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Challenging the Lender’s Right to Sue for Foreclosure

By: Nick Adama

Many homeowners are becoming more aware of the defense to foreclosure that has come to be known as the “produce the note” strategy. This involves challenging the foreclosing lender or servicing company on its legal right to sue the borrowers in the first place. Essentially, if the bank can not prove that it owns the note and mortgage or deed of trust, it does not have the right to bring a foreclosure action against the homeowners.

However, not every challenge to produce the original loan documents has been successful, typically due to procedural errors or other easily correctable mistakes on the part of the borrowers. Homeowners should be aware of certain actions that have been taken in successful cases, so they have a better chance of having their own foreclosure thrown out of court for the bank’s inability to prove legal standing.

First, if the homeowners are being sued by the lender in a judicial foreclosure state, it is important to deny in the answer to the complaint that the plaintiffs own the note and mortgage in the first place. This real party in interest issue can be raised through an affirmative action claim or by filing a motion with the court. However, if the homeowners do not raise the issue, the court will assume the issue of standing is not debated.

It is also important for homeowners to do their homework in checking the local land records for the property being foreclosed on. If there are documents recorded with the county indicating a different chain of title than the one the bank is trying to show through the lawsuit, the discrepancies may be enough to have the case thrown out until the foreclosing company can show it owns the note.

Banks will often submit unsupported affidavits when it will be difficult or impossible to produce the original note. But these documents can be challenged by the homeowners in their answer to the lawsuit. Simply having an officer of the foreclosing company state that it owns the original paperwork is not sufficient if it can not produce the note upon the borrowers’ request.

Especially if there are other documents indicating another company may be attempting to collect on the mortgage, the issue of standing and who owns the original note become vital. If the court allows the lawsuit to move ahead without proof of standing, the borrowers may be in danger of being sued again by the correct party. Thus, it is important to keep and obtain any documents showing any other company’s interest in the debt.

Finally, homeowners can demand that the lender produce evidence to show how, when, and whether the original documents had been assigned to the foreclosing party. Courts will be likely to look on this type of request as reasonable, especially if there are other questions of which company owns the loan or if there is other evidence (such as documents filed with the county) showing an incomplete chain of title.

In light of all the securitization and chopping up of rights to mortgages, the produce the note strategy of challenging the bank’s right to bring a lawsuit against borrowers is becoming a more wide-spread defense to foreclosure. While it may not solve every homeowner’s mortgage problems, it can delay a foreclosure by a period of months or years while the lender attempts to locate the relevant paperwork, time that the owners can use to save up money for moving expenses or to get back on track with payments.

Author Resource:-> Nick publishes articles which gives homeowners the foreclosure advice and resources they need to save their homes by themselves and fight back against the bank. The site describes various options, including foreclosure refinancing, deed in lieu, loss mitigation, stopping a trustee auction, and more. Visit the site to read more about how you can avoid losing your house and repair your credit: http://www.foreclosurefish.com/

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A Hundred Thousand Homeowners – Voices of Hope & Change

The foreclosure  crisis MUST be stopped.  And it would have been months ago… if America’s homeowners had a VOICE in Washington…

Click here to view this effort as presented in Mandelman Matter in lender-implode.com

Yes, we need to be heard by everyone in Washington.  They have turned a deaf ear to us.  The;ly have forgotten who they really represent and therefore have forgotten about our Constitution.

This whole economic crisis was, I believe, a planned event from the very beginning.  A way for the noble few to strip this country and its people of their wealth. 

They plan – which I calll a criminal conspiracy – from the very beginning was meant to rob us. 

We need to fight these criminals and their illegal, unlawful foreclosures but we must also fight those in Washington who are supposed to represent us and protect us.  They do not.  They serve their own interests along with the interests those banksters who created this scheme.

This is a massive “criminal conspiracy” against the people of this nation. Our elected officials along with the not elected officials began to conspire against us when they evoked the Patriot Act – which took most of our freedoms and liberties away.  Then they took our homes, our jobs and our money. 

America, WAKE UP and see what is happening. 

More Evidence That Modifications Don’t Work…

Mortgage News Daily Reports:
HAMP Report: Few Loan Modifications Made Permanent

The Treasury Department released data Thursday on activity in its Making Home Affordable (HAMP) program during the month of November.  As expected from earlier comments made by Treasury officials, borrowers continued to enter the program under trial modifications, but the rate of permanent modifications remains well below expectations.

Cumulative figures for the program by the end of November show participating servicers had sent a total of 3,137,548 requests for financial information to borrowers thought eligible for the foreclosure prevention program and had extended 1,032,827 invitations to participate in a trial modification program, up from 920,000 in October. 

There are currently 728,408 borrowers actively participating in loan modifications, however, only 4.3 percent of those modifications, or 31,382, have been converted to permanent status. (emphasis added)

While these modification scamps continue so do the “illegal” foreclosure acitions being taken by the same servicers that participate in the HAMP program.  What we have is a scam feeding illegal activity seemingly sanctioned by our government.

The only avenue we have left to fight back is within our judicial system.  Some in that system – as reported here in the past – see the truth and are willing to uphold the laws in favor of justice not in favor of the criminal banks.

While not all judges around the country “get it” there is evolving enough court decisions to make precedence which can be used in the appeals process.  Oh yes, if you lose your court battle initially YOU CAN APPEAL the decision.

Appealing a court order decision for foreclosure summary judgment is not talked about very often but in fact should be.  We here at TFD will begin to do so.  Your fight is not over, it may just be the first round.  There is another round you are ENTITLED to.  For more information on appeals contact an attorney which is always your best avenue for defense.  For those that cannot afford it there is information available in Law Libraries contained in most court houses and of course the web.

Loan Mods Don’t Work

There are many people out there that believe wht the banks are telling them about Loan Modifications.  People want to believe the banks are “working” for them but the stark reality is they are not.

If you are being told you can modify your loan – you are being lied to.  The banks make more money by foreclosing on you then on working with you.  Nothing personal here, just business!  But while you are being told by some sweet talking “collection agent” who tells you they are “the bank”, the foreclosure process continues.

Here is a report published in the Huffington Post, Obama’s Loan Modificaton Plan ‘Destined To Fail’” Amherst Securities (Transcript)

In Congressional testimony today, a mortgage market expert offered scathing criticism of the Obama administration’s plan to help distressed homeowners, arguing that the plan is “destined to fail.”

Read the full article…click here

Remember:  Most actions of foreclosure by “the bank” are not legal.  The foreclosing party does not have the legal right to foreclose and in most cases do not own the note as they claim and as is required. 

Judge Skinner of New York, invalidated a mortgage giving the homeowner their home “free and clear”.  The basis of his decision was that the borrowers were getting an unjust runaround by the bank.  In addition he found evidence of fraud in the banks claims and testimony.

Fight your foreclosure.

Another Judge Gets It…Cancels A Mortgage

Judge Angry at Bank Cancels Couple’s $525G Mortgage as repjorted by Fox News.

A Long Island couple is home free after an outraged judge gave them an amazing Thanksgiving present – canceling their debt to ruthless bankers trying to toss them out on the street.

Suffolk Judge Jeffrey Spinner wiped out $525,000 in mortgage payments demanded by a California bank, blasting its “harsh, repugnant, shocking and repulsive” acts, the New York Post reported.

One judge at a time, one case at a time, the truth behind banks actions are coming to the forefront. 

There is no question that the banks have been working against people for their own gain most often acting illegally.  What banks are doing are “crimes against the people” and the courts need to begin taking action against them as this judge in Suffolk County, New York did.

TheForeclosureDetonator has brought you other stories of judges around the country “who get it” and rule accordingly.  Among them are Judge Boyko, a federal judge in Ohio who denied 17 foreclosure actions all in one day against one bank.  Judge Shack, a Superior Court Judge in New York has ruled against banks and for the homeowner in many foreclosure cases along with a host of others around the country.  We must congratulate these judges for upholding the law which banks so openly violate.

This nation is in the worst economic crisis, some say second only to the Great Depression, I say greater then the Great Depression.  The banks were at fault for causing the Great Depression and they are at fault for this one.  Only this time the banks went off with total reckless abandon and a plan to enrich themselves.  During the Great Depression many banks failed with no profitable bailout from the government.  This time they somehow conviced the government that they were “too big to fail” and that we, the people who they have destroyed need to rescue them while putting ouorselves into more dire circumstances.

It is just wrong, legallyl and morally that the banks that caused this problem for all of us get bailed out by all of us.  They thrive as a result producing bigger profits and giving themselves bigger bonuses then ever before.  Still, they continue to rape and pillage those responsible for their current enrichment.

This is not the first time that Judge Jeffrey Spinner ruled against a foreclosing bank and in favor of the homeowner but it is the first time he cancelled a mortgage.  You see, he is angry and sees the lies and deceipt – the fraud on the court – being excersized by these banks.

We congratulate Judge Spinner for this and all of his actions for serving the people as he is pledged to do when sworn in.  We congratulate all the judges around the country who uphold the laws of their states and the laws of the land.

I have always said:
The law is the law for everyone
Two wrongs don’t make a right.

We are at war.  A bloodless war with no weapons.  A war for regaining our rights, freedoms and pursuit of justice and liberty.  This war with the banks who are trying to gain control of our economy and each of our economic lives.  We cannot let them win as they are doing now.  We must fight back, FIGHT EACH AND EVERY FORECLOSURE ACTION and let the banks know, we are not going to take it any more.  We cannot – for the sake of our country and for the future of our children allow this to happen.

Let us know if you need help finding resources to fight back.  We will be more then happy to direct you to other sites and people who can help.  There are numerous resources and lawyers who are capable and offer good advice.

If you think you can’t afford to fight back by hiring legal counsel you can always fight back PRO SE -represennting yourself.  Yes, you can represent yourself in court against any action and resources are available to show you how. 

Don’t let the banks win for if they do our country and the opportunities we have had here will no longer be available to future generations.

Remember the words of Meyer Rothschild, the creator of the Central Banking system whose family and business associates still have immense power:

“Let me control the money of a nation and I care not who makes its laws”

Control the money and the economy and you control the governemt.  Is that no what is happening.  (For more on this topic visit our sister site www.GoldmanSachs666.com)

Read the full story on Judge Spinner’s ruling…click here

Fighting Back…Is The Answer

It is important to fight your foreclosure, it can bring results.  This is a fight against a fraudulent system.  A banking system that commits fraud in most every case they file and the courts are beginning to pay attention.

Unfortunately, judges are human.  They know the law but are not schooled in the mortgage and banking system.  To them, when a bank says I own the note and mortgage the judge believes it.  You see, once upon a time, long, long ago, the banks and S&L’s that made you a loan did own it.  But with the U.S. Government of Fannie Mae and Freddie Mac that all changed.  These two Government Supervised Enterprises (GSE) began to “securitize” loans and sell these pooled packages on Wall Street.

Wall Street did not create the concept; they were on the “selling” part of it since the creation of GSE’s.  Wall Street just took the concept a step further to the brink of the abyss.  With trillions flowing they allowed it to go over the edge for all the while they were raking in trillions of dollars and still are.

The game was fast and furious and proper paperwork, documentation, legal procedures and good business practice all fell by the wayside.  Now they want to fraudulently recreate all that was missing or simply try to gloss over it in courts throughout the country.

Judges tend to believe that other lawyers (their brethren) and institutions as great and large as our banks would never lie in court.  On the surface it sounds right.  They made the loan and you are default on the loan.  Case closed.

Uh, uh! Case open not closed if you fight back.  The information is out there and has been publicized everywhere.  The article below from Michigan is yet another example of how homes were taken illegally but when the people fought back the people won.

The cases in Massachusetts and Kansas as well as many in New York all begin to show that when the people fight back and insist on the law being ruled on correctly, the people win.

Judges are beginning to get it.  It is up to us to keep them on their game and end the game of those banks who are committing fraud in our courts and against the American people.

Class action suits are an answer.  I have an idea that I will publish in a future post.  In the meantime, read the article below and FIGHT BACK.

Fight against foreclosures gaining momentum…click title to read full

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Michigan, Kansas, Massachusetts cases set precedents

By Diane Bukowski
Michigan Citizen

DETROIT — Over 40 Wayne County homeowners have filed a $10 million class action lawsuit that could invalidate tens of thousands of mortgage foreclosure sales executed while Warren Evans was Sheriff

Foreclsoure News and Links

These are some links to news stories around the country today.  I would love to comment on each of them but that would create a very long post.  So, as I do in another site I publish, I post daily links.  Time permitting, I will do so here as well.

Here are the links:

ABC News.com Walk Away: Why More People Should Abandon Their Homes

TFD:  This article talks about the logic to going into foreclosure as told by Professors at Universities.  In times like this there should be no fear or shame in doing so.  It is logical.  Further more, little has been done by the banks to help us and they don’t lose.  In fact, they gain.  The banks have all been paid on most of the mortgages they made by selling them to Wall Street.

Bank Foreclosure Cases Overwhelm Legal System
TFD:  Perhaps if the legal system followed the law and threw out cases where Plaintiff’s had no standing or cases that exhibited unquestionalbe fraud and perjury then they might not be so overwhelmed.  These are courts of “equity” – but whose equity are they protecting by acting illegally?

Legal Aid Seldom Used In Foreclosure Cases
TFD:  Many people don’t know where to go for legal help.  This may help you.  One of the best known Foreclsoure Defense Attorney’s in the country is April Charney, a legal aid lawyer from Jacksonville, FL.

Felix Salmon on HOW TO SLOW DOWN FORECLSOURES
The Philadelphia program forces an outcome by bringing together all the principals in one room. If the mortgage company proves intractable, the homeowner has the right to request mediation in front of a volunteer lawyer serving as a provisional judge, who relays recommendations to the program’s supervising judge. If the judge finds that the mortgage company is not acting in good faith, she can hold the house in limbo by denying permission for a sheriff’s sale.

Motion For Sanction Of Dismissal With Prejudice

This motion has not been verified.  Anyone with access to Palm Beach County Circuit Court can certainly go and do so. 

That being said, the Motion detailing the Interrogatories and the Deposition of an IndyMac employee can be believed.  There is no question that falsifying documents, pleadings, discovery, assignments and more is a very common occurrence.  It is just this type of action in collusion with the foreclosure mill attorneys that prompts my favorite saying, “The Law Is The Law For Everyone”.

These are – too say the least – criminal actions.  Lying under oath is a crime and answering interrogatories and depositions is done “under oath”.

Judges across the nation must sit up and take notice.  Yours, your Honor, is to uphold the law not allow it to be abused. 

As this Motiion is rather long, I will cut short my comments here and allow you to read the Motion (29 pages).  This is good information.

Thank you to the reader that sent us this information.

Read the entire Motion…click here

NY Judge Gets It

This link to Livinglies by Neil Garfield is a must read.  It needs no further commentary from me.

Editor’s Note: For those who are dubious about the legal positions and theories suggested in this blog, this case will be at least somewhat instructive. It is not just a technicality. It is reality. Nobody on the lender’s side can actually trace your note and mortgage to the real party in interest or anyone with actual personal knowledge of the assignments or the effect of those assignments.

This goes directly to the the issue of denying that payment was not made and the affirmative defense that the entire mortgage was prepaid by a third party who does not have any security rights in the property, was not disclosed to the borrower, and who possesses other assignments and cross guarantees through which payments were made, part of which was attributable to the revenue that was assigned.

Read the Full Ruling…click here

The Game: Taking Away People’s Homes

We have experienced the greates transfer of wealth in the history of this nation and perhaps the world.  the biggest game of Monopoly ever except the banks get to keep “the get out of jail card free” for the entire game.

We were like kids in a candy store who were told “you can have whatever you want”.  We did!  As the old but relatively recent Chase Credit Card ads said, “i want it all and I want it now”.  The ad was for you to use your credit card to buy something you really didn’t need and really could not afford.

So too with homes.  The banks lured us into believing we could buy homes we could not afford.  They created – let me say again – THEY CREATED – the programs making it possible for us to qualify.  They approved – let me say again – they apporved our loans and funded them.  I, as a mortgage broker wondered why they were doing this.  I know and “they” knew that many of these loans would go bad.  (Note:  We never made loans beyond what people could really afford).

In court encounters, Goldman and other Wall Street firms have faced the impact of their own wheeling and dealing. Many of the families being put on the street never would’ve gotten their big mortgages if investment banks hadn’t provided a seemingly insatiable secondary market for millions of loans to marginally qualified buyers. ….(from McClatchy in article linked below)

What I didn’t know is that they had a grander plan.  Not only were they making billions selling our mortgage notes to unwary investors around the globe – using fraudulent AAA ratings – but as it turns out and is being proven, they are making more billions by “stealing” our homes. 

The banks crashed the economy and brought us to the brink of a Greater Depression all the while raking in as much cash as they could (transferring wealth).  Now, that there is little or no cash available the only other thing that is left is assets – mainly homes and other real estate. 

This was a plan executed with the full knowledge of our government who deregulated and turned the other way even when there was regulation.

Then the banks that made billions claimed they were broke.  No one ever asked them what happened to all those billions they made.  But of course, they all have overseas operations and I bet those bank accounts are pretty fat. 

As we all know, there is no real effort on the part of any bank to modify or work out a loan.  Their only purpose is to foreclose using any means – legal or illegal – to do so.

Here is just one more example of what is going on.  In an article published n McClatchy titled, “Goldman takes on new role: taking away people’s homes” evidence is presented to subtantiate teh title.

The couple alleges that Goldman declined for three years to confirm their suspicions that it had bought their mortgages from a subprime lender,

When a mortgage is sold the homewoner – borrower – must be notified.  Goldman obviously violated this requirement.

…even after they wrote to Goldman’s then-Chief Executive Henry Paulson — later U.S. Treasury secretary — in 2003.

What did then CEO Paulson know about the plan that he so readily and shadily executed as Treasury Secretary?

Unable to identify a lender, the couple could neither capitalize on a mortgage hardship provision that would allow them to defer some payments, nor on a state law enabling them to offset their debt against separate, investment-related claims against Goldman.

It seems to me their rights were violated as our rights are being violated today in most foreclosures.

Read the full story…click here

Today, banks are saying they are buying mortgage notes but never seem to say from whom and provide a paper trail – chain of title.

Let me tell you a quick story of a friend who is in foreclosure.  The Plaintiff is Chase Home Loans, LLC, self acknowledged to be “the servicing company”.

In their initial complaint (foreclosure filing) they included a copy of the mortgage obviously obtained from public records and a copy of the mortgage note.  In their initial filing with the court, they included a “Lost Note Affidavit” asking the court to allow them to re establish the note they claimed to have had possession and ownership of.  They claimed the note was “lost, stolen or destroyed”. (As one judge in NY said to a banks attorney’s, “was it lost, was it stolen or was it destroyed?  You should know which one it was as it could not be all of them”)

Then when the Defendant, Pro Se,  filed his Motion To Dismiss for lack of standing, Chase Home Loans, LLC filed a Motion that included another copy of the mortgage note but this time the copy had an endorsement in blank on it.  They claimed that having the note with a blank endorsement in effect gave them the right to foreclosure.

BUT WAIT A MINUTE HERE! They said they did not have the note because it was “lost, stolen or destroyed”.  So where did this one come from and how did it get the endorsement on it that the copy filed with the court originally DID NOT HAVE?  Could this possibly be Fraud on the Court?

Now it gets even better.  The Defendant received a letter from Chase Home Loan, LLC (as did another person I know) saying that Chase Home Loan, LLC purchased their mortgage note and now was the owner and holder and had the standing to foreclosure.

Hold on just a minute there Mr. Chase.  You initially said that you had and owned the note but couldn’t find it.  Then you produced the note with a blank endorsement on it saying it was like a bearer bond so you now had th rights to it.  Now you say you just bought it! 

Why would you buy something you already owned and had evidently mysteriously found?  The other question is why would you buy a mortgage note that was in foreclosure on a property you know is not worth what is owed on it?  And lastly, who did you buy it from and can you produce a bill of sale or some documentation that must exist for a purchase of a note?

If this doesn’t smell and look like fraud then George Washington’s white horse was not really white.

Let’s paraphrase all this:

You had the note but lost the note then the note was stolen and was also destroyed.

You found the note – a different copy of the note so you must have found the note that was destroyed.

Then you bought the note when you had the note that was lost, stolen or destroyed.

Now you have the note which you had before with new endorsement stamps on it that got there by the theives that stole it from you to begin with who just steal the notes to stamp the notes that were lost or stolen.

Too add insult to injury in Chase the servicing company as Plaintiff’s last filing – an affidavit of fees – they again admit in this document that they are “the servicing company”.  But if you bought the note would you not then state you were also the owner?

Banks are stealing our properties.  In another post we will discuss how the banks are taking the properties at the auction sales, paying no money for them getting the properties back with zero dollars.  Remember, that the bank that made you the loan DID SELL THE LOAN as a security to investors.  They got paid back for the money you borrowed – IN FULL plus.

Let me know if you are facing foreclosure against Chase Home Loans, LLC.

Editors Note:  This is not meant to be legal advice or opinion.  You should seek the advice and opinion of a licensed attorney.