How Homeowners Can Win Foreclosure Cases

 

Homeowners with Courage and Conviction Generally Win Foreclosure Cases

Neil Garfield

I often receive links to cases that either corroborate what I have been saying or challenge my conclusions. Many of those links are opinions from trial courts, and most of those are from Federal DIstrict judges (mainly because most, but not all, state court judges do not issue opinions justifying their rulings.

Even in best-case scenarios, the opinion of a trial judge is not binding as a precedent on anyone. But reading such decisions does inform us about the assumptions, presumptions, and biases confronted by homeowners.

One such decision comes from Pennsylvania Federal Court. U.S. Bank N.A. v Gerber. U.S. Bank v. Gerber, 380 F. Supp. 3d 429 (M.D. Pa. 2018). Some people like the way that the District Court Judge says that the lawyers who supposedly represent U.S. Bank N.A. are missing the mark. And the decision does raise some interesting points about strategy and tactics for homeowners.

This particular decision says that the argument employed in thousands of cases “misses the mark.” The Judge is referring to the erroneous argument that since homeowners were not a party to the chain of transactions that were supposedly memorialized by assignments of mortgage and endorsements, they (the homeowners) have no standing to challenge them even if they are false.

 

I agree that this one conclusion by this trial judge is an important rejection of one of the most common “defenses” raised by lawyers for the banks. But it does not create a precedent such that any other court needs to follow it. You can show it to another judge as a persuasive authority but it has no precedential authority — i.e., a requirement that the next judge must follow the reasoning or conclusions of the trial judge who issued it.

 

I think the larger issue is the elephant in the living room. Reading the case law on foreclosure litigation, one thing has become crystal clear: Despite the APPARENT accuracy of homeowner defenses, such defenses will only be considered relevant to the case if they are worded such that the connection to the prima facie case in foreclosure is perfectly clear.

 

The problem is that lawyers and pro se homeowners are too scared to unambiguously challenge the existence, ownership, and authority over an allegedly unpaid loan account.

 

It is perfectly within the scope of good pleading to make a statement and then say that you will prove it during discovery. (Just don’t make a statement about a fact that you have already admitted). It is equally permissible to say that the opposition refuses to supply answers to your discovery demands and that both evidentiary and monetary sanctions should apply.

 

This is why I keep pressing homeowners to secure the services of competent trial counsel or to find counsel who is responsive to direction from attorneys who win these cases. And it is why I emphasize to homeowners the importance of understanding securitization.

 

Gerber, without realizing it, saddled up his horse using all the right gear and then rode off bareback on another horse. This is a common failure of lawyers and pro se litigants. For example, it is not enough to say that securitization changed the contract. The judge says quite clearly that this might be true but that the burden of pleading is on the one who makes the statement. So if Gerber had alleged the ways in which the contract was changed with much greater specificity, the judge would have taken the defenses more seriously.

 

I do think the judge was probably wrong in construing some of the reasons the contract was changed as not specific enough. But with the weight of securitization infrastructure surrounding everything, the only thing that a judge will respond to is that the current claimant has no claim and will not be able to produce evidence corroborating their claim and implied assertions in discovery.

 

In essence, the homeowner is forced under current judicial doctrine to boldly state that there is neither a contract nor a debt owed by the homeowner to the designated Plaintiff or Beneficiary.

 

The defense needs to be that the named Plaintiff (U.S. Bank as trustee) is pursuing a false claim, has never collected any money, and has no intention of receiving any proceeds from the forced sale or collection from the homeowner or his/her property.

 

But both homeowners and their attorneys are afraid to state that because of the possibility that the lawyers for the designated Plaintiff will come up with some actual proof of payment of value in exchange for a valid conveyance of ownership of the underlying obligation, the legal debt, note, and mortgage. Nobody likes to look stupid.

 

As with all cases, the timid lose even if they are right. What stops homeowners from winning is the fear that the “Banks” will be able to produce an admissible record corroborating the existence, ownership, and authority of U.S. Bank or any other designated claimant. They can’t and if they could they would have done so 20 years ago.

 

The plain facts support two main points:

(1) the documents upon which the foreclosure mills place reliance are false — i.e., they memorialize transactions that never occurred, meaning that the final designated claimant never came to own the alleged loan account, never suffered any economic loss, and never had a record of ownership of any loan account; and
(2) the investment banks have used their outsized influence to change both pleading and proof requirements in foreclosure litigation, resulting in the courts changing the laws governing such transactions in ways that are inconsistent with the intent and content of laws passed by Congress and the laws of any State legislature.

 

Of course that in and of itself is unconstitutional because only legislatures can make laws. And only courts can enforce them.

 

 

Stop Foreclosure, Sue for Breach of Contract 

Now is the perfect time to stand up for your legal rights and sue for beach of contract, mortgage fraud, and foreclosure fraud because the legal tide is beginning to turn, and homeowners are starting to win! In 2016 the California Supreme Court ruled in Yvanova v. New Century Mortgage Corporation (Case No. S218973, Cal. Sup. Ct. February 18, 2016) that homeowners have legal standing to challenge an assignment of the mortgage loan contract in an action for wrongful foreclosure on the grounds that the assignment(s) is/are void. Obviously if the court had ruled differently, the banks would have had carte blanche to forge mortgage assignments with wild abandon. In fact, without a system of endorsements and assignments it would be impossible to determine who has a legitimate interest in the property!

In THE PAPER CHASE: SECURITIZATION, FORECLOSURE, AND THE UNCERTAINTY OF MORTGAGE TITLE ADAM J. LEVITIN writes “the mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too- big-to-fail problem for the courts.

The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and transferred through the “public demonstration” regimes of UCC Article 3 and land recordation systems. This arrangement worked satisfactorily when mortgages were rarely transferred. Mortgage finance, however, shifted to securitization, which involves repeated bulk transfers of mortgages.

Like many other cases, current trial court decisions are getting reversed because the courts are waking up to the reality of the rule of law. What they have been following is an off the books rule of “anything but a free house.” However a recent Yale Law Review Article eviscerates the assumptions of a free house for the homeowners and destroys the myth that somehow that policy has saved the nation. You can read the Yale Law Review article “In Defense of “Free Houses” for more information on this tide change.

To facilitate securitization, deal architects developed alternative “contracting” regimes for mortgage title: UCC Article 9 and MERS, a private mortgage registry. These new regimes reduced the cost of securitization by dispensing with demonstrative formalities, but at the expense of reduced clarity of title, which raised the costs of mortgage enforcement. This trade-off benefited the securitization industry at the expense of securitization investors because it became apparent only subsequently with the rise in mortgage foreclosures. The harm, however, has not been limited to securitization investors. Clouded mortgage title has significant negative externalities on the economy as a whole.

If your loan contains fraud or it was securitized then your lender may have breached your mortgage loan contract, and therefore your mortgage loan contract could be legally challenged in a court of law. If your mortgage loan contract is declared legally void, then any assignments of the mortgage loan contract, or subsequent assignments, could also be declared legally void.

Securitization is the process of taking an asset and transforming them into a security. A typical example of securitization is a mortgage-backed security (MBS), which is a type of asset-backed security that is secured by a collection of mortgages. Keep in mind that it is perfectly legal for banks to create mortgage-backed securities (MBS’s); however there are significant legal ramifications that will either harm you, or benefit you, depending on what actions you take in response to the fact that your mortgage or deed of trust is legally void resulting in your property, in reality, being unsecured, just like a unsecured credit card debt. What’s in your wallet?

This is why we recommend that you take immediate action and sue for the remedy the law entitles you to, and that you deserve. Treble damages and clear and free title to your home. Not sure if your loan contains mortgage fraud or if it was securitized, no problem, we will do a free mortgage fraud analysis and free Bloomberg securitization search for you.

Many of the programs that had modest success in the early days have fallen into disfavor as banks have enacted strategies to counter their progress. The banks are not going to go down without a serious fight. They have a large arsenal of tools to use, and the legal muscle to keep the industry off balance. This is not a static game. The reason that banks have been successful, for the most part, in protecting the large number of mortgages that were securitized is that there is an intricate web of legal theories that they hide behind to justify what they have done. In effect, they have created a shell game where the ball seems to move around in defiance of the laws of physics.

The banks are relying on a complex interaction between UCC 3 commercial paper law, UCC 9 securitization law, bailment law, agency law and local laws of the jurisdiction where the property is located. They would have us believe that what they have been doing since the 1970’s is perfectly legitimate. Many lawyers who have challenged the banks have gotten close to exposing the scheme only to find that judges retreat away from the complexity of the legal theories involved and fall back on procedural barriers under the auspices of protecting the equitable interests of the banks and their agents.

FRAUD STOPPERS Foreclosure Defense Program has moved the bar forward in many substantial ways:

  • Our Private Administrative process is a targeted approach to Informal Discovery:
  • 3-501. PRESENTMENT or States equivalent
  • Mortgage Error Resolution/Request for Information: If you believe there is an error on your mortgage loan statement or you’d like to request information related to your mortgage loan servicing, you must exercise certain rights under Federal law related to resolving errors and requesting information about your mortgage loan. If you think your credit report, bill or your mortgage loan account contains an error, or if you need more information about your mortgage loan, you send a written letter concerning your error and/or request.
  • Cutting edge mortgage fraud examination and court ready lawsuits and trial ready evidence to win your case
  • Nationwide foreclosure defense attorneys and Pro Se litigation education and support products and services

Subsection of Presentment (example Covenant 8 of UCC3 Note) shows NOTE and under paragraph 1 states: “BORROWER’S PROMISE TO PAY: In return for a loan that I have received, I promise to pay….

MULTI STATE FIXED RATE NOTE–Single Family–Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3200 1/01 (page 1 of 3 pages) Covenant:

  1. WAIVERS

I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

  • 15 U.S. Code § 1692g – Validation of debts

Often a debt collector cannot validate a debt and therefore cannot legally enforce collections.

  • Truth In Lending Act (TILA RESCISSION) codified in 12 CFR Part 226 (Regulation Z); particularly§ 226.34 Prohibited acts and §226.32 sub-paragraph (ii) et seq. predatory lending practices

A mortgage loan covered by the Truth in Lending Act may be rescinded by mailing a Rescission Letter to the purported lender, forcing the purported lender/creditor to oppose that rescission with a lawsuit within 20 days or lose all opposition rights.

  • The primary focus of the legal aspect of our program revolves around taking the theories and best practices that have been most successful around the country and make refinements.

“Here, the specific defect alleged is that the attempted transfers were made after the closing date of the securitized trust holding the pooled mortgages and therefore the transfers were ineffective.

  • Our program seeks to avoid getting mired in the complexity of the various areas of law involved, instead focusing on a simple, focused approach that makes it harder for judges to avoid the strength of our core arguments.
  • The PMA trustees and executive team have a diverse set of skills and significant experience in the core areas that will improve the success factors for our operations.

We have spent an exhaustive amount of time analyzing all of the cases that have been successful in resolving mortgage securitization problems. We have designed our legal information litigation strategy to hit the banks hard and fast where they are most vulnerable.

Our primary focus is on getting clear and marketable title to the property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable.

Instead of fighting the foreclosure itself head-on, we argue that none of the banks or their agents has the right to enforce the foreclosure provisions of the Mortgage/Deed of Trust. In effect, if none of the banks have standing to enforce the foreclosure provision, we are entitled AS A MATTER OF LAW to a declaratory judgment of Breach of Contract (Security Agreement) that is res judicata, i.e., a permanent ban on foreclosure.

The Stand & Fight Program is a complete program that provides you with everything you need:

  • Administrated Process
  • Court Ready Chain of Title Investigation and Signed Affidavit
  • Complaint along with all exhibits
  • Legal Research
  • Legal Briefs
  • Motions
  • Answers
  • Interrogatories
  • Depositions
  • Case Management for Local Civil Rules of Procedures
  • Training and Support

Take action right now and get the FACTS and HELP that you need to gain the legal remedy that the law entitles you to, and that you deserve!

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