A defaulting borrower should be allowed to proceed with its usury claim against a lender, even where language in a forbearance agreement purported to release the lender from any prior obligation or default, a Superior Court judge has ruled.
The borrower argued that the release did not cover its underlying claim because statutory causes of action enacted out of public-policy concerns, like the state’s criminal usury statute, cannot be waived by contract.
Judge Allan van Gestel agreed, granting partial summary judgment to the borrower.
Read the rest of the article at Massachusetts Lawyers Weekly.
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naca is great but they make you pay a monthly fee…which is just like paying a higher interest rate
RE: “naca is great but they make you pay a monthly fee…which is just like paying a higher interest rate”
Why is NACA not entitled to charge a monthly fee? They provide a valuable service to troubled borrowers, and the NACA attorneys and NACA staff are professionals who make their living providing their services.
- Paul
You don’t know what you are talking about.
There are more than one NACA. The NACA that I belong to is a lawyer association for consumer lawyers. I believe the poster is referring to the NACA run by Bruce Marks,who just signed up with Countrywide. As to the fee issue raised by Paul in his posting, this is definitely a problem and it should be directed to Bruce Marks and his funders, like Countrywide. Many operations, like Bruce Marks’ operation charge fees that are not regulated or controlled.
Thanks for clarifying that April.
I believe the poster was referring to them also. Yes, I am very aware of the fees associated with Bruce Mark’s NACA. I have had SEVERAL homeowners complain about the fees and never really getting anything in return. I have also been told that the waiting list is very long and just getting feedback is difficult. I have not verified these reports but I have no reason to not believe them.
I am very disappointed in Bruce Mark’s new business relationship with Countrywide. Mr. Marks went from protesting Countrywide and calling them sharks and predators on October 21, 2007 outside of a Countrywide office and then a few days later they are in partnering in saving homeowners.
I am new to the non-profit scene and the ins and outs surrounding it. But this just does not seem right and it is a HUGE conflict of CONSUMER interests.
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Dear April,
Thank you.
Ellen Brown and I also working toward the education process in America, regarding the legal facets of how the system is supposed to be functioning.
Obviously, foreclosures being a lucrative illegal business must stop.
Please refer to Ellen’s book (a copy of which I am sending to you), The Web of Debt. http://www.webofdebt.com
It is our goal to expose the “Note” (original), as the proof to the monetization of signatures – or, where the “loan gets sold,” but in reality the signature of the borrower/s is monetized and therefore the note must be “retired.” In other words, there will never be an original note and I do believe this practice of digital entries as automatic transactions – debt as credit – has been ongoing since the 1980s.
This means that the “money” in America has been defrauding homeowners for a long, long time.
As our signatures are monetized to expand the credit as debt, and the “reserves” and/or “loans” are non-existent other than digital entries (on both the asset as well as liability side of ledger), then one wonders why so many homeowners have had their wealth transferred into the pockets of the “bottom feeders” who have no contractual right whatsoever, to profit on the real property.
Thank you for your time. I look forward to hearing from you.
Best, Roberta
http://www.atelier3151.com/roberta
I couldn’t understand some parts of this article oan Workout News, but I guess I just need to check some more resources regarding this, because it sounds interesting.
I agree with the fact that ownership of the note is a pre-requisite for a valid foreclosure case. I’d also add that the lender needs to prove that it meets the minimum contacts requirements for “in personam” jurisdiction in the state where the lender is suing the homeowner.
The proliferation of legal education books and educational websites such as this one, are a waking call for the lending and legal industries; thus making the job of a debt collector attorney more difficult after enjoying decades of easy judgments against individuals who don’t know their rights. As an article in the New York Times titled “Dubious Fees Hurt Homeowners in Foreclosure” dated 11/06/2007 suggests, if one were to carefully analyze debt collection cases, one would probably discover that many of them lack legal standing due to insufficient proof of claims. The amount of debt collection void judgments in our courthouses is perhaps so vast, that it’s almost impossible to estimate how many there are. If every void judgment were vacated with damages, the whole financial and legal system would crumble perhaps representing an unprecedented shift in wealth.”
I’ve written a book about this topic available at http://www.Beat-Debt-Collectors.com
hello
are lenders still not filing in the name of mers
lost home in Massachusetts Oct 17 2007. want to file counterclaim based on this ” atty had no standing to file foreclosure suit” process.
thank you Dan Adams
I want to file a motion to dismiss for lack of subject matter jurisdiction, as lender filed lis pendens BEFORE executing and recording assignment of mortgage and note. They did NOThave standing at time of filing complaint. Need help with articulating this cause of action. What relevant case law can I cite?
Hi I have spoken to April in hopes that she could help me in Phx.Az. and stop my home from being foreclosed on as she has done for the 14 families in Ohio. She said she couldn’t help me . She suggested the web-site for an Atty. on http://www.naca.net.Not one law firm is willing to have the courage of April is all I come up with after calling them ALL.
I owe over a Million on my home, I am a Real Estate Agent for 17yr’s and because of the foreclosures I am making less than 1/3 of my “normal” income. I can not make the payment’s of $8500 a month. My same model just sold as a Foreclosure and closed around the corner from me for $424,000 I have had mine up for Sale for over 9 month’s with not ONE phone call from a Buyer.
I need help!!! MY E-Mail address is sandra@sandracrosby.com
PLEASE!!!
Sandra,
April Charney is awesome, and I wish we could clone her.
HOWEVER, she is only one person, and already has over 100 clients in her own area. I would suggest reading EVERYTHING you can about forclosure in your state, paying special attention to the assignments, and read everything that quotes April Charney. I have managed to halt (maybe temporarily) a foreclosure on a house in which I am a tenant with an option, with April’s help. I wrote a Motion to Dismiss (flawed, I’m sure) and with April’s help an Order. Neither were “successful”, but they were effective, in that I got a hearing, and pointed out the flawed assignment, and got the Judge to demand proper assignment. It actually worked to my advantage, I think, that the case was not dismissed. They would just re-file, this time doing it all correctly.
That’s a brutal situation you’re in. One has to think, hey, why would you WANT to keep paying over a mil for a home when comps are selling for less than half?
How long have you had the loan….and who was the lender?
So how does one go about finding a trustworthy Lawyer experienced in this area? I live in Southwest Florida, an area listed in the top-ten for foreclosure rates, yet I find few posts online from homeowners in this area. Those of us who bought in 2005 certainly had inflated appraisals, and since only the teaser rates were affordable, is it not predatory lending when the payments after the ARM adjustments are not affordable? Now our home is worth $60,000 less than we paid for it, which only goes to prove how over-inflated the appraisals really were in this area of Florida at that time. I’m done paying $3,500 a month for a house that sold for $169,000 only 5 years before we bought it. We’re walking away, and I’d like to find a way to have this mistake not haunt us for the next ten years. Our lender is Option One and if what I read online is correct, we’re in for a helluva ride with this company!
Is not the filing of a false claim a criminal act under Title 18? (See last line of Bankruptcy Proof of Claim Form)”Plaintiff is the owner and holder of the Promissory Note and Mortgage”.
Would the continued filing of multiple false claims by the same bank lawyer mean two or more (bankers and lawyers) have conspired to commit fraud?
When Bank A assigns to Bank B, to C, D, E, then F/Freddie and Fannie, – Then same Bank A uses a “Copy” of the original Note as collateral with Bank 1,2,and 3, – isn’t that reason for further examination into the “Lost Note” issue?
“We Find The Notes”
hello
need help in f/c lost note claimed by sun trust
I am located in Compton, (Los Angeles County) California. I want to know if the procedure to stop foreclosures also apply here. Is there an Advocate or Attorney in this area that you may know who can assist me in this effort? Is it possible to prepare the documentation that is needed myself? I appreciate your immediate help. Thank you.
THE MERS FIFTY MILLION MORTGAGE MELTDOWN.
By Kevin J. Lamson. April 28, 2008.
PART I. The Promissory Note Evidence Ownership of Debt and Standing to Bring Suit.
· The Fundamentals:
In the period beginning in 1996 and ending in March of 2008, Mortgage Electronic Registration Systems Inc., a/k/a/ MERS, has been named as a “mortgagee” on over fifty million mortgages. Yet MERS has never orginated a single mortgage loan nor loaned a dime to a single borrower. In 2001 the New York Surpreme Court ordered the Sufulk County Clerk to accpt MERS mortgage for recording as a purely ministerial duty. However the Court denied MERS request for a judgment declaring that MERS mortgages were “lawful in all respects” On an borught by the Sfuolk County Clerk, the New York Court of Appeals affirmed the lower Court’s order directing the County Clerk to record MERS mortgages. The Court of Appeals did not reverse the lower court’s denial of MERS request that the Court delcare MERS mortgages “lawful in all respects”. MERS, for obvious reasons, did not want the New York Court of Apeals to affirm in a published opinion the fact that MERS mortgages are legal nullities because they violate the legal prohibition against seperating a lien from the debt it secures and/or that MERS has no standing to enforce a mortgage when it is not a creditor entitled to collect a debt. The New York Court of Appeals did address and frame these issues as important but left them to be decided at a future date.
· No Note No Foreclosure
In reality MERS is really nothing more than a shell, or a front corporation for its so-called “members”. Many of these MERS members which were once the some of the most prestigious names in American finance. Many MERS members are now reporting hundreds of billions of dollars of losses as result of their illconcieved to scheme to ramp up mortage orgination so they could flip millions of mortgage loans loans into trusts in exchange for trillions of actual dollars. One big problem was that many of these trusts were never delviered the promissory notes and therefore have no evidence of ownership of the debts they puportedly purchased. To make matters worse many of the debts evidenced by these undelivered promisssory notes were supposed to be secured by mortgage liens. However in place of mortgages being executed in favor of the original lender many of these mortgages were executed in favor of MERS. Because never holds these notes or owns a debt and is therefore not a creditor it has no legal standing to enforce a debt, or so it told the Nebraska Court of Appeals in 2005. However this lack of standing defense must be raised by property owners who are sued either by MERS or these National Bank trustees. The most effective economic way to raise this lack of standing defense is by bringing a motion to dismiss in response to the complaint to foreclose. In mant states and in federal court this is called a Rule 12 motion. This motion is brought in place of answering the complaint. An honest attorney in most areas of the country should be willing to preapre and bring such a motion for $500.00 to $1,500.00 for a distressed homeowner. Or you might be able to find a lawyer to do it for you pro bono and perhaps a legal aid attorney. kev_o_shanter@yahoo.com