(OP-ED) — The author of this post is a paralegal and trial consultant on quiet title, foreclosure and document challenges and does not offer the following information for anything but educational “intake” value; thus, none of this should be regarded as legal advice nor relied upon without the advice of competent counsel.
THE TIME TO PREPARE IS NOW!
Understand that my postulations on this blog serve as warning signals for “how to head ’em off at the pass” and my notions are served by supporting case law.
I consider Rhode Island to be a hopeless case when it comes to MERS-related cases. Anytime you want to argue what rights MERS has to do anything in front of a Rhode Island Superior Court judge, you may as well just turn around, bend over and let him … (insert your own imaginative deviations here).
However, on occasion, a case will come up where judges’ deviant behavior is called out by their state’s Supreme Court and I make note of the following case as it relates to other matters you should be looking out for at the inception of the alleged “bank” behavior in its attempt to start a foreclosure action:
The very basic tenets of a foreclosure involve “notice” and what constitutes proper notice. Many things come into play in this 16-page opinion; however, despite the rantings of the mortgage loan servicer in this opinion (Selene Finance), the state’s highest court vacated the Superior Court judge’s for summary judgment in favor of the alleged REMIC.
Preparation for the onslaught by your alleged “note holder” involves some deliberate planning:
- Get out all of your mortgage documents and read them, especially the part where the default and any related notices to you come into play. If notice does not comport to the terms of your mortgage or deed of trust, your focal point becomes attacking THAT flaw, not everything else. The foregoing case illustrates that.
- Obtain copies of all recorded documents NOW! You get them from your county land records. Do not wait until you start getting notices from your mortgage loan servicer and go into a state of panic or denial and hit the “pause” button. Because of this COVID-19 pandemic, you have the ideal opportunity to get proactive to deal with what may be coming at you head-on when the moratoriums are lifted and the servicers go on the warpath.
- Locate any/all Assignments of Mortgage or Deed of Trust. These become your secondary form of attack. You will need to analyze them fully and understand what constitutes the basis for your attack. Come at them in the wrong way and your attack plans will fail. Examining these assignments requires due diligence and intensive research. Plan on spending an entire day looking up everyone that is named within those assignments and background them thoroughly.
- Develop a timeline of your chain of title. You have to be able to clearly identify WHAT happened during the course of ownership of your home and identify with specificity WHEN it happened and attempt to detail the reasons for such occurrences. Knowing HOW an entity operates in order to develop suspect patterns is important in your research, so don’t skimp here, on time or details.
- Obtain certified copies of all recored assignments as well as “office copies” of all recorded documents. You want a certified copy of the assignment as evidence in support of your two-pronged secondary attack. What I will be sharing in the upcoming online Foreclosure Defense 101 Workshop will deal with this step in the process. Keep in mind that you may have experience in dealing with previous foreclosure attempts. Many of the defenses may have resulted in successes in your favor; however, also keep in mind that the servicers’ lawyers are going to ramp up the next time and probably won’t make the same mistake again.
- Open all mail and especially those certified letters and notices from your alleged “note holder” or servicer. DO NOT let them pile up on the desk or kitchen counter. Be excited when they arrive. Be excited when the process server comes to your door. DO NOT avoid service. If you do, the bank’s lawyers (who are really representing the servicers) will serve you with Substituted Service and/or when that attempt fails, you get hit with a default judgment, which is as good as gold to the bank! (This of course, does not apply to deed of trust states!)
- Examine any notices you receive regarding the “alleged default” on your loan. Understand WHO the letter is coming from and WHO is attempting to accelerate the note, which requires payment in full in lieu of pursuit of a foreclosure action against your property. The letter should fully explain WHO is claiming to be the “note holder” that has the right to enforce the terms of the mortgage or deed of trust. If that portion is missing from the notice, you have every right to immediately demand an explanation vis a vis a Qualified Written Request under Section 6 of the Real Estate Settlement Procedures Act (RESPA). You cannot prepare an adequate defense if you don’t know who’s coming after you.
- In all instances, assume that: (a.) any notices you get from a trustee or law firm are based on actions by the mortgage loan servicer, NOT the lender or trustee of a REMIC trust; (b.) any notices you get will likely contain false and misrepresentative statements; and (c.) any notices you get will rely on a corresponding assignment that has been recorded in the land records preceding a Substitution of Trustee or Notice of Default or Notice of Intent to Foreclose.
- At all times during the process, keep your eye on the land records! Check them weekly for any sign of new recordings, corrections to the assignments or newer recordings, attempts to hide the assignments by using alternative means (like putting all of the recorded documents in the name of your spouse, etc.). If need be, ask your county clerk for help in determining if there’s “anything else” in the land records you’ve missed that could defeat your defense, including Limited Powers of Attorney recorded by the mortgage loan servicers, especially when they’re the “assignor” and the “assignee” (called a self-assignment) of any alleged authority.
- Understand that YOU are NOT the perpetrator of any alleged foreclosure scheme coming against you! You have every right as a property owner to defend the home to the best of your ability, even if you lack legal acumen. As a participant, you may also become the victim of identity theft and numerous felonies committed by the bank, the trustee or the mortgage loan servicer dealing with your mortgage loan. Assume everything they tell you is a lie … and you won’t be surprised later because you’ve prepared yourself to retaliate against their false assumptions.
Mortgage loan servicers are out to make money to reimburse what they had to pay investors or whatever lender happens to allege it’s the “note holder”.
At a point in time in the near future, the moratoriums will be lifted and you should be well prepared to understand whether the servicer coming against you has any right to offer you a loan modification or forbearance … or for that matter … to come against you at all. I’ll discuss that in my next segment. Visit the Clouded Titles website for more information!