20 Overlooked Foreclosure Defenses


  1. Loan modifications do not first require payment defaults.


  1. Limitations on the recovery of foreclosure attorneys’ fees.


  1. The estates of deceased joint homeowners are still necessary and indispensable parties.


  1. Service by publication is unconstitutional absent clear evidence of exhausted due diligence attempts at personal service first.


  1. Expungement actions are more effective than mortgage and deed of trust misnamed “quiet title” actions.


  1. Lawyers are prohibited from appearing in Court as both foreclosure attorneys and material witnesses.


  1. Pretender lenders in order to support standing are required to prove that they paid for the loan before being able to show injury as a result of loan default.


  1. Judges owning stock in a party, if researched and proven, should recuse themselves or be disqualified.


  1. Violations of the AG Settlement and other Sanction Orders can be enforced in individual cases by suing State Attorneys General for negligence in non-enforcement.


  1. Individual whistle blowing REMIC actions can be effective regarding nonpayment of State taxes.


  1. Foreclosure attorney representation needs to supported by disclosure of legal services agreements between lenders, loan servicers, government sponsored entities, and foreclosure law firms.


  1. Homeowners are a protected class under federal and state securities laws since securitized loans are securities from their inception.


  1. Various provisions of federally sponsored mortgage and deed of trust forms are unenforceable against borrowers as adhesion clauses.


  1. The affirmative defense of anticipatory breach, sometimes called anticipatory repudiation, can be used to attack pretender lender standing in several effective ways.


  1. Most promissory notes are not negotiable instruments and therefore cannot be enforced merely by endorsement or possession.


  1. Foreclosure deficiency judgments are unconstitutional when not based on the true value of the foreclosed property at time of sale confirmation.


  1. There are state public policy abstention objections to federal court removal of foreclosure related cases.


  1. There are securitized trust REMIC violations that can be objected to that prove a lack of standing to foreclose which are unrelated to the enforcement of securitized trust contract agreements of which borrowers have no standing otherwise to object to.


  1. Insurance proceeds as well as government and assignor discounts diminish pretender lender claims to loss, barred by the affirmative defense of unjust enrichment.


  1. The remedy against robo-signers and robo-endorsers and robo-notaries is suing the head of the recording office for expungement at the recording office.



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