Get your gloves on and start training for the fight of your life because foreclosure defense is going to be no easy battle. Make no bones about it, you are definitely fighting against one of the toughest and most powerful opponents in the world. The banks
Let’s get one thing straight here ladies and gentleman. The banks have a lot of fighting muscle, political power money and world influence. Plus, they have trained every day for the last 200 plus years to be the #1 top heavy weight corporate contenders in the world. In fact they are so powerful, they don’t even need to don gloves or mouth pieces anymore. This will be no easy battle folks.
| Like any fight , you must first look at your opponents weaknesses in order to exploit them and utilize these loop holes to your advantage. Over the years lenders and banks got fat and a little lazy in their training habits and fighting tactics. I guess they assumed that they would always rule the land from their hill top estates and glass houses.
Knocking homeowner, after homeowner out for the foreclosure count. Winning fight after fight. |
You can call it cockiness. I call it plain stupid because the banks have made many mistakes in the laws which they tend to manipulate with their buckets of campaign money. Now, we are going shine a spot light on where they forgot to cover their bases and where you can steal some bases of your own and quite possibly home plate!
“An Informed Consumer is a Powerful Consumer” – Get Educated and Fight Back!
1. Truth in Lending Act (TILA) –
Does your loan have legal violations? Are you the victim of predatory lending? Did you know that 90% of victims do not even know they are victims? Discover how the Truth in Lending Act can help you with your mortgage or to stop foreclosure.
The federal Truth In Lending Act was originally enacted by Congress in 1968 as a part of the Consumer Protection Act. The law is designed to protect consumers in credit transactions by requiring clear disclosure of key terms of the lending arrangement and all costs.
This is the most abused laws by lenders and the one that has the most teeth.
Our company, Loan Safe Solutions, performs predatory lending mortgage audits for attorneys and consumers and we are finding legal violations on over 80% of the loans we review. Meaning, there is an 8 in 10 chance that the law has been violated on your mortgage and you might be able to use these legal violations to knock out your lender with a swift upper cut. You then can watch as the referee (the Judge) gives the 10 count.
Homeowners can use this defense even if they are not late on their mortgage and an effective tool to bring litigation against their lender or to mediate a loan modification.
This is one defense I am sure the lender funded Hope Now and non-profit, 995-Hope band of merry do gooders do not share with you as you call them for help. I know, because these same homeowners call us daily because they have been turned away by these same people and we use the forensic mortgage audit to discover Truth in Lending Act violations as our weapon of choice against “unhelpful” and “predatory” lenders or servicers.
Here are some very important Truth in Lending Act cases that the banks are shaking in the ring as they wait for the fights to start.
Class Action Under the Truth in Lending ActAndrews v. Chevy Chase Bank, FSB (2007 WL 112568, E.D. Wisconsin, January 16, 2007). Borrowers alleged that the lender: (1) failed to properly disclose the payment schedule because the schedule did not reflect that the required payments were due monthly; (2) did not clearly disclose the APR and variable rate feature, based in part on disclosures reflecting a note rate of 1.950% and a five year fixed period that applied to the payment and not the rate; (3) added information to the TILA disclosure that was not directly related to the information required to be disclosed (i.e., the initial discounted interest rate of 1.950% set forth as the note rate); and (4) failed to properly disclose the possibility of negative amortization. The federal district court agreed with the first three allegations and determined that the loan was rescindable because of the violations. The court further determined that this matter was appropriate for class certification, finding nothing in the language of the TILA that precludes the use of the class action mechanism to obtain a judicial declaration of whether a TILA error entitles each member of the class individually to seek rescission. The MBA and other industry trade groups have 2 filed an amici curiae brief requesting that the United States Court of Appeals for the Seventh Circuit overturn the class certification. Barrett v. JP Morgan Chase Bank, N.A. (445 F.3d 874, 6th Cir., April 18, 2006). The borrowers refinanced their mortgage with Bank One in May 2000 and again in January 2001. In May 2001, the borrowers refinanced the loan with another lender, and Bank One released its security interest in their home. The borrowers requested that the Bank One loans be rescinded based on alleged TILA violations. Bank One responded that because both loans were refinanced, and the security interest released, there was nothing left to rescind. The district court agreed, but the United States Court of Appeals for the Sixth Circuit reversed. The Sixth Circuit stated that nothing in the TILA or its implementing regulations provides that the act of refinancing extinguishes an unexpired right to rescind, and that the right to rescind gives consumers the right to recover fees in addition to the right to the release of the security interest. |
2. Challenge the Ownership of Your Note –
Does your lender really own your mortgage? Are you sure? Why don’t you make them prove it?
Aaron Krowne and I first broke the story about the Ohio ruling in which Judge Christopher A. Boyko of the Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed.
Judge Boyko issued an order requiring the Plaintiffs in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff (Deutsche Bank) was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the court would enter a dismissal.
April Charney, a powerful legal aid attorney and foreclosure defense pioneer in Jacksonville Florida said this about the Ohio rulings, “This court order is what I have been saying in my cases. This is rampant fraud on every court in America or non-judicial foreclosure fraud where the securitized trusts are filing foreclosures when they never own/hold the mortgage loan at the commencement of the foreclosure.”Charney said, “That means that the loans are clearly in default at the time of any eventual transfer of the ownership of the mortgage loans to the trusts. This means that the loans are being held by the originating lenders after the alleged “sale” to the trust despite what it says per the pooling and servicing agreements and despite what the securities laws require.
“This also means that many securitized trusts don’t really, legally own these bad loans.”
She went on to say, “In my cases, many of the trusts try to argue equitable assignment that predates the filing of the foreclosure, but a securitized trust cannot take an equitable assignment of a mortgage loan. It also means that the securitized trusts own nothing.”
Now, this is quickly becoming a preferred punch of choice used by cleverly trained homeowners and aggressive heavy weight attorneys to bring lenders to their knees with a swift jab to the chin during the foreclosure process.
I can almost guarantee that your lender or servicer will not want to see you in the foreclosure ring if you have been training using the above fighting techniques.
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{ 29 comments… read them below or add one }
Brilliant article, Moe. Useful info that can be used to fight the injustice and greed of banks is always appreciated. I hope to hear more from you about this. I have been completely fixated on this mortgage mess since the crumbling of American Home Mortgage last August. The news just gets more interesting everyday. My sympathies to the hard working, small man who works for these crooked banks and mortgage companies. But no sympathies at all to the fatcat bosses who rake in millions after being terminated for their “business decisions.” Good Riddance to them all.
Thanks Captain! Your support and kind words only fuel my fire to keep fighting the good fight.
Would alot of these arguments of securitized debt also apply in collection of credit card debt? ie; I’m defending the debtor over credit card collection efforts stemming from a Discover card contract/agreement.
Are you going to have a mortgage foreclosure class in Houston, Austin or San Antonio, TX?
Do the same requirements apply to construction loans? The original documents state that the loan is for homestead property, but my son has not been able to complete the home and therefore foreclosure proceedinga have started.
We have answered the summons and complaint in a timely manner to avoid a default judgment.
Thank you!
Very infoming.
What general kind of response can be given upon within the 20 day period of being served with forclosure papers?
What can one do if they did not respond within the 20 day period?
Does on lose their rights?
To Donovan: Usually a motion to dismiss the foreclosure complaint is best. This preserves all your defenses for asserting later in your answer/affirmative defenses and or counterclaim. Even a simple letter from you asking for an extention of time to respond, filed before the 20 days is up, is better than letting the matter go to default against you. A default waives your rights and defenses.
Dovovan:
Do not let the 20 days lapse without at least filing a motion to extend time to respond. Otherwise you risk waiving all your good defenses!
Then go to an experianced lawyer who is familiar with defending these cases for a consultation. We charge a $100 fee to review and advise clients regarding tactics to repond to the foreclosure. Each foreclosure case is different.
Hi, I need to know if there is any thingI can do . 2 years ago we needed to refi our house to get out from under a bad loan. we did not have the credit but my mom did so the broker told us they would use her credit our income we would all be on the loan, well now we are facing foreclosure do to health probs, and went to the bank who bought the loan to get help but the only person on the documents is ny mom and they falcified and said she made 12k a month to qualify my mom is 80yrs old and on ss
what can i do I am not willing to loos e my home
We owned a construction business that closed. We have exhausted our savings and tapped our credit cards while looking for income this past year and 1/2. We are receiving unemployment compensation and will receive rental income from a bldg. we own starting in September. But the income will still not be enough to cover all of our bills.
A local company wants to sue our mortgage bank to get our mortgage reduced by “20 to 30%” reducing our payments and credit cards amounts and payment. They want $1,000 a month fee while it’s going on.
This is what they claim:
“It is not uncommon for a defense case to take over 100 hours of attorney time, spanning several years. As part of a Joint Venture with the Joe Aldeguer Group, our law firm has agreed to waive its upfront retainer fees and charges only a monthly retainer fee for the first 1,000 clients who sign up for the Mortgage Relief Program. Our goal is to place the homeowner on the offensive. Through aggressive defense, we seek a huge right down on the principal loan amount, a lower interest rate and a lower payment so that the homeowner can remain in the home. We expect that the homeowner will be in a better position to make a decision regarding their home in 8 months, a year and sometimes over two years, where no defense will most assuredly leave them homeless in a few short months. ”
I’m afraid that after the time is up, we’ll lose the lawsuit and lose our home. We believe in paying our debts but our home is no longer worth what it used to be. Our credit score has dropped drastically.
We can’t find a way to increase our income yet. We were told by an attorney that we can’t file bankruptcy because we own a commercial bldg. outright and would surely lose it along with other assets. What else can we do? Does this idea sound legal and what is the worst that could happen if we pursue it?
Thank you for any and all advice and suggestions.
HI EVERY BODY, DOES ANY ONE KNOW ABOUT A LEGIT LAWFIRM THAT REPRESENT HOMEWNERS FOR LOAN MODIFICATION IN NJ? I WILL APRECIATED ANY INFO. THANKS
I have been trying to get a modification with Washington Mutual/Chase for about 8 months now I hear that Chase is servicing the loan for a small investor who refuses to modify the loan is there anything I can do in this situation. We have filed bankruptcy to stop the sale of our home we are currently going through a lawyer to modify the loan can a bank or investor just refuse to modify a loan is there any government control over this process. I know people are a lot worse off than us but we feel we we need to do everything possible to save our home before letting this investor take it from us.
Has anyone had any luck with modifying their loan with a bank called HSBC? I need help fast…and they seem to be out of country and barely speak english to get info.
Hi – I’m looking for a Foreclosure Defense attorney that is well-versed and aggressive with these strategies in NYC area. please let me know. Hit me up at davyjay@hotmail.com. Dealing with American Home Mortgage Servicing.
Hello Moe, You are absolutely great!
I am behind on my mortgage since May2008 due to jobloss and loss of income by 50%. Tried to contact my lender on loan MOD. No response. Now I have received the foreclosure sale notice for Feb2. What woul be my quickest response to save our house. My income WILL increase this year substaintilly as I am in Sales/marketing and have closed on some great accounts.
Thanks for the kind words!
You do not have a lot of time. Dedpending on your state, you may have options. Check and see if your state has mandatory mortgage mediation throught your county courts. If not, you may want to contact the lawyer who is handling the trustee sale for the lender and ask or beg them for help in stopping the sale for 30-60 days while you work it out with the servicer.
Call and email all your city, county and state Gob representiaves and email the CEO/Executives at the bank. Join my forum at http://www.LoanSafe.org/forum to get more help and tips. Try http://www.NACA.com or if all fails, you can seek an attorney to maybe file chapter 13 bankruptcy which will also stop the sale.
Best of luck and don’t give up!!!!
After going through 9 months of loan mod with Chase and being on trial mod and paying 7 months of trial mod payments, Chase is telling my lawyer they cannot give me a modification because my property is worth a little more than what I owe. They are asking me to “refinance with another lender” which is absurd! I have done everything they asked and all they did was get money from me. They cannot find any other excuse so they are saying my property is worth more than my loan (which is not!)
As time goes by the pattern is becoming clear, most mods are not approved, the banks have no incentive to approve them, esp. when you have equity. I think they just string you along long enough until they can slam dunk you. They never had any intention of helping.
my mom filed for modification a while back, so they gave her a trial period. And after the trial period she had been trying to get in touch with them. She finally did, TODAY. and the supervisor told her that bc the house appraisal is so low they cannot further make the modification permanent even though we had done all the steps she paid 3500 and made all three of the trial payments on time and everything. Now they are asking her to file the entire process basicly redo and repay them, and on top of that everything she owed during the awaiting period before she got the modification. And now shes terrified, she doesnt know what were going to do bc we cannot afford to repay everything. Can they or do they have the right to do this? I mean the original loan modification was actually based on the her loan not the house value. So is this right? And what can we do, we are our options?
Lauren- If the “appraisal” is so low why worry about it? The property is worthless. Isn’t your mothers quality of life more important than a mortgage. (I don’t even want to know how long she has been paying on it.) Who is the lender?
We have an adjustable rate loan with countrywide(now b of a) . its up to $2400 amonth and I lost my job my husband only make 3000 a month. Ive tried several times to get my loan modified but they keep denying saying the reason is the ‘INVESTOR DENIED”. Who is this and how is it fair?? Is there any way we can get them to modify so we dont lose our house?
to Amy- Stop paying them. If the money keeps coming in, there are NO problems. Capiche?
Amy, how much money do you owe on the house? The bank is not the one who fired your husband. What if you only made 2000 or 1500 per month. You can’t afford your house, stop making others the bad guy.
We were victims of our mortgage company. We fell behind a couple payments, continued to pay, and all along they had been foreclosing on our cottage that we had listed as a secondary residence. It took place during Christmas and sold on Jan 6..We didnt open it back up till March, missed the summons day. The bank now owns our retirement home. This inspector tried to say we didnt have electric and an absense of furniture. What were they doing, looking at the new addition I had just built and spent 80,000 on? We never had a shut off and still have power there. We had 40,000 worth of materials there. Had taxes and insurance paid etc. They stole our home in the middle of winter when we had it closed up, and never sent us notices to our home in town. Then the people that winterized it, stole some property and vandalized the bathroom. The bank is dragging their feet on selling it back and we have to come up with like 10-15,000 over what we could have bought it for, had this not happened. We were taken advantage of. Providing they even sell it back because the property is worth more. We had our home stolen, and cant seem to get any reporters or help investigating that this company didn’t follow oaths they took when conducting business. How that inspector could get away with saying it was abandoned is beyond me. Plus them knowing it wasn’t our primary residence and it being the middle of winter and the whole idea of the notification process is to make sure the people are aware of any notices, so they have a fighting chance to answer back. We were kept in the dark for 3 months and then it was too late. Any legal comments call Matt at (616) 406-7881
We were victims of our mortgage company. We fell behind a couple payments, continued to pay, and all along they had been foreclosing on our cottage that we had listed as a secondary residence. It took place during Christmas and sold on Jan 6..We didnt open it back up till March, missed the summons day. The bank now owns our retirement home. This inspector tried to say we didnt have electric and an absense of furniture. What were they doing, looking at the new addition I had just built and spent 80,000 on? We never had a shut off and still have power there. We had 40,000 worth of materials there. Had taxes and insurance paid etc. They stole our home in the middle of winter when we had it closed up, and never sent us notices to our home in town. Then the people that winterized it, stole some property and vandalized the bathroom. The bank is dragging their feet on selling it back and we have to come up with like 10-15,000 over what we could have bought it for, had this not happened. We were taken advantage of. Providing they even sell it back because the property is worth more. We had our home stolen, and cant seem to get any reporters or help investigating that this company didn’t follow oaths they took when conducting business. How that inspector could get away with saying it was abandoned is beyond me. Plus them knowing it wasn’t our primary residence and it being the middle of winter and the whole idea of the notification process is to make sure the people are aware of any notices, so they have a fighting chance to answer back. We were kept in the dark for 3 months and then it was too late. Any legal comments call Matt at (616) 406-7881
we are having big mortgage troubles and need some advice. we have a home with a first mortgage of 400,000 and a home equity line of 300,000. We have never been late on a mortgage payment nor the line payments. our bank was sold to a different bank and they called the home equity line due in full. there is no way we can do that right now. the reason we even have it is the state of the economy and my husband is the owner of a family business which has suffered in the past couple of years like every other business. they are now throwing us into foreclosure. we have listed the house for sale but are fearful that they will not give us the time to sell. please send any advice you can help with. the house is worth much more and is listed for much more than we owe.
@ Marlen. Lien stripping through a Chapter 13 Bankruptcy might be an option if you owe more on your 1st than your house is worth. If you are upside down on your 1st, you could have the 2nd stripped.
I have a property I own with my son in California. He lives there, I never have. It’s so underwater and the neighborhood has become so dangerous I want to walk, but the atty is telling me that although the bank has no recourse for my son since he lives there, they have recourse for me and that as co-borrower I am responsible for the full amount. Is this true? I got the impression the atty wanted to continue to raise “issues” he could “research” at $400/hr and in the meantime nothing meaningful is happening.
I was hoping to see more update information as much in this post is older and things change almost monthly in the foreclosure defense field. I have found now auditors that willdo document examinations and I am referring people to them all the time. It is not as easy as making the bank produce some document to prove they own your home.
Modifications are being used to disqualify people from help and often TRIGGER foreclosure leaving people without a foreclosure defense.
Matt it is not too late but many can’t afford lawyers. that stinks how it happened.