Why Your Foreclosure Attorney Just became Your Business Partner

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-
by Eric Mains, Guest Columnist for Living Lies. Eric Mains is a former FDIC auditor who has been assisting homeowners with foreclosure defense and foreclosure offense strategies. He is both a general consultant in the field of foreclosures and mortgage loans and an expert witness.

see https://www.dropbox.com/s/f2gub7vuhgu7tqw/The%20True%20Cost-%20A%20Homeowner%20vs%20Foreclosure%20Attorneys.pptx?dl=0

Why Your Foreclosure Attorney Just became Your Business Partner

Six years ago when I started down the road of defending against a wrongful foreclosure, despite my general legal experience, I was still very naïve about the homeowner foreclosure process. I thought it would be easy enough to find an attorney to represent me and who would understood my case. He would prepare his brief, present my defense to a judge, who of course would immediately see through the defective paperwork, hearsay, etc., and not allow a foreclosure to proceed. Unfortunately, I and many others were wrong about our assumptions.

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So what is it we are getting wrong? The legal system is not supposed to work this way in practice. Equity, rules of civil procedure, and rules of evidence should be on the courts mind. More importantly, why aren’t there more attorneys in this field with so many clients in need of a good lawyer? By now, those who read Neil’s blog are well familiar with some of the answers, but is worth going over some of the root causes that can prevent a good defense, and what can be done to help structure a more effective one.

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Gary Dubin did a very good commentary back in December on his radio show about why foreclosure defense attorneys were a seemingly endangered species, and why the legal process had become so difficult in general. He pointed out a number of causes, including: a.) Discovery costs skyrocketing, with banks making the process very difficult by hindering access to documents and evidence. b.) Poor legal education in this area, leading to poor legal defense, and legal aid attorneys who are unprepared to help those who lack funds to defend themselves. c.) The top law grads usually go where the money is, to the banks and Wall Street, with huge legal firms and large support staff, limiting the pool for others. Further shrinking it, the banks spread their business out among multiple firms, conflicting other attorneys out whom might defend you. d.) The judges themselves may have existing prejudices and bias, starting with the judicial selection process itself, and they may also be stockholders of the big banks. e.) The regulators and state BAR’s are not going after banks and their attorneys, instead they are being used to go after the defense attorneys in some cases f.) Bad case law from Pro Se cases making defense harder, and “clients from hell” making foreclosure defense a thankless task for those trying to practice it. So those being part of the causes, what can you do to deal more effectively with them?

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First, become an effective teammate and partner to your attorney if he has limited resources (office staff, paralegals. etc.) and experience in this field, and you have the ability to aid him. By being an effective partner I DO NOT mean trying to tell him how to do his job as an attorney. You will find very quickly that you are not a favored client by doing so. By partnering with him what I mean is that you can and should try be his support staff to the extent you can. You don’t have to be a lawyer to dig up the pertinent case material and facts, the things you both need to build your case. Help to provide him with facts, research, and case law that can help him to piece together your defense. A good attorney, even if inexperienced in the foreclosure defense arena, can put a good defense or offense together if he is provided the relevant facts, supporting and contradictory evidence, and background to your situation, basically the “storyline” of your case.

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Second, to do this you need to Organize. If your attorney is given the above information in an organized format without having to sift through a ton of paperwork, it will save him time, and you money. This may sound like common sense, but unfortunately it is not the norm many attorneys experience. Trust me on one thing, your struggling attorney who is trying to juggle multiple clients, and bang out enough billable hours to keep afloat, does usually not have the time or expertise to go through notes, DOT’s & Mortgages, assignments, default notices, etc., and play “Where is Waldo?” to pick out what is wrong with your case, and locate smoking guns and defects. Most likely he will not even see a lot of these documents prior to discovery, if even then, and that may be too late in the process to effectively help you. So DO help put together all the paperwork from your loan closing, and from any foreclosure actions against you, in a binder for him in order of date. Go to the county recorders office and obtain the filed records as to your property, put them in there too. If you can do so, issue a QWR to your loan servicer. Under RESPA, they are required to respond. Get as much information as you can regarding your loan, it will pay dividends later.

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Third, if you can’t find all these documents on your own, or your attorney does not know where to locate them, ask for help! There are reputable consulting companies out there who can get you basic chain of title documents for a fee, usually under $500. If you want more detailed documents, and an analysis of what they found, it could cost you $1500-$2000, but this may be well worth it depending on your case. If you want litigation consulting on top of all this as you progress through your case, you may spend $5000 or more, but again, it may be worth it, maybe not, it really depends on YOUR case and its complexity, and the EXPERIENCE of your attorney. Imagine you just saved your attorney 20 billable hours (minimally) by doing the above, at $150-$200 per hour, that just saved you $3000 or more. The money you spend on outside help and consulting may be a wash when compared to the fact that had you NOT sought their help you would have paid your attorney the same amount for his time trying to recreate their work product, and doing it badly in some cases. Bottom line, if you can afford it, use your money intelligently and in a focused manner, don’t just throw money at your attorney and expect the same quality or results, you may not get it. Be informed as to how your money is being spent, and budget it.

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Fourth, once you have this information, you, your attorney, or your consultant should be playing detective with your case. Who claims to hold the note and DOT? Who did the assignments? When were they supposedly done? Google the information on these entities. I won’t go into detail, as Neil and others have enough advice written on these topics as to what to look for, but find out WHO the players in your case are. Google cases involving these entities, what were the issues noted in those cases? What defense tactics worked, and can they be used in your case? Was any discovery done that could be helpful to your case, depositions, etc.? Highlight the rulings in those cases, and see if they are relevant in your State or federal district.

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Fifth, once you have done this, decide what direction you want to take with your case. Try to keep your home? Potentially let it go and try to sue for damages? File bankruptcy first? You and your attorney may not see eye to eye on these points sometimes. You should both calmly discuss the strategy of your case and plan of attack once you have a good foundation in place, and can make intelligent and informed decisions together. However, if he does not want to pursue a particular strategy after giving his reasons why, you need to either accept his advice, or find other counsel if you believe that based on the facts that your interests are served by taking a different approach. Remember, he generally should know the courts and judges in his district better than you, and it could be his license and reputation on the line in an unfriendly district. Ideally you will have this conversation before you retain him, but sometimes your case is not always clear at the outset or subsequent rulings from other cases may alter case law, so you are forced to revisit the subject.

*

In any event, if you can do the preceding you have just dealt with causation items a-c in a fairly effective manner. I handled my case with my attorney Jon Schulte in much this manner. While we started out on a bumpy road at first, we now have a good system going that works pretty efficiently. An important point to make here is that being smaller in scale and reaching quick consensus can actually exploit the large banks weak points in cases where you are suing/counterclaiming against them. Many articles have pointed out that banks and their attorneys increasingly being found liable for FDCPA claims, and that law firms are also going under due to the pay structure methodology they have arranged with the banks. Many law firms do not get paid until a foreclosure is completed and the house is sold. How happy do you think the law firms getting sued for FDCPA violations are about having to defend their actions on behalf of banks, while at the same time they are not getting paid by them? Wonder if they got an indemnity from the banks for their liability? I actually created a power point for my case as an educational aid in illustrating how pricey it can be to try to foreclose using fraudulent means. It is based on the publicly available information on my case from PACER and from websites…I am sure it is likely to get my hand slapped, however is does help honestly illustrate the above problem in detail with a bit of levity thrown in, as lighthearted as this subject can be that is.

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Finally, how do you deal with points d-f? This is a bit more complicated, but I would say first, know your venue and your judges. This is invaluable, and your counsel should know what the politics are in the district you plan to bring your case. Become familiar with this and decide where venue may favor your case. Can’t get a fair shake in State court? Maybe it’s time to go federal, or go to the bankruptcy court. Some State courts have made it clear that if opposing counsel and their clients have a pulse, and can hold a note, then they must have standing and can foreclose. It’s not fair, but you deal with what you have, so choose wisely. In my case for example, I knew that the presiding federal judge was a former partner in Bose McKinney & Evans LLP, the law firm I was suing. She went to law school with one of its principals, and had famously quoted in an Indiana magazine, ” There are some cases that we just process, like foreclosures. They don’t require any adjudication, no exercise of judicial discretion.” See, Sustained: Judge Sarah Evans Barker, Megan Fernandez, Indianapolis Monthly, May 15, 2015. So shouldn’t I have sought a recusal, a different judge?, something? Not necessarily. You can’t always pick and choose your judges, and there is no guarantee your next one is going to see things your way either. What matters most is the judge’s reputation among their peers, and their history for being fair minded and impartial in deciding cases. Past ruling are not always a predictor of how they will rule in your case if it is well planned, clear in its points, or presented in a manner that may not have been presented to that judge in the past. By doing that you are also making sure you deal with points e & f as well. So that’s it, be prepared to support your counsel, get organized, and make careful informed choices. Not earth shattering advice, but I hope this column helps drive that simple point home.

 

33 Responses

  1. How you hold ownership of the Real Estate is Crucial.

    Irrevocably Transfer and Convey into Trust

    The Trust is created in the Instrument that creates the Legal corporate entity. The Corporate Estate

    Forbes, Tax Geek Tuesday,
    Why you should never hold REAL ESTATE in A Corporation.

  2. There is in existance a Written Instrument “PPM” which purports to be the beneficial n interest held in a PRIVATE PLACEMENT MEMORANDIUM “PPM”, said document that is binding amongst the successors parties in the v formation of certain Limited Partnerships formed as Limited Liability Corporation or “LLC”.

    The Parties unde the PPM form amongst themselves the understanding and contents of the parties right to claims to the “My Last Name” title for the Estate located at. ..HERE” in City of, County of…state of..

  3. Take 3:

    ESTATES IN LAND:
    Rights & Interests of ESTATE HOLDER

    LEARN IT! LIVE IT!

  4. In doing the PPM securities holders who are the registrations securities issuers were allowed the construct a New York indenture holding fractional shares of the Estate transferred and conveyed irrevocably into trust.
    Therefore Plaintiff alleges facts establishing a basis for a claim for facts constituting grounds for rescission of underlying transaction making instrument voidable and for exemplary damages, whereas the defendant claims are for a transferred asset the Plaintiffs loan, sold on or about “Closing Date”……..for value.

    The defendant knew at the time of making the transfer that the purported mortgages was not enforcable, but did not disclose this fact to the Grantor & Plaintiff.

    Defendant made the transfer with the intent to defraud the Plaintiff.

    Therefore seeds exemplary and punitive damages.

  5. Defendant transferred Plaintiffs asset with the intention to defraud the Plaintiff.

  6. In Illinois we have deficiency judgments after sale.
    They seek not only against borrower estate but against the other non borrowing tenants also. Why? Can’t Touch That!

    Plaintiff as One Half of the Estate
    THE PLAINTIFFS NOTE

  7. Concurrent Estates….KEEP IT SIMPLE!

    This might help…
    Quizlet.com
    Concurrent-Estates-Property-Law

    Ohhh its so Good!

  8. Filed 1/21/16

    IN THE SUPREME COURT OF CALIFORNIA

    CAROL COKER, Plaintiff and Appellant, v. JPMORGAN CHASE BANK, N.A., ET AL., Defendant and Respondent.

    Under Code of Civil Procedure section 580b, when an individual borrows money from a bank to buy a home and the bank forecloses on the home, the bank can collect proceeds from the foreclosure sale but nothing more. The bank may not obtain a deficiency judgment against the borrower if the sale proceeds are not enough to repay the loan. At issue here is whether the statute‘s antideficiency protection applies not only when a bank initiates a foreclosure sale, but also when a defaulting borrower arranges a short sale. In a short sale, the borrower sells the home to a third party for an amount that falls short of the outstanding loan balance; the lender agrees to release its lien on the property to facilitate the sale; and the borrower agrees to give all the proceeds to the lender. We hold, as the Court of Appeal did below, that the statute applies to short sales just as it does to foreclosure sales.

    http://www.courts.ca.gov/opinions/documents/S213137.PDF

  9. Concurrent Estates. ..
    Sings…” When I Die, I’m gonna go to Heaven”
    Croaks

  10. Estates in Land
    : Rights and Interests of the Estate Holder.

  11. LL BLOCKING…SHAME ON YOU!

    Take #4
    this matter . com

  12. Forms of Real Estate Ownership:
    Tenancy in Common
    Joint Tenancy
    Tenancy by the Entirety

    Trusts:
    Land Trust
    Real Estate Ownership by Business Entities.

    Where do you fit in?

  13. Estates in Land:
    Freehold Estate
    Leasehold Estate

    Fee Simple Estate
    Fee Simple defeasible Estate

    Life Estate:
    Conventional Life Estate
    Estate our autre vie

    Legal Life Estate: Dowry,Curtesy,Homestead Exemption.

  14. Kalifornia! Spot On!!!

    False Credit Reporting is a continuous Harm,
    Especially when encompassed with a False Default .

  15. Forms of Real Estate Ownership , Concurrent Estates

    Estates in Land: Rights and Interests of the Estate Holder.

    Learn Learn Learn
    Live Laugh Love & Learn

  16. thank you Kalifornia for elaborating… As for Invitational homes and their principals, not sure but they are connected to Blackstone group and JP Morgan Chase holds the mortgages to all or most of these now rental properties that were once somebody’s home. Now these banks are securitizing the rental income that these homes produce. They own close to 1000 in broward county florida alone. All you have to do is check the public records in your county and then tract the ownership info thru official records, you don’t need much of a brain to figure out whats going on.

  17. Two cents on the subject of a partnership:

    I am of the belief that the homeowner / BAILOR entered into an undisclosed BAILMENT FOR HIRE partnership with the CONDUIT ORIGINATOR / BAILEE who had pre-planned to gain the benefits of various securitization fees from COMMERCIAL TRANSACTIONS using the uncompensated BAILOR’s personal property — the EXECUTED NOTE.

    Although cloaked as a mortgage transaction, it was a sham because the LINO never intended to, and did not, lend any of its own monies in a consummation through performance.

    The facts establish a silent hybrid-partnership in privity with the LINO in the form of a COMMERCIAL BAILMENT FOR HIRE through the securitization of the BAILOR’s NOTE. The LINO had NO RISK in the securitization transactions and NO SKIN IN THE GAME.

    After pledging the BAILOR’s personal property into the securitization scheme, the LINO took the fees and ran, leaving the BAILOR without access to their personal property in the NOTE, and an unmarketable title to real property. Thus, the LINO planned and intended to take unconscionable advantage of the silent partnership as the grifter in the securitization scheme.

  18. In the CFPB Hanna Joint Stipulated Order page 4 of 20 has the definition of Creditor.

    e. “Creditor” means any person who offers or extends credit creating a Debt or to whom a Debt is owed or was owed, but such term does not include any person who receives an assignment or transfer of a Debt in default solely for the purpose of facilitating collection of such debt for another.

    f. “Debt” means any obligation or alleged obligation of a Consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

    ORDER

    IT IS ORDERED that:

    A. Injunctive Relief

    Enjoining Certain Collection Suits

    8. Defendants and all other persons in active concert or participation with any of them who receive actual notice of this Order, whether acting directly or indirectly through Outside Counsel, are permanently restrained and enjoined from initiating or threatening to initiate a Collection Suit where:

    a. Defendants do not have in their possession the following:

    1. Original Account-Level Documentation reflecting, at a minimum, the Consumer’s name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount, excluding any post Charge-off payments, and if Defendants are suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt. If Defendants are initiating or threatening to initiate a Collection Suit on behalf of a Debt Buyer, a chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning with the name of the Creditor at the time of Charge-off;

    (etc)

    Seems like this enjoining certain collection suits is for all similarly situated?

    Does it stop the fraud? That would be nice.

    Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino

  19. The mortgages or assignments of mortgage for substantially all of the mortgage loans may be recorded in the name of Mortgage Electronic Registration Systems, Inc., or MERS, solely as nominee for the originator, or GMACM, and its successors and assigns.

    but would not work if mortgages were sold. it isnt a successor or being assigned. the originator ( SELLS ) THE MORTGAGES . and if the company THAT BOUGHT THE MORTGAGES is not a active member of merscorp. then mers could not assign anything from a non member of merscorp. . AND ANY THAT THE BORROWER GAVE IN THE MORTGAGE IS VOID. AND ANYTHING THAT THE ORIGINATOR GAVE TO MERS IS ALSO GONE , VOID. BECAUSE THEY SOLD THE MORTGAGE TO A NON-PARTY TO MERSCORP,MERS,MERS,MERS,

  20. CORRECTION:

    …as a matter of public policy [are]…

  21. @ lms53

    If I may, I’d like to [enhance and contribute to] something you wrote:

    “The general rule [and affirmative public policy] of foreclosure is that [a] foreclosure must not be unconscionable, inequitable, and should be avoided. [Moreover,] [a] [property owner] should not suffer for the consequences of a [securitization service]r’s act[s and omissions] that are [unconscionable, inequitable, and as a matter of public policy is] readily avoidable.”

    While not a panacea, the CFPB has established the public policy on LINO servicing, and some of the several states have implemented and enhanced public policy statutes on same. Nonetheless, generally speaking, the courts twist and distort the established doctrines in contravention of public policy. MTF

    [MTF] (“More To Follow”)

    [LINO] (“LENDER IN NAME ONLY”)

  22. Ims53- who are the principals of Invitational Homes LLC? And are they related to the judge? Golf club members? Neighbors? Wife-swapping club?

  23. Come on Neil, forget this rescission thing and talk about the real issue of how they litereally stole our name and signature to capitalize on the largest asset most people will ever TRY to own and for most their “American Dream”. Basically they forged our signature(copywrited our Name) onto their elaborate Ponzi scheme while they continue to capitalize and we lose our home. The general rule of foreclosure is that foreclosure must not be unconscionable or inequitable. A mortgagee should not suffer for the consequences of a mortgagor’s act that are readily avoidable.

  24. Lauren, yes even judge Lazarus is an ex investment banker, but there is more to it than just biased judges, have you checked the property records to see how many homes homes Blackstone Group has bought up in Broward County alone and believe me these are no “armslength transactions. Look up property records on Invitational Homes I, II, III. Furthermore, JP Morgan Chase holds the mortgages for these Now rental properties and they are securitizing rental incomes. WALL STREET has to be stopped with this securitization fraud.

  25. 17th Courthouse Fort Lauderdale anyone? Judge Dale Ross has all banks in his financial statements! Ask for the judges financial statements and throw them under the train people.

  26. Very good advice. Excellent!

  27. the tip of the iceberg…. again

    the PTB decided long ago we were all useless eaters…
    Eugenics is the mission – Foreclosure is the way

    so who will be left to wipe their butts when they kill us off? Robots?

  28. as been told here many times , all judge’s are assuming all things are true just because the foreclosing entity said so.

    after talking to the security and exchange on many things , as i thought , just because the banks FILED something at and on the security and exchange as to filling requirements. does not equate to them , following though with what they filed. that is from the security and exchange them self.

    so all the psa that have been filed , only mean that people, they filed something that they might do or may not do. just like in our registery of deeds office , they only make sure all the proper notices are in place, thats all. again it doesnt mean they did anything that the psa said.

    again the only way to see if they did do it. is a full and complete audit of all books and records all all party involved. it is the only way to see if , there is a trust or trusts. who,what were, is all the money.

    and just because they hold a mortgage and note in hand in court saying we hold the note. so what. am holding the same note and mortgage also, and how many more are holding the note and mortgage ??? who knows. no one. ok judge put that in your pipe and smoke it.

  29. BTW,

    I was discussing this very topic with a forensic document examiner.

    He told me he has stopped taking these cases because he could no longer stomach the suffering the homeowners were being intentionally subjected to. He also added the banks are totally corrupt and ruin people’s lives.

    Additionally, he observed foreclosure defense attorneys start out gang busters only to slow down and lose interest as they had already collected thousands in legal fees.

  30. Why is it costing homeowners thousands of dollars to find who holds their note or better yet, the holder of the debt????
    It is fast becoming clear NO ONE holds the note/debt in millions of ‘loans’. They have literally leased you a home and you are a renter.
    Why else would this be so hard to prove? Millions of loans were securitized without the ‘borrowers’ knowledge.
    The foreclosure is a deadly weapon and designed to cover all the fraud perpetrated on unsuspecting homeowners who thought they signed a ‘loan’.
    The trusts do not exist nor do the criminal trustees.

    So please revisit dear attorney and post something relevent to why attorneys are trudging through discovery knowing full well every document is re created and is fraud upon the court both willful and intentional.
    And please address how these crooks stole our signature.

    In the meantime, both sides of counsel are racking up huge legal fees. They have nothing to lose and everything to gain along with exotic vacations. In too many cases both foreclosure defense attorneys and opposing counsel are business partners…no pun intended.

  31. Interesting article. But I can’t believe this is what homeowners have to go thru. What a clusterfuck !!!

  32. Just finished perusing Eric Mains’ “The True Cost of Foreclosure” – complete with a rouge’s gallery of Magna Cum Laude bottom feeding shitbags – all masquerading as officers of the court, attorneys if you will. Nice job Eric but do you really think public shaming will in any way make these people think twice about what they do for a living? I think not. We are all just deadbeats who bought too much house. Haven’t you heard?

  33. Very well written Eric. “Some State courts have made it clear that if opposing counsel and their clients have a pulse, and can hold a note, then they must have standing and can foreclose.” This is EXACTLY what happened to me even with clear evidence of fraud. The court system in the State of Maryland did not care a wit. I lost my only possession, ancestral waterfront property and our 401k trying to defend a foreclosure that nearly cost me my marriage.

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