Folks, I have studied foreclosure defense and mortgage issues for a few years and conducted seminars on the subject, for the purpose of helping people beat foreclosure. For years I thought the big opportunity lay in helping people beat the foreclosure by exposing lack of lawful money, ignoring Article I Section 10 use of gold for payment of debts, fractional reserve banking, lenders don’t actually have the money they allegedly lend, they merely lend credit, the note is the maker’s chattel which the lender converts through securitization, robo signing issues, wrong party as plaintiff, plaintiff not registered in the state, Securitization/remic issues, and the standard TILA/RESPA complaints that victims must timely submit. I have learned many things that just waste time and resources, and many that are about as effective as trying to pull chickens teeth out. While some chances for success exist in all that, the lender or assignee or servicer/MERS ALWAYS WINS, with only rare exceptions.
Why? Because the borrower cannot escape the fact that he signed the note and mortgage, got the loan, used it to pay off another loan or buy the house, paid for a while, stopped paying, and MUST FORFEIT THE HOUSE TO FORECLOSURE SALE to DISCHARGE THE DEBT. The court/ public trustee exists to give redress of injury, the lender/ assignee got injured, and they will nearlly always grant that redress.
However, another path to remedy exists that turns the borrower from the dog-meat into the dog: exposing the torts, contract breaches, legal errors, and other violations underlying the mortgage. Things like TILA/RESPA violations (legal violations), loan application alterations by the mortgage broker, and fraudulently high appraised values exemplify such opportunities. When a borrower finds those and exposes them timely to the court in a corresponding lawsuit or counterclaim, the court MUST give the borrower remedy, typically by a cash settlement, house free and clear, loan balance reduction, or PUNITIVE DAMAGES. See this example:
It takes some money to get a competent examination done and either negotiate the settlement or sue (or counterclaim). A borrower who cannot afford those costs should walk from the house after trying to effect a loan mod (only to stall for time to examine options) and sale, short sale, keys for cash, or deed in lieu of foreclosure. Within 3 years the borrower will be able to obtain Anything else will result in losing the house at a foreclosure sale and destruction of credit rating for a good 4 to 7 years.
A sincere truth-seeker who comes to grips with the foregoing realities ultimately concludes as I have. Others who don’t get that point suffer because they furtively, futilely shovel sand against the tide, so to speak, and end up losing their homes to foreclosure. Typical foreclosure defense attorneys con the foreclosure victim in to paying them $1500 to $3000 retainer, then $500 to $1000 a month for as long as they keep the victim in the house. The attorney knows the victim will ultimately lose the house under a writ of possession or unlawful detainer. For that reason, I consider such attorney service equivalent to malpractice.
Why? Because if the client saved all that money (which the client rightfully should have paid to the mortgage servicer), over a year or two, and put it together with the keys-for-cash money, the client might have enough to buy a starter house free and clear at a foreclosure auction. But the foreclosure defense attorney will take that money and the client will still lose the house and the associated legal costs. On top of that, dragging out the foreclosure in court (including the fruitless quiet title actions in non-judicial foreclosure states) causes mortgage interest and late fees, along with legal charges, to mount up every single month. So when the foreclosure happens, the house will sell at auction for a fourth or fifth of its original loan value and leave the foreclosure victim with a monumental judgment lien that will endure for 20 years. If the victim becomes financially flush in 10 or 15 years, the lender will come right back and sue to recover the judgment. It happens all the time.
Who among you has faith in a foreclosure defense attorney who leaves a client stuck with such a colossal burden hanging over the client’s head for 20 years, virtually forcing the client into bankruptcy.
Speaking of bankruptcy, many foreclosure defenders take their foreclosure victim clients into bankruptcy on the failing theory that the bankruptcy court will leave the automatic stay in place. They reason that that will drag out the foreclosure even longer, keeping the client in the house that much longer, as if that will matter at all when the foreclosure actually goes through. The bankruptcy court almost ALWAYS lifts the stay, in spite of the protestations of the lawyer, and the foreclosure happens anyway. Why? Because the borrower promised the house as COLLATERAL in the mortgage security agreement, and MUST FORFEIT the collateral in lieu of paying off the loan.
Remember that the State Government must take heed of the US Constitution which provides this in Article I Section 10:
“No State shall … pass any … Law impairing the Obligation of Contract…”
That applies especially to the unilateral adhesion contracts known as the note and the mortgage. And, it explains perfectly why the court or trustee must grant the foreclosure, given correct parties and paperwork, UNLESS the lender or lender’s agents engaged in behavior that invalidated the contract in some way, such as fraudulent inducement, deception, fraud, or other serious errors.
A competent personal injury attorney with evidence justifying causes of action can formulate a lawsuit or settlement demand and often obtain a settlement for the client as I suggested above. Incompetent or lazy attorneys don’t do so well at that, of course. And of course, the lender sometimes says “So, sue me!). Sometimes clients lose heart and don’t want to face the 2-3 year struggle to win a jury trial and appeal, of the kind in the above link. But those who stick it out or secure counsel on contingency will typically win. Why don’t you hear much about these? Because the settlement includes “Hush” money under non-disclosure agreement that silences everyone involved in order to avoid a run on the lender by similarly abused borrowers.
Anyone with opinions different from the above, kindly let me know why and show me justification in the form of case histories.
2460 Persian Drive #70
Clearwater, FL 33763-1925
Visit My Home Page · Email Me · Visit My Blog
Learn to Litigate with Jurisdictionary (Buy Now)
Stay informed with Lawmen E-letter (Subscribe Free Now)