Livinglies’s Weblog

FLORIDA GETS PECULIAR AGAIN:

It was about 40 years ago that a decision out of a Florida court or a statute passed by the Florida legislature was taken to mean nothing in terms of precedent or national law. After that they passed many laws and created many court decisions that served as models for the rest of the country. Here is a GIANT STEP BACKWARD:

The Republican dominated legislature now wishes to make it very difficult if not impossible for the homeowner/borrower to defend their foreclosure, to even hire a lawyer or other professional consultant, or otherwise defend their rights under the due process requirements of the U.S. Constitution and the Florida Constitution, by the way, with which I am very familiar. Using the naming convention perfected by politicians performing slight of hand tricks on the public, they attempt to make it it as though this will rescue someone in foreclosure. It doesn’t. It makes it harder for them and easier on the “lenders” who are not even lenders.

From Dawn Rapaport, Esq..: Ft. Lauderdale, June 30, 2008

Foreclosure Rescue Fraud Prevention Act of 2008 is the new law going in to effect.  I need to write about it in the next couple days but the most glaring issue is that is does not exclude lawyers, it precludes ANYONE from taking any money as a retainer or in advance in exchange for helping in foreclosure rescue.  We have to get to the legislature and to Governor Christ to stop this law from going in to effect as it stands now.

CHAPTER 2008-79

Council Substitute for House Bill No. 643

An act relating to foreclosure fraud; creating s. 501.1377, F.S.; providing

legislative findings and intent with respect to the need to protect

homeowners who enter into agreements designed to save their

homes from foreclosure; providing definitions; prohibiting a foreclosure-

rescue consultant from engaging in certain acts or failing to

perform contracted services; requiring that all agreements for foreclosure-

related rescue services and foreclosure-rescue transactions

be in writing; specifying information that must be in the written

agreement; requiring that certain statements in the written agreement

be in uppercase letters and of a specified size; providing that

the homeowner has a right to cancel the agreement for a specified

period and the right may not be waived; providing that the homeowner

has a specified period during which to cure a default under

certain circumstances; requiring equity purchasers to assume or

discharge certain liens; requiring that an equity purchaser verify

the homeowner’s ability to make payments under a repurchase

agreement; providing price limitations for repurchase transactions;

providing for a rebuttable presumption of certain transactions being

unconscionable under certain circumstances; providing for limited

application of the presumption; providing an exclusion; providing

that a foreclosure-rescue transaction involving a lease option or

other repurchase agreement creates a rebuttable presumption that

the transaction is a loan transaction and the conveyance from the

homeowner to the equity purchaser is a mortgage; providing limited

application of the presumption; providing an exclusion; providing

that a person who violates certain provisions commits an unfair and

deceptive trade practice as defined in part II of ch. 501, F.S.; providing

penalties; repealing s. 501.2078, F.S., relating to violations involving

individual homeowners during the course of residential foreclosure

proceedings; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 501.1377, Florida Statutes, is created to read:

501.1377 Violations involving homeowners during the course of residential

foreclosure proceedings.—

(1) LEGISLATIVE FINDINGS AND INTENT.—The Legislature finds

that homeowners who are in default on their mortgages, in foreclosure, or

at risk of losing their homes due to nonpayment of taxes may be vulnerable

to fraud, deception, and unfair dealings with foreclosure-rescue consultants

or equity purchasers. The intent of this section is to provide a homeowner

with information necessary to make an informed decision regarding the sale

or transfer of his or her home to an equity purchaser. It is the further intent

of this section to require that foreclosure-related rescue services agreements

be expressed in writing in order to safeguard homeowners against deceit and

financial hardship; to ensure, foster, and encourage fair dealing in the sale

1

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and purchase of homes in foreclosure or default; to prohibit representations

that tend to mislead; to prohibit or restrict unfair contract terms; to provide

a cooling-off period for homeowners who enter into contracts for services

related to saving their homes from foreclosure or preserving their rights to

possession of their homes; to afford homeowners a reasonable and meaningful

opportunity to rescind sales to equity purchasers; and to preserve and

protect home equity for the homeowners of this state.

(2) DEFINITIONS.—As used in this section, the term:

(a) “Equity purchaser” means any person who acquires a legal, equitable,

or beneficial ownership interest in any residential real property as a result

of a foreclosure-rescue transaction. The term does not apply to a person who

acquires the legal, equitable, or beneficial interest in such property:

1. By a certificate of title from a foreclosure sale conducted under chapter

45;

2. At a sale of property authorized by statute;

3. By order or judgment of any court;

4. From a spouse, parent, grandparent, child, grandchild, or sibling of the

person or the person’s spouse; or

5. As a deed in lieu of foreclosure, a workout agreement, a bankruptcy

plan, or any other agreement between a foreclosing lender and a homeowner.

(b) “Foreclosure-rescue consultant” means a person who directly or indirectly

makes a solicitation, representation, or offer to a homeowner to provide

or perform, in return for payment of money or other valuable consideration,

foreclosure-related rescue services. The term does not apply to:

1. A person excluded under s. 501.212.

2. A person acting under the express authority or written approval of the

United States Department of Housing and Urban Development or other

department or agency of the United States or this state to provide foreclosure-

related rescue services.

3. A charitable, not-for-profit agency or organization, as determined by

the United States Internal Revenue Service under s. 501(c)(3) of the Internal

Revenue Code, which offers counseling or advice to an owner of residential

real property in foreclosure or loan default if the agency or organization does

not contract for foreclosure-related rescue services with a for-profit lender

or person facilitating or engaging in foreclosure-rescue transactions.

4. A person who holds or is owed an obligation secured by a lien on any

residential real property in foreclosure if the person performs foreclosurerelated

rescue services in connection with this obligation or lien and the

obligation or lien was not the result of or part of a proposed foreclosure

reconveyance or foreclosure-rescue transaction.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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5. A financial institution as defined in s. 655.005 and any parent or

subsidiary of the financial institution or of the parent or subsidiary.

6. A licensed mortgage broker, mortgage lender, or correspondent mortgage

lender that provides mortgage counseling or advice regarding residential

real property in foreclosure, which counseling or advice is within the

scope of services set forth in chapter 494 and is provided without payment

of money or other consideration other than a mortgage brokerage fee as

defined in s. 494.001.

(c) “Foreclosure-related rescue services” means any good or service related

to, or promising assistance in connection with:

1. Stopping, avoiding, or delaying foreclosure proceedings concerning

residential real property; or

2. Curing or otherwise addressing a default or failure to timely pay with

respect to a residential mortgage loan obligation.

(d) “Foreclosure-rescue transaction” means a transaction:

1. By which residential real property in foreclosure is conveyed to an

equity purchaser and the homeowner maintains a legal or equitable interest

in the residential real property conveyed, including, without limitation, a

lease option interest, an option to acquire the property, an interest as beneficiary

or trustee to a land trust, or other interest in the property conveyed;

and

2. That is designed or intended by the parties to stop, avoid, or delay

foreclosure proceedings against a homeowner’s residential real property.

(e) “Homeowner” means any record title owner of residential real property

that is the subject of foreclosure proceedings.

(f) “Residential real property” means real property consisting of onefamily

to four-family dwelling units, one of which is occupied by the owner

as his or her principal place of residence.

(g) “Residential real property in foreclosure” means residential real property

against which there is an outstanding notice of the pendency of foreclosure

proceedings recorded pursuant to s. 48.23.

(3) PROHIBITED ACTS.—In the course of offering or providing foreclosure-

related rescue services, a foreclosure-rescue consultant may not:

(a) Engage in or initiate foreclosure-related rescue services without first

executing a written agreement with the homeowner for foreclosure-related

rescue services; or

(b) Solicit, charge, receive, or attempt to collect or secure payment, directly

or indirectly, for foreclosure-related rescue services before completing

or performing all services contained in the agreement for foreclosure-related

rescue services.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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(4) FORECLOSURE-RELATED RESCUE SERVICES; WRITTEN

AGREEMENT.—

(a) The written agreement for foreclosure-related rescue services must be

printed in at least 12-point uppercase type and signed by both parties. The

agreement must include the name and address of the person providing

foreclosure-related rescue services, the exact nature and specific detail of

each service to be provided, the total amount and terms of charges to be paid

by the homeowner for the services, and the date of the agreement. The date

of the agreement may not be earlier than the date the homeowner signed the

agreement. The foreclosure-rescue consultant must give the homeowner a

copy of the agreement to review not less than 1 business day before the

homeowner is to sign the agreement.

(b) The homeowner has the right to cancel the written agreement without

any penalty or obligation if the homeowner cancels the agreement within

3 business days after signing the written agreement. The right to cancel may

not be waived by the homeowner or limited in any manner by the foreclosure-

rescue consultant. If the homeowner cancels the agreement, any payments

that have been given to the foreclosure-rescue consultant must be

returned to the homeowner within 10 business days after receipt of the

notice of cancellation.

(c) An agreement for foreclosure-related rescue services must contain,

immediately above the signature line, a statement in at least 12-point uppercase

type that substantially complies with the following:

HOMEOWNER’S RIGHT OF CANCELLATION

YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURERELATED

RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION

WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS

AGREEMENT IS SIGNED BY YOU.

THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY

LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM

OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE

COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT

BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED

TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE

CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.

TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A

STATEMENT THAT YOU ARE CANCELLING THE AGREEMENT

SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO ……..

(NAME) AT …….. (ADDRESS) NO LATER THAN MIDNIGHT OF ……..

(DATE).

IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR

LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT.

YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING

TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH

YOU FREE OF CHARGE.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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(d) The inclusion of the statement does not prohibit the foreclosure rescue

consultant from giving the homeowner more time in which to cancel

the agreement than is set forth in the statement, provided all other requirements

of this subsection are met.

(e) The foreclosure-rescue consultant must give the homeowner a copy of

the signed agreement within 3 hours after the homeowner signs the agreement.

(5) FORECLOSURE-RESCUE TRANSACTIONS; WRITTEN AGREEMENT.—

(a)1. A foreclosure-rescue transaction must include a written agreement

prepared in at least 12-point uppercase type that is completed, signed, and

dated by the homeowner and the equity purchaser before executing any

instrument from the homeowner to the equity purchaser quitclaiming, assigning,

transferring, conveying, or encumbering an interest in the residential

real property in foreclosure. The equity purchaser must give the homeowner

a copy of the completed agreement within 3 hours after the homeowner

signs the agreement. The agreement must contain the entire understanding

of the parties and must include:

a. The name, business address, and telephone number of the equity purchaser.

b. The street address and full legal description of the property.

c. Clear and conspicuous disclosure of any financial or legal obligations

of the homeowner that will be assumed by the equity purchaser.

d. The total consideration to be paid by the equity purchaser in connection

with or incident to the acquisition of the property by the equity purchaser.

e. The terms of payment or other consideration, including, but not limited

to, any services that the equity purchaser represents will be performed

for the homeowner before or after the sale.

f. The date and time when possession of the property is to be transferred

to the equity purchaser.

2. A foreclosure-rescue transaction agreement must contain, above the

signature line, a statement in at least 12-point uppercase type that substantially

complies with the following:

I UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING

MY HOME TO THE OTHER UNDERSIGNED PARTY.

3. A foreclosure-rescue transaction agreement must state the specifications

of any option or right to repurchase the residential real property in

foreclosure, including the specific amounts of any escrow payments or deposit,

down payment, purchase price, closing costs, commissions, or other

fees or costs.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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4. A foreclosure-rescue transaction agreement must comply with all applicable

provisions of 15 U.S.C. ss. 1600 et seq. and related regulations.

(b) The homeowner may cancel the foreclosure-rescue transaction agreement

without penalty if the homeowner notifies the equity purchaser of such

cancellation no later than 5 p.m. on the 3rd business day after signing the

written agreement. Any moneys paid by the equity purchaser to the homeowner

or by the homeowner to the equity purchaser must be returned at

cancellation. The right to cancel does not limit or otherwise affect the homeowner’s

right to cancel the transaction under any other law. The right to

cancel may not be waived by the homeowner or limited in any way by the

equity purchaser. The equity purchaser must give the homeowner, at the

time the written agreement is signed, a notice of the homeowner’s right to

cancel the foreclosure-rescue transaction as set forth in this subsection. The

notice, which must be set forth on a separate cover sheet to the written

agreement that contains no other written or pictorial material, must be in

at least 12-point uppercase type, double-spaced, and read as follows:

NOTICE TO THE HOMEOWNER/SELLER

PLEASE READ THIS FORM COMPLETELY AND CAREFULLY. IT

CONTAINS VALUABLE INFORMATION REGARDING CANCELLATION

RIGHTS.

BY THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME.

YOU MAY CANCEL THIS TRANSACTION AT ANY TIME BEFORE 5:00

P.M. OF THE THIRD BUSINESS DAY FOLLOWING RECEIPT OF THIS

NOTICE.

THIS CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER

BY YOU OR BY THE PURCHASER.

ANY MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST

BE RETURNED TO THE PURCHASER AT CANCELLATION. ANY

MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO

YOU AT CANCELLATION.

TO CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER

BY 5:00 P.M. ON …….. (DATE) AT …….. (ADDRESS). IT IS BEST

TO MAIL IT BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN

RECEIPT REQUESTED, AND TO KEEP A PHOTOCOPY OF THE

SIGNED FORM AND YOUR POST OFFICE RECEIPT.

I (we) hereby cancel this transaction.

Seller’s Signature

Printed Name of Seller

Seller’s Signature

Printed Name of Seller

Date

(c) In any foreclosure-rescue transaction in which the homeowner is provided

the right to repurchase the residential real property, the homeowner

has a 30-day right to cure any default of the terms of the contract with the

equity purchaser, and this right to cure may be exercised on up to three

separate occasions. The homeowner’s right to cure must be included in any

written agreement required by this subsection.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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(d) In any foreclosure-rescue transaction, before or at the time of conveyance,

the equity purchaser must fully assume or discharge any lien in foreclosure

as well as any prior liens that will not be extinguished by the

foreclosure.

(e) If the homeowner has the right to repurchase the residential real

property, the equity purchaser must verify and be able to demonstrate that

the homeowner has or will have a reasonable ability to make the required

payments to exercise the option to repurchase under the written agreement.

For purposes of this subsection, there is a rebuttable presumption that the

homeowner has a reasonable ability to make the payments required to

repurchase the property if the homeowner’s monthly payments for primary

housing expenses and regular monthly principal and interest payments on

other personal debt do not exceed 60 percent of the homeowner’s monthly

gross income.

(f) If the homeowner has the right to repurchase the residential real

property, the price the homeowner pays may not be unconscionable, unfair,

or commercially unreasonable. A rebuttable presumption, solely between

the equity purchaser and the homeowner, arises that the foreclosure-rescue

transaction was unconscionable if the homeowner’s repurchase price is

greater than 17 percent per annum more than the total amount paid by the

equity purchaser to acquire, improve, maintain, and hold the property. Unless

the repurchase agreement or a memorandum of the repurchase agreement

is recorded in accordance with s. 695.01, the presumption arising

under this subsection shall not apply against creditors or subsequent purchasers

for a valuable consideration and without notice.

(6) REBUTTABLE PRESUMPTION.—Any foreclosure-rescue transaction

involving a lease option or other repurchase agreement creates a rebuttable

presumption, solely between the equity purchaser and the homeowner,

that the transaction is a loan transaction and the conveyance from the

homeowner to the equity purchaser is a mortgage under s. 697.01. Unless

the lease option or other repurchase agreement, or a memorandum of the

lease option or other repurchase agreement, is recorded in accordance with

s. 695.01, the presumption created under this subsection shall not apply

against creditors or subsequent purchasers for a valuable consideration and

without notice.

(7) VIOLATIONS.—A person who violates any provision of this section

commits an unfair and deceptive trade practice as defined in part II of this

chapter. Violators are subject to the penalties and remedies provided in part

II of this chapter, including a monetary penalty not to exceed $15,000 per

violation.

Section 2. Section 501.2078, Florida Statutes, is repealed.

Section 3. This act shall take effect October 1, 2008.

Approved by the Governor May 28, 2008.

Filed in Office Secretary of State May 28, 2008.

Ch. 2008-79 LAWS OF FLORIDA Ch. 2008-79

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–
Dawn M. Rapoport, Esq.
Dawn M. Rapoport, P.A.
1314 East Las Olas Blvd. # 121
Fort Lauderdale, FL 33301
Ph: 754-235-7635
Fax: 954-337-3759

most vendors are looking for money up front that will make them rich while you go down the tubes

More and more “professionals” are coming out of the woodwork to “help” with your mortgage. Whether you are in default, foreclosure, in the midst of sale or eviction, or just sitting with a mortgage where the note is worth more than the house, there are plenty of remedies available for you to pursue and plenty of defenses to stop the foreclosures dead in their tracks. There are even methods by which you can modify your note downward, even without the congressional bill currently wandering through the halls of capital hill. 

The fact is that had you known your “lender” was just some middleman who didn’t care whether you could afford the mortgage or not, had you known that within 3-12 months your payments would be too high for you to qualify for the mortgage they were granting you at closing, had you known that the appraised value of your house and all the houses in your new neighborhood were artificially inflated (i.e. false and deceptive), well then you probably would have figured out this wasn’t such a good deal and that you could be in for a lot of heartbreak not too far down the road. 

All the people at closing — from the title agent through the lender — were only there for one purpose: to get your signature on those documents so the mortgage, the note and the servicing rights could be used to satisfy the commitments made on securities already sold in anticipation of your signature and the signature of millions of other people just like you. 

BEWARE OF CHARLATANS!!!

Very few lawyers really know anything about TILA from the consumer prospective. Some lawyers who have represented landers and others involved in the lending process, have familiarity with the procedures in TILA disclosures and statements but have a virtually no knowledge of the remedies for consumers and borrowers or how to pursue them. Yet lawyers are allowed to take your case even though they have no idea where to start. Accountants can do audits of your closing even they have no idea where to start.

And most vendors are looking for money up front that will make them rich while you go down the tubes. But it is actually fairly easy to tell who knows and who doesn’t. Ask them how many refund cases they have handled and ask them for personal and professional references and MAKE THE CALLS. 

The best source for a TILA audit is from people who are former auditors who worked for bank regulation agencies. I found one operation and I am starting to work closely with them. In fact, to be honest, I stopped looking for others after I got to know these people and I completed the due diligence. That is why I have a link for you to go to at www.repairyourloan.com. If I run across others I will publish those too. If you know of others that fit the requirements, let me know and I will publish it here.

Some up-front money is all right if it is stated in hundreds rather than thousands. There are costs in performing the audit, getting the right documents from the lender and from you. Don’t forget, with all the sales of mortgages, notes and servicing rights, demands for the documents showing who is the real party in interest in your particular mortgage and note takes time and money. The lenders will almost always be reluctant to disclose that information but eventually they give in. 

If you deal with an organization that is (a) already registered as a collection agency (to collect on your behalf from the banks!) and (b) has a working alliance with lawyers who can put local boots on the ground in any state of the union, you are more likely to be in the hands of a true professional rather than a hit and run artist. 

The typical acceptable lawyer’s contingency fee is 33 1/3% if the matter stays out of litigation, 40% if the mater goes into litigation (including administrative proceedings) and 45% if the matter goes to appeal. The question of course is percentage of what? It is the value of the recovery you actually receive, whether it is an actual cash refund, payment of damages, reduction in your amount owed on your mortgage, etc. recovery of fees from the lender varies from zero to 100%. Usually the recovery of fees is applied first to a bonus for the collection agency and attorney and then the rest goes back to you. An even (50-50) distribution of the recovery of fees and costs is common although some are offering clients all of it, or 2/3 of it. 

Anytime you get an opportunity or can make an opportunity to demand the documentation is a good time to do it. However, like many others, you continue to look for short-cuts, when the system is geared for ONLY those willing to jump through the right hoops at the right time. There is no short-cut.

There are many options to defend your property, your credit, and your money and to go on the offensive as set forth on these pages. BUT you must realize that the lenders, mortgage brokers, payment servicing operations, investment bankers and purchasers of collateralized mortgage obligations have not opened their doors and their hearts to give you money. You must earn that by (a) figuring out what claims you have (b) stating those claims and (c) demanding refunds, damages etc. through the established procedures used in TILA and related claims.

There is no short-cut. But some ways are better than others, in my opinion. If there were a lot of lawyers around who understood these procedures, it would be wise to go directly to them. But the fact is, in my anecdotal experience, there are few of us who know the ropes and even amongst the the lawyers that do understand the process, people who have been making their living from doing bank audits, mortgage audits and related functions for most of their careers, can do more on the front end of things than any lawyer I know, including myself. 

As with all surges of opportunities, there are a lot of people out there on the Internet or otherwise advertising these services. Most of them do not have a clue what they are doing, how to do it and will end up taking actions that ignore or even waive essential rights you may have. While I continue my search for alternatives, thus far the only people I have found who truly know more than I do about the particular and sometimes peculiar procedures are at www.repairmyloan.com. 

I can’t guarantee you results and neither can the people at repairyourloan.com. But I have a high degree of confidence that those people know what they are doing, have the right moral compass, and have a long history over decades of dealing with these issues. I can’t claim that and neither can anyone else I have spoken with or who has solicited us for referrals. In fact, the people at repairyourloan did not contact me, I contacted them after they left a comment on the blog.

we received the following comment which I think is very good for people to read. I edited it slightly to make it more readable. The original is in the comments below this post.

Jose; You have one year from the date of rescission notice to file a lawsuit in the courts to enforce the rescission but, if you are under foreclosure now, you must move fast!

If you have received the notice of sale, you must consult your local court law library for the laws, talking with the law clerks who should be able point you to your local laws.

Then contact the courts and notify them immediately of your intent to defend against the action and at that time, present the complaint onto the court as your defense or file the complaint as soon and as quick as you can.

I am not a lawyer but am suing my lender for mortgage loan document forgery and mortgage fraud, the dirty rotten sobs have perpetrated against my once very good credit. RESPA & TILA laws are very complex, you really should try to find an honest lawyer, though, we have had no luck here in Maryland because most are corrupt or work for the creditor behind your back or want to lend you the same creditors money or, if they are not currently working for the creditor, they will be by the time it is all over so be careful if the lawyer takes your case and then does nothing, this is what they do, the corrupt lawyer usually will fleece you for every penny you have so you then have no….money and then, after he strips you of the money, he allow the trustee to sell the property or, encourages you to refinance, never assisting you with the RESA and TILA lawsuit, or, this is what has happened to us! Be careful of corrupt bankruptcy judges and trustees if you are thinking about going this way. [Editor's Note: We have received dozens of stories just like this emailed to us] rather than posted in comments. People are paranoid about being targeted!]

 

There is a more sophisticated consumer scam known as the bankruptcy foreclosure scam wherein your lawyer, the bk trustee and judge conspire to steal your property and force you into a life of high cost credit! How the scam works, you innocently find one of these corrupt lawyers for whom most practicing bk in our area are dirty, rotten and corrupt sobs because they must join the corrupt thing known as the “bankruptcy club”,(do your research, this is a club of corrupt judges, trustees and outside lawyers who serve victims up to these clubs); the would be consumer lawyer generally lends money for your….lender with the lawyer failing to ever tell the consumer they have a conflict of interest.

Once the corrupt lawyer files the stay for you the victim, he then does nothing…..tells you nothing, does not assist with the schedules, files nothing but begins to work with the corrupt trustee wherein they both collude together to harm you under the courts eyes with the corrupt judge presiding over the whole thing but, essentially, they collude to have the case dismissed making you out to be the villain so they have scared you in the judicial eyes of all courts. If you make to the 341 meeting, you are then met by the corrupt trustee who also, without you knowing, works for your same lender or most of your creditors, and this corrupt trustee ignores your TILA and RESPA claims; and, the screwed up BK draconic laws, essentially allow him to ignore your claims; he will have no part of litigating your claim and will shut you up but quick!

The lender now has you where he wants you, in the bk club…..with the judge being placed there to hear a particular lender/investment banks cases exclusively.

The corrupt judge, then works in tandem with your lawyer who is to first get you to refi the loan in order to cause you to waive your legal recourses; should you have figured out what is going on, and refuse the refi, then the lender seeks the lift stay, your lawyer may appoint himself as special counsel to the trustee, to make sure you are silenced, and then the judge orders the property sold; be very, very, very careful because you are dealing with the mafia and consumers and honest lawyers have been killed! If you are already there, or in bk and this is happening, motion to dismiss your case and file lawsuit in your circuit court; the courts cannot force a discharge on you. Good luck, Best R, k

Cut, paste, fill in the blanks and send it in along with your request that the filing fee be waived because of financial hardship. Just google the Supreme Court of your state and send it in.

xxxxxxxxxxxx, Sui Juris

Citizen of the State of Arizona

Address.

City, State ZIP

                    SUPREME COURT OF ARIZONA

                          

IN RE: People of Arizona )  Case Number #320831

ex relatione             )

XXXXXX SSSSSSSSS,

AND ALL OTHERS SIMILARLY

     SITUATED            )         VERIFIED PETITION

                         )  FOR EMERGENCY CHANGES TO RULES

          Petitioner,    )

                         )  OF CIVIL PROCEDURE FOR FORECLO-                                 SURES AND EVICTIONS

_________________________)

The People of Arizona state send greetings:

TO:  SUPREME COURT OF ARIZONA

                              FACTS

     This is an original filing with the Supreme Court inasmuch as the this Court is the sole rule-making authority for the rules of civil procedure in the State of Arizona and an immediate danger exists for the citizens of Arizona, its counties, cities, towns, businesses, financial institutions and working men and women. The problem can only be ameliorated or mitigated by immediate action changing the rules of Civil procedure such that the number of foreclosures is processed in an orderly manner, allowing the protections of due process for all parties, and permitting the already overtaxed facilities of the State’s court system, to provide appropriate relief tot eh appropriate parties.

The current rules, while under normal circumstances might be considered expeditious in processing foreclosures and evictions never contemplated a circumstance where thee entire economy of the State might be jeopardized by the ruinous acts of people whose objective was greed at all costs and whose actions have reduced the wealth of every citizen of the State of Arizona and decreased the ability of every homeowner to make the payments, refinance, or sell their property.

FACTS PERTAINING TO THIS PETITIONER AND ALL OTHER PURCHASERS OF RESIDENTIAL REAL ESTATE FROM 2001-2007:

ON XX/XX/200X, your Petitioner attended a closing in which she purchased a residential dwelling in the City of XXXXXXX, County of XXXXXXXXX, State of Arizona.

The purchase price and closing settlement statements all reflect a purchase price of $XXXXXXXXXX, with a mortgage note indebtedness of $XXXXXXXXXX.

The contract with the Sellers, the acceptance by the Buyer/Petitioner and the Petitioner’s agreement to the terms of the purchase price and the terms of mortgage and note were all based upon a presumption that the terms were based upon the fair market value of the home at the time of contract and at the time of the closing.

Your Petitioner relied upon the appraisal, the lender’s evaluation, the mortgage broker, the underwriter of the mortgage and note, and general knowledge in accepting the apparent fair market value of the home. 

Petitioner reasonably assumed that the lender would not approve a mortgage, note and fair market value appraisal unless there was reasonable and competent data in support thereof, and based upon the assumption that the lender was accepting a risk based on the fair market value and the risks of future market conditions.

In fact, the Lender knew it had no risk, encouraged and provided a variety of incentives to all OTHER parties who participated in the closing to complete the transaction, and received compensation from third parties for doing so, all without any disclosure to your Petitioner and without complying with the disclosure requirements of the Truth in Lending Act, and other applicable laws, rules and regulations.

In fact, the Lender knew that it would sell the note to a third party investment bank who would in turn sell aggregated packages of similar notes and and mortgages to third party investors, who would purchase these collateralized debt obligations (CDOS) because they were Triple-A rated (A RATING THAT WAS PROBABLY FRAUDULENTLY OBTAINED), insured (BY COMPANIES THAT ARE NOW INSOLVENT) and were being sold by “reputable” investment banking and retail brokerage companies, WHICH ARE NOW GOING OUT OF BUSINESS.

Thus the normal market forces in sharing risk were perverted and twisted without disclosure to the two classes of people or entities that would bear the brunt of the risk and the losses — buyers of the homes and buyers of the CDOs.

Within a matter of weeks the actual fair market value of the house became apparent to your Petitioner, having fallen by some 20% thus wiping out a down payment of $130,000. Within months the situation has worsened. 

The above scenario is being played out across the State of Arizona in an inexorable March toward ruin of people’s lives, finances, and housing. The ruin of entire Arizona neighborhoods is in process, with attendant plummeting tax revenues and services, as the rate of foreclosures and attendant evictions soars beyond the State’s capacity to handle them because of lack of time, adequate procedures to provide due process to victims of the fraudulent scheme, knowledge or financial resources on the part of buyers were duped by a transnational scheme — a scheme that is in the process of destroying the economy of the State of Arizona, as well as the Federal Government, other States of the Union and even other sovereign nations and municipalities in those nations which are cutting back services as a result of losses incurred in their purchase of “cash equivalent” CDOs, WHICH ARE NOW EITHER WORTHLESS OR SUBSTANTIALLY REDUCED IN VALUE IN THE SAME WAY THAT THE HOUSING “VALUES” BECAME SUBSTANTIALLY REDUCED IN VALUE.

It is now apparent that the lenders are now in the position of being required to foreclose on properties that they do not want to own, which is causing a cascading process of housing price devaluation, and that the impact of the CDo devaluation, amounting to trillions of dollars in the aggregate, is having a proportionate effect on the value of the U.S. dollar, which is legal tender in the State of Arizona, and that this devaluation, combined with efforts to increase credit (monetary liquidity) are resulting in skyrocketing inflation, whose rate is increasing weekly. Thus the effect on the State and its citizens, all of whom receive incomes that are not indexed to real inflation, will be catastrophic unless the process of foreclosure and eviction is brought under control.

Accordingly, your Petitioner Prays that this Honorable Court take emergency action for the purpose of slowing the rush to foreclosure and evictions, giving parties adequate opportunity to present and defend their claims and providing a mechanism in which the parties may settle their competing claims through mediation. It is contemplated that emergency appointments of mediators along with the creation of mediated settlement templates would be helpful to stem the flow while at the same time restoring value and order to the housing and securities marketplace. Such templates can be created quickly by individuals with banking, finance and housing experience and expertise and would serve only as a guide for settlement.

Wherefore, Petitioner proposes the following emergency rule changes, subject to any changes, alterations, modifications, deletions or additions the Court deems fit:

Emergency Provisional Rules

Mortgage Foreclosures

These emergency rules of civil procedure apply to all foreclosures on all property, real or personal, initiated on or before January 1, 2007. No Judgment shall be executed, or if already executed, enforced, and no order of removal or eviction or seizure related to foreclosure shall be executed, or if already executed, enforced unless a Court of competent jurisdiction shall have executed an order finding as a matter of law and fact that the foreclosing party(ies) have complied with each and every provision contained herein.

1. Every Petition for Foreclosure and/or every action undertaken by a foreclosing party prior to seeking recovery or seizure, or occupancy of property, shall require the foreclosing party(ies) to file a verified complaint or affidavit alleging the facts supporting the claim for relief, executed by a person with actual knowledge of all facts alleged. The executing party on said verified Petition or affidavit shall affirmatively allege and actually be available for the taking of testimony by deposition or at an evidentiary hearing in the jurisdiction in which the property is located.

2. Each such Petition or Affidavit shall state the names and addresses of all parties involved in the loan transaction and shall be served under the rules governing service of process upon each of said parties as third party non-party litigants, if such parties were not the lender or borrower.

3. Each such Petition or Affidavit shall account for all funds that were passed through or to each party named in the action, the disposition thereof, and the manner and time in which the passage of said funds were dispersed, together with a citation to the mortgage documentation, including a quote of the relevant passages in the body of the Petition or Affidavit wherein said funds are disclosed and wherein said funds are authorized. 

4. Each such Petition or Affidavit shall state with particularity whether any changes occurred after the closing of the subject loan transaction in which parties or persons were changed including the names and addresses of all parties and persons related to the transactions subject to the mortgage.

5. With respect to sale or assignment or any joint or sharing arrangements concerning ownership, distribution of risk, or securitization in which the subject loan was referenced as collateral or otherwise, each such Petition shall state with particularity the details of each such transaction, the distribution or re-distribution of funds, and the documents employed by said parties after said closing.

6. Each and every such Petition or Affidavit shall affirmatively state that the foreclosing party(ies) have standing and authority to bring the action, defend counterclaims and answer affirmative defenses. The signature of the attorney on said pleading shall be mandatory and shall constitute a representation to the COURT that the filing attorney has performed proper due diligence to ascertain the truth of the allegations of legal standing and all other allegations.

7. Each such Petitioner or Affidavit shall be accompanied by attachments of the referenced documents to be included with the first service of such Petition or Affidavit.

8. Each such Petition or Affidavit shall state with particularity and specificity each disclosure made to the borrower and any third parties involved in the transaction under the Truth in Lending Act and the corresponding provision of the mortgage documents executed by the borrower which supports said disclosure.

9. Each such Petition or Affidavit shall state with particularity and specificity each disclosure made to the borrower and any third parties involved in the transaction under the Truth in Lending Act and the corresponding provision of the mortgage documents executed by the borrower which does not support said disclosure. If any allegation other than “none” is made under this paragraph, the foreclosing party(ies) shall state with specificity the law or fact upon which they should be excused from compliance.

10. Each such Petition or Affidavit shall attach a full and complete accounting of all money, value or funds transmitted, paid or or promised between all parties involved in the loan transaction before or after the loan transaction. In the event the borrower has been overcharged, undercharged, or charged correctly, the Petition or Affidavit shall so state affirmatively, providing a full accounting of said funds. 

11. No answer or response from the borrower shall be due unless and until the foreclosing party(ies) are in complete and full compliance with the provisions of these rules. Any prior answer or response may be amended by the borrower after a determination is made that the foreclosing party(ies) are in full compliance. No prior Judgement, order or other document or rule shall prevent the borrower from filing a response or answer after the foreclosing party(ies) are found to be in compliance with these rules.

12. In the event that the foreclosing party(ies) fails or refuses to comply with these rules, the foreclosure shall be barred with prejudice and until the terms of the mortgage are determined with certainty by the Court by clear and convincing evidence, no payments to the mortgagee shall be due. This provision that not apply to payment to taxing authorities. In such event of delay caused by the the foreclosing party(ies) the court may fashion such equitable remedies as the Court deems fit in its discretion. for example, the Court could apply delinquent payments to the end of the mortgage, thus extending the terms. 

13. In the event of non-compliance with these rules wherein the foreclosing party(ies) demonstrate to the Court the probability that they could amend their filing to conform to the requirements herein, the foreclosing party(ies) shall file an amended Petition or Affidavit on or before thirty (30) days from the date of the order of the Court allowing the amendment. Failure to file within said thirty period shall be grounds for a mandatory immediate dismissal with prejudice. 

14. In the event of the filing of a verified amended Petition or Affidavit, Borrower shall have sixty (60) days in which to answer or respond. Failure to answer or respond shall not relieve the burden of proof of the foreclosing party(ies) in compliance with state, local and Federal law, and in compliance with these rules.

15. The Court may grant attorney fees and costs to the prevailing party in each case where a motion or other filing occurs, wherein a determination is made in an adversary proceeding that the filing is in or out of compliance. 

16. In the event a foreclosure has already been completed and all subsequent and customary actions have occurred and no bona fide third party has taken control or occupancy of the property, these rules may applied retroactively. 

17. Once compliance has been established and the issues are joined, the Court shall enter an order requiring the parties to enter into a process of mediation. The purpose of the mediation shall be to fashion a settlement which provides relief and incentives to all affected parties, including non-party litigants. Mediation shall take place no earlier than thirty (30) days after the entry of the mediation order, and not later than is reasonably possibly given the volume of cases and the availability of competent mediators.

These rules are subject to review by the Court but are effective immediately. Comments and applications to be heard shall be available in keeping with the usual and customary methods of proposed rule changes. Said rules shall be effective unless and until stated otherwise by the Court.

                          VERIFICATION

I, xxxxxxxxxxxxxxxxxxxxxxxxxxxx, Sui Juris, hereby verify, under penalty of perjury,  under the  laws of  the United  States  of  America, without the  “United States” (federal government), that the above statements of  fact are  true and  correct, to  the  best  of  My current information,  knowledge, and  belief.

Dated:  xx/xx/2008

Respectfully submitted,

/s/ xxxxxxxxxxxxxxxxxxxxx

                       PROOF OF SERVICE

I, xxxxxxxxxxxxxxxxxxxxxxxxxx, Sui Juris, hereby certify, under penalty of perjury,  under the  laws of the State of Arizona and the United  States  of  America, that I am at least 18 years of age, a Citizen  of one  of the  United States  of America,  and that I personally served the following document(s):

       EMERGENCY PETITION FOR CHANGES TO RULES OF CIVIL PROCEDURE RELATING TO FORECLOSURES AND EVICTIONS

by placing one true and correct copy of said document(s) in first class United  States Mail,  with  postage  prepaid  and  properly addressed to the following:

Attorney General, State of Arizona

/s/ XXXXXXXXX SSSSSSSSSSSSSSSSSSS

_____________________________________

XXXXXXXXXXX, SSSSSSSSSSSSSSS, Sui Juris