Fighting Foreclosures

[RaginBajin]

I was wondering if anyone visits: http://livinglies.wordpress.com/

 

Basically, this guy is an ex-lawyer and has been giving advice about fighting foreclosures. There has been about 4-5 new cases that have been handed down from the State Surpreme court level telling MERS and other banks that what they don't own the mortgage due to blantant lies they have committed. They try to push homeowners around with all their scare tatics and finally someone is standing up.

 

Wondering if anyone visits it or knows a bit about it and wants to discuss. If anything maybe someone that is in trouble can go out and fight for their house back and win. There seems to be more and more cases of people having their mortgages recinded.

[cory1848]

I am very interested to hear about this too. So if the mortgage gets stripped or rescinded, does that mean the homeowners get to keep the house outright?

[RaginBajin]

Technically yes. There is three parts to buying a house at closing.

 

The first is the assignment of the title. This puts your name on the title of the property and says you own this property and it belongs to you.

 

The second is the note. The note defines how payments are going to be made and to who they are going to be paid to. It defines the monthly payment, interest rates, etc.

 

The final piece is the mortgage. This is the security that says in the event the note is not paid they have the right to take the property sell it, etc. It is the lien on the property.

 

 

The only person allowed to foreclose on a house is the person who owns the mortgage. If the owner of the mortgage can not be found or the person foreclosing can not prove that they legally own the mortgage. Then a request for rescission is completed saying that there is no mortgage. Having the disconnect between a Note and Mortgage means that the loan went from secured to an unsecured loan. This means that no one can then foreclose on you ever. Do you still owe the money? maybe and that's a different fight because now you are just fighting a really really really large credit card bill basically (unsecured loan).

[cory1848]

Technically yes. There is three parts to buying a house at closing.

 

The first is the assignment of the title. This puts your name on the title of the property and says you own this property and it belongs to you.

 

The second is the note. The note defines how payments are going to be made and to who they are going to be paid to. It defines the monthly payment, interest rates, etc.

 

The final piece is the mortgage. This is the security that says in the event the note is not paid they have the right to take the property sell it, etc. It is the lien on the property.

 

 

The only person allowed to foreclose on a house is the person who owns the mortgage. If the owner of the mortgage can not be found or the person foreclosing can not prove that they legally own the mortgage. Then a request for rescission is completed saying that there is no mortgage. Having the disconnect between a Note and Mortgage means that the loan went from secured to an unsecured loan. This means that no one can then foreclose on you ever. Do you still owe the money? maybe and that's a different fight because now you are just fighting a really really really large credit card bill basically (unsecured loan).

 

Very interesting. In my case, I have just filed BK7 and included the house so we wouldnt owe anything. Would this still work in a case of filing BK7?

[RaginBajin]

You got me on that one. I'm not sure how BK law plays into this at all.

 

I'm not sure what state you are in, but the guys at livinglies have put together a spreadsheet that has lawyers that are known to understand what is going on in this foreclosure defense. You want to call them and see what they have to say.

 

 

http://livinglies.wordpress.com/in-trouble...et-it-090909-2/

[Cleaning_Credit]

A few questions...

 

1) How can you determine if your mortgage has been "securitized"?

 

2) If you are able to "disconnect" the note from the mortgage, you are held to an unsecured loan. Wouldn't the creditor take you to court and fight for a judgment against you since the debt would undoubtedly be large? It would make it harder, but the creditor would presumably fight hard to be made whole again.

[RaginBajin]

A few questions...

 

1) How can you determine if your mortgage has been "securitized"?

 

2) If you are able to "disconnect" the note from the mortgage, you are held to an unsecured loan. Wouldn't the creditor take you to court and fight for a judgment against you since the debt would undoubtedly be large? It would make it harder, but the creditor would presumably fight hard to be made whole again.

 

99% of all the mortgages have been securitized. That's how we got into this economical mess. There is a way to try to track back the best you can who owns the securitization process but you will only get so far. Very very very few banks held on to those mortgages. If your mortgage switched to someone else then that's pretty much a guarentee. If you are with one of the big banks (BOA, etc) , your mortgage was definitely securitized.

 

2. Well if you can disconnect that note from the mortgage, you have proved that nobody right fully owned the debt. The lender is really not the lender. They sold your mortgage off in MBS's to tons of other people. Legally those are your true lenders. That would mean that every single person that owned a Credit Default Swap, MBS, and the CDO on these loans would have to come together some how and figure out how to collect their money. The problem with that is, nobody ever kept any records of this. That's one of the big things going on in Congress right now about Derivative Market Regulation. Like I mentioned in #1 you can figure out who was the initial company that lended the money, but who owned those swaps and MBS's and synthetic CDS's is going to take a lot of work to try to figure out. That's why we are in this huge mess.

[Cleaning_Credit]

A few questions...

 

1) How can you determine if your mortgage has been "securitized"?

 

2) If you are able to "disconnect" the note from the mortgage, you are held to an unsecured loan. Wouldn't the creditor take you to court and fight for a judgment against you since the debt would undoubtedly be large? It would make it harder, but the creditor would presumably fight hard to be made whole again.

 

99% of all the mortgages have been securitized. That's how we got into this economical mess. There is a way to try to track back the best you can who owns the securitization process but you will only get so far. Very very very few banks held on to those mortgages. If your mortgage switched to someone else then that's pretty much a guarentee. If you are with one of the big banks (BOA, etc) , your mortgage was definitely securitized.

 

2. Well if you can disconnect that note from the mortgage, you have proved that nobody right fully owned the debt. The lender is really not the lender. They sold your mortgage off in MBS's to tons of other people. Legally those are your true lenders. That would mean that every single person that owned a Credit Default Swap, MBS, and the CDO on these loans would have to come together some how and figure out how to collect their money. The problem with that is, nobody ever kept any records of this. That's one of the big things going on in Congress right now about Derivative Market Regulation. Like I mentioned in #1 you can figure out who was the initial company that lended the money, but who owned those swaps and MBS's and synthetic CDS's is going to take a lot of work to try to figure out. That's why we are in this huge mess.

 

That makes sense. If this is true, there's potentially a huge financial mess brewing. However, I would think that it's the title companies that are on the line here. They are there to verify that the titles are clean and clear before they are transferred.

[RaginBajin]

That makes sense. If this is true, there's potentially a huge financial mess brewing. However, I would think that it's the title companies that are on the line here. They are there to verify that the titles are clean and clear before they are transferred.

 

Oh there is.. Just over the past 2 months, majors cases have started popping up with banks being told that they lied and now they are going to pay the price. Title companies as well. If you read some of these cases and find out how title companies signed documents as Mortgage Lenders and Notarized Documents as the Lender or the Lender signing documents for the title company. It makes me angry and sick. Everyone trusted these companies as legitimate organizations. The house forecloses and they come in as the hurt victims here.

 

I only wish I had a law degree to go after these guys a lot more than a normal person can.

[cory1848]

I only wish I had a law degree to go after these guys a lot more than a normal person can.

 

 

So I wonder how much a lawyer charges to fight one of these cases... Probably too much money for the average person to deal with...

[RaginBajin]

Well depending on the price of the house say a $300,000 debt being held over your head or $3000.00.

 

I mentioned this to someone else and they were saying that their lawyer costed them $750 for the initial consultations to get things going.

[radi8]

That would mean that every single person that owned a Credit Default Swap, MBS, and the CDO on these loans would have to come together some how and figure out how to collect their money. The problem with that is, nobody ever kept any records of this.

 

That is where MERS, Mortgage Electronic Registration Systems is supposed to step in. They (supposedly) keep electronic record of all the ownership changes and act as proxy and note holder for everyone that purchased a slice or dice of those mortgages. As such normally have the power to foreclose, at least so far they have.

MERS is coming under more and more scrutiny, it won't surprise me if their ability to foreclose is severely curtailed in the near future.

[RaginBajin]

It already has been. There are a few cases which I think I have quoted in my earlier posts if not in another thread, where MERS (even they say they are not a lender) has no rights to foreclose since they don't own the note.

 

MERS is only like a look up service. As the mortgage gets sold it was suppose to transfer via MERS. The thing with that is that they still don't know who actually is the Lender. By definition, the Lender is the person who actually gave the money. In this case, it is everyone who is bought the MBS's, not Bank of America or Chase , etc.

[radi8]

It already has been. There are a few cases which I think I have quoted in my earlier posts if not in another thread, where MERS (even they say they are not a lender) has no rights to foreclose since they don't own the note.

 

I've been watching these with interest. It looks to me like MERS has been denied foreclosure rights in cases where they are unable to show proper documentation and/or clear chain of ownership. So far nobody (that I am aware of) has found fault with their underlying standing to bring a foreclosure action, it's all been improper documentation.

[RaginBajin]

Landmark vs Kesler - Kansas Supreme Court said that, MERS has no rights, is not a real party, and cannot assert any claims, constitutional or otherwise. MERS was the appellant seeking to invoke due process rights which it said were violated when they failed to get notice of the fact that their “interest†was being wiped out. The Court said simply that MERS — or any nominee†didn’t have any interest and proves its point by reference to simple statements in the documents and the simplest of laws and interpretation of the role of MERS and the requirements of recordation.

 

referenced from: http://livinglies.wordpress.com/2009/09/23...ies-strategies/

 

 

Supreme court of Arkansas references the Kansas case re-affirming that MERS since not being real and having not financial interest in the property can not foreclose.

 

MERS vs Southwest Homes of Arkansas

 

The Kansas appellate court noted that MERS received no funds and that the mortgage required the borrower [*17] to pay his monthly payments to the lender. See id. It also observed, just as in the case at hand, that the notice provisions of the mortgage “did not list MERS as an entity to contact upon default or foreclosure.†Id. at 330, 192 P.3d at 181. After declaring that MERS did not have a “sort of substantial rights and interests†that had been found in a prior decision and noting that “a party with no beneficial interest is outside the realm of necessary parties,†the Kansas court concluded that “the failure to name and serve MERS as a defendant in a foreclosure action in which the lender of record has been served†was not such a fatal defect that the foreclosure judgment should be set aside. Id. at 331, 192 P.3d at 181-82.

 

referenced from: http://livinglies.wordpress.com/2009/09/30...legal-standing/

 

 

The issue with MERS is more than just paperwork. It's a contract law issue where MERS has no financial ties to the property which means it has no rights to foreclose.

[radi8]

Landmark vs Kesler - Kansas Supreme Court said that, MERS has no rights, is not a real party, and cannot assert any claims, constitutional or otherwise. MERS was the appellant seeking to invoke due process rights which it said were violated when they failed to get notice of the fact that their “interest†was being wiped out.

 

That case is somewhat of an oddball that won't apply to the normal securitized mortgage.

In this case MERS represented Milennia bank- the second mortgage holder, during a foreclosure action initiated by the first mortgage lender.

 

The district court found that MERS was merely an agent for the principal lender, Millennia Bank, therefore it was unnecessary to provide MERS notice of foreclosure as Millennia had been served directly. MERS had no interest in the loan as the lender of record was present.

[RaginBajin]

That case is somewhat of an oddball that won't apply to the normal securitized mortgage.

In this case MERS represented Milennia bank- the second mortgage holder, during a foreclosure action initiated by the first mortgage lender.

 

The district court found that MERS was merely an agent for the principal lender, Millennia Bank, therefore it was unnecessary to provide MERS notice of foreclosure as Millennia had been served directly. MERS had no interest in the loan as the lender of record was present.

 

No doubt is it an oddball case. But there is more to it than just MERS merely being the principal lender and that it did not need to provider a notice of foreclosure. This does apply to most normal securitized mortgages.

 

The opinion has defined what MERS is as a nominee. The court defined the word nominee as:

We view a ‘nominee’, as the term was used by the parties here, not simply in the sense of a straw man or limited agent. . . , but in the larger sense of a person designated by them to purchase the real estate, who would possess all the rights given a buyer . . .

 

This meant that they were given the same rights as a mortagee, which leads to the big opinion that:

If MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right. See Vargas, 396 B.R. 517 (“[w]hile the note is ‘essential,’ the mortgage is only ‘an incident’ to the note†[quoting Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872)]).

 

This now seperates the note from the mortgage. Which means MERS and any bank that was on the mortgage can not enforce the mortgage and collect on the note. This is why it is an important decision and does effect normal securitized mortgages.

 

 

**P.S. I'm just argueing what I am reading and understanding.. If I sound condescending or angry I'm not tring to be and I apologize if I do. I enjoy dicussing these things and welcome all comments and thoughts.

[radi8]

**P.S. I'm just argueing what I am reading and understanding.. If I sound condescending or angry I'm not tring to be and I apologize if I do. I enjoy dicussing these things and welcome all comments and thoughts.

 

No problems on my end, lol. It's an interesting discussion. I tend to view things with skepticism, but you are absolutely welcome to show where I'm wrong.

[RaginBajin]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

[Venus]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

 

 

This is very interesting!

 

Tonight I found out that Chase sold my home from under my feet - in the middle of a loan modification, too. No notice, no letters, no phone calls, nothing taped to my door.

 

Red flag was two nights ago when I found a business card from a property investor taped to my door. It was sold exactly one week prior to that.

 

How can this happen when there is not clear title (since I owned the home, or so I thought)?

[bonbonXO]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

 

 

This is very interesting!

 

Tonight I found out that Chase sold my home from under my feet - in the middle of a loan modification, too. No notice, no letters, no phone calls, nothing taped to my door.

 

Red flag was two nights ago when I found a business card from a property investor taped to my door. It was sold exactly one week prior to that.

 

How can this happen when there is not clear title (since I owned the home, or so I thought)?

 

Is if there was a quite title action filed on your property

[Venus]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

 

 

This is very interesting!

 

Tonight I found out that Chase sold my home from under my feet - in the middle of a loan modification, too. No notice, no letters, no phone calls, nothing taped to my door.

 

Red flag was two nights ago when I found a business card from a property investor taped to my door. It was sold exactly one week prior to that.

 

How can this happen when there is not clear title (since I owned the home, or so I thought)?

 

Is if there was a quite title action filed on your property

 

I don't understand. Can you explain, please.

[bonbonXO]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

 

 

This is very interesting!

 

Tonight I found out that Chase sold my home from under my feet - in the middle of a loan modification, too. No notice, no letters, no phone calls, nothing taped to my door.

 

Red flag was two nights ago when I found a business card from a property investor taped to my door. It was sold exactly one week prior to that.

 

How can this happen when there is not clear title (since I owned the home, or so I thought)?

 

Is if there was a quite title action filed on your property

 

I don't understand. Can you explain, please.

I wrote backwards.. I must be more run down than I realize.

I meant to write...see if there was a quite title action filed on your property.. but after reading this thread

http://creditboards.com/forums/index.php?showtopic=416878

I have a better understanding of your situation

a quite title action would mostly like not apply but it removes the "cloud of title, (more the one person or entity claiming they hold title to a piece of property)

If you "googel" it you will get a more in depth definition- it puts the property in lis pendens, since you have been foreclosed on already I would assume that indeed, this has already take place.

I hope the attorenys Linx04 recommended are able to assistance. In the mean time, (since you are probably not sleeping very well) there is some really great information on this web site regarding legal foreclosures Here, but unfortunately there are no Attorneysin Michigan listed.

Have you refi within the last (3) years?

[Venus]

I just didn't want anyone to think I was coming off as a jerk... Atleast not immediately.

 

 

This is very interesting!

 

Tonight I found out that Chase sold my home from under my feet - in the middle of a loan modification, too. No notice, no letters, no phone calls, nothing taped to my door.

 

Red flag was two nights ago when I found a business card from a property investor taped to my door. It was sold exactly one week prior to that.

 

How can this happen when there is not clear title (since I owned the home, or so I thought)?

 

Is if there was a quite title action filed on your property

 

I don't understand. Can you explain, please.

I wrote backwards.. I must be more run down than I realize.

I meant to write...see if there was a quite title action filed on your property.. but after reading this thread

http://creditboards.com/forums/index.php?showtopic=416878

I have a better understanding of your situation

a quite title action would mostly like not apply but it removes the "cloud of title, (more the one person or entity claiming they hold title to a piece of property)

If you "googel" it you will get a more in depth definition- it puts the property in lis pendens, since you have been foreclosed on already I would assume that indeed, this has already take place.

I hope the attorenys Linx04 recommended are able to assistance. In the mean time, (since you are probably not sleeping very well) there is some really great information on this web site regarding legal foreclosures Here, but unfortunately there are no Attorneysin Michigan listed.

Have you refi within the last (3) years?

 

 

I was in the middle of a loan mod, trying to change from a horrible ARM. I refinanced about 3.5 years ago and got Chase as my new lender. It was unfortunately an ARM which is why I was modifying it now.

 

I hope NACA can fix this. I can't afford to pay any attorney many thousands of dollars to put this right. It shouldn't have happened in the first place.

Edited November 15, 2009 by Venus

[bonbonXO]

Make sure you have ALL the paper work you signed when your closed on your mortgage handy,

Since you have been foreclosed on you now can raise TLIA or RESPA violations as a defense, I hope your loan was as dirty as mine was.

http://creditboards.com/forums/index.php?showtopic=390768