Tag Archives: C & E

EXIT STRATEGIES

(OP-ED) — The author postulates the following for things you might want to consider when all else fails. None of this commentary should be taken as legal or financial advice. If you’re a homeowner who is hurting financially, you should at least consider these options before the ship sinks.

IN THE WORLD OF FORECLOSURE

Welcome to my world of the last 12+ years. I use the “+” sign because my foreclosure scenario started back in 2003, which, upon reflection, caused me to start researching into what turned into the book Clouded Titles. That was back in October of 2008, when I began compiling all of my research into the cause and effects of the 2008 financial collapse and by December of 2010, the book was released in its 254-page format. It’s now 432 pages.

I write this post in earnest because this is the other way of saying, “What’s your end game?”

YOUR END GAME AND THE PRACTICE OF LAW

Most attorneys dealing in foreclosure defense will ask you that very question when the time comes for you to deal with someone claiming you’re in default and they want their house back. They want to know how long they can count on you to be their client.

Most attorneys won’t take your case unless you can actually tell them a valid reason WHY they should take your case. If you don’t have one, the honest attorneys will move on. Most attorneys also want to know if you intend on fighting until you can’t fight any longer. Some attorneys don’t care how long you fight, they’ll just suck your bank account dry anyway.

A lot of your response depends on whether it’s fueled with emotion, entitlement or serious legal logic. If there is a forensic issue with your property, such as dealing with failed mortgage loan servicer accounting issues, that is different than attacking the foreclosure mill law firm based on other more complex grounds, like tortfeasor claims. Sometimes you can actually settle your differences with the other side’s attorneys. More often than not however, the servicer wants your house and will stop at nothing to get it, including dummy up phony land record documents.

At the end of 2020, a lot of my investor buddies think the banks will be doing a lot of loan modifications with those who, even though they got behind in their payments, can start paying again. But there’s still that handful of tens of thousands that are the exception to the idea and won’t qualify. These folks still may have “exit opportunities”. They just haven’t realized it yet.

A lot of exit strategies are based on lack of finances altogether. The stimulus checks could never be enough. Thus, you must first sit down and have your “Come to Jesus” meeting with yourself and your spouse and family, if that’s applicable. You cannot … and should not … hide the fact that a legal action has been commenced against you, hoping it will go away because it won’t.

I talk about various “exit strategies” in my book Clouded Titles for a reason. Back in 2003, I did what’s known as a “strategic default”. I walked away from a high-priced, 80/20 predatory mortgage loan, knowing I had a better deal elsewhere. But, at least I had a better deal elsewhere. Most of those reading this post will not and/or do not. My “end game” was to walk away. No cash for keys. Nada. I was already upside down from the word “go”, so leaving was a no brainer. Unless I did something drastically sensible, I would continue to throw good money after bad. I moved into one of my rental properties and sent Ocwen the keys. Not that many are fortunate enough to have that kind of “back door” but it doesn’t mean there couldn’t be one.

The way I look at it, if you have no equity in the house to begin with, whatever money you threw at the property initially amounts to nothing more than short-term rent payments. That money is gone. What you do with the rest of your funds means everything at this point.

HISTORY DOES REPEAT ITSELF

Because of the fact history repeats itself and the Glass-Steagall Act has still not been reinstated, the banks are still playing in the securities business and REMIC trusts abound. As long as there is an “arm’s length” issue that keeps the borrowers away from the investors of these trusts, courts will continue to kick people to the curb at the whims of the REMICs’ trustees.

Because of the Spokeo v. Robins case, injury in fact has to be proven. This is where the Exit Strategy is most important because attorneys don’t recognize that the investors aren’t the ones that are being harmed, at least not always. Yes, there have been lawsuits by investors against these REMIC pools because there were discrepancies in the quality of the loans they “bought into”. I don’t personally feel the least bit sorry for any of the greedy bastards. They deserved what they got. They saw a way to piggyback on top of the banking industry’s profits. But were they injured? No one is asking them or their trustee to prove it. Why not?

Think about that. If the REMIC’s trustee or some third-party junk debt pool is dragging you into a foreclosure process, it’s because the trustee (who claims to represent the certificate holders of a certain trust) says you’re in default and the certificate holders were harmed, when in fact, just the opposite is true. You may not have made your payments, but the servicer of the REMIC trust was required to make them for you anyway, regardless of whether you paid or not. So, it’s really not the certificate holders that were harmed, it was the servicer (or sub-servicer) who had to shell out millions of dollars out of its coffers to cover the advances due on the Distribution Date every month. THAT’S who is coming after the homeowners in foreclosure, not the “lender” REMIC. The REMIC is an entity that is tax-exempt as a pass-through trust. Nothing more. It made misrepresentations to the certificate holders about what they were investing in. That’s not our problem. We have to show our payments were paid whether we’re the ones who paid them or not. But what does the servicer do? Its attorneys bring in pay statements, showing the judge when was the last time you paid on your mortgage … then they call you a deadbeat … and just like that, you lose your home.

What’s wrong with that picture? Sometimes, the servicer doesn’t even bring in pay statements and the court still gives away your home … to an entity that actually may not deserve it.

Your time to discover that there was an issue with your mortgage loan was the first time you got notice that your servicer changed and another servicer started demanding money from you. But instead of researching the land records and looking for bogus assignments to do a C & E on, most homeowners were too self-absorbed to realize what was going on until it was too late to do anything about it.

THE GSE’S ARE NO DIFFERENT … THEY JUST HIDE IT BETTER!

If you go to irs.gov and type Publication 938 for any given year in the search tool and look at the documents that come up, you’d be amazed to see how many Fannie Mae, Freddie Mac and Ginnie Mae REMIC trusts there are in existence. These are the REMIC trust that each of these government-sponsored entities (GSE’s) are the administrators for. They are like a trustee except when they come into court, they come in on their own behalf … most of the time. In non-judicial settings, it’s always the servicers that come knocking, preceded by suspect documents being recorded in the land records. When you’ve seen as much of this bullshit as I have, all of this becomes “old hat”.

I might as well be the judge that says, “What else ya got?” It’s the same shit. Just a different day. And no one is the wiser when the servicer transfers ownership of your property to the GSE when it’s all done because you’re too busy trying to figure out your exit strategy, after it’s too late and you’re treading water.

WHY DO WE CAPITULATE TO THESE BANKS?

There’s just something inside each one of us that twists our stomach in knots when we finally realize what’s happened. We can no longer be in denial. Some entity out there (run by a bunch of misguided minions who think everything they’re doing is legal) is coming to take our most precious commodity away from us … shelter.

Remember when I previously stated that the three most precious commodities in America today are food, water and shelter. Anyone who deals in these businesses will continue to survive because they have access to those three commodities. There is a fourth commodity that shouldn’t be overlooked: transportation. A lot of people have depended on their cars for a place to live because there was nowhere else to go. Sadly, I had to live in my car for a month (back in the 70’s). It wasn’t any fun. Going to gas station rest rooms to clean up was no fun either.

Those who have no “end game” when the time comes will be scrambling at the last minute, driven by panic and not common sense, to play in a condition I have previously described as the Titanic Syndrome. In other words, it’s every man for himself … man the lifeboats. Wait! There aren’t enough lifeboats and the ship has just hit an iceberg and is listing. The band strikes up with Nearer My God To Thee as passengers fight each other for space. Those who didn’t make the lifeboats get sucked down into the ice cold depths of hell when the ship finally turns on its end and sinks to the bottom of the Atlantic Ocean. Those who remain are floating on the surface are left clinging onto pieces of driftwood, which is what My Heart Will Go On-type movies are made of. And doesn’t all of this just tug at your emotions?

Instead of doing something productive to get away from this situation, we keep clinging onto what’s left of our scenario, when we should have damned well realized that the mortgage loans we took out are going to be the death of our equity in life. We were too slow to react, which is why I write this column. Yes, we need shelter; however, HOW and WHERE we get it should have been more thoughtfully researched … and weren’t … because, again, most of us got caught up in the emotion of buying more home than we could afford. As a result, we’d rather be all stressed out, suffer from heart attacks, family discord, suicide, murder-suicide … all thanks to a situation that was created by the banks and made all too easy for folks to access. Every day you do nothing means your equity (that which you still have in yourself, I like to think of it as sweat equity) is going to waste.

The first time we capitulated to the banks is when we took out a securitized mortgage loan that was registered in the MERS® System. The second time we capitulated to the banks is when 97%+ of us bugged out when we got a foreclosure notice. We did all of this out of ignorance and false hope because we were promised things that did not come true for our futures. Putting false hope that a bank is going to come and rescue you or even cares about you is your first mistake, which is why you have to strategize about your own realistic future and make a decisive move towards that end.

SINCE I GOT INTO BUILDING HOUSES … MY THOUGHT PROCESS HAS BEEN ALTERED SOMEWHAT

Tiny homes are nothing new; however, the idea that you could scale down into one and tell the bank to piss off seems to ring true with a lot of folks these days. This is why banks don’t want jury trials in foreclosure cases because chances are, there are a lot of folks that hate banks as much as the foreclosure-affected person does. We all have our reasons for doing what we do. However, imagine being able to use your resources to acquire a small plot of land somewhere and put a temporary shelter on it that you could live in while you build a bigger home from the ground up and you could use that shelter for an office or guest cottage later. How does that sound? What if you could mount that cottage onto a trailer and tow it around with you and go mobile? A lot of people are doing that these days, except they’re buying big, bulky RV’s that suck gas and are in no way energy efficient, are cumbersome to navigate and are a waste of money anyway (I’ve had RV dealers tell me that personally).

To me, tiny homes are just a way of temporarily downsizing until the moment comes where you can seize a better opportunity for yourself.

IT’S JUST STUFF …

Another thing folks have a problem with is letting go of material possessions they don’t need. If you’re a hoarder, your scenario becomes more than a mental challenge. You’re in a world of your own and anything that disturbs it will cause serious health complications.

Downsizing is one thing if you have time to part with your property before the bank does, especially if there’s that much equity to be had. But could you imagine being able to become self-employed and work out of your own portable home? You could rent a space in an RV park and take on work locally for that matter. There are a lot of ways to turn lemons into lemonade if you just put your mind to it. Since food is one of the key ingredients in the game, your plot of land could serve as a garden and supply you with an income doing truck farming, an all cash business.

Or if you have a professional service you could offer where you don’t spend a lot of time in any one area (like handyman, painting or other simple construction work like day laboring, it would be nothing to be able to pick up cash to stay afloat while YOU decide HOW you want to live … and not the bank or its servicer deciding HOW YOU SHOULD LIVE (broke and homeless in a tent city somewhere). To the banks, it’s a numbers game. You’re just a number. Don’t you just hate that thought?

I like what I’m building now, because the house is made out of steel SIPS panels. The walls are 4″ thick with EPS foam insulation and have 6″ in the roof. The panels are made from 26-gauge Galvalume® steel, sandwiched around the insulation to provide airtight and watertight, non-toxic living! These homes are Category 5 hurricane resistant and have no termites because there’s nothing to feed off of within the entire structure itself. The structure will also save 50-60% on energy bills, which means nothing if you’re renting an RV space but everything if you’re on the grid in a fixed location. Yet, you can take this same concept and for way less money, construct a portable home that is energy efficient in almost any climate.

The alternate exit strategy here would be to downsize to something smaller more manageable or even mortgage free (having a free small home to live in, even if temporary, is better than having to pay rent), despite having to make a small land payment every month. At least, that’s manageable.

I did that very thing in 2007. Back in 2003, I acquired a 12-acre parcel of land, which I later sold at a handsome profit. By the time 2007 arrived, I had acquired a used, single-wide mobile home and fixed it up to the point you couldn’t even tell it was a mobile home when you set foot inside. I had a land payment of $222 a month for 10 years for almost an acre of land. I lived in that mobile home for 4 years and lived within my means while I continued to help homeowners fight foreclosure. I made use of the barter network too. I use this example to illustrate what a little imagination and creative financing can do to make you mortgage free. As part of the land sale in 2007, I had the buyer pay off all my existing debt and move the mobile home from the 12 acres to the 2/3rd’s acre and connect the septic and utilities and make the land downpayment. What the buyer couldn’t pay for in cash, I had him pay off using his credit cards and sweat equity on trade! How’s THAT for creative financing? There are ways to do a lateral move that will cost you way less money if you’ll just strategize HOW you’ll get there, HOW LONG you’ll stay in that situation and HOW you’ll survive while you’re in that situation. I made it work, so can you.

There are places where land is cheaper to acquire and many times, owners will finance it if you have any kind of down payment. You might have to relocate to a different part of America but if you’re in a situation where there’s no income in one given area doesn’t mean there won’t be in another. You have to do your due diligence. Maybe the market you’re living in has outlived YOUR usefulness and it’s time to seriously seek out greener pastures.

BEING NOMADIC DOESN’T MEAN YOU’RE A GYPSY

There’s other interesting ideas about being nomadic:

  1. One could go “off grid”, so to speak, because the utilities used to power a portable home are rented and not in your name (for cash);
  2. One could remove the SIM card and battery from a cell phone making it difficult for one’s movements to be tracked or contact traced (or get disposable burner phones) and only return calls from a central number, like that of an answering service;
  3. If a given state allows a property to be placed in a land trust, putting the property in a trust name that can’t be tracked to an individual personally serves as an asset shield (vehicles can be put into trusts too);
  4. One could easily turn a portable home into a Faraday cage with very little effort, especially if it’s built out of steel SIPS panels;
  5. There are ways to disable a vehicle’s GPS system so the vehicle can’t be tracked (if it is equipped with such);
  6. The nomad is mobile and can navigate into areas under quarantine for any reason without too much difficulty and still conduct business;
  7. Since the nomad would travel with the home, it’s always close by and easier to monitor no matter where the location;
  8. There’s nothing stopping one from taking “extended vacations” when not tied down to a mortgage loan;
  9. The vehicle and the home it’s tied to is 100% owned and not mortgaged; and
  10. The idea of being nomadic is that life is too short and should be lived to the fullest when not being encumbered by the problems of the world.

It’s really hard for most people to come to grips with the fact that everything in life is temporary and that we only have it for a short while. The thing is … one of the oldest principles my dad taught me was to pay for what you want with cash and not use credit. Credit could become the devil’s playground if not used wisely.

While this may seem extreme to some, I’ve known folks who have made a living working flea markets all over the country and have managed just fine. They’ve figured out a way to sell collectibles or some other disposable product and make a living out of it. Many set up accounts on eBay and you’d be surprised how many single moms actually go to the garage sales and flea markets, buy a lot of items in bulk and sell them online at a huge profit. It’s a great way to navigate and make an income during a lockdown. People get frustrated when they’re cooped up, so they go online and shop, many times buying stuff they don’t need. Conversely, most Americans are so frustrated and upset because of the political climate that surrounds them they miss opportunities that are right in front of them because they worry about things that are beyond their control and it consumes them.

The one thing about being nomadic, you only need internet access to run an eBay account. If anything, I might add that there are mechanisms the government can use to track a person’s income, especially if they had an eBay account. But no one said someone couldn’t run it as a home-based business and take advantages of all that Uncle Sam’s tax deductions have to offer. Ponder that for a minute. I know a guy that worked out of a satellite postal store for years, re-established credit in the name of his business and paid no income tax because he didn’t make the minimum required to even file a tax return. But this is why “the system” keeps toying with the idea of a cashless society, so it can track every single movement and control the individual. Doesn’t that kind of sound like Communism to you?

And just look what’s going on in Russia today. The country has a huge underground economy and a lot of organized crime that has taken over government. And the sheeple here do not realize what they’re in for. Concern for your safety should also drive your thought process when it comes to the “end game” as to where to relocate to start over.

The beauty of an exit strategy is … you have the opportunity to reinvent yourself.

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AMERICA BRACES FOR MASS FORECLOSURES AS ECONOMY RE-OPENS!

(UPDATE: SEE ADDENDUM TO THIS POST AT THE BOTTOM!)

(BREAKING NEWS — OP-ED) — The author of this post has spent the last 12 years researching securitization, foreclosure issues and other consumer-related, debt collection topics.  The opinions offered here are the authors and should not be construed as legal advice. 

FOR MANY BORROWERS, THE SHIT WILL HIT THE FAN! 

As expected, I’m getting backchannel feeds on the serious uptick in foreclosures, especially in the GSE-related foreclosure arena.  So here’s the immediate concerns, based on my current research:

  1. The government (through Congress) issued a moratorium on foreclosures due to the corona-crisis.  You can anticipate that it’s the calm before the storm because when the moratorium is lifted, the mortgage loan servicers for Fannie Mae, Freddie Mac, Ginnie Mae and conventional lenders have already made plans to ramp up on those lulled into a false sense of security. Congress will not interfere with the “pulse of the economic backlash” when it comes to the government’s own interests, FHFA or not.
  2. The mortgage loan servicers have been paying advances to the GSE’s REMICs (Real Estate Mortgage Investment Conduits) since Congress imposed the moratorium. Under their contracts, the servicers and/or subservicers  are required to pay investors the principal and interest on every loan alleged to be in “default” under the terms of the mortgages and deeds of trust these mortgage loan servicers are collecting payments from borrowers on that are allegedly contained within the REMICs.
  3. The longer an extended moratorium lasts, the more “in the soup” the servicers become because their surplus funds accounts they use to pay the advances with are being further depleted and they would logically be forced to “borrow” from everyone’s escrow accounts (“rob Peter to pay Paul”) to make good on their contracts, knowing full well that when (not IF) the moratorium is lifted, they will force the shit to hit the fan in order to foreclose, sell and reimburse themselves for all their losses.
  4. Those who have been able to make their mortgage payments every month despite the moratorium might want to check their escrow accounts to make sure they are solid and accurate and haven’t been “borrowed from” (the “robbing Peter” side of the equation). The servicers will emphatically deny they’ve raped every account they could grab money from; however, if notations aren’t made of the alleged “robbery”, how would the servicer actually know WHICH ACCOUNT they borrowed from, meaning the innocent borrowers who’ve made their payments every month will see a shortfall in their escrows, which could inadvertently put their accounts in default, which in turn could force borrowers to have to make up the shortfalls (through no fault of their own) to make up the difference to bring their accounts current.  This may be one of the reasons that Ocwen Loan Servicing and its parent issued $600-billion in securities to shore up their “advance” payments.
  5. Because the moratorium is set for 60 days out, whatever delinquencies occurred during that time will be calendared for default on that magic date I’ve talked about before … DAY 91!  Expect a rash of threatening letters from the mortgage loan servicers to borrowers in trouble as they push their collection activities forward another 30 days past the moratorium to hit that magic date!

DAY 91 FACTORS INTO THE ACCOUNTING, MORATORIUM OR NOT! 

It matters not whether you were given a “grace period” with this moratorium, the mortgage loan servicers are in business to make money by foreclosing on properties they can’t resolve; thus, if you don’t have a windfall to bring your loan delinquencies current, it will trigger DAY 91.

Prior to “DAY 91”, you may see the following actions taken by the mortgage loan servicers:

  1. DSNews is already reporting intended aggressive pricing on foreclosed properties to sell to third-party investors as quickly as possible.
  2. Anticipate MERS-related documents, particularly REMIC transfers and indirect transfers to the servicers themselves, as a means of justifying the upcoming foreclosures, which means those assignments are going to hit the land records just prior to the start of the actual foreclosure process.
  3. The faster the servicer can sell the property to the third-party investor, the faster it can convert title to the GSE “after the fact” and “lose” that REO inventory to the new buyer (with transfer of title) before the homeowner even knows what hit them. The GSE will then do a direct title transfer (through the mortgage loan servicer) directly to the third-party investor who will assume all risk of acquisition of a property stained by title issues.

THE GSE’S HAVE REMICS TOO!

One thing most people don’t realize (and this can be verified) is that the government sponsored entities set up REMIC trusts to obtain investor money they use to back the loans they guarantee.  If you’ll go to irs.gov and type in Publication 938 for 2009 forward in the search engine, you’ll see the listings (by quarter) LOADED with GSE-backed REMICs!  Depending on what year you took out your loan is the year you’d search for on that website, plus subsequent years in case your loan was traded into another related REMIC until trading stopped within the MERS System®.  The securitization process is a virtual “shell game” until the foreclosure starts and the roulette wheel stops on the particular REMIC the servicer is paying.  The servicer will then move toward the final DAY 91 objective … to cash in on the credit default swap, default insurance, PMI, LMPI or whatever other cash cow it can get its hands on to reimburse itself for all of the advance payments it made during the absent of the borrower’s payments.

In the meantime, Fannie Mae and Freddie Mac are now going to buy home loans going into the government’s forebearance program just after they close, something neither had done before, in order to provide liquidity to the mortgage markets so originators can keep lending.

So as not to keep regurgitating a point, I put a news story in the top link so you can see where the forbearance programs are headed.  The CNBC article (above) affirms everything I’ve been saying … as noted in the following paragraph:

“The four-month servicer advance obligation limit for loans in forbearance provides stability and clarity to the $5 trillion Enterprise-backed housing finance market,” said FHFA Director Mark Calabria. “Mortgage servicers can now plan for exactly how long they will need to advance principal and interest payments on loans for which borrowers have not made their monthly payment.”

So you see, the servicers took a gamble on the advances and went into the hole doing it … and the government is in bed with this.

Some friend the government is, huh?  They claim to give you relief yet who’s really getting relief?  The banks and their minions.  The Fed claims to have loaded $2.3-trillion into the economy, yet where did that money go?   Not into our pockets I can assure you.

Know this … no matter what administration is running the United States, the end result is the same … protect the government at all costs … screw the dumb-ass taxpayer who doesn’t know any better (the way “they” think).  These Congresspeople think they know more than you do. Could they be right?  After all, who’s the smarter … the ones who got elected or those who elected them?  Based on what promises?  The existing Congress, a majority of whom have been serving for decades, have done their best to protect their power bases while kicking the can down the road … in the name of politics.

And we collectively let them do it.  We have collectively fallen for their bipartisan, two-party, political crap.

Congress made a deal with the banks … to protect the banks … it’s in 12 United States Code … Banks and Banking.  Congress has repeatedly let the banks screw us.  And we collectively keep letting them do it.  When is the merry-go-round of craziness going to stop?  When we have a civil war?  Or maybe a revolution?  At the polls?  Or in the streets?

And we should not worry about the mortgage loan servicer’s accounting practices, right?

IF YOU’RE NOT IN DEFAULT, HOW IS IT THEY’RE TRYING TO FORECLOSE ON YOU?

All the while the moratoriums have been in place, the servicers were stuck paying the advances on the mortgage loans, whether borrowers paid their monthly payments or not. Now the piper is coming to collect. If you didn’t (or couldn’t) work out a forbearance proposal or loan modification during the time you were a shut-in, the foreclosure process (unknown to you) was probably on the back burner and now things just got fired up again.

Those in non-judicial states will be suffering more dramatically as they try to figure out how to cope with aggressive mortgage loan servicer activities in stopping courthouse step foreclosures by publication and sale.  These borrowers are in a definite time crunch as they don’t have the luxury of court hearings unless they create them through the filing of a lawsuit. That means money spent out of pocket in order to stay in the current “survival mode” we’re already experiencing as the economy starts to bounce back from quarantines and lockdowns.

Those borrowers residing in judicial states will ultimately “have their day in court”.  It will be a 90-120 day average by the time the case gets to trial.  Keep in mind that most courts will be closed until at least mid-July 2020, so the uptick in foreclosures will probably start after the 2nd quarter ends (in 2020).

But if the advance payments were being made … how is it you’re in default and the investors have been harmed?

That’s something the banks and their servicers say is not up to you to decide … as you don’t have a contract with the investors!

You have a contract with the originating lender, which in a securitized mortgage … is a corresponding lender!

And logically, you’re going to be searching the land records trying to find that pesky assignment, right?

But wait!  The servicer’s attorney’s are going to argue that you’re not a third-party beneficiary; thus, you don’t have a right to bring a claim against the assignment.  How is that relevant?  Your name is on the assignment, right?  The originating mortgage or deed of trust is referenced on the assignment, right?  Who said anything about being a third-party beneficiary?  You see … this is how the bank’s attorneys get the courts to agree with them, because your loan was securitized and you and the investor have no “nexus” or commercial connection to each other.

POTENTIAL SOLUTION … ATTACKING THE DOCUMENT ON DIFFERENT GROUNDS!

We are starting to see results in the use of the C & E (Cancellation & Expungement) Action as a viable way to throw a “monkey wrench” into the grind of the foreclosure machine.  The questions about this process vary but the crux is the same … what is it and how does it work?

In a brief step-by-step process …

  1. The borrower goes to the public record and obtains an office copy and one certified copy of the assignment(s) in question.  These are the suspect assignments, which may contain up to a dozen or so false statements and/or misrepresentations.
  2. The borrower then researches and procures evidence showing the statements contained within the assignment(s) are false and/or misrepresentative. You can bet that no right-minded cop or detective is going to investigate anything without being fully “briefed” on the subject matter showing why you believe the public record to be false and misrepresentative, constituting a felony recording under most state statutes.  Developing harder-to-find evidence may require the services of a private investigator.
  3. The borrower (still on title, generally) goes to the local police department and files a criminal complaint on the assignment(s). The complaint filing is designed to generate a police department case number.  The borrower can be expected to spend time with a detective or officer explaining the nature of the complaint, which is most likely going to be hand written on their complaint form. You can do this before or after you file (or respond to) a foreclosure action.  I generally prefer to do it BEFORE I file the action, that way, I can include the criminal complaint in my civil action for damages.
  4. I file a declaratory relief action against those responsible for the assignment(s). I would suggest following the criminal statute religiously and if applicable, couple it with the consumer protection act statute individually for the State (of the Union) I’m in, in a claim for damages.  I do NOT sue for wrongful foreclosure because the foreclosure hasn’t occurred yet.
  5. Make sure the other side’s lawyers get the criminal complaint included with the exhibits.  This not only lets the court know a crime may be connected with the foreclosure filing, but that the attorney for the servicer may be held as an accessory if they keep trying to insist the document is legal. No right-minded attorney, bank lawyer or not, isn’t going to risk being disbarred for going up against a criminal complaint.  If anything, it will certainly “shake them up”, possibly forcing a settlement.
  6. Make sure all parties (the party who prepared the document, the party who executed the document and the party who notarized the document) are served.  I find suing the servicer themselves is a moot issue if the foreclosure hasn’t occurred yet.  If the servicer sues and you find the assignment in question was prepared or ordered by the servicer or its law firm, then the law firm, if it prepared the assignment(s) are also named defendants because they knew or should have known that the information was false and/0r misrepresentative.  Include the law firm and the lawyer who prepared the document in the criminal complaint.
  7. If at all possible, keep the civil action and the criminal action going simultaneously.  Do not drop the civil complaint if the DA decides to prosecute the document and those responsible for creating it and recording it, in violation of the penal code.  By dropping the civil complaint, you’re sending a signal to the DA that you’re not serious about pursuing damages.  Two-pronged attacks are better than one.
  8. Prepare your deposition list.  You’d be surprised once you start moving for depositions of the parties involved they don’t come at you with a settlement, rather than risk a criminal complaint against them moving forward, thus reinforcing the civil action in the judge’s mind as being even more legitimate.  Do not hold back on the other side’s lawyer if the law firm prepared the document(s) that are suspect.
  9. Follow the court docket religiously.  That means twice a day for the entire duration of the lawsuit. Once in the morning and once in the late afternoon, before the court closes.  The other side will wait until the last minute to file stuff to screw with you, especially on Friday afternoon, when they can buy time over the weekend to screw with your calendar (your time off relaxing) and your ability to respond to their motion or brief.
  10. Be prepared for oral argument.  You never know when you’re going to get called into a hearing to determine the validity of your lawsuit. The judge may also query law enforcement to see what they’re doing about your criminal complaint.  In one instance we’re aware of, the local police department forwarded the complaints to the DA … AND the State Attorney General’s office for follow-up!  Also, make sure you have expert witnesses lined up that can validate both your criminal and civil complaint information.

I know we haven’t taught HOW to set up the criminal complaints in our regular C & E classes; however, this new injection of the police report does add a certain flavor of suspicion in our civil claim, don’t you think?  Imagine the consequences:

  1. The attorney handling the foreclosure matter attempts to interfere with the criminal investigation of the matter and ends up making the matter worse, potentially putting himself in a position of obstruction of justice.  The attorney for the bank cannot attempt to persuade authorities from looking into your complaint without lending suspicion of them being involved.
  2. The law firm or the attorney preparing the document ends up being indicted by a grand jury as part of the grander scheme of things.
  3. The judge handling the civil matter is found to be “side dealing” and interfering with the criminal case in order to further the civil case along to help the bank out, either through direct interference in the criminal investigation or by pushing the civil case forward in favor or the bank knowing a criminal prosecution is likely, which would make him an accessory to a felony … enough to remove him from the bench and potentially put him in prison!

There is also a potential chance that the criminal investigation will go nowhere because the investigators: (a.) weren’t provided with enough evidence or information by you to establish probable cause; or (b.) didn’t understand the nature of the complaint because of the way it was presented.

I have 18 sets of the C & E class (8 DVD-video set and the book, The C & E on Steroids!) available online on the Clouded Titles website.  Once these are gone, they will take time to re-order, more time than you might have. I don’t have to tell you that following this moratorium’s end, those in trouble … their days are numbered.

Remember, when you get the kit, I give you an hour of consulting on your specific case, which may include a call to a criminal attorney who can give me ideas as to how to posture your criminal complaint based on what evidence you have! 

UPDATE ADDENDUM:  As I mentioned on City Spotlight – Special Edition on WKDW-FM, which will repeat this coming Monday, May 4th at 2:00 pm. Eastern Time, CLICK HERE TO LISTEN, attorneys now have a duty to inquire whether the client is using their case to commit fraud or some other crime upon the defendant in a suit.  The American Bar Association’s Standing Committee on Professional Responsibility has issued Formal Opinion 491, to clarify this requirement in the wake of increased reporting of individuals using legal services for money laundering and terrorist financing.  But it goes beyond that definition, especially if the attorney(s) or their law firm participated in the drafting of the bogus assignment and then had it sent back to them once it was executed and recorded.  This is a way to: (a.) name the law firm in the suit; (b.) name the attorney in the suit; and (c.) force the attorney to inquire as to whether he knew before submitting the document to be executed that it contained misrepresentative statements, which could warrant criminal legal action against him and/or his firm.  This is where things get dicey for the other side because depositions and discovery can now target counsel who participated in any way in the drafting, execution and recording of a document that could be construed to be a third-degree felony in many states!

Here’s the formal opinion: aba-formal-opinion-491

 

 

 

 

 

 

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UPTICK IN REPORTED U.S. COVID-19 CASES!

(BREAKING NEWS, OP-ED) — 2:50 p.m. EDT, March 27, 2020

3.3 Million new unemployment claims have been filed across America as the loss of jobs on a grand scale has forced Americans to go on assistance, despite the $2-trillion stimulus (pork) package.

The United States has now surpassed China in the number of reported coronavirus cases. The death toll in the U.S. is now over 1,000 people. 

New York has now become the epicenter of the coronavirus as the spread is accelerating. 

The Empire State is reporting (a new revised figure at the time of this post) 23,112 cases in New York City alone, accounting for 365 deaths there. The State of New York’s reported cases is greater than the sum of all 49 states’ reported cases! 

Worldwide, the number of coronavirus cases has exceeded a half million people. 

Tomorrow evening (March 27th), City Spotlight – Special Edition’s Dave Krieger (along with co-host R. J. Malloy) will be updating you on the latest statistics of what has happened in America and how communities are reacting.   The program airs shortly after 6:00 p.m. Eastern Daylight Time on WKDW-FM, North Port, Florida. Tune in for more information … as well as our “take” on things. 

FLORIDA CASE REPORT

As of the time of this update, the number of Florida cases rose to 2,900, with 34 deaths and 456 people hospitalized.  Statistically, this represents about .012% of those infected; however, it does not tell us how many people are infected and don’t know it yet, which is why states are putting their citizens on lockdown and only allowing essential services to operate. Florida is not one of them yet.  Rather than implement a statewide lockdown, Governor Ron DeSantis is allowing the counties to decide whether the pandemic in their own region is worthy of containment to the point of telling residents to stay home. 

Meanwhile, those business in Florida who are in need of assistance due to business losses can contact R. J. Malloy at WKDW-FM Radio (an agent for the SBA for the small business loans) at (941) 564-8739 and he can help you apply for low-cost emergency funds.   Since all 67 counties have been declared a disaster area, emergency assistance from the SBA can now be applied for. 

FLORIDA’S GOVERNOR HAS ISSUED AN EXECUTIVE ORDER: DO NOT COME TO FLORIDA! 

Excessive travel is not recommended, especially people planning on coming to Florida.  The Governor has issued an Executive Order for residents outside of the State of Florida NOT TO ENTER the State at all, especially from areas like New York, Connecticut and New Jersey, where the virus has been tabulated in record numbers. The Executive Order appears to have been issued due to residents fleeing the New York Tri-State area (NY, NJ, CT). The Order requires incoming “escapees” to undergo mandatory 14-day isolation and has made it a misdemeanor crime punishable by 60 days in jail and a $500 fine if not adhered to, with the costs of the isolation paid for by the airline passenger trying to “escape”. The Order says nothing about those from that area sneaking in by way of a vehicle. 

Many counties in the State have taken up the idea and several have implemented restrictive curfews and lockdowns.  South Florida (Palm Beach, Broward and Miami-Dade Counties) and Hillsborough County (Tampa) are the current “hot spots” in the State for the coronavirus.

I’m going to be belabor my previous points again here because most of you have already read much of what was contained on previous posts.  

UPDATED NEWS ON THE C&E —  There appears to be a glimmer of hope on the horizon: 

  1. An attorney threatened a servicer with a C&E action in Florida.  The servicer immediately lowered the sale price of a probate (reverse mortgage) property by $20,000 rather than risk a trial.
  2. Another attorney in Lee County, Florida pushed for discovery in another C&E action.  The law firm for the servicer called, wanting to settle the matter before trial. 
  3. Another investor filed two (2) criminal complaints on 2 separate properties in Las Vegas, Nevada with the Metro Police Department.  The Police Department forwarded both complaints to the Clark County District Attorney and the Nevada Attorney General’s office for further criminal investigation.  When the opposing side’s lawyer found out about the criminal complaints, she told the investor’s attorney, “We are taking these criminal complaints very seriously.”  Duh?  

These are just 3 examples of how powerful a C&E is!  You can get the entire DVD/book training kit online at CloudedTitles.com/Shop

I mean seriously … what are you doing for the next two weeks confined at home?  Why not get an education?  Knowledge is power! 

And for those of you in despair, there is some lightheartedness out there: Coronavirus Rhapsody

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BOTH QUIET TITLE ACTIONS AND C&E ACTIONS ARE DECLARATORY RULINGS! UPDATE!

(OP-ED) — The author of this post is not an attorney and thus cannot give legal advice.  However, based on the research contained herein, one can share without retribution; thus, let this be for your educational value only! 

UPDATE … NEW IDEA!  (Please move to the bottom of the article to read my thoughts on this!)

One judgment appears to be a “cheap date”, while the other judgment isn’t.

Which one is cheaper to prove?  Why … the C&E of course!

The “C&E” should become part of everyone’s vocabulary these days.  I can give you over 500-million reasons WHY a C&E is important to every American property owner.  The main one is adverse condition of title to over one-third of every parcel of land in America!  That’s the biggest reason.

How can you consciously sell a piece of property to another human being when there is clear evidence of chain of title issues present, especially when “MERS” is involved?

The C&E has been in the forefront the entire time, albeit not exclusively.  Everyone knows that quiet title actions have been around for centuries. But … and I use this caveat succinctly: Quiet title actions are more than just a simple step in clearing title to a piece of land.  Like the C&E, both matters involve an evidentiary proceeding.  Both are rooted in declaratory relief.  Both require a certain amount of discovery.  However, the C&E requires less discovery because you’re only targeting one suspect document in the real property records, while the Quiet Title Action focuses on the entire chain of title, leading back to the document (usually the mortgage or deed of trust) that plagued the chain of title in the first place!

Back in the days preceding the first financial collapse in 2008, mortgage brokers and their title companies were so quick to file stuff in the land records that: (a.) they submitted the documents incorrectly for recording; (b.) they submitted MERS-originated documents to the county recorder knowing full well that the borrowers encumbering their property had no knowledge their loans were being securitized; and (c.) they did this knowing that a majority of the documents being recorded contained information on loans that were designed to default years later, causing a huge rash of foreclosure actions that plagued the United States from coast to coast.

I can tell you with a certainty (after having lectured to hundred of various county clerks) that a lot of clerks (recorders, registers of deeds, etc.) these days still don’t understand what MERS is and what kind of issues became predominant after MERS-related assignments are recorded.  I have been asked from time to time whether we should sue county clerks and recorders and my answer is “NO” (not just NO but HELL NO)!  These folks are generally elected officials that have a bond.  These folks unknowingly became victimized by the “MERS process” as much as the collective body politic affected by borrowing that was intended to be obtained from the secondary mortgage markets.

In The C&E on Steroids! Attorney Al West and I bring forward the reality of challenging documents through declaratory relief, especially the documents created from 2004 through today.

Yes!  These entities are still “manufacturing” bogus documents and causing them to be recorded in the land records all over the country!

And what’s even more astounding … MERS and its parent have absolutely NO IDEA that the MERS name was being used in these assignments!

The culprits … 

Mortgage loan servicers, third-party document mills and title processing services are the guilty parties!

Secondary to these groups of land record predators are the foreclosure mill law firms prosecuting the foreclosures themselves!

The potential targets … 

All of the above … depending where they’re located.

Again, The C&E on Steroids! describes WHO these targets are … WHAT prompted them to become targets  … WHEN they became targets … WHERE they got involved as targets and WHY they are targets  … and more importantly, HOW the “system” played us in letting them become targets!

Wouldn’t it be nice to know WHO your enemy is BEFORE engaging them in a legal battle? 

This is why is becomes important to understand the principal of declaratory relief.  It allows us to obtain discovery to get at the “root” of the problem.

Most homeowners don’t get that.  They think, “Okay, I’m going to get pissed off and sue everybody!”  They let their emotions get out of whack, failing to recognize the tools available to isolate and attack individual targets to further corrupt a chain of title to the point where a county court HAS TO quiet title title in order to comply with marketability statutes!

California attorney Tim McCandless was recently quoted as saying:

” … the more recent strategy of attacking the assignment of mortgage and seeking nullification of that instrument has met with some success and it should succeed, because you are attacking the facial and substantive validity of that specific instrument and not the entire mortgage or deed of trust. That strategy merely attacks the technical requirements for creation and recording of an an instrument affecting title to real property and attacking the substantive validity of the assignment by revealing that the debt was not transferred to the assignee by a party who owned the debt.”

The success in doing a C&E would seemingly “cut the legs out from under” the perpetrator of any future alleged foreclosure, right?  It would stand to reason that without an assignment being present in the chain of title, the mortgage loan servicer and its counterparts that were probably the culprits behind the very assignment they’re relying on as a tool in their foreclosure arsenal would be affected directly by the “lack of gunpowder” in their magic bullet.  The only thing they’re attorney will say is, “These people just want a free house, your Honor!” because they don’t have anything else they can say that will evoke the emotion of the Court to screw the homeowner one more time!

The beauty of this process is that it can be used at any time prior to foreclosure without bringing the mortgage loan servicer itself into the fray.  And it can be used in both deed of trust and mortgage states!  All 50 states have statutory mechanisms for declaratory relief.  All 50 states have rights to attack phony documents!

Further, there is case law out there that has taught us much in the way of educational value!  That case law is described in The C&E on Steroids! 

In fact, the case law Al West and I discuss in this book and the related course materials SHOW YOU validity past what attorney McCandless previously described!

And it all revolves around a simple and concise declaratory relief action. Yet, homeowners will continue to go out and make a “mountain out of a molehill” (go overboard in citing every cause of action under the sun, thinking they’re entitled to damages), when a simple action designed to knock these bogus assignments out of the land record create a precedent of bad behavior on the part of those who would undertake the illegalities of trying to steal your homes!  This is not a pipe dream process.  This process has been used countless times and has been successful because of the patience and effort put into drafting the proper complaint against the proper parties, isolating them in such a way as to keep the matter in county court!

Federal courts will generally NOT hear these types of cases.  Suing the wrong party in a C&E will get your case removed to federal court, where the judge is likely to dismiss it, because federal law has already declared declaratory rulings to be discretionary.  In state court, judges do not have that option.  They HAVE TO hear that complaint.  This is why Al West and I decided to get to the bottom of the root causes for doing a cancellation and expungement action and extrapolate the material into something useful for the average American consumer and put it into an 8-DVD/book weekend training kit. America has to know there is a remedy out there that can be used to attack phony documents!

If you don’t know your rights, you don’t have any!

UPDATE!:  While I was having a conversation with an aggrieved party, the thought crossed my mind as to the type of attorney that would be GREAT to utilize for the C&E when the opposing law firm is your target … 

Who can you think of that isn’t intimidated by prosecuting attorney misconduct and malpractice? 

Legal Malpractice Attorneys (they prosecute malpractice for a living!) … add that to your arsenal (just Google them … they’re out there)! 

I found at least a dozen in the Dallas-Fort Worth area alone! 

If your own attorney screws you in the process, it may be that your defense attorney is “working for the bank/servicer” under a silent agreement to feed you to the wolves.  Why not prosecute BOTH ends of malpractice if you’re going to attack one for failing to defend your case adequately.  

Just a thought.

 

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U.S. SUPREME COURT NARROWLY OPENS ANOTHER DOOR TO PUNISH FALSE EVIDENCE!

(BREAKING NEWS – OP-ED) — The author of this post is a paralegal and consultant to trial attorneys on foreclosure matters; deals in cancellation and expungement actions and chain of title issues and thus, the material discussed here, while appearing to be a “breath of fresh air” for homeowners fighting foreclosures, is still an opinion NOT to be considered legal, nor should it be construed to guarantee any type of legal outcome or advice.

On June 20, 2019, the United States Supreme Court opined (through Justice Sotomayor) in McDonough v. Smith (see the ruling here: McDonough v. Smith) that the 3-year statute of limitations for bringing a civil rights claim under 42 U.S.C. § 1983 does not begin to run until the case against McDonough was terminated.  All of the legal pundits have thus jumped into the argument, declaring that this ruling could also apply to foreclosure cases, while others say the ruling only applies to law enforcement officials acting under color of law.

The case surrounds an attack by McDonough (a New York county elections commissioner) against prosecutor Youel Smith for allegedly fabricating evidence (testimony) used to indict him before a grand jury.  The trial ended in a mistrial. Smith then allegedly elicited fabricated testimony again in a second trial, which ended in December of 2012, with McDonough being acquitted of all charges (of forging absentee ballots in a Troy, NY election).

Again, the Supreme Court (as it did in Obduskey) narrowly ruled on the matter.  In this case, it was the statute of limitations for bring a civil rights claim for deprivation of rights, ONCE THE CASE HAS CONCLUDED.  In short, this post’s author deems it necessary to posit that the intention of the Supremes was to indicate that one cannot bring an action (involving a foreclosure matter) until the case has reached Final Judgment.  Then, and only then, can the matter go “federal”.

In this case, McDonough was deprived of his liberty, because he was falsely arrested and detained; thus, depriving him of his liberty (because he was charged using false testimony, which he later discovered).  Thus, when acquitted, he brought the civil rights claim against the prosecutor.   This is where some in the legal community say that a deprivation of rights brought under “color of law” only applies to “law enforcement”.

However, was the prosecutor also an “officer of the court”?  For that matter, aren’t all attorneys licensed by their respective state bar associations “officers of the court”?   Courts address matters at law and in equity.  “In equity” clearly points a finger at foreclosures and that slippery slope we call, “phony assignments”, fabricated for use in getting a positive outcome for the bank’s servicer bringing the foreclosure action.

It’s bad enough that this case exposed wrongdoing by the prosecutor, but to say this doesn’t apply to fraudulent documents placed within the land records of all 3,141 boroughs, counties and political subdivisions across America is at best, only slightly diminished based on the violation of criminal statutes.   In this instance, the validity of the claims against McDonough, even though he was acquitted, are still claims.  There is no doubt that the false testimony was later discovered and applied to the case, resulting in a mistrial.  On the second go-round, these same factors resulted in an acquittal.

In this case, McDonough alleged Smith falsified affidavits, coached witnesses to lie and orchestrated a suspect DNA analysis to link him (McDonough) to relevant ballot envelopes.  Now … apply that to foreclosure mill lawyers, who are also “officers of the court” in relying on suspect assignments that could be shown to contain false and misrepresentative information, in order to wrongfully obtain a final judgment of foreclosure (in a mortgage state); or in deed of trust states, to claim their Trustee’s Deed was valid and forthright … obtained without blemish.

The question in this case is WHEN the statute of limitations began to run.

The case mentions nothing about applying civil rights claims to foreclosure actions.

You can be sure that the bank’s attorneys will bring this up if you attempt a 42 U.S.C. § 1983 (or § 1985) claim against the attorney, an officer of the court, for allegedly bringing forward (relying on) evidence later shown to be false and misrepresentative.  Further, the attorney for the bank/servicer brings forward (through his/her own mouth) continued disparaging remarks about the “deadbeat homeowner”, to elicit an emotional response from the judge, who then pronounces judgment in the bank’s favor, because, well, we can’t let phony documents stop “the system of things” from screwing homeowners out of their properties now, can we?

Prosecution of a foreclosure is an in rem action that sounds in equity, while the introduction of fabricated evidence (the phony assignments and affidavits produced in tandem with the foreclosure complaints) smack of “common-law malicious prosecution”, defined in this case, as deprivations of a “Constitutional right”, caused by the prosecutor’s malfeasance (of office) in fabricating evidence.   When applying this to foreclosures, is an “officer of the court”, appearing on behalf of any entity, political or otherwise, still an “officer of the court”, bound by the same code of ethics as criminal prosecutors?

This case was a criminal proceeding, not a civil matter … but …

Another argument for the legal pundits to say this case only applies to “law enforcement”; however, on the back end of the ruling, the following statement appears:

“The better course would be to dismiss this case as improvidently granted and await a case in which the threshold question of the basis of a “fabrication-of- evidence” claim is cleanly presented. Moreover, even if the Second Circuit were correct that McDonough asserts a violation of the Due Process Clause, it would be preferable for the Court to determine the claim’s elements before deciding its statute of limitations.”

The foregoing statement came from the dissenting opinion of Justices Thomas, Kagan and Grouch.  If we were to apply that standard, and deep-dive into the elements of the cause of action itself, then we would have to squarely apply the law (42. U.S.C. § 1983) as it was written:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The foregoing federal law specifically says, any “person”.  Does that single out “law enforcement”?  Or does it mean, a foreclosure mill attorney too?
Notice how the word “citizen” in line 2 of this statute is in lower case.  Now, now … you Sovereigns that think that everything that starts with a Capital “C” means you and anything that doesn’t, does not apply to you … this statute applies to everyone.  That’s what our Founding Fathers and Congress intended for it to mean … ANYONE living within the jurisdiction where the crime was committed that was used to deprive (steal) their property.  If you’re going to maintain that Sovereign crap, you’re going to lose anyway.  Federal judges can apply state law too.  And they do.
Now … let’s examine the C&E as it applies here (and to those pesky assignments). 
If you do your homework in applying the foregoing statute, it clearly says you have “redress”, except when the action is brought against a “judicial officer” acting in their “judicial capacity”.  That could mean a foreclosure mill lawyer or a judge presiding over a foreclosure court.  BUT … and I mean to be clear here … it only applies if you brought an action for declaratory relief and the judge, knowing full well there was an issue with the document you allege is phony, and told you to piss off!   Then, it would appear that a “declaratory decree” (as described in the foregoing statute) “was violated”, NOT that it wasn’t available.  The C&E is rooted in (inter alia) a declaratory relief action.
This is why folks who recognize the viability of the C&E are buying up our DVD training kit and learning what’s involved in a C&E!  Understand that bringing this action, whether in an original petition or as a compulsory counterclaim (which in certain instances involving a foreclosure in the judicial realm becomes radically necessary), involves the issuance by a judge of a “declaratory decree”.  The right to bring a declaratory judgment action is available in state court.  If a judge is so inclined as to tell you that you can’t bring this action, when in fact it was available, does not appear to discount the applicability of this statute, to sue the judge for telling you to piss off.
The federal court would have to determine that: (a.) you are a citizen as described in the statute; (b.) this is a suit in equity and at law (if a tort was in play); (c.) a final judgment was issued against you that (d.) relied on a false document; and (e.) you brought a claim for declaratory relief and were told to piss off or that that kind of relief wasn’t available when in fact, it really was … THEN … AFTER THE FACT (that’s when the “damage” was done) … you have a right to bring the action in federal court.
The U.S. Supremes may have opened a narrow door for you (3-year statute of limitations) to reverse what happened; however, can you imagine the costs involved?   Given the heightened pleading standards invoked by the rulings in Iqbal and Twombly, you can’t just amble into court with lame-ass pleadings and expect to get anywhere.  You have to bring your action with “all your ammo” on the table.  You need hard proof.  Declaratory rulings can be utilized in federal court as well.  Even though federal law makes it “discretionary”, if you were to couple that cause of action with a claim for tortious “slander of title” (under state statute) and 42 USC § 1983, then you might have something plausible to go on.
A 42 USC § 1985 claim only applies to conspiracies involving multiple actors and would be harder to prove, unless you were suing the law firm, the robosigner and the notary who acknowledged the document.  The effort would be more expensive because you have more parties to serve and more pleadings and answers that have to be drafted and served.
The matter of “injunctive relief” may be hard to fathom in unwinding a foreclosure where the title to the property was transferred and sold to a third-party buyer.  Hence, you may only end up with “damages” as the result of the improper taking based on fraudulent documents.  Again, just walking into court and telling the judge the assignment is fraudulent doesn’t prove anything.  You have to do your due diligence and build a case.  You have to target the right individuals in order to procedurally succeed in the matter.

The C&E (cancellation and expungement) action is a game-changer (like this case), if properly utilized.  This is why attorney Al West and I put the training kit together.   You can view that kit on the Clouded Titles website shop and get one for your very own.  Heck … go ahead and share it with your attorney.  Everyone needs to know what we know.   We actually give you proof that it works!

And no … my response to this ruling is not an opportunity to push my training kit … however, 42 USC 1983 does in fact talk about declaratory relief issues, which is what C&E’s are couched in.  Something has to matter.  Otherwise, why fight at all?

 

 

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