“What we are seeing is a paradigm shift where Judges are no longer afraid to see homeowners win.” — Neil F Garfield
LIVINGLIES ORDERS STAFF TO
“DOUBLE DOWN ON DETAILS”
FAULTY LEGAL DESCRIPTION STRIPS LIEN FROM HOUSE
It will be interesting to see how HSBC reports this and similar cases recently won by homeowners. The bottom line, as stated by the Judge in California, where Unlawful Detainer successes have been rare, is that the pretender lender was attempting to enforce a mortgage that didn’t legally exist and that their attempt to evict the homeowner was a sham. Here’s the story. For privacy reasons we will call the homeowner Donald.
3 years ago Donald ceased making payments on the subject mortgage (Deed of Trust) and challenged the servicer to come up with a full accounting and a description of who was involved in the securitization chain on his loan. The fight started in and out of Bankruptcy Court, a “sale” at one of those fake auctions where the Trustee “Sells” the property to the fake lender in exchange for a credit bid instead of cash. Then came the UD actions, which were cancelled, continued or otherwise moved again and again. Donald persisted.
Somewhere along the line, Donald was staring at his paperwork and compared the legal description on the Notice of Sale with the legal description on the deed he received from the previous owner. THEY WERE NOT THE SAME. One used the letter N denoting North and the Other S denoting South. So he compared it with the legal description that the previous owner had received. The legal description on the deed he received from the previous owner was the same as the legal description on the deed the previous owner had received.
Then he hired a surveyor to tell him which, if any, of the two legal descriptions was correct. The surveyor reported that the deed Donald received from the previous owner correctly stated the legal description of his home. And the legal description that the previous owner had received on his deed was the same as the legal description on Donald’s Warranty Deed. So it was clear that Donald had a legal title to the property and a chain of title that matched up.
As the litigation proceeded, Donald was moved to look at the legal description of the property on the Deed of Trust. THAT matched the legal description of a parcel 50 miles North of where his home was located. It also matched the legal description on the Notice of Sale. So he had found one of the keys to the holy grail of foreclosure wars — the Notice of Sale was defective and according to statute in California, Arizona and elsewhere, had to be perfectly correct in order to obtain nonjudicial foreclosure. Thus when HSBC tried to force Donald out of his home he was now defending on the new grounds THAT THE NOTICE OF SALE WAS DEFECTIVE because it had the wrong legal description. Then he attacked the foreclosure sale stating that the Sale was void and that HSBC therefore didn’t own it. There were many grounds he could have and did mention; but the one he highlighted and dug his heels in on was the legal description.
Since the Deed of Trust did not describe the right property, it is void as against Donald and his property. HSBC is left with an unsecured debt and there are no summary proceedings for HSBC to skate around the law now. Because if they want to pursue the debt or pursue reformation of the Deed of Trust they must bring a lawsuit, they must plead their case, they must attach real exhibits, and they must prove their case with real witnesses testifying from personal knowledge to authenticate the documents they want to use to re-establish the mortgage (Deed of Trust). More than that, they must prove that they either loaned Donald the money or that they purchased the obligation using their own funds or credit. But we all know that the real creditor will emerge in discovery as a group of investors who might well be suing HSBC long about now, to get their money back because they have since figured out they were sold a holographic image of a bag of air instead of a pool of mortgages.
Thus HSBC lacks standing and lacks the ability to establish itself as a real party in interest. The UD was ended with Judgment for Donald, vacating the sale at the fake auction, thus leaving Donald with the home without any mortgage.
There are hundreds of details in every closing and our livinglies staff has been improving the COMBO title and securitization analysis to find and report on more and more of them. The reporting is going back further to see what emerges from mistakes made in legal description to other errors rendering the Notice of Sale invalid or rendering the mortgage void. It’s getting time to rock n’ roll.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Bank of America, borrower, countrywide, creditor, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, HSBC, Lender Liability, mortgage meltdown, rescission, securitization, TILA audit, trustee, Wells Fargo |