2009 at 8:41 pm Said:

Neil, I’ve commented on several of your blogs but need quick thoughts on ‘triable issues’ and possible course of action if demand for jury trial is denied. I thought 7th amendment (us constitution) granted me that right, even in matters of equity. I already presented wrongful foreclosure, breach of contract. Also, in my comments before the judge tomorrow before he makes his ruling, a summary judgment should be denied becasue Plaintiff did not produce evidence in support of the motion sufficient to show that no genuine issue of material facts remain for trial? HELP
Sonia, on February 24th, 2009 at 7:36 pm Said:

Also I can be contacted at 775-278-5167 and does anyone have the Federal Court format ie

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
,

but for Florida, West Palm Beach Florida? Although final judgement of foreclosure has been issued can I rescind based on the fact that they transferred the note (Freemont was the first lender) now defunct and transferred to Ocwen however HSBC is the one who’s filed the foreclosure action. I’m so confused if anyone can give me some suggestions I would be forever grateful to you.
Sonia, on February 24th, 2009 at 7:29 pm Said:

Damon I have the same question. I had a palm beach judge overlook my TILA assertions stating I had 30 days to respond and it’s over that time frame so he would not entertain it. I have a affidavit from the lender’s attorney from their first lp stating they didn’t have a original note however in 2008 a note appears they filed it but I had no knowledge of it. The judge is ordering mediation or foreclosure sale. I was advised to take it to Federal however I dontt have the ability to pay an attorney right now because if I do a modification chances are they’ll require a deposit so I’m trying to do everything I can to save our home but why would I modify if they aren’t the rightful owners of the note? Please help I’d prefer to converse by phone instead of writing. I was so blown away by the judge not giving a crap about me or my assertions. He didn’t even look at the list of issues that I stated should be addressed. Again any expert help on the format and manner in which I should state the following – the note is either forged or not valid, I want an injunction to stay the foreclosure sale, fraud, and rico violations with florida law jargon. Thanks in advance – I love this site.
mike linton, on February 24th, 2009 at 3:32 pm Said:

What should I file when the Plaintiffs attorney blows off discovery , a motion to compel?

Neil, You should start a catagory called “Ask Neil”
also in your WordPress setting, maybe set your comments to show the most recent 10 since you are getting so many daily visitors.
Damon Serota, Esq., on February 24th, 2009 at 12:52 pm Said:

I was wondering if anyone had any experience with removal of a pending state foreclosure action to Federal District court. There does not appear to be much out there in terms of case law. Any guidance would be appreciated. This weblog is great and I am looking forward to going to Neil’s next seminar (any idea when and where that will be?).
Philip Shelley, on February 24th, 2009 at 9:42 am Said:

Julie
I Know an atty that works in LA & OC
email me if you haven’t found one
pippy52@verizon.net
Eric, on February 24th, 2009 at 12:50 am Said:

Hi Guys,
Just have a question:
Is there any way that I can delay my sale date without using attorney help?
I ave been told that there is a way that I can delay the sale date up to 4 months.

Any Info. will help
Thanks,
eric.al29@yahoo.com
Ilhelp, on February 24th, 2009 at 12:19 am Said:

this ? was to mike linton with dated comment 1/16/2009
Ilhelp, on February 24th, 2009 at 12:12 am Said:

Mike are you in Illinois. I am in need of help with a couple countrywide pay option arm loans. Please let me know and i will give you my email
Susan Todd, on February 23rd, 2009 at 8:41 pm Said:

Does anyone know of a lawyer in New Mexico that is in the mindset to help my husband and I investigate whether or not IndyMac federal bank (our mortgage holder) can prove that they hold the correct papers for our house? We are NOT in foreclosure but are struggling every month and I would love to know if we are paying the mortgage unneccissarily.
Thank you
gump59, on February 23rd, 2009 at 7:50 pm Said:

There are many cases of foreclosure sales being invalidated, will leave the details to those that have more personal knowledge regarding them.
L, on February 23rd, 2009 at 7:45 pm Said:

Hello,

Wanted to know if there have been any victories with regards to fighting even AFTER the “Sale” of the property! Please post your experiences.
Florida Defense Team, on February 23rd, 2009 at 7:26 pm Said:

Foreclosure Defense Litigants: Play Chess – Not Checkers!

Have them prove chain of title in Discovery -
they can’t? Game over. Quiet Title.
Beth, on February 21st, 2009 at 6:46 pm Said:

Larry – I also work with with a Maryland Lawyer that get’s it. I’m a paralegal and I do the research on these cases. We’ve gotten several foreclosures dismissed. Call me, 443-995-8461. or email. Jacobson.beth@yahoo.com
Julie, on February 21st, 2009 at 6:19 pm Said:

I need to file a Respa/Tila violation in Federal court in Orange County CA or LA. Is one better to file in? Does anyone have a sample Form? Also, I need an Atty in Orange County who may be able to help – I can’t find anyone who has actually filed one out here…help!! New Mom waiting for NOD…help!!
ny, on February 18th, 2009 at 7:24 pm Said:

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

HON. SAMUEL L. BUFFORD
UNITED STATES BANKRUPTCY JUDGE
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES, CALIFORNIA

(FORMERLY HON.) R. GLEN AYERS
LANGLEY & BANACK
SAN ANTONIO, TEXAS

AMERICAN BANKRUPTCY INSTUTUTE
APRIL 3, 2009
WASHINGTON, D.C.

WHERE’S THE NOTE, WHO’S THE HOLDER

INTRODUCTION

In an era where a very large portion of mortgage obligations have been securitized, by assignment to a trust indenture trustee, with the resulting pool of assets being then sold as mortgage backed securities, foreclosure becomes an interesting exercise, particularly where judicial process is involved. We are all familiar with the securitization process. The steps, if not the process, is simple. A borrower goes to a mortgage lender. The lender finances the purchase of real estate. The borrower signs a note and mortgage or deed of trust. The original lender sells the note and assigns the mortgage to an entity that securitizes the note by combining the note with hundreds or thousands of similar obligation to create a package of mortgage backed securities, which are then sold to investors.

Unfortunately, unless you represent borrowers, the vast flow of notes into the maw of the securitization industry meant that a lot of mistakes were made. When the borrower defaults, the party seeking to enforce the obligation and foreclose on the underlying collateral sometimes cannot find the note. A lawyer sophisticated in this area has speculated to one of the authors that perhaps a third of the notes “securitized” have been lost or destroyed. The cases we are going to look at reflect the stark fact that the unnamed source’s speculation may be well-founded.

UCC SECTION 3-309

If the issue were as simple as a missing note, UCC §3-309 would provide a simple solution. A person entitled to enforce an instrument which has been lost, destroyed or stolen may enforce the instrument. If the court is concerned that some third party may show up and attempt to enforce the instrument against the payee, it may order adequate protection. But, and however, a person seeking to enforce a missing instrument must be a person entitled to enforce the instrument, and that person must prove the instrument’s terms and that person’s right to enforce the instrument. §3-309 (a)(1) & (b).

WHO’S THE HOLDER

Enforcement of a note always requires that the person seeking to collect show that it is the holder. A holder is an entity that has acquired the note either as the original payor or transfer by endorsement of order paper or physical possession of bearer paper. These requirements are set out in Article 3 of the Uniform Commercial Code, which has been adopted in every state, including Louisiana, and in the District of Columbia. Even in bankruptcy proceedings, State substantive law controls the rights of note and lien holders, as the Supreme Court pointed out almost forty (40) years ago in United States v. Butner, 440 U.S. 48, 54-55 (1979).

However, as Judge Bufford has recently illustrated,20in one of the cases discussed below, in the bankruptcy and other federal courts, procedure is governed by the Federal Rules of Bankruptcy and Civil Procedure. And, procedure may just have an impact on the issue of “who,” because, if the holder is unknown, pleading and standing issues arise.

BRIEF REVIEW OF UCC PROVISIONS

Article 3 governs negotiable instruments – it defines what a negotiable instrument is and defines how ownership of those pieces of paper is transferred. For the precise definition, see § 3-104(a) (“an unconditional promise or order to pay a fixed amount of money, with or without interest . . . .”) The instrument may be either payable to order or bearer and payable on demand or at a definite time, with or without interest.

Ordinary negotiable instruments include notes and drafts (a check is a draft drawn on a bank). See § 3-104(e).

Negotiable paper is transferred from the original payor by negotiation. §3-301. “Order paper” must be endorsed; bearer paper need only be delivered. §3-305. However, in either case, for the note to be enforced, the person who asserts the status of the holder must be in possession of the instrument. See UCC § 1-201 (20) and comments.

The original and subsequent transferees are referred to as holders. Holders who take with no notice of defect or default are called “holders in due course,” and take free of many defenses. See §§ 3-305(b).

The UCC says that a payment to a party “entitled to enforce the instrument” is sufficient to extinguish the obligation of the person obligated on the instrument. Clearly, then, only a holder – a person in possession of a note endorsed to it or a holder of bearer paper – may seek satisfaction or enforce rights in collateral such as real estate.

NOTE: Those of us who went through the bank and savings and loan collapse of the 1980’s are familiar with these problems. The FDIC/FSLIC/RTC sold millions of notes secured and unsecured, in bulk transactions. Some notes could not be found and enforcement sometimes became a problem. Of course, sometimes we are forced to repeat history. For a recent FDIC case, see Liberty Savings Bank v. Redus, 2009 WL 41857 (Ohio App. 8 Dist.), January 8, 2009.

THE RULES

Judge Bufford addressed the rules issue this past year. See In re Hwang, 396 B.R. 757 (Bankr. C. D. Cal. 2008). First, there are the pleading problems that arise when the holder of the note is unknown. Typically, the issue will arise in a motion for relief from stay in a bankruptcy proceeding.

According F.R.Civ. Pro. 17, “[a]n action must be prosecuted in the name of the real party in interest.” This rule is incorporated into the rules governing bankruptcy procedure in several ways. As Judge Bufford has pointed out, for example, in a motion for relief from stay, filed under F.R.Bankr.Pro. 4001 is a contested matter, governed by F. R. Bankr. P. 9014, which makes F.R. Bankr. Pro. 7017 applicable to such motions. F.R. Bankr. P. 7017 is, of course, a restatement of F. R. Civ. P. 17. In re Hwang, 396 B.R. at 766. The real party in interest in a federal action to enforce a note, whether in bankruptcy court or federal district court, is the owner of a note. (In securitization transactions, this would be the trustee for the “certificate holders.”) When the actual holder of the note is unknown, it is impossible – not difficult but impossible – to plead a cause of action in a federal court (unless the movant simply lies about the ownership of the note). Unless the name of the actual note holder can be stated, the very pleadings are defective.

STANDING

Often, the servicing agent for the loan will appear to enforce the note. Assume that the servicing agent states that it is the authorized agent of the note holder, which is “Trust Number 99.” The servicing agent is certainly a party in interest, since a party in interest in a bankruptcy court is a very broad term or concept. See, e.g., Greer v. O’Dell, 305 F.3d 1297, 1302-03 (11th Cir. 2002). However, the servicing agent may not have standing: “Federal Courts have only the power authorized by Article III of the Constitutions and the statutes enacted by Congress pursuant thereto. … [A] plaintiff must have Constitutional standing in order for a federal court to have jurisdiction.” In re Foreclosure Cases, 521 F.Supp. 3d 650, 653 (S.D. Ohio, 2007) (citations omitted).

But, the servicing agent does not have standing, for only a person who is the holder of the note has standing to enforce the note. See, e.g., In re Hwang, 2008 WL 4899273 at 8.

The servicing agent may have standing if acting as an agent for the holder, assuming that the agent can both show agency status and that the principle is the holder. See, e.g., In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008) at 520.

A BRIEF ASIDE: WHO IS MERS?

For those of you who are not familiar with the entity known as MERS, a frequent participant in these foreclosure proceedings:

MERS is the “Mortgage Electronic Registration System, Inc. “MERS is a mortgage banking ‘utility’ that registers mortgage loans in a book entry system so that … real estate loans can be bought, sold and securitized, just like Wall Street’s book entry utility for stocks and bonds is the Depository Trust and Clearinghouse.” Bastian, “Foreclosure Forms”, State. Bar of Texas 17th Annual Advanced Real Estate Drafting Course, March 9-10, 2007, Dallas, Texas. MERS is enormous. It originates thousands of loans daily and is the mortgagee of record for at least 40 million mortgages and other security documents. Id.

MERS acts as agent for the owner of the note. Its authority to act should be shown by an agency agreement. Of course, if the owner is unknown, MERS cannot show that it is an authorized agent of the owner.

RULES OF EVIDENCE – A PRACTICAL PROBLEM

This structure also possesses practical evidentiary problems where the party asserting a right to foreclose must be able to show a default. Once again, Judge Bufford has addressed this issue. At In re Vargas, 396 B.R. at 517-19. Judge Bufford made a finding that the witness called to testify as to debt and default was incompetent. All the witness could testify was that he had looked at the MERS computerized records. The witness was unable to satisfy the requirements of the Federal Rules of Evidence, particularly Rule 803, as applied to computerized records in the Ninth Circuit. See id. at 517-20. The low level employee could really only testify that the MERS screen shot he reviewed reflected a default. That really is not much in the way of evidence, and not nearly enough to get around the hearsay rule.

FORECLOSURE OR RELIEF FROM STAY

In a foreclosure proceeding in a judicial foreclosure state, or a request for injunctive relief in a non-judicial foreclosure state, or in a motion for relief proceeding in a bankruptcy court, the courts are dealing with and writing about the problems very frequently.

In many if not almost all cases, the party seeking to exercise the rights of the creditor will be a servicing company. Servicing companies will be asserting the rights of their alleged principal, the note holder, which is, again, often going to be a trustee for a securitization package. The mortgage holder or beneficiary under the deed of trust will, again, very often be MERS.

Even before reaching the practical problem of debt and default, mentioned above, the moving party must show that it holds the note or (1) that it is an agent of the holder and that (2) the holder remains the holder. In addition, the owner of the note, if different from the holder, must join in the motion.

Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder. See, e.g., Tex. Prop. Code §51.0001. However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments. This status is certainly open to challenge. The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act. If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note. See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y. Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008. In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.

SOME RECENT CASE LAW

These=2 0cases are arranged by state, for no particular reason.

Massachusetts

In re Schwartz, 366 B.R.265 (Bankr. D. Mass. 2007)

Schwartz concerns a Motion for Relief to pursue an eviction. Movant asserted that the property had been foreclosed upon prior to the date of the bankruptcy petition. The pro se debtor asserted that the Movant was required to show that it had authority to conduct the sale. Movant, and “the party which appears to be the current mortgagee…” provided documents for the court to review, but did not ask for an evidentiary hearing. Judge Rosenthal sifted through the documents and found that the Movant and the current mortgagee had failed to prove that the foreclosure was properly conducted.

Specifically, Judge Rosenthal found that there was no evidence of a proper assignment of the mortgage prior to foreclosure. However, at footnote 5, Id. at 268, the Court also finds that there is no evidence that the note itself was assigned and no evidence as to who the current holder might be.

Nosek v. Ameriquest Mortgage Company (In re Nosek), 286 Br. 374 (Bankr D Mass. 2008).

Almost a year to the day after Schwartz was signed, Judge Rosenthal issued a second opinion. This is an opinion on an order to show cause. Judge20Rosenthal specifically found that, although the note and mortgage involved in the case had been transferred from the originator to another party within five days of closing, during the five years in which the chapter 13 proceeding was pending, the note and mortgage and associated claims had been prosecuted by Ameriquest which has represented itself to be the holder of the note and the mortgage. Not until September of 2007 did Ameriquest notify the Court that it was merely the servicer. In fact, only after the chapter 13 bankruptcy had been pending for about three years was there even an assignment of the servicing rights. Id. at 378.

Because these misrepresentations were not simple mistakes: as the Court has noted on more than one occasion, those parties who do not hold the note of mortgage do not service the mortgage do not have standing to pursue motions for leave or other actions arising form the mortgage obligation. Id at 380.

As a result, the Court sanctioned the local law firm that had been prosecuting the claim $25,000. It sanctioned a partner at that firm an additional $25,000. Then the Court sanctioned the national law firm involved $100,000 and ultimately sanctioned Wells Fargo $250,000. Id. at 382-386.

In re Hayes, 393 B.R. 259 (Bankr. D. Mass. 2008).

Like Judge Rosenthal, Judge Feeney has attacked the problem of standing and authority head on. She has also held that standing must be established before either a claim can be allowed or a motion for relief be granted.

Ohio

In re Foreclosure Cases, 521 F.Supp. 2d (S.D. Ohio 2007).

Perhaps the District Court’s orders in the foreclosure cases in Ohio have received the most press of any of these opinions. Relying almost exclusively on standing, the Judge Rose has determined that a foreclosing party must show standing. “[I]n a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time that the complaint was filed.” Id. at 653.

Judge Rose instructed the parties involved that the willful failure of the movants to comply with the general orders of the Court would in the future result in immediate dismissal of foreclos ure actions.

Deutsche Bank Nat’l Trust Co. v. Steele, 2008 WL 111227 (S.D. Ohio) January 8, 2008.

In Steele, Judge Abel followed the lead of Judge Rose and found that Deutsche Bank had filed evidence in support of its motion for default judgment indicating that MERS was the mortgage holder. There was not sufficient evidence to support the claim that Deutsche Bank was the owner and holder of the note as of that date. Following In re Foreclosure Cases, 2007 WL 456586, the Court held that summary judgment would be denied “until such time as Deutsche Bank was able to offer evidence showing, by a preponderance of evidence, that it owned the note and mortgage when the complaint was filed.” 2008 WL 111227 at 2. Deutsche Bank was given twenty-one days to comply. Id.

Illinois

U.S. Bank, N.A. v. Cook, 2009 WL 35286 (N.D. Ill. January 6, 2009).

Not all federal district judges are as concerned with the issues surrounding the transfer of notes and mortgages. Cook is a very pro lender case and, in an order granting a motion for summary judgment, the Court found that Cook had shown no “countervailing evidence to create a genuine issue of facts.” Id. at 3. In fact, a review of the evidence submitted by U.S. Bank showed only that it was the alleged trustee of the securitization pool. U.S. Bank relied exclusively on the “pooling and serving agreement” to show that it was the holder of the note. Id.

Under UCC Article 3, the evidence presented in Cook was clearly insufficient.

New York

HSBC Bank USA, N.A. v. Valentin, 21 Misc. 3D 1124(A), 2008 WL 4764816 (Table) (N.Y. Sup.) November 3, 2008. In Valentin, the New York court found that, even though given an opportunity to, HSBC did not show the ownership of debt and mortgage. The complaint was dismissed with prejudice and the “notice of pendency” against the property was cancelled.

Note that the Valentin case does not involve some sort of ambush. The Court gave every HSBC every opportunity to cure the defects the Court perceived in the pleadings.

California

In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008)

and

In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008)

These two opinions by Judge Bufford have been discussed above. Judge Bufford carefully explores the related issues of standing and ownership under both federal and California law.

Texas

In re Parsley, 384 B.R. 138 (Bankr. S.D. Tex. 2008)

and

In re Gilbreath, 395 B.R. 356 (Bankr. S.D. Tex. 2008)

These two recent opinions by Judge Jeff Bohm are not really on point, but illustrate another thread of cases running through the issues of motions for relief from stay in bankruptcy court and the sloppiness of loan servicing agencies. Both of these cases involve motions for relief that were not based upon fact but upon mistakes by servicing agencies. Both opinions deal with the issue of sanctions and, put simply, both cases illustrate that Judge Bohm (and perhaps other members of the bankruptcy bench in the Southern District of Texas) are going to be very strict about motions for relief in consumer cases.

SUMMARY

The cases cited illustrate enormous problems in the loan servicing industry. These problems arise in the context of securitization and illustrate the difficulty of determining the name of the holder, the assignee of the mortgage, and the parties with both the legal right under Article 3 and the standing under the Constitution to enforce notes, whether in state court or federal court.

Interestingly, with the exception of Judge Bufford and a few other judges, there has been less than adequate focus upon the UCC title issues. The next round of cases may and should focus upon the title to debt instrument. The person seeking to enforce the note must show that:

(1) It is the holder of t his note original by transfer, with all necessary rounds;
(2) It had possession of the note before it was lost;
(3) If it can show that title to the note runs to it, but the original is lost or destroyed, the holder must be prepared to post a bond;
(4) If the person seeking to enforce is an agent, it must show its agency status and that its principal is the holder of the note (and meets the above requirements).

Then, and only then, do the issues of evidence of debt and default and assignment of mortgage rights become relevant.
Sara, on February 18th, 2009 at 6:10 pm Said:

My loan is currently being serviced my ASC and I have been looking for a class action lawsuit also. I live in NH, and the only one I can find is in Michigan. I am currently working with a lawyer from this site and fighting foreclosure against ASC. Contact me and I am more than willing to join a class action. My email is sgmcnutt@comcast.net
Pam D., on February 17th, 2009 at 6:51 pm Said:

My husband and I are facing foreclosure in OH. Is there anyone out there that can give me advice on what to find out or ask in my first set of discovery to bank? I’m a paralegal, so not completely ignorant of legal proceedings, etc. Sadly, but after my experience working for lawyers all these years, my husband and I think we can do a better job at representing ourselves in this action.
Charles, on February 15th, 2009 at 10:51 pm Said:

Statin,

Contact me. I am tied into some local attorneys using the Garfiled Continnuum. We may be able to help. You can reach me at letstalkalotmore@yahoo.com

Charles
Gunslinger, on February 15th, 2009 at 10:03 pm Said:

Any lawyers in Houston, Texas willing to start a class-action (Or even an ordinary lawsuit) against ‘Americas Servicing Company’ (ASC) aka Wells Fargo?

I have ALL DOCUMENTS and can prove repeated and sustained lender fraud. I am a mortgage Broker. District Attorney is aware and asked for docs. I would rather sue for damages and/or mortgage cancellation. Any lawyers want this?
Satin, on February 15th, 2009 at 4:03 pm Said:

I have a trustee sale date. I never received the notice of defualt. The Clark County Recorders Office reveals the Notice of Default was dated 11/07/2006 also a Notice of recission of default was recorded the same date and time, I also did not receive this notification. I am filfin a chapter 13 , how can I fight to keep my house
gump59, on February 12th, 2009 at 7:11 am Said:

eman205 – I retained the services of one from this site, E. F. Robinson. Pretty nice guy and well recommended from others in the area.
Joe, on February 12th, 2009 at 5:25 am Said:

Here is some good information on some Florida cases dismissed. MERS case found to be sham.

http://www.msfraud.org/LAW/Lounge/MERS%20is%20a%20SHAM.pdf
Eman205, on February 11th, 2009 at 1:00 am Said:

Grump 59…Leave a number and I will call you in
regarde to my dealings with Va. attorney’s.
Dan, on February 10th, 2009 at 1:33 pm Said:

If anyone has ASC as servicer and/or NDEx West, LLC as the entity hired to foreclose, please shoot me an email. I am nearly ready to go after them and I would like it to be a class action.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Dan, on February 10th, 2009 at 1:30 pm Said:

dasmom,
If your forbearance was anything like mine (from ASC also), you did not give up any rights or claims (I am not a lawyer and this is not legal advice, this is only my opinion). ASC only wanted the forbearance to pay back their advances of your principal and interest. You can still be foreclosed on at any time. They “may” consider you for a loan modification if you pay the forbearance as agreed. Mine was one page – if yours is the same the terms will be obvious.

Here is what is not obvious. In another lawsuit between ASC and a borrower, the borrower made numerous claims. The forbearance was verbal. ASC claimed a verbal contract is valid, but no consideration was given – the payments supplied by the borrower were for an already existing debt. Without consideration, the verbal contract was unenforeable. Turnabout is fair play. Unless your forbearance stated otherwise, you and ASC can both claim the forbearance as unenforceable.

It seems that this servicer may be engaging in a pattern and practice of foreclosing on borrowers in order to protect “their interest” in borrowers properties.

Also, watch out. Borrowers in your situation have been foreclosed on – they just use your money to do it.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
dasmom, on February 9th, 2009 at 11:46 pm Said:

I see that some individuals have refused to sign forbearance agreements sent to them by their lenders. I signed a forbearance agreement with ASC several months ago. What rights did I give away by signing the forbearance agreement?
l, on February 2nd, 2009 at 7:25 pm Said:

Hello guys, wanted a suggestion on responding to a validation of debt by a bank when that bank “takes over” and continues with the foreclosure, should it be a challenge back to the QWR and challenging their position or send a full media validation request in addition (certified of course) What would you folks do? Thanks.

P.S. I agree that all these loan modifications are doing more damage to the consumers and saving the banks, actually putting the pray on a silver platter for these predators….
Patricia, on February 2nd, 2009 at 7:13 pm Said:

Jose Fighter, thank you for your post. I had an earlier post on why my home went into foreclosure, is there any other way that I can bring a mortgate payment from what was once 1200 to now 1600. What if i don’t even make that in a month? Any advise? Thank you in advance.
JOSE FIGHTER, on February 2nd, 2009 at 6:39 pm Said:

EMC is closely related to Bear Stearns

and Maryland Lawyers who get it

The firm of Brown, Brown and Brown listed in this blog

Also Bradley Deutchman, P.C.

phone# 202-277-3055

for mortgage audit

MAC, Mortgage Analysis and Consulting

703-442-8828
JOSE FIGHTER, on February 2nd, 2009 at 6:36 pm Said:

Most Likely Bear Stearns or one nof their Pyramid partners
Louie, on February 2nd, 2009 at 5:55 pm Said:

ASC is the biggest pieces of s*** that exists.
Patricia, on February 2nd, 2009 at 5:52 pm Said:

I have a question if anyone can respond, my morgtage company is EMC who exactly would have that loan. They say they are only the servciers and not mortage company… Any help anyone?
LARRY, on February 2nd, 2009 at 5:29 pm Said:

IS THERE A LAWYER IN MARYLAND WHO UNDERSTANDS ALL THIS AND CAN HELP ASAP
Charles, on February 1st, 2009 at 4:44 am Said:

1. Neil you are doing a great job. thanks very much.
2. Can a previously signed waiver on a lender initiated modification be superdeded by new claims of fraud?
3. where can I buy your book and get the forms to go pro se?
4. Any workshops coming up anytime soon in or near Las Vegas?

Charles
LUIS, on January 30th, 2009 at 12:26 am Said:

SOME DAY, LAWYERS WHO THINK LOAN MODIFICATIONS ARE “IT”. WILL REALIZE HOW MUCH DAMAGE THEY ARE DOING. YES THEY ARE THE EASY WAY OUT, MAKE TWO PHONE CALLS, SEND A LETTER THEN SIT AND WAIT FOR TIME TO PASS.

NONE OF THESE LENDERS AND SERVICERS GET IT, AND WHEN THE NON PROFITS, THE LAWYERS , REAL ESTATE AGENTS, LOAN OFFICERS NOW DANCING “THE MODIFICATION MAMBO”, UNDERSTAND THAT THESE LENDERS SERVICERS ARE UP TO NO GOOD, IT IS GENERALLY TOO LATE FOR THE CONSUMER.

THESE LENDERS FEAR THE COURT ROOM, THEIR ARGUMENTS ARE VOID, MOST PEOPLE I TALK TO WANT “JUSTICE”.

LET US SEE HOW MANY PEOPLE WILL QUALIFY FOR MODIFICATIONS, AND THEN GET LAID OFF THE NEXT DAY. WHEN THEY COULD HAVE BEEN TO COURT AND BACK SHOWING THESE LENDERS HAVE NO OWNERSHIP RIGHTS ON THEIR ALLEGED NOTES. THAT THERE IS A TRAIL OF FRAUD AND THAT INSTEAD OF MAKING A BUNDLE THESE PEOPLE ARE SETTLING FOR AN EASY COUPLE OF THOUSAND DOLLARS, JUST LIKE THE BANKRUPTCY ATTORNEY CROWD, DROP THE CHAPTER SEVEN BOMB AND NO ONE GETS HURT.

I CANNOT UNDERSTAND SOME OF THESE GUYS SPENT UP TO $70,000 IN LAW SCHOOL AND THEY ALL SETTLE FOR LESS.

I BELIEVE I HEARD SOME ONE SAY IN A PARTICULAR SEMINAR “WIN AT THE BEGINNING OR LOSE AT THE END”.

I WISH WE COULD CLONE THIS GUY, ANY CLONING SCIENTISTS LOSING THEIR HOME????
usedkarguy, on January 29th, 2009 at 10:50 pm Said:

Martin, it took me ten months of NOT MAKING PAYMENTS to get Wells Fargo to refer the case to local counsel and only THEN did I learn the name of the trust the loan was assigned to. I had been offered loan modifications and defaulted because the payments were higher than the scheduled payments were. But, I never signed their loan mod agreements. When I started demanding to know who owned the note, no one would tell me, and they would bounce me to a phone loop. This went on for months. ASC is really Wells Fargo’s “special servicing unit”. Start fighting! Lots of California info on this website. Read up, LEARN, understand, and Fight.
Martin, on January 29th, 2009 at 6:36 am Said:

Help !!!!

So, I lost my job 2yrs ago and spent my entire savings on keeping up with the mortgage co (ASC) I called them to request a loan modification for over 4 months now and nothing. I am now 3 months late on the mortgage and all ASC tells me is that the investers will not accept a loan modification, I would like to know who owns my loan so that I can deal with them directly. I have tried to get this info from ASC and once again nothing….. I live in California and now I would like to ask ASC to provide me with proof they own the note or provide who owns the note.

Can anyone provide me with any info or what I should do next.
Patricia, on January 28th, 2009 at 10:28 pm Said:

I live in Texas and my home was awarded to me through a divorce settlement last June. When i took over the property, I assumed (since he was ordered in court to have house current in taxes and payments) that all was in order. 2 months later I discovered the home was going into foreclosure due to non payment ( he was 4 months behind). I explained and faxed the mortgage servicing company a copy of decree and they said I had to pay up since they were drawing up foreclosure paperwork. Well, I had to pay the 4 months i was behind and then they added to my note $14,000 for escrows and taxes and what not. I had to pay this in installments since I was financially depleted. Well, I thought i was being smart and paying in advance so in my accounts I was paid up until December. Mid December they contact me and say your account is (AGAIN) Foreclosure for nonpayment. They said I HAD TO BE GIVING EACH MOnth a payment and that in December I had not. So again, Jan 09 they sent me another loan modification and installment paperwork and no one seemed to have the previous paperwork i had faxedin. Well now my mortgage payments have gone up $600 and I am barley making it. I explained this to them and they said it wasnt’ their fault i was deliquent. WOW talk about helping you out. They said maybe after 3 months i would qualify for refinance to lower my payments. IS THERE ANYTHING I CAN DO?????? please help.

Lost in Texas
june dentley, on January 28th, 2009 at 7:23 pm Said:

thank you
june dentley, on January 28th, 2009 at 7:22 pm Said:

i need help on my foreclosure.
dny, on January 28th, 2009 at 6:47 pm Said:

To M Linton, 1/16/2009 10:49pm:

Thank you for the links. Do you happen to know what the disposition is of those two cases (Lombard in Alabama and Delia in Florida)? Were they successful arguments? Or “successful” as defined by the homeowners in these cases? Thanks in advance.
LH, on January 28th, 2009 at 5:49 pm Said:

Hello…recently we received a validation of debt from “Wamu”/JPMorgan Chase on the foreclosure loan. And no complete response to the QWR.

In the validation of debt they state the following:

As you may know, on Sept. 25, 2008, Wamu, the servicer of your loan, was closed by the Office of thrift supervision and the fdic was named receiver. Upon closure, JPMorgan Chase bank, National Association (JPMOrgan Chase) acquired certain assets of Wamu from the FDIC, including the right to service your loan. Although JPMorgan chase is now the servicer of your loan, your loan will be serviced by JPmorgan chase under the name of Wamu for now.

Because your loan was in default on Sept 25, 2008, ant the servicing of your loan was transferred to a new servicer, we are required by the federal fair debt collection practices act to send you the enclosed “debt validation notice”. Please review it carefully…..

They state to respond within 30 days of receipt. What should the response be specially when they were sent a QWR and their attorney sent us response to the QWR with a “complicated payment history copy” and a copy of the adjustable rate note (decmagic eforms copy) when the lawsuit states in section 2 that they DO NOT have the note… and we were not notified that they had “found it” … (don’t know if they have the “original” but they sent one which is a digitalized copy from these digital scanning services)

So… again, what and how should the response be on this debt validation notice
Thanks.

L. H.

P.S. What is the contact info of the crime investigations guy in sofla. Thanks
ny, on January 28th, 2009 at 5:36 pm Said:

Mr. Garfield in on this:

http://www.msnbc.msn.com/id/28877173/
Krissy, on January 23rd, 2009 at 10:34 pm Said:

HUGE PROBLEMS with texas-based firm Barrett Burke Wilson Castle daffin & Frappier… along with Chase bank. Foreclosed before sending RI (requested 20+ days ahead of time) Chase told us the loan was in research then they sold it anyway. We had no idea until the day after it was sold when it was even selling…. NEED URGENT HELP IN TEXAS!!!
mike linton, on January 16th, 2009 at 10:49 pm Said:

emergency order to vacate judgment and maybe a counter-claim?
forward these 2 links to your attorney
http://livinglies.files.wordpress.com/2008/07/alabama-slander-of-title-etc-amendedcomplaint.pdf
http://livinglies.files.wordpress.com/2008/08/delia-frclsrmotionvacatejudgmentv1.pdf

Litton Loan is a servicer – who is the Lender?
Cut and paste this and send it to your attorney and see what he thinks about filing this:

*

I just filed this today in Illinois:

PLAINTIFFS NOTICE OF RECISSION OF MORTGAGE

TO EACH DEFENDANT:
1. As a result of the Defendants violation of the Truth-In-Lending Act as stated in the complaint, the Plaintiffs Michael R. Linton and Peggy M. Linton hereby exercise their extended right of rescission and therefore demand rescission according to 15 USC §1635(f); Reg Z §§226.15(a)(3), 226.23(a)(3). Liability for violating TILA runs to the lender. Once the loan is sold, the liability, as related to rescission, extends to the assignee as well. 15 USC §1641(c). The regulations set up a three-step process to rescind a loan.
1.1. First, the borrower must notify the lender, in writing, of the cancellation of the loan. While the notice must be in writing, it can be transmitted by mail, telegram, or other means. Reg Z §§226.15(a)(2), 226.23(a)(2).
1.2. Once the loan is rescinded, the security interest or lien becomes automatically void, by operation of law. 15 USC §1635(b); Reg Z §§226.15(d)(1), 226.23(d)(1). The note also is voided. The lender’s interest in the property is “automatically negated, regardless of its status and whether or not it was recorded or perfected.” Official Staff Commentary §§226.15(d)(1)–1, 226.23(d)(1)–1.
1.3. Within 20 days of receipt of the notice of cancellation, the lender must return to the borrower any money or property that has been given to anyone in connection with the loan. 15 USC §1635(b); Reg Z §§226.15(d)(2), 226.23(d)(2). The lender must also take steps to reflect that the security interest has terminated.
Failure to respond to the rescission notice as spelled out above results in another violation and an addition award of statutory damages. White v. WMC Mortgage, 2001 U.S. Dist. LEXIS 15907, at * 5 (E.D. Pa. July 31, 2001); Mayfield v. Vanguard Savings & Loan, 710 F. Supp. 143, 145 (E.D. Pa. 1989).
Liability for TILA claims for monetary damages runs against assignees where the violation is apparent on the face of the loan documents. 15 U.S.C. § 1641(a).
Statute of Limitations
• 1 year for affirmative claims. 15 U.S.C. § 1640(e);
• 3 years for rescission. Beach v. Ocwen, 523 U.S. 410 (1998);
• Unlimited as a defense to foreclosure in the nature of a recoupment or setoff. 735 ILCS 5/13-207. Bank of New York v. Heath, 2001 WL 1771825, at *1 (Ill. Cir. Oct. 26, 2001).
Prepared and submitted by:
_____________________________________________
Michael R. Linton / PRO SE Plaintiff
Peggy M. Linton / PRO SE Plaintiff
Philip, on January 16th, 2009 at 9:57 pm Said:

ok i sent litton that extended rescission for judicial review notice off the forms page & thier response was “we’re unable to refer the loan to loss mit.” they have a sale date set for march third, the substitution trustee affidavit wasnt’t signed, my attorny is asking me what should we do?!? much help would be appreciated email me with any thoughts please
pippy52@verizon.net
Mike Linton, on January 15th, 2009 at 10:08 pm Said:

oh, by the way, I did get the keys back for the rental property above. I just want to swing a right hook into their jaw. I sent this letter shortly after they changed the locks:

Florida Default Group / Christina Riley
Attorneys For DLJ Mortgage Capital, Inc.
Attorneys At Law
9119 Corporate Lake Dr. 3rd Floor
Tampa, FL 33634
VIA FACSIMILE (813) 251-1541 and US MAIL

Select Portfolio Services
3815 Southwest Temple
Salt Lake City, UT 84115
VIA FACSIMILE (801) 269-4405 and US MAIL

Lender Processing Services
601 Riverside Avenue
Jacksonville, FL 32204
VIA FACSIMILE (904) 854-4124 and US MAIL

Re: DLJ Mortgage Capital, Inc. vs. Peggy M. Linton et al
Property Address:
Case Number
File Number

Dear Ms. Riley,

This letter is being provided to you, Florida Default Group Attorneys at Law, and your client DLJ Mortgage Capital, Inc. as a formal demand to return the keys to the above mentioned property. A copy of this letter has been mailed to the Honorable Judge Richard S. Graham, The Florida Attorney Generals Office, The Florida Bar Association and The Department of Justice.

On or about November 11, 2008 your client or an agent for your client entered the property located at xxxxxxxx, Florida without permission and/or notice and changed the locks, thereby illegally seizing the property. This was not discovered until the new property manager was meeting a painter for an estimate. A new tenant is scheduled to move in December 1, 2008.

Let me remind you and your client that this matter is still in litigation and your client does not have title to the property. Therefore please accept this letter as demand for possession and have your client overnight the keys to the following address:

xxxxxxxx

If possession is not returned by 5:00 PM Eastern Time, Friday November 21, 2008, a police report will be filed and criminal charges will be filed in the proper courts.

Let me further remind you that we are investigating this file for Truth-In-Lending Violations, Usury, Security Violations, Common Law Fraud, Little FTC Act Violations, RESPA Violations, Florida State Law and RICO.

YOUR CLIENT’S CONDUCT CONSTITUES CRIMINAL THEFT AND CIVIL THEFT OF THE REAL PROPERTY

PLEASE GOVERN YOURSELF ACCORDINGLY

Sincerely,

Michael R. Linton
PRO SE Defendant
Mike Linton, on January 15th, 2009 at 10:01 pm Said:

can someone help me complete a “Motion For Sanctions” It’s in Florida. Here is what I have so far:

MOTION FOR SANCTIONS FOR ILLEGAL TRESPASS
Defendants Peggy M. Linton and Michael R. Linton requests this Court to enter an Order of Sanctions against Plaintiff, and as grounds for same states:
1. On or about November 11, 2008 Plaintiffs, DLJ Mortgage Capital and/or an agent for plaintiff unlawfully entered the property located at xxxx., xxx, Florida without permission and/or notice and changed the locks, thereby illegally seizing the property.
2. As a result of the said trespass the Defendants, Peggy and Michael Linton, have been deprived of the peaceful enjoyment of their property.
gump59, on January 10th, 2009 at 2:35 am Said:

I did get ahold of Emmit Robinson and have retained his services. I am very impressed with how dedicated he is to helping the little guy, he genuinely cares. It is an uphill battle in VA though, so I am tempering my expectations.

If anybody else out there has experience in VA they can share I would appreciate it.
gump59, on January 7th, 2009 at 2:15 pm Said:

I sent in contact info via email to Emmit Robinson 12/19 and also via his web site with no response yet. I will also try Chris Brown.
livinglies, on January 7th, 2009 at 6:02 am Said:

you need to contact lawyers Chris Brown or Emmit Robinson, their info is on the list of “Lawyers that get it” on the blog site
gump59, on January 6th, 2009 at 9:28 pm Said:

I am having difficulties finding a lawyer in northern VA and am considering giving it a shot pro se. As VA is a non-judicial state, I need info on how to try to force them to switch it to judicial. Anybody have some form of explicit and detailed “howto” resource on this?
Larry Kudla, on January 6th, 2009 at 1:53 am Said:

Neil, do you have an case history of BK filing using the defense of unsecured status for the lender? If so can you send me the reference?
Ny, on January 4th, 2009 at 8:10 pm Said:

Don’t give up (that’s what they want you to do) motion the court to compel discovery and as Mr. Garfield says: As soon as they start stonewalling on discovery then ask for dismissal/.
Martin, on January 3rd, 2009 at 7:07 pm Said:

Hi guys,
Great forum on here!
I have just received the Discovery documents from the Plaintiff Countrywide. I requested almost everything you can think of, including the securitization paperwork regarding the sale of the loan from MERS to Countrywide. The plaintiff’s lawyer objected to providing this info based on it being too burdensome and irrelevant to my case? I wonder if I should file for dismissal or just try to get a loan modification. BOA has gone public with a new modification program and I should qualify.
What are my chances of getting this dismissed based on a broken chain of title or at least an unproven chain of title?
Thanks!
David M. Sostchin, on January 3rd, 2009 at 5:35 am Said:

I am a pragmatic person and even though I do not believe that holding a note alone does not establish ownership in due course, the courts in Florida take the position that he who hold a note with a blanket endorsement even undated owns the note. Without evidence as to who signed the endorsement, the date of the endorsement or even the validity of the endorsement.
I have taken the deposition of a bank officer who admitted that the note the purport to own is not owned by them and that they are only the servicing agents for the entity that owns it who they can not even name.
So, a motion to deny final summary judgment should hold in most cases pending taking the deposition of a bank officer or a trial at which time it can be established whether the Plaintiff is the proper party in interest. I am on to something?
TA Webster, on December 27th, 2008 at 4:51 am Said:

Hi – I lost a 20 year career in land development in Florida and am now (to top things off) going through a divorce. My wife’s is named solely on the Mortgage and we both are listed on the Deed.

My question is this – will I lose any right(s) to fight the foreclosure after our divorce is final – should I try to stall our divorce? She quit her job and abandoned our marital home.

Any help would be greatly appreciated! I would like to try and get the lender to cancel the loan due to fraud and racketeering – 80/20 Loan with JPM Chase on the first and JPM Chase on the second via acquisition of Bear Stearns (EMC Mortgage).

Thanks!!!!

TA Webster
Melbourne, FL
http://tawebster.spaces.live.com
twebster321@hotmail.com
Ny, on December 23rd, 2008 at 10:05 pm Said:

Does any one know the rule for co-counsels in Florida? I just got a request from a totally different law firm than the one on record claiming to be co-counsel. Do they have to file a notice of intervention? thanks.
Ny, on December 18th, 2008 at 1:19 pm Said:

In re: (i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby

Every Deutsche Bank National Trusts Pooling and Servicing Agreements have this included.
Ny, on December 18th, 2008 at 2:45 am Said:

what’s the rule if you get suit and the legal description of the property they claim on the summons do not exist? Thanks
Allan (FLORIDA: What Is Time Frame In Which To Object to Substitute Note Or Anything?), on December 16th, 2008 at 9:40 am Said:

RE: “Booker T. Perry and Betty J. Perry v. Fairbanks Capital Corp., Et Al.

In this case the Perry’s lost the case in a technicality. Please google case and study it. Do Not make the same mistake. The Perry’s failed to OBJECT to a note provided to them by the attorneys and the court admitted it.”

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I found fault with note as well allonge submitted, without making a formal OBJECTION to them because I had just propounded a massive discovery request on plaintiff trustee.

What is the TIME LIMIT in Florida in which to OBJECT to submissions and not run the risk of repeating the Perrys mistake?

RSVP
Allan
BeMoved@AOL.com
Allan (in answer to Ny's query), on December 16th, 2008 at 2:53 am Said:

To this layman the passage primarily suggests/recommends to the Trustee “let sleeping dogs lie,” or don’t let any Certificateholder “stir up a hornets nest,” lest the Certificateholder guarantee the Trust that no way will it be on the hook for any blowback.

I take it literally to mean the Trustee is NOT REQUIRED to use any of the powers given it to undertake anything on behalf of a Certificateholder unless that Certificateholder first protects the Trust from the downside of any action the Certificateholder initiates or by response invites.

What intrigues me here is, what happens when a Certificateholder is named as a John Doe defendant? Is the Certificateholder in this scheme under a duty to defend, or does that function get passed on to an insurer, or other party?

RSVP
Allan
BeMoved@AOL.com
Ny, on December 15th, 2008 at 10:41 pm Said:

Can some one please explain what this means:

(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby
Ny, on December 15th, 2008 at 9:11 pm Said:

Hi, Does anyone know the procedure for requesting a hearing in court in Florida? Thanks
Dan, on December 11th, 2008 at 3:28 am Said:

Hector,
Contact http://www.borrowerhotline.com – I believe they have stopped eviction after sales.

They are very easy and informative to talk with.

You really need to talk with an attorney – they can probably help you and/or refer you to an attorney.

Dan Edstrom
dmedstrom@hotmail.com
Ny, on December 10th, 2008 at 8:39 pm Said:

never mind. i answered my own question.
Ny, on December 10th, 2008 at 6:39 pm Said:

Can anyone explain how one can request a transfer of case being heard in Circuit Court over to a Federal District Court. i have a fraud, RICO and others, counterclaim. Thanks
Looking for Orlando FL Lawyer, on December 10th, 2008 at 4:04 pm Said:

Has anyone found a good Attorney in Orlando yet?
Martin, on December 8th, 2008 at 6:56 pm Said:

I need a motion to dismiss form for the state of Florida.

Thanks,

ML
Hector Orona, on December 8th, 2008 at 4:09 pm Said:

well i can see that all of this info is really usefull but also very confusing. my home has gone back to the lender after the auction sale and now it’s going to the marshall’s office for eviction.I want to do something pro se but it’s just all so confusing.I have two small children and i don’t want to lose our home.Can someone please guide me to someone in california. have very little time left. thank you
(626)488-6652
Beverly, on November 26th, 2008 at 3:05 pm Said:

Is there really a recourse for homeowners that have already lost their homes through foreclosure? Are banks (citicorp) really encouraging people for modification?
A property has just been bought back by citicorp but still accepted an application for modification from the borrower. Now does this work?
Any lawyers in los angeles area that has full knowledge of foreclosure defense process?
Mario kenny, on November 15th, 2008 at 1:07 am Said:

Mike,

The one that was provided by Alan was the best.Works everywhere
mike linton, on November 14th, 2008 at 8:39 pm Said:

I have seen a couple of the “Cancel The Loan “Letters floating around – is there one that works better in Florida?
Mario kenny, on November 14th, 2008 at 3:48 am Said:

also Mike send them the “CANCELL THE LOAN” letter and do not forget the words “Fraud and Rackettering”these are very productive words.Remember the RICO act

786 274 0527
malibubooks@gmail.com
Mario kenny, on November 13th, 2008 at 3:55 pm Said:

Use what is on the hud site then,but generally you need as good lawyer to make this scammers work.
Normally when they are protesting to send info is mainly because they have no info to send and the info they go have is a fraud.Natrually they will stall you for as long as they can and until you get fedup and go away.
mike linton, on November 13th, 2008 at 3:39 pm Said:

OK after reviewing the QWR on this website listed above and the sample QWR on HUD’s site – I noticed there was a difference in law that was cited – The HUD letter says “under section 6″ – Our 20 page letter says ” 12 U.S.C. Section 2605(e)

What is everyones opinion on this
Connie, on November 11th, 2008 at 11:00 pm Said:

Mike, I am sure you know the anwser, you should bombard these criminals with this 20 page document and tell Little Litton Loan Service to read what pretains to them as a Servicer. Stand-up to them and send a copy to HUD to let them know that you that you contacted all of these Liars In Lending. Keep in mind that these companies have commited fraud on New Home Borrowers and Home Owners for many years and its business as usual, so what you are asking is within the law and it is your right to form a letter as you see fit, you are the Consumer and your rights have been violated, You have the best information that our money can by right now. Have faith and step out!! BTW send a copy to your DOJ
God Bless
mike linton, on November 10th, 2008 at 11:45 pm Said:

Help

Ok I have 3 properties in foreclosure. I sent each lender the QWR letter that is at the bottom of the above list of foreclosure defense forms. I received letters from either the banks or their attorney’s stated that this 20 page letter does not qualify as a QWR. It is a lot more detailed than the one that is shown on the HUD website. Can anyone explain this? Are they playing games because they know they are wrong? Does anyone have a sample followup letter?

Mike
mrlinton82@aol.com
mike@mikelinton.com
bt, on November 8th, 2008 at 10:00 am Said:

go to this attonreys website.
http://www.eko-law.com
For $29 bucks i bought 10 word doc filings…basically a step by step filing for defending yourself…i wish more attornieys or more posts would give us llinks like this, jsut can;t afford an attorney to fight for my home and want to make sure i do it right, my loan has been sold so many times…it is nuts.
http://www.eko-law.com
Jose, on November 6th, 2008 at 4:10 pm Said:

Credit Swap Disclosure Obscures True Financial Risk (Update2)

By Shannon D. Harrington and Abigail Moses

Nov. 6 (Bloomberg) — The most comprehensive report on unregulated credit-default swaps didn’t disclose bets in the section of the more than $47 trillion market that helped destroy American International Group Inc., once the world’s biggest insurer.

A report by the Depository Trust and Clearing Corp. doesn’t include privately negotiated credit-default swaps that insurers such as AIG, MBIA Inc. and Ambac Financial Group Inc. sold to guarantee securities known as collateralized debt obligations. It includes only a “small fraction” of contracts linked to mortgage securities, according to Andrea Cicione at BNP Paribas SA in London.

New York-based DTCC’s data, released on its Web site Nov. 4, showed a total $33.6 trillion of transactions on governments, companies and asset-backed securities worldwide, based on gross numbers. While designed to ease concerns about the amount of risk banks and investors amassed on borrowers from companies to homeowners, the report may have missed as much as 40 percent of the trades outstanding in the market, Cicione said.

The data are “likely to underestimate the amount of net CDS exposure,” Cicione, who correctly forecast in January that the cost of protecting European companies from default would rise, said in an interview. “A broadening of the coverage to the entire market is what investors really need.”

`Increased Transparency’

DTCC released the data as dealers and investors in the market seek to counter criticism that the market has amplified the financial crisis. The Nov. 4 report showed, for example, that $15.4 trillion of contracts linked to individual companies, governments and other borrowers were created. After canceling out contracts that offset one another, though, sellers of that protection would have to pay $1.76 trillion if all underlying borrowers defaulted and debt holders recovered nothing.

The data is “definitely a welcome development,” Cicione said.

Trading of credit derivatives soared 100-fold the past decade as banks, hedge funds, insurance companies and other investors used the contracts to protect against losses or speculate on debt they didn’t own. The growth was driven partly by CDOs, securities that parcel bonds, loans and credit-default swaps, slicing them into varying layers of risk.

Banks worldwide have taken $693 billion in writedowns and losses on loans, CDOs and other investments since the start of 2007, according to data compiled by Bloomberg.

CDX Indexes

Investors hedging against losses on CDOs helped push the cost of default protection to a record last week. The benchmark Markit CDX North America Investment Grade Index, linked to the bonds of 125 companies in the U.S. and Canada, reached 240 basis points on Oct. 27. The index rose 5 basis points to 192 basis points as of 8:48 a.m. in New York, according to broker Phoenix Partners Group.

The Markit iTraxx Europe rose to as high as 195 basis points from as low as 20 in June 2007. It was quoted at 139.5 basis points today, according to JPMorgan Chase & Co. A basis point on a credit-default swap protecting $10 million of debt from default for five years costs $1,000 a year.

Credit-default swaps, contracts conceived to protect bondholders against default, pay the buyer face value in exchange for the underlying securities or the cash equivalent should a company fail to adhere to its debt agreements. An increase indicates deterioration in the perception of credit quality; a decline signals the opposite.

$440 Billion

AIG first disclosed to investors in August 2007 that it held more than $440 billion of credit-swap trades linked to CDOs. The New York-based company was brought to the edge of bankruptcy in September after the value of the transactions plunged. The insurer was forced to come up with more than $10 billion in collateral to back the contracts after its debt rankings were cut. It accepted an $85 billion government loan in exchange for ceding control to the U.S.

MBIA and Ambac, previously the world’s two biggest bond insurers, lost their top AAA ratings earlier this year because of potential losses on credit swaps sold to guarantee CDOs backed by home loans. Moody’s Investors Service cut New York-based Ambac’s bond insurance rating four levels yesterday to Baa1, three steps above junk, because of potential losses on the derivatives.

A market survey this year by the New York-based International Swaps and Derivatives Association, which includes credit swaps on CDOs and other contracts that may not be captured by DTCC’s Trade Information Warehouse, estimates more than $47 trillion in gross contracts are outstanding.

`Gaps’

The Federal Reserve Bank of New York, which urged dealers to curb risks and improve transparency in the credit swaps market over the past three years, said regulators will continue to push for more disclosure. Among the information the Fed wants to see are prices at which the derivatives trade, according to a New York Fed spokesman.

“There appear to be gaps,” said Henry Hu, a law professor at the University of Texas in Austin who has pressed for the creation of a data warehouse encompassing all privately negotiated derivative trades to offer a better understanding of their risks.

“Hopefully, regulators are getting more information,” he said.

Because the DTCC registry captures only commonly traded contracts that can be confirmed over electronic systems, not every swap trade is in the company’s report, spokeswoman Judy Inosanto said. Among those not included are credit-default swaps on CDOs, she said.

MBIA, the Armonk, New York-based insurer crippled by ratings downgrades earlier this year following losses from such contracts, has said it sold $126.3 billion in guarantees on slices of CDOs backed by corporate bonds, mortgages and other debt. Ambac sold $60.7 billion in guarantees on these so-called tranches, mostly through credit swaps, the company said.

CDO Losses

Insurers including AIG, MBIA and Ambac typically sold protection on the highest ranking slices of such deals, meaning they’d be required to make good on payments only after a substantial part of the underlying debt defaults.

The failures of Lehman Brothers Holdings Inc., Washington Mutual Inc. and three Icelandic banks that were widely held in CDOs linked to corporate debt caused no losses on tranches MBIA guaranteed, Mitchell Sonkin, the company’s head of insured portfolio management, said in a conference call yesterday.

New York-based Lehman and WaMu, based in Seattle, filed for bankruptcy. Iceland’s government took over its three biggest lenders last month after they were unable to raise short-term funding, triggering pay-outs on credit-default swaps.

Some investors holding the riskier slices of CDOs that weren’t guaranteed lost more than 90 percent because of the bank failures.

“The worry is that these bespoke tranches are being eaten away, and who knows if and when these losses will get realized,” Tim Backshall, chief strategist at Credit Derivatives Research LLC in Walnut Creek, California, wrote in a note to clients yesterday.

To contact the reporters on this story: Shannon D. Harrington in New York at sharrington6@bloomberg.net; Abigail Moses in London Amoses5@bloomberg.net
Last Updated: November 6, 2008 09:42 EST
ny, on November 6th, 2008 at 1:11 am Said:

Above finding in paragraph 4 is from

Booker T. Perry and Betty J. Perry v. Fairbanks Capital Corp., Et Al.

In this case the Perry’s lost the case in a technicality. Please google case and study it. Do Not make the same mistake. The Perry’s failed to OBJECT to a note provided to them by the attorneys and the court admitted it.

Remember, you’ll only lose if you give up.
God bless.
ny, on November 6th, 2008 at 1:07 am Said:

Here’s another important finding. This one is from the 5th DCA in Florida.

In Re: 4. That the Plaintiff pursuant to section 90.952 FS failed to attach the ORIGINAL PROMISSORY NOTE. 90.952 FS Requirement of originals.–Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph. Additionally, as the Fifth District Court of Appeals in the state of Florida noted, The original document that is generally required to be filed with the court in a mortgage proceeding is the ORIGINAL PROMISSORY NOTE (NOT a copy, a faxed copy, a lost note affidavit etc,) and NOT the mortgage. The ORIGINAL PROMISSORY NOTE must be surrendered in a foreclosure proceeding so that it DOES NOT remain in the stream of commerce.

5. Plaintiff and their attorneys knowingly proceeded to use Dade County Public Records in an attempt and with intent to commit fraud upon the Defendant(s) and the Court. 817.034 Florida Communications Fraud Act.—(3). Services. (d) “Scheme to defraud” means a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.
ny, on November 4th, 2008 at 7:47 pm Said:

To whom it may concern:

If you are in Florida, please see Fl statute 90.953 and you will be happy by the findings.

In Re: b) The Fourth District Court of Appeals in the state of Florida decided an issue quite pertinent to todays foreclosures; in the case of StateStreetBank and Trust Co., Trustee for Holders of Bear Stearns Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 1993-12 v. Harley Lord, et al., 851 So.2d 790 (Fla. 4th DCA 2003). The Court held that StateStreetBank could not maintain a cause of action to enforce a missing promissory note or to foreclose on the related mortgage in the absence of proof that it or its assignor ever held possession of the promissory note. Section 673.3091, Florida Statutes (2002).

c) The Court explained that pursuant to section 90.953, Florida Statutes, (2002), Florida’s code of evidence, the plaintiff in a mortgage foreclosure must present the ORIGINAL PROMISSORY NOTE as a duplicate of a note is not admissible. Otherwise, the plaintiff must meet the requirements of section 673.3091, Florida Statutes to pursue enforcement. W.H. Dwoning v. First Na’tl Bank of Lake City, 81 So.2d 486 (Fla.1955), Nat’l Loan Investors, L.P. v. Joymar Assocs., 767 So.2d 549, 551 (Fla. 3d DCA 2000).

d) StateStreetBank was later cited with approval by Dasma Investments, LLC v. Realty Associates Fund III, L.P., 459 F.Supp.2d 1294(S.D.Fla.2006) where the court held that if a party is not in possession of the original note and cannot reestablish it, the party cannot prevail in an action on the note. In Dasma, the court explained that in Florida a promissory note is a negotiable instrument and that a party suing on a promissory note, whether just on the note itself or together with a foreclose on a mortgage securing the note, must be in possession of the ORIGINAL NOTE or reestablish the note pursuant to Fla. Stat. § 673.3091. See, Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy.S.D.Fla.1985).

e) 90.953 Admissibility of duplicates.–A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.
4. A promissory note is clearly a negotiable instrument within the definition of section § 673.1041 (1) FS and either the ORIGINAL must be produced, or in the event of a lost note, the document must be re-established under section § 673.3091 (2) FS. In this case, the Plaintiff clearly FAILED to attempt to move Court to re-establish the necessary PROMISSORY NOTE under § 673.3091 (2) FS or any other Florida statute upon filing and initiating frivolous complaint.

1. In the event that law permits the enforcement of a lost negotiable instrument section § 673.3091 (2), F.S. applies. Section § 673.3091 (2) F.S., requires a person seeking to enforce a lost negotiable instrument to:

1) Prove the terms of the instrument;

2) Prove the right to enforce the instrument; and

3) Protect the person who has to make payment from other claims to pay the instrument.

4) Plaintiff failed to prove ALL conditions above. (1) (2) and (3).

f) Plaintiff failed to prove “Chain of Title” with their respective assignments assigning the rights to enforce

g) Information obtained from bill SB 282, sponsored by Senator Posey on February 2, 2004

h) Why would one lose or destroy a valuable negotiable instrument? Defendants only guess would be to hide fraud.

i) “Actual Fraud. Deceit. Concealing something or making a false representation with an evil intent [scienter] when it causes injury to another. [see: e.g.,Steven H. Gifis, ‘Law Dictionary’, 5th Edition, Happauge: Barron’s Educational Series, Inc., 2003, s.v. “Fraud.
tim, on October 30th, 2008 at 5:54 pm Said:

Dear Neil Garfield readers and Neil; just a note of gratitude and sincere thanks to the many wonderful people we have met in this blog and to our gracious host, Mr. Garfield! We write today to let everyone know that if you are looking for a lawyer, look good, long and hard at this web site as Neil’s blog brought us our angel of law! Thank you Neil, thank you so very much! You have no idea how good it felt this morning to not have to wake up dreading what will I do next in our case against Lehman and his scummy friends! This was the first day in over 5….very long years that I have awoken feeling as though there is hope and knowing that we have found one of the brightest lawyers around! We found our lawyer through Neil’s web page and we cannot…..thank Neil enough! We have suffered for over 5 years trying to find a lawyer who was first honest, and who 2nd, would first believe we never missed a mortgage payment and who would believe we were victims of a much larger scam and who would believe that yes, the banks do want your property and do want to foreclose as it happens, there is very big money in doing these things especially when the poor consumer was never, ever late on their mortgage! God bless you Neil and thank you for creating this forum for us, victims and advocates to meet and help each other!

On a much better note, now we have legal counsel representing our causes, we now are going to shift into overdrive with making our motion to Lift the Stay in the Lehman Bk case as Lehman does not deserve protection and is not a misfortunate, but honest debtor deserving of a fresh start! Lehman is a scummy company who deserved their means to the end and all of their employees who turned their heads or stuck them deep in an I don’t give a crap hole as I, am the only person who counts! Well you scummy Lehman people, your going to get yours too as employees of bad, corrupt companies who look the other way while their companies commit atrocities against the older, the weak or anyone not so deserving, need to feel the pain that is coming your way when Lehman gets tossed out of BK for their acts of fraud!

Thanks you Neil Garfield and all the regular bloggers here that have made this site a go to and must read site for all! Our best wishes and hats of to Mr. Garfield! Tim and Kathleen
Beverly, on October 27th, 2008 at 3:20 am Said:

Tenants in a house in Los Angeles received a notice of”unlawful detainer” 3 days ago. According to them, they never received any notice if trustee sale, cash for keys ora 3 day to vacate.
is this valid?
Is there a remedy for borrower against lenders who foreclose properties without due process..or is there even any process they have to abide by.
I also heard that a judge in california has been siding with lenders in terms of evicting occupants.
Do you have any lawyers here in los angeles that can work cases like these?
mortgageaudit, on October 19th, 2008 at 9:45 pm Said:

I believe uslenderaudit.com is helping out a lot of people. Try them.
Retro-R, on October 19th, 2008 at 11:26 am Said:

This statement is ALL WRONG…..
MCL 600.3220 Sale; adjournment; notice; posting; publication. “In Michigan, the trustee CANNOT postpone the sale to another time. There is NO statute allowing them to do that. However, the mortgagee can postpone the the sale if the need arises.”

Mortgagee’s CANNOT request sheriff sale adjournments, only the party in whose name the notice is posted (the MORTGAGOR) can request a sheriff sale adjournment.

Is statute has been misintrepreted by most all attorneys and most all attorneys are postponing sheriff sales (3 times as a general rule) to make it very hard for the homeowner to redeem his property.
Ron Houchins, on October 15th, 2008 at 2:06 pm Said:

I am a former attorney with experience in real estate litigation, foreclosure defense, consumer
protections, including TILA, RESPA and related
actions in both Federal and State Court. I offer legal document preparation at a reasonable cost for those who need help to stop their foreclosure
by representing themselves. Call or email me if you need help. Phone (706) 416-9996.
Liliana Fistel, on October 7th, 2008 at 10:14 pm Said:

Please send me the phone number where I can place an order. ASAP
Thanks a lot
Liliana Fistel
954 562 1129
Fistel Law Firm
lisa, on October 7th, 2008 at 8:01 pm Said:

i need to find a new york attorney fast-western ny. have the paperwork all prepared. i need a notice of motion for stay and tro because they foreclosed and now trying to evict. no assignment of mortgage when note was sold. anyone know of someone who can help/
mario kenny, on September 30th, 2008 at 6:34 pm Said:

“This power of appreciation, when it is turned for this existence, for this life – not the things you have in this life, but the life itself. The coming and going of this breath, that, “I am alive. I exist”.” That I have the capacity to feel, that I have the capacity to understand, that I have the capacity to feel happiness in my life. That I have the capacity to be satisfied in my life. That I have the capacity to be content in my life. That I have the capacity to understand in my life. That I have the capacity to have the answers in my life.”
Chris Terjesen, on September 26th, 2008 at 3:26 pm Said:

I live in Florida, and for the last two years I been been dealing with a foreclosure by a “Private non-institutional lender”, who maliciously filed a lawsuit on me for non-payment which was not true(he did not cash two months of my payments). I hired a civil attorney who did not respond to the complaint in time, and a default was entered against me (he had plenty of time)by the court. There are no foreclosure defense attorneys in my area that practice what they portend to. The two attorneys involved in this filed a motion to set aside the default more for my attorneys incompetence then the fact there was not a default. Needless to say, my then attorney never filed for a dismissal of complaint, my lender never cash the checks he was holding, I needed twelve plus months of cancelled checks for a refinace away from this situation, and was left with only eleven months of proven payments. My then attorney proceeded to with hold pertinent information such as a Motion for Summary Judgement, the stipulation itself etc. ( Great work for a $3,000.00 non-refundable retainer).

I filed a Pro Se statement to my case file, tried desperately to find a local attorney to represent me, attended the hearing in which my then attorney filed for withdrawal, based on lack of communication with me (A phone call, letter, fax, non-existant in his world) I tried to call him to no avail. This man is a published attorney!

Needless to say, I have been Pro Se and have gotten the motion for summary judgement denied by two seperate judges, one most recently the Plaintiffs attorney admitted to the judge there was not a default and the note was found, (but never produced) Plaintiffs councel told the other judge that it was not the note but the original mortgage.
I have since discovered that my mortgage itself is in direct violation of almost all statutes of the Florida Fair Lending Act, and the enforcibility of the contract is in question, and yes this applies to private lenders as well as institutions in this state, let alone Unfair and Deceptive Practices Statutes. And my Lender has a history of doing this, with his current attorney. No TIL, no Right to Rescind etc., and shaken down borrowers, “Foreclosure By Design”.

I stumbled on this website and find it to be invaluable. I have another court date for Summary Judgement in November.
I intend to file suit against my lender, but from what I am reading I have to be found in favor of by the court in this hearing, final, before I can file. This Lenders reign of Terror ends with me.

In my Affidavits, I continouisly request that Plaintiffs motion be denied and permission be granted to me for filing a counter-suit, since this was not done by my then attorney at the time.

My affidavits are well documented, and my research, is paying off, as well as the Plaintiffs attorney lying to one judge, telling the truth to the other on record. I hold the Plaintiffs attorney as harmful as the Plaintiff for this.

If anyone has any suggestions for me on my application of what to do next, I would appreciate it.

PS. I was with a Private Lender because I was a MERS victim!.

Fort Myers, Florida
Ron Houchins, on September 24th, 2008 at 8:23 pm Said:

I am a former Florida attorney willing to assist people with foreclosure defense document preparation in Florida and Georgia, where I presently live. The information provided on this blog is great, but most people need to be pointed in the right direction so they can represent themselves and sucessfully defend their
foreclosure. If you need help my contact information is as follows: Cellular (706) 416-9996; email r.houchins@yahoo.com; mail Ron Houchins, P.O. Box 1848, LaGrange, GA 30241.
cece, on September 14th, 2008 at 4:57 am Said:

I am in Pennsylvania and have filed 3 preliminary objections.
I have to write and file the reply memorandum brief pro se on monday.
I have done lots of research but feel dumb because i can t seem to figure out HOW to format it and what to write.
If anyone can show me visual outline or similar pro se memorandum reply briefs ASAP I would so appreciate it !
Charlotte, on September 10th, 2008 at 8:21 pm Said:

I’d like to ask Bob did you do your forensic analysis yourself also, or did you pay to have someone do it? I really want to try it on my own, but need some guidance?
Louie, on August 29th, 2008 at 12:54 pm Said:

Mario,

The best thing that’s ever happened to you was land on this site. Everything needed to win the case is here at your fingertips. Ask Mr. Garfield for a referral if you don’t understand anything or are afraid of continuing alone. STAY away from Bankcrupsy lawyers.

You’ll only lose if you give up.
Mario Kenny, on August 28th, 2008 at 8:47 pm Said:

Louie,
I can relate to what you are saying, however I do not quite have the self confidence to do this without a lawyer. Some lawyers work with investors and that condition or occurrence does give me the jitters.

I recall going to a Bankruptcy Lawyer some time ago to explore the possibilities. I had gone to see him several times to chat, on one of the occasions he said to me “you are still in the home?” on each occasion he took extensive info on me but never offering to help. I am aware that CH 13 really does not work as it did in the past and I brought this to his attention he said to me that he was getting more cooperate cases.

I was always under the impression that and I gathered that he was a bottom feeder using lawyer client info to offer investor sales as an option when the client got in trouble with the BK.

I stopped going to see him in the end as I quickly realized that he was up to no good.

In my opinion it takes a long time to build a legal practice and the rental of offices in downtown areas are very costly, thus the price a Lawyer has to charge to stay alive is actually untenable or un affordable to the people who are in default of their loan.

I have spoken to scores of people and not once I heard someone say they are able to easily pay the Lawyer, it’s a catch 69, where the Client need legal help, the lawyer needs the money but the price of Layering is so costly and thus not affordable.

I would like to talk to you. Please call me at 786 274 0527 or email me at malibubooks@gmail.com.I am sure you may be able to teach me a thing or two.
Thanks
Louie, on August 28th, 2008 at 1:01 pm Said:

I have to thank you for the information provided here. Without this site I would never have imagined going Pro Se. My questions is, why is there an army of bancrupcy lawyers that DO NOT know what they’re doing meddling in these cases?
I am in Florida and I read an article and saw a picture of a lawyer proudly standing in his office claiming and I quote “I hold the banks to their burden of proof” so I decided to pay him a visit, he actually threw me out of his office, he claimed I knew too much. But if I would’ve retained him all he was going to do was ask the judge for more time. ( I can do that my self). Another thing I didn’t like was that he said after seeing who the plaintiff’s attorney were and I quote” Me and him do a lot of work together” who are these lawyers working for?

Another lawyer I called was from a very famous case Lents Vs Wamu. When I called, at first they told me that they did not get involved with foreclosures and when I mentioned the Joe Lents case they told me someone would call me back and nobody did. Since my serving I have gotten about 30 letters in the mail form several attorneys but NOT one of them is in Real Estate. Are there any real estate lawyers?
Another lawyer I spoke to didn’t know what “IN REM” meant.
It seems these days you’re better off going alone but I just feel sad for the folks that really have no clue on how to even begin. I took a real estate course about 3 months ago and I think that’s why I understand this process a little better. Anyway keep up the good job and God bless you.
Kevin, on August 28th, 2008 at 2:25 am Said:

Fantastic source of information to assist borrowers.
bob, on August 22nd, 2008 at 11:55 pm Said:

Thanks everybody , I have no money so I can’t use a service. I am doing this pro se
I was married (still am) and one day the estranged wife woke up and decided she didn’t want to be married any more after 20 years. After 2 1/2 years and $130,000 in lawyer fees we’re still not divorced, but I will soon be homeless. I was a successful entrepreneur at one time, paying taxes, now I will be a ward of the state. How about we need a national divorce law. Buy out all the divorce lawyers like they did the tobacco growers. That’s the only way to get rid of them.
suzanne M Ledgister, on August 20th, 2008 at 5:18 pm Said:

I was ripped off……….. please be careful of people who take your money and do not render services. Be careful…….
Mario Kenny, on August 20th, 2008 at 5:26 am Said:

and bob please forget about the cardboard box its going to rain soon and plastic is very expensive,it is an oil product.
Mario Kenny, on August 20th, 2008 at 5:24 am Said:

bob,
if you are in the 20 day answer period do the answer quick
bob, on August 19th, 2008 at 11:30 pm Said:

I have owned my home for 14 years but do to multiple health problems I have been unemployed. Now my house is in foreclosure. I am flat broke and have been living selling stuff on craigslist for food. I want to fight my foreclosure in court cuz if I lose the house I have no place to live and no money to rent. Guess I’ll look for a sturdy cardboard box. LOL
I try to keep my humor

Anybody have ideas on how I can stall the process?
John Stewart, on August 16th, 2008 at 9:17 pm Said:

Cindy in Colorado
Am in the same boat with you.
Please e-mail me with info on motion you filed to stop the eviction
stewartj110@hotmail.com
Thanking You in Advance
John Stewart
Jon Ledin, on August 16th, 2008 at 12:54 am Said:

To Robert:
ref Indy Mac Bank

File your motion
to dismiss on the grounds
that Indy Bank is guilty
of illegal lending practices.

No currency traded hands
for your loan it was an extension
of credit and they are guilty of
money laudering or
fraud
Jon Ledin, on August 16th, 2008 at 12:48 am Said:

To Robert :
Ref on Indy Mac Bank

Your question leaves a lot of information
missing but in general terms file your motion
to dismiss in the Court you received
your summons.

This will most likely
be at the District Court in the County
in which you live.

If you have not received a summons
and a Petition to Foreclose then file
a civil action suit in Federal Distict
Court nearest to you.

Contest in suit that the mortgage holder
has no legal grounds to foreclose because
no currency traded hands as it was an
extension of credit.
S. Ray, on August 13th, 2008 at 4:14 pm Said:

I need a good attorney in Houston, TX – FAST.

I have been expericing problems listed below.

Common abuses in loan servicing include:
• Misapplication of payments: Many servicers are infamous for ignoring grace periods, misapplying and failing to apply funds, and improperly charging late
fees.
Servicers frequently compound this problem by then reporting the homeowner late to the credit rating agencies. The misapplication of a single
payment can have a snowballing effect that can leave homeowners fighting
foreclosure and struggling to repair their credit for months, or even years.
• Use of suspense accounts: As the name “suspense account” implies, borrowers’
funds held in such accounts are in legal limbo—they are not credited to the loan,
the borrower does not receive interest on them, and the account is not a trust
Linda J. Rougeux, on August 13th, 2008 at 10:23 am Said:

ADVOCATES FOR JUSTICE
by Linda J. Rougeux

LAST WEEK ATTYS FOR OPTION ONE PULLED THE FORECLOSURE FILE ON OUR Texas HOMEOWNER …. INDEFINITELY.

WE CALLED THE LAW FIRM APPROXIMATELY EVERY OTHER DAY TO INQUIRE ABOUT THE REQUEST FOR THE SHORT SALE (RE contract and qualified purchaser loan approval submitted) AND ALSO TO CONTINUE TO REQUEST A WRITTEN STATEMENT CONFIRMING THE FORECLOSURE RESCISSION (which we have yet to receive to this day).

WE WERE TOLD MANY DIFFERENT THINGS BY THE LAW FIRM, WERE EVEN DIRECTED, AT ONE TIME, TO CALL OO’S MAIN NUMBER TO SPEAK WITH OO. WE REFUSED. WE STATED THAT WE EXPECTED THE LAW FIRM NOT TO PASS THE BUCK AND THAT THE PRACTICE SOUNDED LIKE MORTAGE SERVICING ABUSE SINCE THEY KNEW THAT CALLING OO WOULD LEAD TO NOTHING MORE THAN A WILD GOOSE CHASE. SUMMARILY, THE LAW FIRM AGREED TO CONTINUE TO DEAL DIRECTLY WITH ‘THEIR’ CLIENT, OPTION ONE.

FOR THE MOST PART THE LAW FIRM WAS PLEASANT TO DEAL WITH, HOWEVER, AFTER SEVERAL DAYS OF NON-RESULTS WE THREATENED BOTH THE LAW FIRM AND OO WITH A LAWSUIT. THE REP. AT THE LAW FIRM AGREED THAT THE DELAY IN ANSWERING THE REQUEST FOR THE SHORT SALE WAS UNFAIR.

Thereafter, THE MANAGER OF THE FORECLOSURE DEPT. WAS NOT A HAPPY CAMPER. HE TRIED TO RATTLE US BY CLAMMERING THAT WE WERE NOT ATTYS., THAT WE WERE ONLY ADVOCATES, TO WHICH I REPLIED… THAT HIS STATEMENTS ABOUT NOT BEING ATTYS. IS IRRELEVANT.

AFTER THREATENING THEM NUMEROUS TIMES THAT WE WOULD SUE BASED ON THE RESULTS OF THE COMPLIANCE AUDIT, CONSUMER
PROTECTION STATUTORY VIOLATIONS, INTER ALIA, THE LAW FIRM CALLED BACK AND POSTPONED THE JULY FORECLOSURE SALE DATE.

EVENTUALLY, OPTION ONE EMPLOYED A REALTOR TO OFFER THE RESIDENTS AN “EVICTION DEAL” AND WAS ABOUT TO CUT THEM A CHECK WHEN WE FOUND OUT ABOUT IT (small town). …BEFORE THE FORECLOSURE SALE!

ADVOCATES CALLED THE ATTYS. for OO AND TOLD THEM HOW GREAT IT WAS TO HEAR THAT THEY VIOLATED THE TEXAS STATE PROPERTY CODE; THAT OPTION ONE ATTEMPTED TO EVICT EVEN BEFORE THE FORECLOSURE SALE: BEFORE THEY HAD A VALID DEED or any rights to do so.

After a few days, on the day of the newly rescheduled August foreclosure sale, both phones were ringing simultaneously. One call was from the attys. and the other from Option One’s consumer advocacy rep. Both stated that the sale had been cancelled indefinitely. OO will now be considering the short sale offer upon submission of certain unnecessary documents, but we find it more effective to cooperate with their formalities.
OO stated that they would come up with a number for the short sale and we were provided email address to which to send the info. required.

We hope to submit the docs. tomorrow and will wait to hear back from the manager/atty. of the consumer advocacy dept of OO.

Now that the foreclosure has been cancelled the only urgency is to get the house on the market before school starts so the homeowners $25,000 in equity can be saved.

Keep you posted.

Linda J. Rougeux
ADVOCATE FOR JUSTICE
http://www.consumersjustice.org
toll free 1-877-8- BAD LOANS
FREE CONSULTATION
CONSUMER COMPLIANCE LOAN DOCUMENT AUDITORS AND ATTY. LITIGATION DOCUMENT DRAFTING SUPPORT AND CONSULTATION.
SINCE 2003

DON’T BE FOOLED BY THE NEW KIDS ON THE BLOCK. WE HAVE PERFORMED HUNDREDS OF COMPLIANCE AUDITS AND HAVE HELPED TO STOP NUMEROUS FORECLOSURES.
WE DO NOT DRAFT COURT DOCUMENTS FOR PRO SE LITIGANTS
Mario Kenny, on August 11th, 2008 at 7:37 am Said:

Is anyone looking at Mers? wow.
suzanne M Ledgister, on August 9th, 2008 at 3:36 pm Said:

I need help in drafting a summons and complint against the bank.I need to put this in court ASAP. I live in NYC.I have to get this ready to be filed to overturn a foreclosure and stop an eviction. HELP!!!!!!!!!!! My email is ledgister4@aol.com
Mario Kenny, on August 8th, 2008 at 11:17 pm Said:

here is a wide selection of Language,find the format or heading here also at other parts of the blog,draft the letter make your complaints and cross your fingers if you are not able to work on your own seek a good lawyer:

http://livinglies.wordpress.com/2008/04/16/can-you-contest-your-foreclosure/
Mario Kenny, on August 8th, 2008 at 11:02 pm Said:

Jackie,

In this blog you are able to get many of the answers and defences you need,for instance here is a link in this blog that you may try,http://livinglies.wordpress.com/2008/05/20/foreclosure-defense-forcible-detainer-and-eviction/ change the words around to suit yourself,or cut and paste the stuff straight off at least you can buy time,and time is all you really need.You must be brave and think alot,read alot and try your best to understand use logic but do not drop the ball whatever you do.
keep in contact.You see I cannot give you the answers,the ones I used for instance as it is against the law,to do so especially in Florida.

Niel has arriculated a format here is the link to this format:http://livinglies.files.wordpress.com/2008/07/florida-motion-for-frivolous-sanctions.doc this blog really is one stop shopping for us,all you must do is spend time reading.

The keys are all here you must hurry and take this education,print the stuff if you can and read in bed.

Brace yourself for one great fight,when you walk onto this battlefield make sure you have all the defences you need.

Hey open a case with the OCC google them they will open a case for you and they will send you the form fill it out with all your complaints and read the letters they send you very well.

You have many days and hours of work ahead of you so take your time,but hurry LOL.

If you are close to Boca call Mr Peter Ticktin PA he may help but he is heavy handed with the fees I suspect.He is a great Lawyer,tell him you heard about him from me.Google his name he is easy to find.
Mario Kenny, on August 8th, 2008 at 10:29 pm Said:

Jackie,

You are very welcomed.Please stand and fight,read,read and reread.Learn your rights and demand them straight out,do so in never ending fashion.Never stop ever.Fight for your rights and demand them.Keep in contact,you can do this and you can come out alive and smiling.
Your support is very important to us all as one team,of fighters working together and apart to confront head on with this dirty fraud.
Jackie En Aset, on August 8th, 2008 at 8:36 pm Said:

Thank you Mario. I spoke to a friend in northern Florida who is an attorney and he talked me through writing a motion for extension for time to answer, which I filed today. (Thank goodness for Word legal pleas templates). Unfortunately my friend is in enviornmental law otherwise he would help me. Thank you for the link and I will call Monday.

Neil contacted me but I’m still waiting to hear more from that source.
Mario Kenny, on August 7th, 2008 at 5:08 pm Said:

Jackie,

here is one link http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/27BA9785ACA94045852574820076C703?OpenDocument
Mario Kenny, on August 7th, 2008 at 4:59 pm Said:

Jackie,

gosh go on the net and find the format to file an answer quick before the time runs you out.Look on this site for Niels number or email address and ask him to at least tell you what to do quick.Please do it quick,hurry stay strong and composed,do not get depressed stand strong and fight to the end.Never stop work late into the night until you find the info you need.The information is available on the net,email me I will find a link with the answer so you may view it for your self.Actually I will post the link here soon as soon as I find it.Just buy the time to get the education you need.
drea, on August 7th, 2008 at 2:01 pm Said:

Need Connecticut attorney versed in foreclosure defense ASAP. House is in foreclosure.
Jackie En Aset, on August 7th, 2008 at 7:49 am Said:

Oh why didn’t I find this site sooner?! I need help filing an answer. I don’t know how and I only have a few days left.

It’s true that facing foreclosure creates depression and feeling hopeless. I have faced such hardship that this has made me put my head in the sand.

It all started when my house burned down in 2004. I was underinsured. I had to refinance twice to rebuild. Then came the plumbing problem, 4 bouts of pneumonia and a death in the family.

Looking over the Civil Action Summons, I see that Saxon Mortgage who bought me from Option One has not included proof of owning the mortgage. Also I am a victim of predatory lending.

Is there an attorney in Melbourne, FL who would be willing to advise me on how to do this pro se or help me in any way?

Thanks.
Mario Kenny, on August 7th, 2008 at 6:25 am Said:

I guess Jose is very unhappy, but in South Florida there are few good lawyers who are willing and able to fight this style of case and even fewer willing to try.

The Judges seem to scare them but I did very well with the Judge who attended me, in the end I was compelled to bring out my family lawyer, needless to say he was very reluctant to abide by the wishes I demanded in defense of my rights.

You see you, must understand your rights and you must be able to assert them in the face of resistance at any cost. It’s a war and you must fight it.

I have a great Chariot and it’s full of great defenses most of which were provided me by Neil.
I thank the Gods every day for having brought this kind of metal onto this battlefield.

“What you do not know will hurt you” Jose (guess who said that?) of this you can be certain.

The lawyer who advised you against the use of this free advice should be ashamed of himself, greed has no limit. I think this (Your) lawyer does not realize that the battle has millions of victims in Florida alone.

There is enough to go around, baring the fact that we all have no money to pay the council.

The good part is you can actually get the bloody fees back in the end.

I went to a group in Hialeah who charged $600.00 down and $500.00 per month but only could keep the client in the home for 1 year, hell I do better than on my own with Neil’s writing.

However I need the Quiet title, for this my friends, the big guns must be brought out.

Mr. Ticktin ESQ is a fine lawyer and a very humble man, he has practiced for 30 or more years and yet he is so wise to admit he is still learning. I like him plenty………Jose you should try him, but he is full up, poor nice man, he has clients lining up at his door even on Sunday afternoon in his home, gosh the blood is on the sidewalk.

This man is a Canadian and he understands the Law very well. I learned some very important things from him about the promissory note, a struggle I may well face in the future.

I sent him the link to this site; he called me one Sunday asking me if I was the Author. I encouraged him to attend Garfield’s continuum in LA this summer, as this is the pre requisite I require as a client before hiring a lawyer.
But I can tell you he is very good and he is on our side. He likes Neil a lot even though they have never met. He has many great secrets too, but you must be on his level to converse with him.

I exchanged their (Neil’s and his) numbers suggesting that they talk as, to help more people in Florida.

Dawn said it’s going to be a “blood bath babe”. I love Dawn she has promised me that she will not let them take my house, as I write I laugh so hard, but none of this is funny.

I AM BOOTS ON THE GROUND HERE IN SOUTH FLORIDA.

I turned the table on the scum bag Bank who used fraud to come after me, at present they are very busy and do not know what to do next.

I fought this battle all on my own so far, for the most part.

I am keeping my big guns locked and loaded for the next stage of this battle while I save up the money to pay the council.

I have written, cut and pasted volumes and used loads of petty cash to complain to every regulator I could find on the internet and in every other place I could find them at, it’s like laying mines on the battle theater.

When you start talking to the office workers of the vice president of the Banks, you should know that the bombs are falling. Damage control becomes their only defense.I was appointed a special worker who is very much less knowledgeable than I AM, my sharp swords were cutting on both sides LAYING waste, likened to butter in hot Florida sun.

As I understood the fraud I got very angry and for the kind of fighter I am, I fitted in at the onset.

Well I could write volumes here but I have a lot of fighting to do, and it’s very late at night.

Good luck
Mario Kenny, on August 7th, 2008 at 5:11 am Said:

hey Jose,

Can you contact me please?
Jose, on August 7th, 2008 at 3:26 am Said:

Eduardo there are plenty of lawyers in Florida, let your finger do the walking, it is very easy to judge without real merits.

For those who have actually benefited from this information, your attitude and unfair labeling is unconscionable.

please read my earlier response to your comment. There are plenty of lawyers working on this theory, but most lawyers will charge for their time.

Call the Florida State Bar and ask for a lawyer referral they may even charge you for that information, here you get free and accurate information.

Vent your frustration toward those who actually harmed you, the lender, the broker, the wholesaler, the federal Government, and your Florida government who by the way allowed thousands of criminals to get brokerage licenses.

Your fight is local. I have an office in Florida that handles Mortgage Audits for several attorney firms in Miami, Ft Lauderdale, etc, they all charge a mixed contingency.

Good luck and lighten up a little.
Millie, on August 4th, 2008 at 8:11 pm Said:

Paid IndyMacBank with a reverse mortgage now have problem with reverse…if the fbi is investigating IndyMac for fraud shouldn’t they be contacting their clients?
need attorney in New Jersey
larry, on August 4th, 2008 at 2:35 pm Said:

need attorney in maryland
Robert, on August 2nd, 2008 at 1:44 am Said:

Question: the now defunct IndyMac Bank has hired a law firm to foreclose on our property, so my Motion to Dismiss would be on what grounds?
Any thoughts would be appreciated
Eduardo Marquez, on July 31st, 2008 at 11:17 pm Said:

I am having my home in Florida foreclosed by Countrywide and I need help finding an attorney in the Fort Lauderdale area that can help me on a contingency basis. I have a hearing 8/7/08 and I need someone right away. Please help.
Jason, on July 27th, 2008 at 2:41 am Said:

I have several properties that are at risk of foreclosure, and really need to speak to an attorney who is licenced in Washington and familiar with this approach

I also lost a property in 2007 to a predatory hard money lender, and maybe there is something I can do about that.

I’ve got at least 6 properties that could be put in a case like this, and an attorney who is licenced in Washington state and would work on contingency with a small up front retainer would be very helpful
Bari, on July 24th, 2008 at 7:59 pm Said:

This information is invaluable. Does anyone have any idea where I can locate an attorney in the New York city area with experience in preventing foreclosure by mortgage servicing fraud? Contingency basis would be most helpful.
Thanks,
cooladi@aol.com
louis diaz, on July 22nd, 2008 at 3:25 pm Said:

I signed a modification agreement with Countrywide 45 days ago. I sent them the money they requested and have made my first monthly payment but they have not discontinued my foreclosure action so i need to answer it. Their position is that they will not discontinue action until my modification is fully processed. My position is that they reinstated my loan when I sent them my payment.

Can you provide me with a sample answer with
an affirmative defense and a demand for a bill of particulars or inform me of any atty that can help me or refer to another resource. My time is running out….
Mario Kenny, on July 21st, 2008 at 7:54 pm Said:

Hi Dawn,

Are you a lawyer in Miami or Ft Laud? if you are please contact me I need my case litigated and so does my friend.I am in Miami
malibubooks@gmail.com
Dawn, on July 20th, 2008 at 5:45 pm Said:

Peg, where are you located?
peg, on July 13th, 2008 at 6:12 pm Said:

Can anything be doneafter a summary ofjudgement has rendered? My attorney was purposely excluded for this conference call with the judge and the time has pasted (2 days) for a set a side of motion.
Todd Greene, on July 9th, 2008 at 12:28 am Said:

Hello,

I have read this information with great interest and really need to be contacted by an attorney in my area (Jupiter, FL) that fully understands this approach. I have 2 cases that I am sure would qualify for pursuing the methods described. Thank you in advance for your response.

Regards,
M.T. Greene
kai, on July 3rd, 2008 at 11:39 pm Said:

I have a question concerning the mortgage company excepting checks that say pd in full and they were cashed
Julie Rebai, on July 1st, 2008 at 8:29 am Said:

— On Wed, 6/25/08, jarebai@yahoo.com wrote:

From: jarebai@yahoo.com
Subject: Unfair Banking,Breech of Contract,Fraud,Wrongful Foreclosure,Deed of Trust Sale
To: “Gary Harper”
Date: Wednesday, June 25, 2008, 6:22 PM

Our Home was sold Deed of Trust sale. Wrongful non Judicial Foreclosure. Notice of Sale recorded 06/15/07 Guilty of Unlawful Detainer No. CV 2007-1977 I now have three buisness days to file a special appeal. I have receipts and payment history from Bank . Credit Report Shows National Bank of Arizona reported 08/2007 a Charge off not a foreclosure two months before the Deed of Trust Sale ever took place. Report also shows by the banks own records that we were not in default of our loan. 06/22/08 Saron a Loan Officer said to dis-regaurd Notice of Sale. Stating she herself would keep a close eye on acct. to make sure of correction posted or any other activitiy with acct. She would call if any problems. We didn’t know of sale until a five day to vacate Unlawful Detainer was taped to our gate.I found out in court yesturday by Judge ……,my attorney Tim ……. did not file Motion Court of Appeal that I paid for. Tim told me we had gotten thrown out,we didn’t have a leg to stand on. Filed motion again in Superior Court for gross under market value Krohn v Sweetheart Properties.Judge …… couldn’t listen to argruement because Tim hasn’t taken action agaisn’t bank. We will be removed by force 6/30/08 at 5:00 p.m. Julie Rebai
Mario, on June 29th, 2008 at 10:43 pm Said:

Wow I need a lawyer like this right now
Linda, on June 27th, 2008 at 2:44 am Said:

I will personally be using this defense as I file a motion to dismiss against MERs nominee for Accredited Home Loans. I have done a lot of research thanks to this type of info and now the gloves are on and I am ready to go to war. Will keep you informed of the outcome.
Thanks