Pro Se Defendant Prevails

The purpose of TheForeclosureDetonator is to encourage people in foreclosure or facing foreclosure to defend against the action. I, of course always recommend that a person seek the advice of a qualified attorney and to retain their services to represent them.

The reality of our current economic situation is that many cannot afford the services of an attorney and don’t know that they can actually represent themselves in litigation as Pro Se. As a result, many just walk away from their homes believing that there is nothing they can do.

The lenders, servicers, trusts, trustees or who ever is the Plaintiff, along with their lawyers prey on this fact. They know most people cannot afford an attorney and further realize that most people – realizing that they are delinquent simply accept the fact and walk away.

msnbc_mikestuckey_thumbIn the article The home you save could be your own on MSNBC.com they describe one mans efforts and his performance at his hearing.

Attorney Neil Garfield of Arizona and a consumer activist crusading on behalf of those in foreclosure said,

“It’s better to be pro se than not to do anything at all,”

 “But it’s better to have a lawyer than be pro se. A lot of this stuff requires knowledge of motion practice, civil procedure, evidence, proof that the average person never had a reason to learn.”

Indeed, it is better to have a lawyer but if that is just not possible then Pro Se is the only other alternative.  There is a lot of information one can get on the internet and from certain legal aid organizations that can help teach and guide one through.  But the subject of the MSNBC.com story is that it can be done. 

“Representing yourself should really be a last resort,” agreed Halperin of the Center for Responsible Lending, a nonprofit organization with a mission of protecting U.S. homeowners  from unscrupulous (this author’s emphasis) lenders. While legal help for embattled homeowners is scarce, “There are resources out there,” he said. Many bar associations, for instance, match up clients with volunteer lawyers, and his group has formed the Institute for Foreclosure Assistance, which recently received a $15 million grant to provide legal aid to homeowners.

090127-louis-molina-vlg-9a_widecLuis Molina of Miami fought back and won.

Doing it himself
After he was served with foreclosure papers over the summer, Molina said he had “so many meetings with so many attorneys and not one of them knew what they were doing.” So the 41-year-old husband and father of an 8-year-old daughter who had been forced out of a publishingbusiness by the souring South Florida economy, started reading everything he could find online and elsewhere about foreclosure. He used Garfield’s Web site, self-help legal books and pleadings by foreclosure attorneys to fashion his own case.

The basis of defending a foreclosure is the legality by which they are being done.  Many – if not most – are illegal but if not defended by the homeowner the courts have no other choice but to grant the foreclosure. 

In a judicial foreclosure state such as Florida, a lender – and I use that term loosley – must initiate a court action and have a judge order the foreclosure.  When a homeowner is served with the initial action via a summons they typically have 20 days to respond to it and post their defense.  If they do not, then the case is uncontested and the judge has no other option but to grant a deficiency judgment ordering the foreclosure and sale of the property.

What makes many foreclosures illegal is that the Plaintiff, the party sueing you for foreclosure does not have “standing”.  This means that they do not have the right and authority to take this action against you.

In order to foreclosure you must have legal ownership of the mortgage note.  As a result of the securitization process, most notes were sold to a trust who them pooled thousands of loans then sold the pool in shares to investors around the world.

Due to the massive numbers of mortgages being originated and due to the enormous profits made by securitization many lenders did not do the proper paperwork, create and record the proper assignments of the notes or other evidence of the sale. 

By defending the foreclosure, you are asking the Plaintiff to “prove” their ownership therefore “their legal right – standing – to foreclose.  If they cannot prove their standing, which many cannot, the case very likely will be dismissed by the judge, ending for the time the action against you.

“To have standing in a foreclosure proceeding,a financial institution must (author’s emphasis) show that it possesses the note, and can document the chain of sales and assignments by which it was obtained. “

A story published in The National Law Journal references a Brooklyn< N.Y. judge, Arthur Schack as saying:

“I deny more foreclosures than I approve,” said Justice Arthur Schack of Kings County, N.Y., Supreme Court, in Brooklyn. “I want to see the servicing agent’s power of attorney, I want to see all the paperwork before I approve it. If the paperwork is garbage, I deny it. If you’re going to take away someone’s home, it should be done properly.”

In response to this article, I commented the following which NLJ published in their print edition.

 While two wrongs don’t make a right, the foreclosure process, representing the laws of our land should follow them.

The fraud and deception by attorneys is shameful.  They know better and they know the laws yet they still push these foreclosure actions through by the thousands. 

 

Two wrongs simply don’t make a right.  For more information on this and other topics please visit my other sites:

If we can’t trust the judicial system then who and what can we trust in this country.  The courts should be the place where justice is served for all the people in a just and legal manner.

The lenders, servicers, registrars (MERS), assignees, assignors, trustees or whoever the plaintiffs may be have all profited to the tune of millions and billions.  None of them have the real liability, they sold that to investors world wide who are the other victims here.

More people should fight their foreclosure actions.  It would do more to help the economy, maintain real estate values and the integrity of neighborhoods.

It is obviously for the money and the belief that the average person, already traumatized by the economic situation, will NOT DEFEND themselves.  They will simply pack and leave.

It is refreshing to see Judges such as the one mentioned here and others, recognizing the situation for what it is and dismissing cases.

Yes, those in default do owe the money but by committing fraud on the courts, the parties acting as plaintiffs are violating not only the law but the dignity of the courts.

Yes, many are in foreclosure for a variety of reasons.  In case we have not noticed, the economy is on a hard downward spiral.  The unemployment ranks are growing and many who had good solid jobs and income no longer do.

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