(BREAKING NEWS, OP-ED) — The author of this post carefully posits this article for your educational benefit and any information shared here should not be construed to be legal advice.
Anyone familiar with this online blog is probably fully well aware that the content shared on this site has a lot of legal undertones, so much so, that many people are apt to misinterpret what’s being said in reality, replacing their thought processes with directives shared as “suggestions” on this site (hence the need for the disclaimer).
The state bar associations are starting to find themselves in a real dilemma. Three states (Washington, Utah and Arizona) have already initiated non-lawyer “paraprofessional” objectives to allow more folks to have access to the justice system. This comes at a time when eviction moratoriums have pretty much been lifted and the “man behind the curtain” jumps out and reveals himself in the form of service of process.
This author is getting closer to deciding a date for when another Foreclosure Defense 101 class should be held. Of course, with no one willing to fly anywhere, this will probably be held online in webinar format, where you get to ask questions via the chat box.
The thing about foreclosures … statistically, 97% or better of those receiving service of process (notice from the bank via physical delivery via a knock on the door, certified mail, notice of publication, door hanger, etc.) will ultimately decide to pack their belongings and bug out, if what happened after the 2008 financial collapse is any indication. Maybe we have more liquidity than we did before, maybe we don’t. If we don’t have the resources to fight, it’s because we’re fighting the urge to resist identifying where those resources are. The author describes those resources more fully in his book Clouded Titles.
If there was a way you could fight a foreclosure and stay in your home for over two years, would the information in a webinar workshop be worth it to you to have in your arsenal of legal tools?
Then … prepare yourself for the fight (not of your life) that generally sickens most people. Prepare yourself mentally NOT to do stupid stuff (like give in so quickly).
The legal system has provided us with so many stall tactics (NO! Bankruptcy is NOT one of them!) it’s a wonder more people haven’t stopped to “catch on”. They just want off the merry-go-round because that’s pretty much what you’ll feel like you’re on when you engage in fighting the foreclosure; however, the merry-go-round is not spinning at 3 miles an hour … it’s spinning at more like 60 miles an hour! The closer you get to your court date, the faster the merry-go-round speeds up.
If you’ve ever been to a “rocket docket”, like this author has multiple times … it’s a scary thought … watching a judge clear a courtroom of homeowners being foreclosed on in 3 hours or less (just in time for lunch), with their actual case hearings lasting two minutes or less. It’s amazing how many homeowners complain that they have no access to “justice” when in fact, the legal system has never been more “giving”. The information highway is chuck full of data if you know where to look.
Planning Your Strategy … in 5 steps!
Remember the Harry Potter movie where Hagrid (while strolling down Diagon Alley) tells Harry, “If you know where to go …”? Half your battle is in research. If you don’t check your chain of title, you’ll end up choking your chicken in frustration. (The author doesn’t mince words here.) This is THE MOST important point in the entire schematic of foreclosure defense, especially when it comes to playing the delay game and playing it well. If you don’t understand the chain of title, the author’s website offers a COTA Workshop that you can get via download in (4) 4-hour sessions and listen, watch and study what’s necessary to get through from Point A to Point B.
Once you’ve looked at your chain of title, the next fundamental issue in your quest to research details is getting at the truth. The “truth” the way banks see things and the way YOU should see things all has to do with perception of what the documents in your chain of title say. The chain of title is like an electric schematic, which tells you HOW things are connected in the series of conveyances, claims of lien and security instruments, which are designed as the hinge pin in claiming ownership of your collateral (your home). Once you understand how all of this is postured, it makes things a lot clearer in your understanding of HOW to proceed.
Get copies of every document in the chain of title and examine each one that is relevant to your current situation, especially the assignments (of mortgage or deed of trust). These little minuscule pages are where the devil is in the details. A single-page assignment that contains all sorts of false and misrepresentative statements can be the bank’s undoing, at least in the short term. Filing a quiet title action is NOT what you’re going to pursue in your research. You’re not ready for that yet.
History has taught us that anyone running into court trying to quiet their title when it’s littered with all sorts of bullshit assignments is not only a big waste of your time and the court’s time, your foreclosure mill attorney will immediately pick up on your strategy and counterpunch you with motions to dismiss. Quiet title works when there’s nothing left in the chain of title other than a lingering deed of trust or mortgage that’s not connected to anyone and the originating lender is defunct and can’t be found. The idea here is to attack the assignments head on through a C & E action. C & E is an acronym for Cancellation and Expungement action, which means you’re filing a declaratory relief action wherein you’re asking the court to examine a document for false statements and to cancel the document and order the clerk or recorder to remove the document completely from the land records in your county so the document has no legal force and effect against your property any longer. This is what Al West and I developed into a workshop called The C & E on Steroids!, also available in DVD video/book combo form! There’s nearly 14 hours of really good educational information packed into this kit. This is the ammo one would use to fight those pesky assignments. Here’s an idea! Once you’ve done it, make your investment back by helping others achieve success in this realm.
Knowing where to find the petitions and responsive pleadings is your next research step. There are websites that are devoted to supplying this kind of information if you don’t have time to wait for a pleadings and procedures book for your specific state. You can find these types of books in law libraries and they aren’t voluminous and most of them are self-explanatory. It’s easy to simply make copies from the book on the pleadings you need (or buy the book online from a legal bookstore). This author has spend hundreds of hours in the law library “chasing cases” because foreclosure mill attorneys are famous for throwing them around in their pleadings in an attempt to make their point tot the court about how they’re right and you’re wrong. Many times however, these attorneys throw cases in there that are NOT applicable at all to the scenario you’re dealing with and you have every opportunity to thwart their moves (like one big, giant chess match).
Foreclosure mill lawyers have their own set of schematics too. They know them well, like a flow chart of procedures. This is what they get paid for … to execute on that flow chart every time they get a case. They eat, breathe and shit this stuff on a daily basis and thus, THAT mindset is what you’re up against when you face these shysters in court. You have the right to be treated as an equal by the court if you can’t afford representation, which means if the attorney says you want a “free house”, you get to stand up, object on the grounds that, “My worthy opponent is at his best when not inhibited by the facts, your Honor!” In other words, you just matched wits with this lawyer by eloquently calling him a goddamned liar!
This is where research will help you become equally prepared to challenge his or her legal acumen because they will use every dirty trick in the book (like they’ve used on other unsuspecting victims of foreclosure). Facing off in court is not for the faint of heart either … and neither is being unprepared for the battle for the judge’s mind.
Framing your arguments is probably the biggest mess that a homeowner (or their attorney) can create, especially when it comes to beer belly budgets. Most attorneys went to law school and learned what California attorney Al West calls, the “shotgun approach”. This means (in short) … sue as many people as you can for everything under the sun and see what sticks. Unfortunately, what most pissed-off homeowners don’t realize is that naming multiple defendants costs money: (a.) in developing the case against each defendant and the allegations against them; (b.) in the time it takes to complete the pleadings preparation; (c.) in filing and servicing costs ($300-$400 in filing fees and $60.00 per defendant served); (d.) in responsive pleadings to each defendant (after they file their answer to your complaint); and (e.) case management. Each defendant will cost an average of $3,000 in legal fees, not counting discovery (via a deposition) which adds another $3,000 in approximate costs for each defendant deposed. To make the math more simple, let’s say you have an attorney that wants to sue 5 defendants and wants advance testimony from each of them. Without even batting an eye, you’re up to roughly $30,700 and the judge hasn’t even reviewed your case yet. Until you start evaluating your arguments, you have no idea what a lawsuit (or counterclaim) against a foreclosure is going to cost you.
While an answer to a judicial action can be a simple process, compulsory counterclaims aren’t. If you’re trying to buy time, filing an answer in a judicial proceeding will buy you an average of 60 days, or until a court date is set and you get notice of it.
And all of the arguments in the world won’t help if you can’t keep track of timelines. One of the biggest mistakes pro se litigants make is not keeping an eye on the court docket once a foreclosure proceeding has been commenced and the battle begins. Not keeping track of the timelines and what the Rules of Civil Procedure mandates you must do in order to stay in the game successfully can kill a case with one missed filing or one missed hearing. The other side will use their arsenal of tricks to up-end your best laid plans, especially when it comes to beating you on civil procedure.
With judicial process, you at least get your day in court, yet most homeowners don’t take advantage of that because they’re too busy running scared. Now imagine being in the middle of a perceived pandemic and facing a banking tyrant and its attorney head-on when all you can think about is how to avoid a potential brush with death.
With a non-judicial process, locking horns with the lender in court is the only way you’re going to stop this kind of foreclosure because the lender has resorted to advertising and selling your property on the courthouse steps instead and if you’re like the author, you’d want your day in court and the only way to get it is to file a lawsuit against the servicer and any parties coming against you that have made themselves “relevant” parties.
One would at least want to find at least one defendant in-state. This is how diversity jurisdiction is defeated because lenders will quickly remove cases to federal court because the amount in controversy exceeds $75,000 and the plaintiff lives in one state, while the defendant lives in another state. In-state defendants could include: (a.) document manufacturing plant employees; (b.) local law firms bringing the foreclosure action; and (c.) lenders whose headquarters are domiciled in whatever state you are filing the action in. This won’t work if the bank is just a branch of a main bank headquartered outside of your state. Most people don’t sue the trustee, unless the trustee (named within the deed of trust or substituted into it using a Substitution of Trustee document that follows a bogus assignment). Then … it’s open season on the trustee. Attorneys will give you a lot of push back on this because they don’t like suing within their own profession nor do they especially like suing trustees. The trustee is supposed to be a neutral party; however, when they do something totally egregious, there is established case law in most states that can wield an axe in the form of liability.
Again, the biggest issue is picking a fight with the wrong party. Generally, rampant emotions cause bad decision making and that is another fine line item that gets homeowners in trouble. If you’re going to litigate, let logic replace emotion. You’ll need logic along for the ride. There’s plenty of time for celebration later when you’ve effectuated your “Plan B” all the while holding the lender at bay.