Category Archives: foreclosure solutions

An Attorney Answers … Who is holder of a note

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One of our readers – who  appears to be an Ohio attorney  well versed in foreclosure defense – offered a comment to which I replied and to which he again replied giving a more detailed explanation of  who is considered to be the holder of a promissory note therefore having the Standing to foreclose.

I feel this information is important enough to reprint these comments.  The information is important to all those who are facing and/or currently fighting foreclosure.

As this attorney states, it is always recommended that you seek the counsel of a qualified  – I stress qualified – foreclosure defense attorney.  While I understand that many of you facing foreclosure believe you cannot afford an attorney, I assure you that there are some out there whose fees are reasonable and affordable.

You will not often hear me say this, but if you are in foreclosure then you are not making mortgage payments or paying rent.  If you are evicted from your current home you will have to pay rent somewhere so use your diverted funds to fight for your rights and defend your foreclosure.

And to the many who have been so wiped out that eviction would mean absolute homelessness I encourage you to also look for an attorney who can help.  There are some out there that are willing to work Pro Bono (without fees). At the very least  represent yourself  Pro Se.  Learn what you can from blogs like this and the several others that are credible and offer sound advice and information.  Just answering your summons (in a judicial state) will buy you more time and time is what everyone needs.

Here now the comment conversation from the post Financial Turmoil Evokes Comparison to 2008 Crisis – NYTimes.com as posted on August 11, 2011:

On August 17, 2011 at 10:34 AM Ohio lawyer said: 

I disagree about ownership of the note being the only issue. Under the UCC, to be entitled to enforce the note, a person MUST be in possession of it (except when they can claim the note was lost, destroyed, etc.). In fact, a person in possession of a note endorsed in blank, even if they stole it, may enforce the note. Ownership is not necessary. Likewise, a person who “owns” the note may not enforce it unless they are also in possession of it. I was not sold on the “show-me-the-note” defense for a long time. But after briefing the issue several times in Ohio, I accepted its importance. Without actual possession of the note, a lender cannot prevail. I agree that standing is a major issue, but “ownership” is not the proper way of thinking about it.

  • On August 21, 2011 at 3:31 PM Larry Rubinoff said: |Edit This

    Thank you for your take on this very important subject. Since standing is a major issue and “”ownership” is not the proper way of thinking about it”, then what is the way to think about it.

    Possessing the note, as you say, endorsed in blank, gives the holder the right to foreclose. I was always under the impression that a mortgage note endorsed in blank is not like a bearer bond where anyone in possession of it can execute it. In other words, mortgage notes are not bearer bonds. What is your take on this?

    Of course, if a mortgage note is held by someone but has never been endorsed in blank then it is your argument that now the bearer does not have standing. If this is what you are saying, I must agree.

    On the issue of lost, stolen or destroyed, banks often use this as an argument and basically are using a “trust me your honor, I did have it at one time but it was lost, stolen or destroyed, therefore I should have the right to proceed with the foreclosure action”.

    Too many judges simply accept this from a bank because they are “the bank” and of course, banks don’t lie. Only one judge questioned this in the past asking the plaintiff which occurred.

    Was the note lost, stolen or destroyed? It could not have been all three and if you don’t know which it was then you probably did not have it. I believe it was now Supreme Court Judge Schack in New York who questioned and disallowed this argument.

    DISCLAIMER: i am not an attorney and my comments do not reflect legal advice in any way. My comments come purley from my research and experience in these matters.

    I do, very much, welcome comments from attorneys like the one I am responding to for their legal opinions. More dialogue like this can be of great assistance to our readers and the millions facing foreclosure.

    If you are an attorney and would like to publish your views and opinions here at TheForeclosureDetonator please contact me at lrubinoff@theforeclosuredetonator.org.

    • On August 21, 2011 at 10:50 PM Ohio Lawyer said: |Edit This

      The question is whether someone is a “person entitled to enforce” the note. This status is defined by the Uniform Commercial Code. Below are the relevant provisions of the U.C.C. as adopted in Ohio:
      UCC 3-301
      (A) “Person entitled to enforce” an instrument means any of the following persons:
      (1) The holder of the instrument;
      (2) A nonholder in possession of the instrument who has the rights of a holder;
      (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 1303.38 or division (D) of section 1303.58 of the Revised Code.
      (B) A person may be a “person entitled to enforce” the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
      A “holder” is defined in U.C.C. 3-301
      (T)(1) “Holder” with respect to a negotiable instrument means either of the following:
      (a) If the instrument is payable to bearer, a person who is in possession of the instrument;
      (b) If the instrument is payable to an identified person, the identified person when in possession of the instrument.

      These two provisions have to be read together to get the complete picture. Let’s go through each type of person listed in U.C.C. 3-301.

      1. Holder – is someone in possession of an instrument which is either payable to that person (i.e. initially made payable to that person, or payable to that person via a special endorsement) or payable to bearer (e.g. endorsed in blank). This person need not be be the “owner” of the instrument, and may be in wrongful possession of it. Under this provision a thief could be a person entitled to enforce the note. All he needs is possession of a note endorsed in blank.

      2. Non-holder with rights of a holder – To qualify under this provision a person must: (1) be in possession of the note, but it need not be order or bearer paper; and (2) the person must have been given the rights of a holder. How does someone get the rights of a holder without being a holder? A holder transfers possession to the person and also grants to that person rights through a separate document, but doesn’t get around to negotiating the note. For example, Bank A sells a group of notes to Bank B. The notes are physically transferred to Bank B, but are not endorsed. Bank A also executes a bill of sale acknowledging that it sold the notes to Bank B. Think of it as possession plus ownership without endorsement.

      3. Someone not in possession under certain circumstances: There are two possibilities here. The first in the “lost, stolen, or destroyed” note. We see that often in foreclosure cases. The bank has to submit evidence to the Court to prove it can enforce the lost note. The other circumstance is almost never seen so I won’t go into it.

      That’s it. Only three classes of people can sue on a promissory note. Aside from “lost note” cases, possession is required. After that you need either negotiation (payable to order or an endorsement in blank) or some other evidence that you are intended by the last holder to be the person to enforce the note.

      This framework addresses commercial paper in general. That said, there may be other restrictions on transfers of certain types of mortgage notes. For instance, an FHA note cannot be sold to just anybody. They can only be transferred to other FHA-approved lenders. Some have suggested that such FHA or VA regulations renders notes issued under their programs to be something other than negotiable instruments. I do not know much about those arguments, but want to caution people that generalities are just that – general. Every situation is different and must be evaluated on its own facts.

      I can’t emphasize that last point enough. It’s all well and good for people to know the law, but too many borrowers try to go it alone. Law is not viewed in a vacuum; it is applied to fact. Most of the time the fact is harder to come by than the law. I urge borrowers to find counsel to help them. Doing it yourself almost never turns out well.

      I agree, Judge Schack drew attention to these issues by asking the simple questions and demanding some proof. Now, judges everywhere are more likely to listen to a borrower who challenges broad assertions of standing. Currently, this issue is pending before the Ohio Supreme Court and will likely be decided late this year. You can see the briefing on the issues on the Court’s website. The case name is U.S. Bank v. Antoine Duvall, Case No. 2011-0218.

Thank you Ohio Lawyer for taking your valuable time to offer these comments and help educate our readers.

To all attorneys:  Feel free to send your information for publication to me at lurubinoff@TheForeclosureDetonator.org.  You can remain Anonymous, use a screen name or if you wish have your name, address and phone number published.  If you choose to use only your name or screen name, please let us know what state you are in or what state(s) you practice in.

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It Begins: The Foreclosure Fight Tide Is Turning In Our Favor

Yes, for all these years, those of us who have been blogging to expose the wrongs and injustices placed upon us by the banks are finally seeing some daylight.  In the beginning no one really believed that banks could be so ruthless or so criminal.  In the beginning no one could believe that the attorneys representing these criminal enterprises would be capable of violating the very laws they are sworn to uphold by performing criminal acts themselves.

In the beginning no one could believe that judges would disregard the laws so blatantly that they are sworn to uphold – but they did and they are.  In the beginning no one could believe that our legislatures – county, state and federal – could be complicit of an entire legal system gone wild by supporting these criminal activities.

Now their Rocket Dockets are in jeopardy and hopefully will be shut down altogether.  Those retired judges brought back to dispense “injustice” under a mandate of clearing dockets will hopefully be sent back into retirement where they belong.

Now that this fraud at the end of the process has come to light, I am hopeful that all of the other frauds committed by the banks, lenders, Wall Street securitizers and all of their respective attorneys will also finally be prosecuted.

A lot must be said for those few in the legal profession – lawyers and judges alike who have over the past three years stood up for our rights,  for the law of the land and for justice.  They are too numerous to mention and I really don’t know who they all are.  Allow me to recognize just a few who are representative of the many across this nation who have fought back the giants and have not been afraid to speak the truth when representing their clients in our courts.

Bruce Harlan, Esq.

Mathew Weidner, Esq

Jeffrey Barnes, Esq

April Charney, Esq  0 The Dean of Foreclosure Defense

Neil Garfield, Esq 0 The Dean of Legal Reference on the topic of Foreclosure Defense in his LivingLies Blog

Federal Judge Boyco of Ohio

Superior Court Judge Shack of New York

Again I recognize that there are many more but these are the ones I am personally familiar with and they do represent a true blue slate of legal professionals around the country who still believe that this is still America and our Constitution still governs us.

Now how the State of Ohio is taking a proactive stand and fighting back.  They, I believe, are just the first of what I hope will be 49 more states along with our Federal Government who will begin to take real and meaningful action against the criminals who have functioned all to long under a protective cloud of criminal exception.  To these banksters I say;  “Your time has come.  Anything you say Will be used against you in a court of law.  Your “Get Out Of Jail Free Card” has expired.  You will be held accountable for all the misery and havoc you rained over the entire planet.

Here now the latest story from the Huffington Post

Ohio Attorney General Sues Ally financial Over Alleged Foreclsoure Fraud, First In A Possible Wave Of Lawsuits

WASHINGTON — Ohio’s attorney general is suing Ally Financial Inc. and its GMAC Mortgage division, alleging the company violated state fraud laws in handling foreclosure cases.

The action could be the first in a wave of lawsuits by state regulators over what appear to be widespread problems in documents used by the nation’s largest mortgage lenders.

Attorney General Richard Cordray said Wednesday the alleged fraud could involve hundreds of foreclosures in the state. The lawsuit claims the company’s employees signed and filed false affidavits to mislead courts. Cordray called the alleged fraud the “tip of an iceberg of industrywide abuse of the foreclosure process.”

A message left at Ally was not immediately returned.

Read the complete story…click here

Editor’s Note:

For those of you who know of other attorneys or judges that should be recognized for their efforts in the fight for justice against the banks by defending the nations people from wrongful and illegal foreclosure leave their name and location (city, state) in the comment section or email the info to me at:

lrubinoff@TheForeclosureDetonator.org.

I will start a page here on this site listing them all.  They deserve the recognition.

Also, other foreclosure defense blogs that have worked so tirelessly the past few years attempting to alert people to the fraud and injustice need also be recognized.  If you have a favorite foreclosure defense blog, send me their name and URL.  I will publish all of them on our side bar.

This is the beginning and all of our efforts are going to begin to pay off.  But most important, stopping this terrible tsunami of foreclosures, helping people stay in their homes is the most rewarding benefit of all this.

My one other hope is that this same awareness of foreclosure fraud will take hold in all of the Non Judicial states.  The same illegal activity exists there and the same injustice needs to be stopped.  This criminal enterprise by the banks MUST BE STOPPED.

I know I will stay with this effort until it is.  I will join forces with others as the opportunities arise.  There is strength in numbers.  We have all been duped, stripped of our wealth and our homes.  It is time we took back what was taken from us.

One Final Thought:

Stopping foreclosures and ending evictions – keeping people in their “homes” will begin to stabilized our housing markets and  our economy.  Working with people will win back the hearts and minds of our population.  An effort we seem to want to export in the Middle East but don’t want to practice here at home.

An occupied house is a well maintained house.  It creates a well maintained and more stable neighborhood which in turn stabilizes prices which begins to take us on a road to recovery which all the trillions of dollars of bailouts and stimulus programs did not and cannot accomplish and never will.

Our work has just begun.

Look at all the main stream media  (below) who have now begun to report on this .  Many of them have avoided the topic up until now.  The tide has begun to turn.

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A Judge’s Possible Conflict of Interest Ruling On An Important Foreclosure Issue

The question of illegal foreclosure by banks is a national issue but one that gets little attention in our courts.  One lawyer in Utah took on Bank of America and got a court ruling stopping BofA from continuing any foreclosures.  the Circuit Court ruled in Barlow’s favor and issued an injunction against BofA stopping their ability to foreclose in the state

BofA appealed in Federal court where Federal Judge Waddoups ruled in favor of BofA overturning the lower courts injunction.  However, ABC 4 in Salt Lake City, Utah began investigating the judge and found that he was previously with a law firm that represents Bank of America.  The judge, in fact, is still receiving a pension from that firm.

What I find interesting and encouraging is that Attorney John Christian Barlow, another lawyer that “gets it” had enough conviction to take on one of the Too Big’s.  His basis, which could be a basis in many other states, not only for BofA but for other banks as well, could lead to a halt of foreclosures.  The basis he argued was that Bank of America was not a registered business or corporation in the state therefore could not do business of any kind which includes taking legal actions such as foreclosure.

The practice of illegal foreclosures must stop.  This is just one more issue that needs to be addressed and upheld by “the law” not by a judge’s personal opinion.

We can’t print or publish the contents of this story from a Utah TV station but this is a link worth reading.

Conflict of Interest? ABC 4 investigates judges’ ties to Bank of America…click here

More Links To View:

Judge James L. Shumate Orders Halt to Bank of America Foreclosures in Utah From KCSG TV

Judge Shumate

Judge James L. Shumate

slideshow (St. George, UT) June 5, 2010 – A court order issued by Fifth District Court Judge James L. Shumate May 22, 2010 in St. George, Utah has stopped all foreclosure proceedings in the State of Utah by Bank of America Corporation; ReconTrust

Company, N.A; Home Loans Serving, LP; Bank of America, FSB;

Judge James L. Shumate:  Another judge that gets it and is not afraid to say so.

***

Judge temporarily halts Bank of America’s foreclosures in Utah

Thu, 2010-06-10 10:30 — NationalMortgag…Utah Judge James L. Shumante has issued a court order to cease all foreclosure proceedings by Bank of America, ReconTrust Company, Bank of America Corporation and Home Loans Servicing LP. The lawsuit, filed by John Christian Barlow of St. George, Utah-based Envision Law Firm, claims that Bank of America is not in compliance with Utah Code 57-1-21(1)(a)(i) because Bank of America does not have offices in the state of Utah, therefore preventing borrowers from meeting face-to-face with their lenders to come to foreclosure resolutions.

“The defendant is not registered with the Utah Division of Corporations, and therefore, may not transact business in the state of Utah,” said Judge Shumante.  Read More...click here

***

Amended Preliminary Injunction Order…click here

Application For Preliminary Injunction and Request For Hearing…click here

Attorney John Christian Barlow, Web Siteclick here

***

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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

h

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

L. Fitzgerald, A Pro Se Defendant…in his own words

L. Fitzgerald is fighting his foreclosure on his own.  He left this most recent comment here and I thought it important enough to reprint it as a post.  He has some very good advice and some very good information.

The best advice, of course is to consult an attorney who knows how to defend against unlawful foreclosures.  As he says, it is a growing profession.  Most famous of these attorneys is April Charney, a legal aid attorney in Jacksonville, FL.  She sees the injustice and is doing something about it.  she not only holds seminars for individuals, she also holds seminars for attorneys teaching them in great detail how to defend people in foreclsour

There is also Neil Garfield, publisher of livinglies.wordpress.com.  He has a weatlh of information there.

But as he says below, many of you cannot afford an attorney.  You are not alone as most people cannot.  Do as he and I both have said, do the research and fight it on your own – Pro Se.

Read Fitzgerald’s comments here.

In his own words:

Thank you for your comment Rubinoff .

I have more stuff to share with the public.

At this moment I am in Litigation with a Greedy Corrupt Bankster forthe last 20 months .

If you are served with a Foreclosure summons ..you have 20 days to answer to the court ..The best person to help you is a foreclosure attorney .

But if your broke and can’t hire one at least check the Internet ..and click ..How do I answer a Summons ..there are many sites where you can find advice and guidelines on what you can answer. Of course having a good attorney is the best advice.

I did not have the money to hire an attorney back in Feb.’08.. So I’ve made many mistakes while I was Pro Se.
I’ve studied foreclosure Florida Law as much as I can ,and I’ve learn a few things.

My experiences here are not legal advice . I am just telling you what happened to me ..

The first item on your Summons Complaint check list ..should be ..Is the Plaintiff the same lender who I sat down with and signed the loan documents with ??

If its a different banker …that’s a huge red flag ..you have to check your Public Property Record . See if your original loan has any assignments ..its like transferring your loan to other Banks or to the current Plaintiff’s.
If there’s no assignment ..that’s a good sign that you may have a good defense to deny that you recognize this new Banker foreclosing you as a true owner .How can they claim to be the true owners ?

That’s just the beginning. The most important issue is answering that Summons . In the summons the “enemy” will have their claims in paragraphs numbered starting at number #1. If you do not have a lawyer or can’t afford one ..your answer should deny every claim your enemy states. I mean every paragraph…deny everything..the amount due.. .Deny Deny Deny .That will classify your answer as a contested case . This will force your Plaintiff to open his books,documents to Discovery and the burden of proof is on their back ..not yours…

Perfect remedy.. would be to find an attorney ” who gets it”.
” Who gets it” is a term to separate two groups of attorneys out there.

One group of lawyers love the banksters and will work against you. They will tell you that the end is near and that you won’t win. That your case is weak ,and you own the loan…so you are guilty anyway…I know this type of lawyer personally .

The other group are harder to find, but are growing each day more and more. These lawyers are aware of the lying, cheating, and stealing tactics of the Banksters and will defend you 100 % .

Remember answer your summons before 20 days . If you fail to do this.. you are giving your home away in a silver platter to the Bankster.

Another very important tool… that you should have is to request an on line….

[ at your “County Clerk of Courts” in your County ] …

……E. C. F. membership.. ” Electronic Court File” Its free . I opened mine by identifying myself as a Pro Se defendant. What this enables you to do is ..you can open your case file on line and see ..all the motions, affidavits, and all the documents that have been filed in your case..

By having an ECF account you’ll be notified, and warned by an email when any new document is filed in your case..

My experience has been that these cheating Banksters will file documents behind your back and sneak in documents without giving you notice. . They will schedule important hearings , and not notify you. [ that happened to me ]

They’ll win the judgment if you fail to show up at the Final Summary judgment meeting…. By default.

They will sell your property behind your back if you’re not looking. Never trust these Crooks. They are out for blood , and you have to fight back by being informed .

Even with a lawyer ..don’t depend 100 % on them..Do your own research on line and learn as much as possible so you’ll know the legal terms ,and defenses .

I am not a lawyer ,and the stuff I am writing here are my personal experience’s I have suffered in my 19 months in litigation with a cheating, lying,and corrupt Bankster
law firm .[ Florida Default Law Group ]

One of the most corrupt Foreclosure Mill , thats full of young lawyer who are learning early in their career .. how to be Lying,Cheating,dishonest and a disgrace to their profession .

They should be dis-barred and throwed in the Big House for being such a fraudulent,and criminal organization..

I feel today more than ever … we all have to become better educated in Finance, and Law.

We are on our own… out here .

The Government and the Justice system are not watching your back ..

Take Care out there .

LF.

 

 

The Judge Who Dispenses Justice

This is really an old story that has just been noticed by the media.  This story appeared yesterday in teh New York Times and has been circulated over the internet, other media and the blogs.

I first wrote about Judge Schack almost two years ago when he first started denying banks – specifically Deutsche Bank – their foreclosures because they did not have their paperwork in order and could not prove that they “owned” the note providing them the “proper standing” to take the action.

Other judges in New York also took these actions as did Judge Boyko, the Federal Judge in Ohio.  Their correct, fair and JUST actions prompted the “Produce the Note” defense so many – but not enough – are using.

Judge Schack along with all other judges – stilll in the minority – are applying the law to everyone as they should.

If you don’t own something and can’t prove you own it then you – by law – have no right to take legal action.  That is the law!  If we allow the justice system to apply any law as they see fit there is no longer a valid legal system here in this country.  Discriminating openly in favor of those institutions that have billions of dollars and were given billions more by “the people” againstthe common person in a court of law makes a mockery of the entire system.

If the banks can go to court and take an action “without standint” – the legal right to do so = then we should all have that right.  Everyone could sue everyone for anything without having to have any right to do so.

I am personally happy to see this article and information on Judge Schack resurface after so many months and so many millions of illegal foreclosures around the country.  Maybe, just maybe, the entire court system will see the illegality of what they are participating in and change.

If you are in foreclosure or about to go into foreclsoure, talk to an attorney.  If you cannot afford one – and many cannot – do some research.  Above all, in Judicial states where they have to serve you with a summons, you MUST respond to it withing the time allowed – usually 20 days.  DO IT.  Respond.  There is much information on the web and I will be providing you more links.  You have the right to defend yourself and you can do it in what is called “Pro Se” – defending yourself without the use of an attorney.  Statistics have shown that almost 50% of the cases in courts today are being defended Pro Se.  But I cannot stress enough, seek out a specialist, an attorney that understands these issues and is not affraid to stand up to a Judge and tell him that the opposition has NO STANDING and if they do , THEN PROVE IT.
Read The Full NYT Article…click here

Every week, the nation’s mightiest banks come to his court seeking to take the homes of New Yorkers who cannot pay their mortgages. And nearly as often, the judge says, they file foreclosure papers speckled with errors.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.
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What We’re Hearing In The Media

This post from my other blog TheForeclosureDetonatorFORUM as posted June 12, 2009.

What are we hearing in the media these days in reference to foreclosures and the state of the economy in general?

NOT MUCH!

It is very curious to me that the most important stories of our everyday lives – which relates to the majority of the average Americans – is not prevelant in any of our national media. Oh, yes, they do announce the new unemployment figures each month, but only as a report of numbers with no story or substance behind it.

We hear little if anything about foreclosoures that would have you believe that foreclosoures are not rampant and that this is no longer a problem in our economy and more important in our society.

REALITY:

Unemployment is increasing and the number of actual unemployed – not just those that are currently receiving unemployment benefits – are staggering. You see, only those that are actually receiving benefit payments are considered unemployed, so if you are still unemployed but have gone past your benefit payment period – you no longer count. Startling when you think about it.

In addition, foreclosures are on the rise and with every batch of new unemployed there is created a new batch of foreclosures.

MORE REALITY

Two economic segments have yet to crash – commercial real estate and credit card defaults. We are seeing the effects of these two markets already but not in the media. So no news must be good news. If it is not announced or reported in the media then it must not be. Right!

MORE TRUTH

So what has all this to do in a Foreclosure Defense blog? A lot! You see, little is being done to help the people. Banks, insurance companies, car companies, hedge funds and Wall Street firms are still getting all the government help – that’s you and me giving out that aid – but we cannot give any to ourselves who so desparately need it. What’s more until “we” – you and I – recover there can be no recovery in our country. Allowing the “fat cats” to thrive while the rest of us starve (have you seen any stats on homeless and hungry children in this country?) does not bring about recovery it brings about … well you think about this or research it. Research and ask other what a country where there are a small, very small percentage of people that controls all the money and wealth and the rest of the country’s people live in poverty or near poverty is called.

What me must do is help ourselves – not with violence, hate or anger – but with the laws and constitution of this land. We can speak out and ask questions of those in charge. We can stand up and fight against what is illegal for most but becomes legal for the elite few.

Foreclosures are one of the big areas we can fight back. there is a small revolution already in progress in the foreclosure arena. With the “Produce the Note” defense haveing made it to the forefront in recent months – more and more people are fighting – and winning.

Defending your foreclosure is not a means to get your house free and clear and it should not be. It is however, a means to get the banks (?), lenders (?), servicers (?) and Trustees (?) – whoever they may all be – to stop taking your house illegally then giving it to someone else at firesale prices and worst of all stockpiling the realestate themselves to unload at higher prices (meaning prifits to them) at a later date.

It will cause them to truly and honestly negotiate and modify loans to enable people to stay in their homes, stabalizing values and neighborhoods instead of enabling the rich to get richer and stabalizing the “elite” society.

The Rule of Law is the Rule and is not meant to be interpreted based on personal opinion by judges – appointed or elected. Judges, especially some here in Florida are using their bias and opinion to rule in foreclosure cases and NOT enforcing the laws that are on the books. Much of the reason is that they are overwhelmed by all the cases and want to clear their calendars. I gtuess there is no such thing as working overtime in a salaried position in the courts/government as there is in most corporate jobs. I believe eh 40 hour workweek has long past us by as most salaried people are now working 50 plus hours.

As I always say, two wrongs don’t make a right. Just because you are delinquent on your payment does not disqualify you for justice under the law. The law is fosr EVERYONE, delinquent on payments, homeless, hungry, rich and poor – the law is the same – it does not change.

But were it not for the internet and blogs and the abity to share information – those in control be it the Federal Reserve, the Banks or our elected officials would have free reign to do as they wish. In fact, they are already taking those liberties with us.

Defend your foreclosure, I believe it is the first step to healing our economy and our society. Do the research, there is much to help you do this. Hire an attorney that is knowledgeable in this field but if you find you cannot afford one (there are many that you can afford) then DEFEND YOURSELF PRO SE – meaning defend your self by representing yourslef in court.

If you live in what is called a non judicial foreclosure staste – one where the note holder can simply auction your house with notice to you but without having to take you to court first – you can defend by initiating the “Show me the Note” defense in your local court. Yes, you must take the initiative and file the case and pay the filing fees associated with this but you will find that it will get you that extra time you need or better yet get “them” to the negotiating table.

I will be more proactive on this site from here on. I will provide copies of actual Motions filed in various courts on various cases. I will direct you to other blogs with even more indepth information and to blogs by others who have successfully defended themselves.

More to come.

Addition to this post:

Flippingfrenzy and Ralph Roberts:

There has been no news other then a commenter on the Flipingfrenzy blog who offered an “opinion” (I believe it is an opinion) as no documentation, references or sources were provided to substantiate. I repled to that comment asking for substantiation but todate have not receved any.

We will update you when substantiated and public information is available. We will not disclose or report on rumors.

CAVEAT EMPTOR:

There are still many hundreds of thouseands – perhaps even millions of victims of this economic crisis (Disaster). If you feel you were a victim as an employer, employee or consumer let us know your story. If we choose to print your story – with your permission, of course, it may help others if in no other way then just letting them know theya are not alone. You can email me at lrubinoff@TheMortgageCorner.org.

Caveat Emptor – Buyer Beware – my favorite warning is more to be headed today then ever before. Frauds and scams are everywhere, especially in the real estate markets. Our local media did a report last night of a rather new scam taking place with rentals.

People are breaking in to foreclosred and vacant homes, changing the locks on them and advertising them for rent. The news report said the FBI is investigating these cirmes. The report also cautioned people to verify ownership prior to renting, do not give personal information such as your social security number and if the “deal is too good” it probably is not legitimate. Do your homework – CAVEAT EMPTOR.

Proving Ownership of the Note

TheForeclosureDetonator was originally founded to alert and inform people facing foreclosure that there is a way to “fight” back and that they should fight back.

The tangled web of financial companies that we are currently giving billions upon billions of dollars to are still working their tangled web of corporate entities to defraud the very same people they sold their version of the American Dream to.  This tangled web of cheaters, liars and illegal enterprises continue to destroy the people of this country while the good peole of this country fighting for their very survival are funding them to do so.

Is this not treason?  Purposely destroying this nation for their own personal financial gain and more important – control – of our country.

They believe – by virtue of illegallyl foreclosing – that they are not only above the law but are the law.  They can do whatever they want, whenever they want and to whom ever they want at any time they want.

As I have been writing on the issue of defending foreclosure for almost two years now, a more prominent advocate, April Charney, attorney from Jacksonville, Florida has gained national attention by actually challanging these unlawful acts and standing up to the creators of our current and what shall be a very long term crisis.

She has not only defended foreclosures but has taught over 1500 other attorneys how to do so.  April Charney’s message is worth repeating over and over again.

Don’t take my word for it but do take hers.  Those taking foreclosure action against you are most probably doing so illegally.  But unless – you – the homeowner takes the legal defense action against them they will continue to use the wrinkle in the law – that of default for lack of response – to accomplish the foreclosure.

I cannot urge all of you enough to FIGHT.

Recently this article was published in the New York Post on line by Richard Wilner,

THE LOAN RANGER

LAWYER OUTWITS BANKS IN FORECLOSURE BATTLES

By RICHARD WILNER

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The Real Issue Behind "Show Me The Note"

Show Me The Note or Produce The Note – the concept of fighting a foreclosure action is being talked about in the media almost daily. I for one have been writing on this issue for over a year – not as an attorney, because I am not one – but as a consumer advocate who has been in the real estate, mortgage and finance industries for over 40 years – and believes in justice as well as establishing economic stability of our neighborhoods and our economy at large.

Now that it has come into the limelight people do take positions as to this legal loophole as it has been called. But is it a loophole or is it more?

The answer is it is more – much more. it embodies the essence of our legal system. As I say over and over again – two wrongs don’t make a right. What I am saying is that you can’t correct one violation by violating another.

Yes, a homeowner delinquent on their mortgage payments has violated the terms and conditions of the legal agreement they signed which agreement also gives its’ owner (the contract owner) the right to recovery by foreclosure. The key word here is the contract owner. The contract (mortgage note) does not give blanket authority for just anyone to recover by foreclosure. If it did, then you and I could go out, find a delinquent mortgage and foreclose on it.

Many states – such as Florida – have specific laws on the books that detail exactly how a foreclosure can be done and by whom. The laws in most judicial foreclosure states (states where you have to go to court and get a court order to foreclosre) are very similar. They say that you must prove you own the note and produce the original – not a photo copy, fax copy or any other facsimile – the original.

The laws also say producing the original is not always enough as having possession of the note does not mean you own the note. If you gave someone a mortgage and had them sign a note then gave me the note for safekeeping does that give me legal rights to ownership and foreclosure? No it does not.

This is the real issue at hand here. In order to pass ownership you must sell or assign the note. In Florida you must record – in the public records of the county the property is located in – the bill of sale or the assignment. You can readily see why the law requires this. Recording in public records is proof positive that the action occurred, when it occurred and what parties were party to this transaction. When recording a document in public records the document itself is stamped by the court and kept on file. This way no one can create a fraudulent copy, change dates or parties involved. The law in Florida further states that if a mortgage note is sold or assigned it must be recorded in public records prior to any foreclosure action – court filing – being made. In other words, you cannot take foreclosure action on something you don’t own – can’t prove you own – at the time you file the aciton.

The issue then is proving ownership of the note not possession of the note. PROVE YOU OWN IT not SHOW ME THE NOTE. In other words, prove you own it by what is in public records then show me the original. That is the law, period.

In the process of securitization the lenders were in such a hurry to pass the paper along – so it could be sold as a part of a security bundle – that they did not have the time to properly and officially sell or assign the note.

This is not only a legal issue for the homeowner but is very much a legal issue for the investor who purchased a share in that security. There exists no real evidence that the mortgage an investor bought a share in truly exists in the pool the investor invested in.

There is evidence that lenders sold the same mortgage note to more then one security hence the same interest in a mortgage note was sold to multiple parties. The question now arises – if I own this mortgage in Security Package One then how can you own the same mortgage in Security Package Two? One of us bought a fraudulent investment package but without the recording documents neither of us can prove who the rightful owner is. Someone was defrauded here.

Watch this CNBC aired piece featuring Attorney April Charney, a Jacksonville, Florida attorney who has been fighting foreclosures and teaching other attorneys the statutes so they can offer the same correct legal defense to their clients. After viewing please continue to read this article below the embedded piece.

To listen to this video – please turn off Bloomberg TV on the left panel by pressing the square button

Now that you have watched this you may be forming your own opinions. But here is where this gets really intersting and where I feel the real importance of this issue is.

The issue is the law. Is it universal – meaning does it applly to everyone equally – or is it selective? If it is selective then there in fact is no law. If a law is upheld based on size, stature or wealth then there is no equality under any law of the land and – if selective no law is reallly valid.

The judicial system of our country is there to protect all of us by upholding “the law” equally for all. We all have the right to our day in court and we all have the right to defend ourselves be it criminal or civil.

The rights of a defendant in any criminal arrest is protected under the Miranda Act. Law authorities must read a person their rights and giving them the right to have legal representation. If the Miranda Act is not read to a person arrested, the case against that person must be dropped. The Miranda Act was established for no other reason then to give everyone their “rights”. Should people in civil cases not have the same rights to defend and to legal representation?

Some may argue that when served a summons by a Sherrif, the summons details the rights and the responsibilities to the person or persons being served. Indeed it does – but what it does not do is tell them that they have a right to be sued for foreclosure by the proper party and not just by anyone claiming that right.

Right is Right. It is your right to sue me if you have the right to do so and it is my right to defend myself if you are not the rightful party to sue me. That – plain and simple – is the law.

If you – as the alleged mortgage note owner – sues me, it is only right that you prove to the court – and to me – that you have the legal right to do so. If you do, I lose, if you don’t, I have had my day in court, the laws have been upheld justly and we have preserved our legal system without a shadow of a doubt. It is then up to the rightful owner to either work things out with me or in the absence of my ability or willingness to do so – foreclosure on me.

The law is the law. The lender/banks/servicing companies and the attorneys that represent them in foreclosure know that they are violating the law and in fact – committing fraud upon the courts. If fraud is being committed should not the offenders be charged, tried and convicted if found guilty by a jury of their peers under the law? They should – and they should also enjoy the same fair treatment under our laws. If there is illegal activity -with knowledge and premeditated – the law should be enforced.

The issue is the preservation of each individual’s rights under the Constitution, the Constitution itself, our freedom and our liberty. Selective disposition of any law takes all of that away from us and puts us closer to being a totalitarian, fascist state. One where only the elite have rights and the rest of the population is suppressed by them. Iraq was one such example as are many other countries ruled under a dictatorship. Without equality under the law there is no true democracy. There can be no class system here be it individuals or corporations.

The basic principles of our country is at stake here – as much if not more than – the economic survival of our country. the economy will matter not if we have a two class system of judicial jurisdiction. It just is not OK to break the law no matter who or what you are.

No one is above the law and no one should have the ability to manipulate the law. Preservation of our society is at stake.

Editor’s Note:
More on what I believe to be positive effects of using this defense when fighting a fosreclosure in future articles.

Banks Want Foreclosures…Don’t Want to Help Homeowners

With all the governments actions and attempts to repair our economy, stem the tide of foreclosures and help the people, it appears that these efforts are weak to say the least. It appears that the financial industry is stronger in their efforts to protect and enrich themselves and have more clout over Congress then do the people.

Business Week recently published a very well written expose on this topic called,

“The bad mortgages that got the current financial crisis started have produced a terrifying wave of home foreclosures. Unless the foreclosure surge eases, even the most extravagant federal stimulus spending won’t spur an economic recovery”
What really came first – the chicken or the egg – bad mortgages or bad lending practices? CNBC recently aired an investigative report, “The House of Cards”, where they exposed how Wall Street, urged by the Bush administration, lowered guidelines to allow just about anyone to get a mortgage. The story exposed the fraud not only by Wall Street but by the rating agencies who fraudulently gave AAA ratings to securitized mortgage packages which indicated these investiments were safe. With AAA ratings, the worldwide investment community would gobble them up not really knowing what they were buying.

So the banks intentionally created “bad” mortgages – which they had to know would crash – now they want to take back the homes they financed. Why? My belief is that they are looking towards another windfall profit era when home values begin to appreciate. They will have ownership (I question the legality of their taking possession) of millions of home and when the market is right they will sell them at a profit. I have read that two thirds of the foreclosed properties in Florida are not even listed – they are being hidden by the banks.

“One reason foreclosures are so rampant is that banks and their advocates in Washington have delayed, diluted, and obstructed attempts to address the problem. ”

“The industry strategy all along has been to buy time and thwart regulation, financial-services lobbyists tell BusinessWeek . “We were like the Dutch boy with his finger in the dike,” says one business advocate who, like several colleagues, insists on anonymity, fearing career damage. Some admit that, in retrospect, their clients, which include Bank of America (BAC), Citigroup (C), and JPMorgan Chase (JPM), would have been better off had they agreed two years ago to address foreclosures systematically rather than pin their hopes on an unlikely housing rebound.”

Conspiracy is a very loose term and I don’t like its’ use in most cases, but in this case I believe it is relavant. The conspiracy exists not only amongst the banks but at certain levels of our government working with the banks. The purpose of course – greed.

“In public, financial institutions insist they’ve done their best to prevent foreclosures.”

Oh yes, how good these financial institutions are at advertising and promotion. One need only go back and see how they promoted and advertised thier mortgage programs enticing everyone. They are masters at this. First they advertised how beneficial Adjustable Rate Mortgages (ARM) were, then to create more business they advertised how bad they were offering homeowners new fixed rate mortgages. Propaganda, publicity and deception, all in the name of – your guessed it – GREED.

“AN INDUSTRY IN DENIAL
However the skirmish ends, the industry’s contention that it has done as much as possible to limit foreclosures seems hollow. Some statistics it cites appear to be exaggerated. Even pro-industry figures such as Steven C. Preston, a Republican businessman who headed the Housing & Urban Development Dept. late in the Bush Administration, concede that many lenders have dragged their heels. “The industry still has not stepped up to the volume of the problem,” Preston says. One program, Hope for Homeowners—which Bush officials and banks promised last fall would shield 400,000 families from foreclosure—has so far produced only 25 refinanced loans.”

“Some from the industry denied a foreclosure problem existed, including Sandor E. Samuels, at the time chief legal officer of subprime giant Countrywide Financial. They vowed to continue selling loans with enticing introductory rates as well as those requiring minimal evidence of borrowers’ income. “We are going to keep making these loans until the last second they are legal,” Samuels later told a fellow participant.”

“Much of Dodd’s attention shifted to his campaign for the Democratic Presidential nomination. Senate Banking Committee spokeswoman Kate Szostak says Dodd aggressively pursued the foreclosure issue, but “both the industry and the Bush Administration refused to heed his warnings.” The lawmaker accepted $5.9 million in contributions from the financial-services industry in 2007 and 2008.”

Are you beginning to get the picture. There is so much more in this article from Business Week. It is rather long but is a MUST READ if you are in any way at all interested in “the truth”.

If you still don’t believe there are games being played at our expense just look at this information published on the same page on Business Week as the article.
The figures under the 2007 and 2008 columns represent the lobbying dollars spent. It appears that legislation in our government is governed not “by the people” but by the corporations. Is this the way our founding fathers meant it to be? I don’t think so. We, the people of this great nation are being hijacked and enslaved by the large and ever growing larger corporations as “our” government plays along.

I for one feel manipulated. Millions of Americans have been manipulated as the move is on to make the majority of us indentured servants.
Other interesting reports:

This podcast link from Business Week in reference to the article subject of this post. It should open in your player. This is audio not video,
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