Who Has The Burden of Proof in a Foreclosure Case?
Who Has Legal Standing to Foreclose?
Look, if you are planning to sue someone and you accuse them of some wrong doing, you better have proof. The person doing the accusing (the Plaintiff) has the burden of proof. Before you can go to court, you must have some sort of grievance that you are seeking relief on; in other words you must have legal standing. For example, if you had a contract and the other person broke that contract causing you to suffer as a result of that breach. This is called a Cause of Action. In other words, “why are you suing this guy? What wrong did he do to you?” You must have a valid reason to bring your suit.
There are a number of different causes of action you can accuse the other party of. For example, breach of contract, fraud, tortious interference, etc. Another very special type of cause of action is called a Quiet Title Action. These types of “Actions” (an “Action” is just legal jargon for a civil action…or a civil suit) are done when there is a cloud of title issue that needs to be resolved. As a title owner, you have an obligation to defend your title against encroachments. For example, if I started to build a fence three feet into your land and you say nothing… then five years later, I sell my land, and change the legal description to include that extra three feet…and you say nothing, then that extra three feet is mine.
Let’s discuss the Deed of Trust and Mortgage to see how this all fits in.
The Deed of Trust or Mortgage:
The Deed of Trust is a special Trust that is created specifically so that you (the landlord) temporarily grant your title in trust to the new Trust to secure against the promissory note. When you create a Trust, you appoint a Trustee. You also give that Trustee the power to sell your property in the event of a default of the promissory note. This is the vehicle and mechanism your “lender” uses to foreclose and sell your house. The same goes with a Mortgage in a Judicial State, except there is no need for a Trustee.
In the event that there is a problem with the promissory note or deed of trust, then there is an issue called “cloud of title”. When a title is clouded, you will have a problem selling your house. Let me give you an example.
Let’s say the County places an imminent domain claim on a strip of land on your property to lay down some pipes. They then record this on your county records. But because of budget cuts, they decided not to lay the pipes, but forgot to give you your land back. 2 years later, you are trying to sell your house. It will be stopped because you are selling part of a land you don’t own (i.e. the strip for the un-laid pipes). In order to un-cloud the title, you will need to seek a Quiet Title Action.
As we discussed, your promissory note has been permanently converted into a stock. It has also been fully discharged. The language on your Deed of Trust says “This Deed of Trust secures a promissory note”, and if the promissory note is destroyed through permanent conversion, then the Deed of Trust secures nothing. This is just like the situation with the strip of land with the un-laid pipes. It’s lost property. It’s unclaimed land. As the Title owner, you have an obligation to defend your land and title.
This is why we need to do a Quiet Title Action to reclaim our land to resolve the controversy. In a Quiet Title Action, you basically issue a challenge to all parties wishing to lay a claim on our property to come forth and provide the proof of their claim(s).
However, remember the rule of court is the Plaintiff has the burden of proof. In the following parts, we will go into uncovering proof. If you haven’t done so, we recommend that you purchase a chain of title & securitization analysis because once you have real evidence that your mortgage contains fraud, legal violations, and or has been securitized you will have a much better chance at beating your foreclosure and saving your house.
Federal Rules of Evidence:
You can sue your lender in federal court and/or state court (this is called circuit court). Typically, the State Rules of Civil Procedure and State Rules of Evidence will govern state courts. However, since we don’t know which State you are in, and for the most part, these rules are pretty similar, we’re going to talk about the Federal Rules of Evidence governing the admissibility of photocopies. Specifically, we want to talk about Rule 1002 and Rule 1003. Please click on these and read up on them. These should be similar with your State Rules of Evidence. You should consult your own State’s Rules of Evidence to confirm.
Basically, what will happen is your “lender” will bring to court photocopies of the Deed of Trust and Promissory Note to claim their rights as proof of claim in your Quiet Title Action.
These are admissible, unless you learn to object!
The rules of evidence are simple. A photocopy is admissible unless it is unfair to admit the photocopy in lieu of the original. What you need to know is, under Uniform Commercial Code, your promissory note is a one of a kind negotiable instrument, just like a check. You cannot go down to a bank and cash a photocopy of a check. It has to be the real thing. Your promissory note contains the only legally binding chain of title. A photocopy made years ago does not contain the chain of title.
Basically, the argument is “sure, I signed a loan with you then, but we know you sold it. Can you prove that you still own it?”
Opposing Counsel will say, “But Your Honor, the plaintiff has the burden of proof. They are alleging that we sold the note. Where’s the proof?”
And that’s where most Pro Se Litigants get stuck!
If you do not have the proof (evidence) when you file your civil action, your case will be tossed out, and classified as “failure to state a claim”.
What typically happens when you file an action is opposing counsel (the dirty rotten lawyer working for the bank) will file a Motion to Dismiss. They ALWAYS DO IT; so expect it. In order to survive the Motion to Dismiss, you must have sufficient proof.
If you haven’t already purchased your copy of Jurisdictionary, do it now because you have no chance of winning your case if you don’t know the rules of the game. This is a mandatory resource if you’re serious about defeating your foreclosure and saving your house. I cannot stress how much you need this product!
Evidence of Movement:
The first and simplest evidence we can bring to court is called Evidence of Movement. In an Evidence of Movement situation, you closed with Bank A (let’s say Stearns Lending), who sells it to Countrywide (Bank B), who then got acquired by Bank of America (Bank C) ….who then securitizes the note into New York Mellons Bank Trust Series 12345.
So, the Deed of Trust names Bank A as the Beneficiary. But Bank C wants to foreclose. Bank C comes to the court with a Deed of Trust pointing at Bank A (Stearns Lending). Where is the Chain of Title on the Promissory Note that gives Bank C (BofA) the Right to enforce the note?
If you have a situation like this, you might not need to get a securitization audit, although getting one may make your case stronger and more likely to succeed.
Often times, Bank C would come to the Court claiming “Your Honor, we have reacquired the note and now have the right to foreclose.” If you encounter this situation, you must learn to object.
1) Show me the perfected chain of title. If you have sold it, then you lost your right to enforce.U.S. Code Title 12: Banks and Banking PART 226—TRUTH IN LENDING (REGULATION Z), a servicer does not have the rights of a lender if it has acquired the note for the purposes of administration.
2) Please stipulate for the record whether the note is part of a pooling and servicing agreement. Please stipulate whether the note has been securitized. Please stipulate who “New Your Big Bad Bankers Trust Series 12323 (of course yours will be different)” is, are they a REMIC?
3) If the loan has been securitized, did you reacquire the note as an unsecured debt in the secondary securities market? Are you acting in the capacity of a debt collector as governed under 15 U.S.C. §1692?
Remember, this is fraud at its greatest. Only the top echelon bankers know this scam. Even their Counsel does not know the scam that is being perpetrated here. He is just taking his client’s word at face value. He is hearing “we bought the note back” and accepts that the bank now has the right to foreclose. They don’t. Most homeowners who are confronted with this situation don’t know the scam either and run out of juice.
Do you see how we structure our arguments here? It was never “Show me the note”. We are attacking them on the “show me standing” and “show me that you are the real and beneficial party of interest who has the right to enforce the note”.
MERS is Mortgage Electronic Registration Systems it was created by banks in order to “streamline” the warehousing of loans and mortgage documents. Basically MERS is a front organization that was created to defraud homeowners and government agencies. It pretends to hold your note, but in fact holds nothing. Banks set up MERS in the 1990s to help speed the process of packaging loans into mortgage-backed bonds by easing the process of transferring mortgages from one party to another. But ever since the housing crash, MERS has been besieged by litigation from state attorneys general, local government officials and homeowners who have challenged the company’s authority to pursue foreclosure actions. Recently there have been many court decisions delivering death blows to MERS and their 70,000,000+ mortgages they claim to hold.
For example in MERS Is Dead: Can Be Sued For Fraud: WA Supreme Court we learn that the Washington State Supreme Court dealt a death blow to MERS: “The highest court in the state of Washington recently ruled that a company that has foreclosed on millions of mortgages nationwide can be sued for fraud, a decision that could cause a new round of trouble for the nation’s banks.
The ruling is one of the first to allow consumers to seek damages from Mortgage Electronic Registration Systems, a company set up by the nation’s major banks, if they can prove they were harmed.
Legal experts said last month’s decision from the Washington Supreme Court could become a precedent for courts in other states. The case also endorsed the view of other state courts that MERS does not have the legal authority to foreclose on a home.
“This is a body blow,” said consumer law attorney Ira Rheingold. “Ultimately the MERS business model cannot work and should not work and needs to be changed.”
A spokeswoman for MERS said the company is confident its role in the financial system will withstand legal challenges. The Washington Supreme Court held that MERS’ business practices had the “capacity to deceive” a substantial portion of the public because MERS claimed it was the beneficiary of the mortgage when it was not.
This finding means that in actions where a bank used MERS to foreclose, the consumer can sue it for fraud. If the foreclosure can be challenged, MERS’ involvement would make repossession more complicated.
On top of that, virtually any foreclosed homeowner in the state in the past 15 years who feels they have been harmed in some way could file a consumer fraud suit.
“This may be the beginning of a trend,” says Elizabeth Renuart, a professor at Albany Law School focusing on consumer credit law. The company’s history dates back to the 1990s, when banks began aggressively bundling home loans into mortgage-backed securities. The banks formed MERS to speed up the handling of all the paperwork associated with recording the filing of a deed and the subsequent inclusion of a mortgage in an entity that issues a mortgage-backed security. MERS allowed the banks to save time and money because it permitted lenders to bypass the process of filing paperwork with the local recorder of deeds every time a mortgage was sold.
Instead, banks put MERS’ name on the deed. And when they bought and sold mortgages, they just recorded the transfer of ownership of the note in the MERS system.
The MERS’ database was supposed to keep track of where those loans went. The company’s motto: “Process loans, not paperwork.”
But the foreclosure crisis revealed major flaws with the MERS database.
The plaintiffs in the Washington case, homeowners Kristin Bain and Kevin Selkowitz, argued that the problems with the MERS database made it difficult, if not impossible; to determine who really owned their loan. It’s an argument that has been raised in numerous other lawsuits challenging the ability of MERS to foreclose on a home.
“It’s going to be very easy for consumers to say they were harmed because it’s inherently misleading,” says Geoff Walsh, an attorney with the National Consumer Law Center. If consumers can’t identify who owns their loan, then they don’t know whom to negotiate with, and can’t even be certain of the legitimacy of the foreclosure.
In a statement, MERS spokeswoman Janis Smith noted that banks stopped using MERS’ name to foreclose last year. She added that the opinion will “create confusion” for homeowners in the state of Washington while the trial courts consider its effect on pending cases.
Meanwhile, MERS is attempting to remake itself. The company has a new chief executive and a new branding campaign. In Washington D.C. federal lawmakers have recognized the need to create a national mortgage-recording database that would track all U.S. mortgages. MERS is lobbying to build it.
The case is Bain (Kristin), et al. v. Mortg. Elec. Registration Sys. et al., Washington Supreme Court, No. 86206-1.” (Reuters).
This information about MERS is very important for you to understand, if you are going to successfully defend your points in court. For a list of some FACTS about MERS check out https://www.fraudstoppers.org/a-few-facts-about-mers and also pay attention to: MERS-and-Citibank-are-not-real-parties-CA.pdf
IF you would like to see if your loan is serviced by MERS, click here: https://www.mers-servicerid.org/sis/.
Or you can also purchase a professional Securitization Audit, a Robo-Signing Check, or a Forensic Audit from Fraud Stoppers.
Who is the Investor?
There is a good chance Fannie Mae or Freddie Mac owns your loan. If you can find your properties here, then you can present this as evidence that your servicer (so called “lender”) is not a real party of interest. This is critical evidence to bring forth in your civil action. You must include this as a claim in your suit.
To find out whether Fannie Mae owns your note, please come here.
Freddie Mac’s database is here.
IMPORTANT: DO THIS NOW. Research whether these guys own your note. If so, then you have a vital piece of evidence to present to the court.
Why is this so important? This is a US Supreme Court ruling that says the Deed of Trust is the peripheral, and the Promissory Note is the “Thing”. Imagine if you will, that the Deed of Trust is the tail, and the Promissory note is the dog. He who owns the dog controls the tail. He who controls the tail does not wag the dog.
Your lender will want to come in to lay claim on your title only showing ownership to the Deed of Trust without disclosing who the real and beneficial owner of the promissory note. This is admissible unless you know to object. If you quote this law when there is evidence of movement, then this will stop them in their tracks. Basically, it’s the same thing. ”Show me you have subject matter jurisdiction over this controversy”, “show your proof of claim and title”. He, who controls and owns the promissory note, controls the Deed of Trust.
Getting County Records:
Look, State Civil Code requires that every party of interest in your property must record their interest at County Records. So, any loan assignments must be recorded. Any notices must be recorded. To gather your evidence, you should head down to your local county recorder’s office and request for a complete printout of all recorded documents for your property from the date of subject loan. Go down and talk to your county recorder. They will usually be able to help you get the “title search dump”. You don’t need certified copies. Just the copies are fine, but it is a good idea to get all these documents handy so you can see what’s been recorded against your property.
What you are trying to find is instances where there is evidence of movement…i.e. the loan has been sold or securitized, but there was no corresponding evidence recorded at the County. So the next step is to go to the County Recorder’s Office for the DEED RECORDS and get a copy of every page of each document that is in the deed records of your home, since you got your last loan.
Print the Search Results, with your name as GRANTOR and GRANTEE, and your wife’s name as GRANTOR and GRANTEE, then search the property address, and print the search results.
Take your camera and take a picture of every page starting with the index or the cover page of your deed record file and save each picture by:
Yr-mo-day, YOUR LAST NAME, Name of Doc, Page of Doc:
[Example: 2013-07-04, Last Name, Original Deed of Trust received from ABC Brokers for Countrywide, 17 Pages]
You should end up with copies of your Original Warranty Deed, Deed of Trust (or Mortgage, as it is called in some states).
While looking at the Deed of Trust or Mortgage, click on the button or link for “RELATED DOCUMENTS” and print the search results, then get a copy of any “Assignments of Deed of Trust or Mortgage” and any “Releases of Liens”,” Appointments of Substitute Trustees”, “Trustee Deeds”, and Law Firm Letters, like Default or Acceleration Letters from Attorneys who are hired to collect the debts from you. Get a copy of everything in the file to the present date.
Calling a Title Company:
If you don’t want to do it yourself, then you can call a local Title company for a complete title research. A complete title research includes a report of all activities on your title from the date of sale. They will also print copies of these documents for you.
Writing a Foreclosure Timeline:
A timeline is a chronological structure and is frequently the way cases are presented to juries and judges of fact. Visual representations are important and they make it easy to share the details of you case with others. It sometimes becomes the underlying foundation for the flow of all information related to a case. Therefore, it is important that care be given in the creation of visual timelines. Here is a Sample Timeline.
The Chain of Title & Securitization Analysis:
For those of you who do not have clear evidence of movement, for example, you closed with Countrywide and the loan got acquired by Bank of America. Or your loan went through Chase and is now Chase is just a servicer, or GMAC (and GMAC is now servicing), then getting a Securitization Audit might be a way to go. Remember, as the Plaintiff, you have the burden of proof.
It will be like having a photo of a bank robber with a gun aimed at a teller. It’s them caught with their hands in the cookie jar…and it puts opposing counsel in a position of having to explain to the judge why he should not be sanctioned for bringing fraud before the court. Fraud Stoppers Foreclosure Defense System includes one of the most powerful Chain of Title & Securitization Analysis available today. Banks hate it because it’s preformed by licensed professionals and includes the admissible evidence that you need to save your house from foreclosure. Banks HATE these because it exposes their fraud.
In today’s world of securitized residential mortgages, a Secured Mortgage Loan consists of two parts: (A) the financial obligation (created by the Tangible Promissory Note) which operates in accordance with Federal and State Law, and (B) an enforceable contractual lien instrument (i.e. Tangible Security Instrument, Mortgage, Deed of Trust) intended to provide an alternate method of collection of payment to the Holder of the financial instrument in accordance with State Law. In reviewing the transfer and ownership history of a Secured Mortgage Loan, one must evaluate the negotiation of the financial instrument and consider the laws applicable to the Security Instrument upon said negotiation of the financial instrument.
Our Competent Evidence Package looks at the true sequential ownership of a Securitized Mortgage Loan Security Instrument as evidenced by the documents related to the client’s property filed with the County Recorder’s Office, and compares it to the claims of ownership made by the party attempting to foreclose. The Competent Evidence Package shows what steps SHOULD have been taken in the securitization process in order to become a proper party to enforce the mortgage contract, according to both statutory and case l aw. More importantly, the Competent Evidence Package shows what steps were ACTUALLY taken in the securitization process, and what steps were NOT taken, and the results of these actions/inactions on the Chain of Title as shown by the County Records.
Many times clients and their attorneys lack competent evidence. The term “competent evidence” is used to refer to evidence that is directly relevant and of such nature that it can be admitted into evidence in a court of law. For a client considering going into litigation, a prior assessment of the potential violations surrounding the Chain of Tit le of a Securitized Mortgage Loan is a much-needed tool for determining whether there is a valid basis for proceeding with a legal action.
The goal is to arm one’s self with indisputable evidence so they may clearly and accurately demonstrate that the claims made by the foreclosing party may be inaccurate and/or fraudulent. In addition to the written Chain of Title Analysis, our Investigators also create a customized infographic/flowchart/schematic to visually represent their findings regarding the path taken by the various parts of the client’s Mortgage Loan and the parties involved in the securitization process. This visual representation is invaluable in making the arguments indisputable and understandable to the clients, attorneys, and judges – A picture is truly worth a thousand words.
Now, let’s continue with a little role playing.
Opposing Counsel:”but Your Honor, the plaintiff has the burden of proof. They are alleging that we sold the note. Where’s the proof?”
You:”Your Honor, please see Exhibit C in our evidence as part of our initial complaint. On Page X, you will find our loan listed as a permanent fixture in an SEC filing for the New York Mellons Bank Trust Series 1232342 REMIC in which this loan has been securitized.”
Judge: “Counsel, what do you have to say to that?”
Opposing Counsel:”I don’t know about this you’re Honor; I was informed by my client that they bought back the loan.”
You: “Counsel, are you aware of FAS 140? Under the Financial Accounting Standard 140, it says that once a loan has been sold into a pooling and servicing agreement, the lender forever loses control of the asset.”
“Are you aware that this loan is a permanent fixture of the New York Mellons Bank Trust Series 1232342 REMIC?”
“Where is the Chain of Title that gives your client the right to enforce the promissory note?”
“Are you aware that the promissory note has been discharged in the REMIC as a bad debt and that the individual share holders have received tax credit for this loss?”
“Are you aware that once a debt has been discharged, it loses its ability to collect?”
“Are you aware that your client bought the note as a discharged debt and an unsecured instrument?”
“I motion the court to have Counsel stipulate that you know with firsthand knowledge that the note has not been discharged as a non-performing asset. “If he cannot, then say… “I move the court to sanction opposing counsel for bringing fraud before the court. Counsel misrepresents the facts in order to deceive the court.”
Keep in mind that the courts are absolutely corrupt and will try to rule against you at every opportunity. Therefore it is vital that you not only learn the rules of the game Jurisdictionary…but you must also learn how to land on them like a ton of bricks when they try to break the law and violate your legal rights!
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.