Post Foreclosure Options

If the house is sold, is there anything I can do?

Neil Garfield

At least 40% of the inquiries received by my office ask what they can do after the auction has occurred or even after the REO property has been liquidated.

As I have stated repeatedly in the past, the further you go procedurally the less likely you are to obtain any relief. If you want any of this reality to change, you need to elect representatives to Congress and state legislatures who truly intend to block efforts seeking to enforce a virtual loan account instead of a real one. One simple change could be a grant of agency power and a requirement that it be used to establish the existence, status and ownership of the loan account upon which the enforcers are relying.

So in response to one such inquiry (our registration form), here is what I wrote:
You have presented a multitude of issues. Unfortunately, most of the issues that you are presenting will never be litigated to a conclusion. You need to narrow the issues that you want to present in order to obtain a remedy. That means an analysis of your documents, both recorded and unrecorded (correspondence etc). After that is compiled, you need to narrow the allegations you want to make, and then perform legal research to see which causes of action might be barred by the statute of limitations or res judicata (the thing has already been litigated).

You are no doubt aware that once a court action is concluded with findings of facts and final judgment, it is cloaked with the presumption of validity even if it is wrong. In short, you have an uphill battle ahead of you requiring considerable time, money and effort.

I will confirm that the parties involved in the fake chain of events and documents are all vehicles for laundering titles and claims. I am confirming without any analysis beyond a quick review of your registration statement that fraud was involved and that you never should have lost —- if the law had been properly applied.

You will also need an attorney who can provide you with an opinion on the impact of any statute of limitations. If you want any relief at all don’t depend upon any federal or state agency to get it for you. You need to file a lawsuit as quickly as possible because time limits are always running.

As for narrowing the causes of action likely to survive a motion to dismiss or a motion for summary judgment, there are some simple rules that generally are helpful although you would need to confirm with a lawyer who is licensed in the jurisdiction in which your property is located.

1. Adding parties to your lawsuit will make the res judicata argument much weaker, which is what you want.
2. The rules of procedure require a short plain statement upon which relief could be granted. But the reality is that unless you allege the entirety of your narrative with specificity as to dates, times, and parties involved, it is almost certain that your lawsuit will be dismissed.
3. Don’t sue the judge, the courts or the state. Besides the fact that you will probably lose, the inclusion of such allegations will be received as the ravings of a conspiracy theorist. This maxim is true even if you are dead right about what happened.
4. Don’t allege anything that you cannot prove with clear and convincing evidence.
5. Don’t allege fraud. It is far more complex to plead and prove and it raises the burden of proof technically to clear and convincing but in reality, the burden is raised to beyond a reasonable doubt.
6. You can allege misrepresentation, negligence, gross negligence, breach of statutory duties, disgorgement, and breach of common law duties.
7. Argue with the judge not against him or her.
8. Burden of proof and burden of persuasion are tricky items. That is why you should have an experienced trial attorney. You need to accept the fact that you will never prove that the opposition were crooks and fraudsters.
9. But, if you make the correct allegations, you can set up the opposition for sanctions after you serve reasonable and timely demands for discovery relating to the existence, status, and ownership of the alleged underlying obligation.
10. STRATEGIES AND TACTICS:
0. Never start with the assumption that your transaction was a loan or still might be.
1. Never refer to the transaction as a loan.
2. Never refer to anyone as a lender or successor lender.
3. Never refer to anyone as the servicer.
4. In discovery ask questions that would be axiomatically true if there was an unpaid loan account on the books of the identified claimant.
5. Never refer to any bank entity as a trustee.
6. In most cases all such labels are false.
7. When the opposing parties fail or refuse to provide a direct answer to a direct question, motion practice begins, leading up to sanctions against them. Your goal in such circumstances is evidentiary sanctions preventing them from introducing any evidence of the existence, status, or ownership of the alleged underlying obligation.
8. Simply stated if they don’t provide such proof in discovery — which they never do — they can’t surprise you at trial with such proof. With evidentiary sanctions, you can also get an order stating that the opposition may not rely on legal presumptions arising from alleged facially valid documents.

How do I get a lawyer to defend unlawful foreclosure?

Neil Garfield

The biggest challenge that homeowners face is securing the services of a lawyer who really acts like a defense lawyer — i.e., he or she seeks to win the case regardless of whether they think the client has committed a breach of contract or violation of law. These lawyers consistently win at least 65% of their cases even though they understand nothing about investment banking or current lending practices.
They want to know whether the opposition can corroborate their assertions and allegations. The lawyers test those assertions and allegations.

When they see that the opposition fails or refuses to comply with those requests they pounce without regard to the “moral outcome” of the case.

Their job is to win and any lawyer who practices basic defense strategies attacking the prima facie case of the opposition can win — even if they don’t completely understand why they are winning.
Homeowners who were successful in engaging a lawyer whose goal was to win have been successful at winning or settling their case on very favorable terms. The trick is getting a lawyer who has no preconceived notions about the foreclosure “marketplace.”

Like everyone else, they will start with the thought that there must be something supporting the claim.
What you need is a lawyer who is experienced and hopefully gifted at employing defensive strategies and tactics. It appears that most of those lawyers are in law firms that are governed by senior lawyers who see representing homeowners as a losing proposition.

They assume the claim is valid even if it is imperfect. They assume they will lose and they further assume that the homeowner is incapable of paying the fees for all the work that must be done to successfully defend a lawsuit or claim.

So how do you get a lawyer? You start off by seeking a lawyer who has a general trial practice. They are usually found in the area of personal injury, where that is only part of their practice. These lawyers have no potential conflict with the investment banks.

Then you must present yourself as a financially responsible individual who is able to pay the fees required. This starts with your insistence that you pay the fee for the initial consultation.

And here I have a suggestion to entice the lawyer to engage with this case. Offer a bonus on top of the normal billing if the case is resolved in favor of the homeowner.

The biggest mistake that homeowners make is that they try to get a lawyer “on the cheap.”
That results in failure to conduct an aggressive motion practice and failure to conduct investigations and discovery. Each hearing takes time including preparation and often travel time.

Homeowners who are trying to keep costs down will try to strike a deal with lawyers such that there will be no payment for this work. They are doomed to ultimate failure because the necessary work doesn’t get done.
Then you must present an executive summary of “why we can and should win this case.”
In the lawyer’s mind, his/her initial impression is going to be that there will be a witness who is the custodian of the records of the “lender”.

This imaginary witness will present an exhibit that is a certified copy of the loan account, including all debits and credits.

The witness will be able to show and testify using the exhibit that a default occurred and that the “lender” or “successor lender” has suffered an economic loss caused by the homeowner withholding or failing to pay a promised installment.

That picture is in the mind of the lawyer. It presents the picture of a futile effort to help a deadbeat homeowner escape the contractual promises made at the closing of a “loan.”

The executive summary must address the various components of that picture. It should state that no such witness will appear and that the loan account will not be presented.

By definition, the loan account is the compilation of data retrieved from the general ledger of the successor lender if there is one. It tracks the money trail.

Instead, a witness will appear who is not employed by the successor lender and who will produce a “Payment History” in lieu of the loan account.

Since the “Payment History” presents only data that relates to the activity of the homeowner and does not show the beginning and ending balance, it is not possible to compute the current balance due or whether the “lender” has debited or credited the account for other reasons.

The ending balance shown on the payment history is mere speculation since the witness will not be able to testify that he or she has ever seen the loan account on the books of the named claimant (who doesn’t even know their name was used as a claimant).

And of course the absence of the loan account altogether completely rebuts any presumptions rising from reports of its existence by an outside vendor who, upon digging, will be revealed to be NOT performing any servicing functions relating to the receipt, processing, accounting or disbursement of money to or for a creditor who has paid for the underlying alleged obligation. Therefore the named “servicer” cannot report on such transactions since they were not party to those transactions.

One of the main points of the executive summary is a brief recounting of the theory and story of securitization. This must be quickly and briefly translated into results on the ground. Securitization only means that securities were issued and sold. it does not mean that any “loan” was sold. In the absence of such a sale, all actions derived from the false memorization of such a sale are legal nullifies and completely void ab initio.

When put to the test, the opposing lawyers will be unable to produce any corroborative evidence that the loan account exists, that the current claimant wons any rights to administer, collect or enforce the presumed obligation. The executive summary directly addresses the prima facie case as I have described it and it says that when challenged, each of the components of the prima facie case will fail because they can be undermined and eliminated.

The executive summary should be prepared by someone who is well acquainted with the false claims of securitization and who knows that no sale actually occurred.

The debt was not purchased or sold. The presumption that it was sold arises from false fabricated and forged documents. The only thing the lawyer needs to do to win is to undermine the presumption arising from the false documentation. Each assignment or endorsement is an implied or stated representation that the sale occurred. The lawyer need only demand that the opposing lawyers produce the evidence of that sale. They can’t.

So the litigation is going to be directed at compelling and sanctioning the opposing lawyer and his “Client” for failure to obey the rules of court and the order of the court that such documents be provided (e.g. proof of purchase by the claimant.)

While there are strategies that could terminate the litigation early, they have not been fully tested. So the homeowner must be prepared for protracted litigation because the opposing lawyer is operating under instructions to make it as hard and long as possible for the homeowner to win. those that persist do win. And the defense lawyer can get paid for his or her time — usually at a rate of $400+ per hour, plus a bonus of perhaps $10,000 or $20,000.

This isn’t for everyone. If the numbers don’t add up for you then simply don’t start. It is a bad thing that is happening to you but the fact is that the opposition will push the foreclosure through if they can even though it is a false claim. So homes with fair market value below $100,000 might not present a viable litigation objective when compared with $20,000-$40,000 in litigation costs.

On the other hand, for a home worth $250,000+ the prospect of converting all of that into equity makes good sense.

Who Owns Your Mortgage Note?

Have you ever asked who owns your mortgage note? A better question to ask is, “If I paid off my mortgage loan tomorrow, would I get clear and equitable title to my real property?” If your mortgage loan contract was converted into a mortgage backed security and sold to an investment trust on Wall Street you might not!

If you are thinking of applying for a loan modification, or refinancing through the Home Affordable Refinance Program (HARP), Home Affordable Modification Program (HAMP), or other program(s) under the Making Home Affordable (MHA) initiative there are a few things to consider.

First, remember that the entity who claims to own your mortgage loan is not automatically the same entity that may be servicing your mortgage loan. A loan servicer is a debt collections company that sends you mortgage statements, takes your payments each month, and if you have an escrow account, pays your homeowner’s insurance and property tax bills. But who really owns your mortgage loan?

If you want to find out here are a few things you can do:

Ask the servicer. Your loan servicer is legally obligated to tell you the name, address, and telephone number of the owner of your loan as shown in their records. It’s a good idea to ask them in writing officially with a “Qualified Written Request” via certified mail while keeping a log of your communications. The name of your servicer should be on your mortgage statement, but you can also use the MERS link below.
Original lender. Your loan may have never been sold, and still kept as a “portfolio loan” with the original lender. That’s the way loans used to be done!
Fannie Mae. In reality, many loans are sold to FNMA aka “Fannie Mae”. See Fannie Mae loan lookup tool.
Freddie Mac. Similar story with Federal Home Loan Mortgage Corporation (FHLMC) aka “Freddie Mac”. See Freddie Mac loan lookup tool.
Mortgage Electronic Registration Systems, Inc. (MERS) is a big online registry designed to replace the costly process of publicly recording mortgage ownership at the local government level with a private electronic version that allows the swapping of mortgages with no friction at all. MERS tracks both the servicing rights and ownership of mortgage loans in the United States, although the accuracy has been called into question. See MERS ServiceID lookup tool. You can also call them at 888-679-6377 FREE.
Search the Securities and Exchange Commission (SEC) for the alleged trust that claims they are the owner of your mortgage loan: https://fraudstoppers.org/how-to-search-the-sec-for-a-securitized-trust
Register for a Free Mortgage Fraud Analysis and Securitization Search. Complete our Mortgage Fraud Analysis form and we will conduct a free securitization check to see if your mortgage loan contract was converted into a mortgage backed security and who really owns your note. If your loan was securitized than you may have legal standing to sue your lender, or current loan servicer, for mortgage fraud and quiet title. Find out more by completing our Mortgage Fraud Analysis form or call us at 773-877-3655 and we will help you get the facts and evidence you need to get the legal remedy you deserve.

Cases like the Glaski v. Bank of America and Jesinoski v. Countrywide Home Loans may have provided hope for homeowners who were victims of mortgage and foreclosure fraud. But they did not strike at the heart of the real problem behind the securitization of millions of mortgage loans.

The Glaski decision states that if some entity wants to collect on a debt they must first legally own that debt. Furthermore, if that entity is claiming ownership by way of an Assignment, it must prove that Assignment is legally valid.

The Jesinoski case addressed a borrower’s right to rescind, or cancel, their mortgage loan contract under the Truth in Lending Act (TILA) by only providing written notice to the lender, without filing suit. A loan is rescinded at the time the rescission letter is mailed. If the lender wants to refute or fight the rescission they must file an action to do so, and they have limited time to do so.

If your mortgage was securitized (the practice of pooling mortgages and selling their related cash flows to third party investors as securities) then it was part of a table funded transaction. In a table funded transaction the borrower named on the note is NOT in debt to the lender (“Pretender Lender”) because they signed the note in the capacity of an Accommodation Party, or co-signer for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument!

The broker, or originator, of the loan is pretending to loan money to the alleged “Borrower“, but in reality they trick the alleged “Borrower” into co-signing on a note that is pledged as collateral on a warehouse line of credit with the funding bank.

It is illegal for banks to loan credit, they can only loan money!

But if the Pretender Lender is not the entity putting up the funds, then there is no underlining indebtedness between the alleged “Borrower” and the originator who is named on the note. And if there is no underlining indebtedness between the parties named on the note, then the mortgage (or deed of trust) vaporizes into nothingness, and is legally unenforceable as a matter of law.

If your mortgage loan contract was part of a table funded transaction and converted into a mortgage backed security that was sold to an investment vehicle, or trust, on Wall Street, then you may have legal standing to rescind your mortgage loan contract, and sue your “Pretender Lender” for Special Damages equal to triple the original amount of your note, plus clear and equitable title to your home!

Fraud Stoppers is part of a National Private Members Association that provides back office litigation support to law firms, foreclosure defense advocacy groups, and pro se litigants nationwide. Our Private Members Association can help you sue your lender for mortgage fraud, with or without an attorney.

Then after our free mortgage fraud analysis is done, we can scheduled a free potential cause of action consultation to discuss your loan and lawsuit in detail and help you get started filing your state and federal lawsuit for the remedy that the law entitles you to, and that you deserve!

You can save 60% to 70% in legal fees when you get your lawsuit started yourself, Pro Se, (without an attorney), and then bring in a local attorney to help you at trial, where you need them the most! This way you can get the best of both worlds: Save money in legal fees, and get the professional help you need at the same time!

FRAUD STOPPERS Private Members Association (PMA) has a PROVEN WAY to help you save time and money, and increase your odds of success, suing the banks for mortgage and foreclosure fraud.

Our primary focus is helping you get clear and marketable title to your property by arguing that the actions of the banks have made the security provisions of the mortgage/deed of trust unenforceable as a matter of law.

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