Tag Archives: chain of title

BRUCE JACOBS CATCHES FLAK FROM FLORIDA’S THIRD DCA!

(BREAKING NEWS – OP-ED) —

The statistics are unlike anything I personally have ever seen as a consultant to attorneys on matters of foreclosure, chain of title and the system of things … BUT Miami-Dade foreclosure defense attorney Bruce Jacobs has put himself in the firing line by causing the Third DCA into an apparent retaliation by issuing Jacobs a Show Cause Order as to why he should not be sanctioned for violating not only Florida Appellate Rules of Procedure but Florida Bar Rules as well.  I’ve personally met and talked with Bruce Jacobs, a former Miami-Dade State’s Attorney, a devout follower of Judaism.  There are those in the foreclosure world who think little of him for various reasons, while others think he’s too busy to handle their cases, while yet others believe he is a true fighter for “the little guy”.

Miami’s Daily Business Review (via law.com) just broke a story yesterday (October 4, 2018) of the potential sanction news against Jacobs. After doing a little digging, I found the subject per curium ruling that put Jacobs in the crosshairs of some very pissed off judges.  It all stems from their reversal of the famous HSBC v. Buset case, where Jacobs represented the Busets.  After the 3rd DCA’s reversal, I asked Bruce about their opinion in Buset and he told me succinctly that “This is war! This ain’t over yet!”

In a State where homeowners have had more opportunity to figure out “the system of things” as to how foreclosure courts behave, the statistics you’re about to read, which were contained in a filing with the Florida Supreme Court in the cited case, includes statistical evidence of how Florida’s Third DCA is apparently biased and prejudiced against delinquent homeowners:

Alexander v Bayview Loan Svcg LLC, 3D16-2228 (filed April 20, 2018)

Knowing what I know about phony assignments, I proffer an idea here that squarely puts “the system of things” into motion.  By reading this “Opinion” issued by the Third District Court of Appeals in Florida, see if you can make out the frustration not only felt by Bruce Jacobs but by virtually ALL homeowners who’ve ever been in front of any judge in the Third DCA:

Aquasol Condominium Assn Inc v HSBC Bank USA NA et al, 3D17-0352 (Sep 26, 2018)

Again, Jacobs has locked horns with a nemesis that has a propensity to lie in the manufacture of assignments.  In a case in Hillsborough County, Florida, HSBC’s “document manufacturing” came under serious scrutiny and the recorded document was ordered cancelled and expunged from the Clerk of the Circuit Court’s official records in that county.  The case involving that apparent suspect document is still ongoing and if “the system of things” is allowed to play itself out, one particular foreclosure mill law firm and five of its attorneys could be facing the same consequences as Jacobs is now.  It is problematic that most homeowners let their frustrations get in the way of common sense, but the latest “Opinion” seriously appears to put Jacobs in a very tenuous position, since he’s called out the Third DCA for what he believes they apparently are … biased and prejudiced against homeowners … enough to ignore obvious frauds on their own court systems!

However, it should also be made clear here (IMHO) that “the system of things” as I have described in the 10-part series, “Gutting the Underbelly of the Beast” was not implemented in Buset … was clearly not implemented in Alexander … and was definitely NOT implemented in Aquasol, predicated on what didn’t happen in Buset.  That may be tough for some to get their head around; however, when you see the quotes that Bruce Jacobs included in his brief to the Third DCA, which made them recoil, it’s clear the Opinion they issued was really a Show Cause Order that the media is now going to make a 3-ring circus out of, especially in light of what happened to Pinellas County foreclosure defense attorney Mark Stopa.  It’s obvious that Florida does not like aggressive foreclosure defense attorneys, whose first duty is to “the Court”.   With the advent of a Florida judge testifying (at Stopa’s hearing) that Florida foreclosure court judges are incentivized to clear their dockets and receiving bonus cash rewards for doing so, it is very clear that our courts have allowed their own political agendas to taint “Lady Justice”.

I’ve always said it’s about the assignments.  It’s always about the assignments.  This is why C&E actions are so vitally important:

(1)  They dissect the false and misrepresentative information contained within the assignments that are being relied upon by bank’s counsel in foreclosure proceedings.  This involves deposing robosigners.  HSBC has robosigners.  They defaulted when challenged in a C&E as to what authority they had to execute the document.

(2) They bring to light certain statutory violations. Florida has a civil component to its criminal component in F.C.C. § 817.535, which some attorneys rarely use and if they use it, apparently don’t go far enough in using it. They “drop the ball” by NOT doing a C&E on the document called into question.  This is no different than a pro se homeowner going into court and waving a document around and calling it a fraudulent document.  Same results. The Court says, “Prove it!” … and you have no proof!  So piss off!

(3) They bring to light certain ethical violations. Imagine you’re a foreclosure mill lawyer who’s relying on the false and misrepresentative information contained within an Assignment of Mortgage (or even an Assignment of Deed of Trust, for those of you in non-judicial states that have sought to litigate a matter to stop a foreclosure), and you (a.) failed to exercise due diligence in vetting your evidence; (b.) were purposefully involved in the creation of the fraudulent document; and (c.) new or should have known that the information you proffered to the Court would result in a statutory violation.  There are individual Bar Rules in every State that call out this type of behavior.  These Rules fall under the section labeled “Misconduct”.  On occasion, State Bar Associations and Courts across America have to deal with such matters; however, foreclosure cases are particularly egregious in nature because the ethical violations appear to arise out of statutory violations being promulgated on the Court.

(4) They require a determination as to their validity of the document in question.  In the Hillsborough County matter, HSBC had every opportunity to respond, yet didn’t.  When you look at the C&E’s allegations there, HSBC employees could have been facing felony UPL charges.  Duh!  It’s no wonder they didn’t show up.  The good ‘ol boy network on occasion does “circle the wagons” to protect its own practitioners.  I gotta give ’em credit for their somewhat misplaced allegiance.  They pick and choose who they want to prosecute.  Obviously, the several HSBC employees aren’t in jail, so they’ll keep manufacturing phony documents (like every other mortgage loan servicer has done since they were told not to in 2012).

(5) They require a definitive action by the Court.  When presented with the facts, the judge in the Hillsborough County matter cancelled the document and ordered it expunged from the real property records.  That expungement was not detected by the foreclosure mill law firm.  That expungement created further triable issues of fact.  That expungement, in of itself, created a statutory violation.  That expungement further convoluted the chain of title, impairing that property’s vendibility.

(6) They are the “backbone” of any quiet title action.  Once eliminated, assignments and other documents set the basis for the complaint or counterclaim sounding in quiet title because the “obstacle” that the bank has to contend with is an illicit document, shown to be fraudulent, or in the alternative, proven to be fraudulent, with expert witness trial testimony from an attorney to back it up in subsequent cases.  This posits a very serious scenario for the foreclosure mill law firm.  It posits an even more of an issue for any judge hearing the subsequent quiet title action, because the same unclean hands that created and/or relied on the phony document that was cancelled and expunged through the C&E have now come home to roost.

As long as the homeowners are in a position to control the outcome of their cases, the C&E may become a vital tool to measurably determine the success or failure of their destinies.  Sadly, as vigorous of a defense that any foreclosure defense attorney could throw at the other side, especially in this matter, the C&E wasn’t part of it.  Without a basis in finality, how then can “the system of things” work to impose sanctions on the real violators and unseat judges for agreeing with them?

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GUTTING THE UNDERBELLY OF THE BEAST – PART 9

(OP-ED, first posted: September 25, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

As we near the close of this 10-part segment, I posit that this may not be the climactic end you were hoping for.

Creating a big, bad ass paper trail to be used to trigger those “safeguards” in “the system of things” takes time, time that a lot of litigants don’t have because they didn’t make the time.  Maybe they weren’t afforded the time … the time to learn about how “the system of things” works.   While I’ve always maintained that the Internet can be a dangerous place to search for clues or resolve to anything, the “safeguards” that make up “the system of things” have been maintained within the “status quo” for quite some time (decades).  You’ve probably heard that old saying, “Well, it’s the best system we’ve got!”   Why change it?   Maybe, because it’s NOT the best system at present.  In fact, the way that “the system of things” has been abused, perhaps we need to re-examine HOW “the system of things” is supposed to work and give the balance of what’s wrong with “the system” itself an enema.  In order to do that, we have to wake “the system” up … and you cannot do that in federal court … yet.

WAKING UP THE BEAST!

There are roughly 3,041 counties, boroughs, townships, etc. that now exist in America.  Most if not all of them are incorporated.  Most if not all of them are self-insured to a degree.  Most of them carry liability insurance for certain aspects of their “day to day affairs” in the management of county government.  The cities within the counties also have certain types of insurance that is supposed to safeguard the body politic from harm, in case a city (or county) employee injures someone while acting within the course and scope of their employment.   This is an important set of terms to remember: “the course and scope”.  Judges are also paid by the county in virtually every situation, to sit on the bench and administer the “day to day affairs” brought before them during the course and scope of their employment.

Waking “the system of things” up (and in your favor) would seemingly involve …

(1) identifying the statutory problem you (as a property owner) are faced with … which is legislation that was passed that allows every property owner to challenge the legitimacy of documents in the public record as being suspect;

(2) bringing forward a claim against the perpetrators who created-manufactured-executed the document in question … generally involving declaratory relief, which opens up the needed discovery to expose the liability;

(3) bringing forward an expert witness affidavit and testimony to support your claim … this is best done by an attorney who has figured out HOW “the system of things” is supposed to work and can help to build your big, bad ass paper trail;

(4) taking the entire “bad ass paper trail” in documented form to several different “layers” within the county government and within the private sector (insurance and bonding).  We see four (4) copies of this paper trail as a necessity!

Once class action lawyers figure out what we’re trying to accomplish here, they are probably going to get busier (in the future), once it becomes firmly fixed in their minds HOW TO raid a county treasury because of some judge’s screw-up in allowing felony behavior to spew forth from his courtroom.   It’s just like having a bailiff purposefully hover over you while you’re trying to speak to the judge.  It’s intimidating.  As long as the judge knows he can play God for 5 minutes and get away with it (because you’re broke, desperate and don’t know anything), you’ll continue to have a bad feeling about today’s justice system, especially foreclosure courts (whether you’re in a judicial or non-judicial state, it doesn’t matter).

THE BIG, BAD ASS PAPER TRAIL

For those of you who are still having trouble fathoming the substance of the “big, bad ass paper trail” … I shall endeavor to spell it out for you:

(1) The complete trial transcript (if you’re in a judicial state) of the foreclosure case, including all exhibits (or in a non-judicial state, by your own litigation filing and said responses from “the other side”);

(2) The complete oral transcript of every hearing involving your case, conducted by said tribunal, certified by your own court reporter;

(3) The complete certified set of all oral transcripts taken at every deposition of every party summoned to testify that was involved in the creation-manufacture-execution and recording of the suspect document;

(4) The complete set of every document in your chain of title to your property, from the Warranty Deed (i.e., see also Grant Deed, Special Warranty Deed, Quit Claim Deed, Statutory Warranty Deed, etc.); and

(5) A certified, original copy of all documentation and four (4) copies of same (for distribution within the “layers” of “the system of things”) to present to authoritative committees (the judicial review panel and the state bar’s disciplinary panel) and the insurers (E & O and bonds).

Copy #1: The Judicial Review Panel (against the judge, along with a judicial misconduct complaint);

Copy #2: The State Bar Disciplinary Committee (against the lawyer for the bank who came into court and misrepresented the truth about the documents he/she relied on);

Copy #3: The E & O carrier for the law firm and their attorneys (including the attorney being accused of felony behavior in your case); and

Copy #4: The County’s Risk Manager, in an attempt to obtain bonding information on the judge (to attack the bond, have the matter investigated by the insurance company and seek to file a claim against the bond and have it pay out and/or have it revoked; thus, unseating the judge from the bench).

You may wish to have a separate fifth (5th) copy available in case the county wants to keep its copy and not forward it to the judge’s bonding carrier.

The whole stack of stuff should be somewhere between 4″ and 6″ thick!

What I have just described to you are the “safeguards” (the preliminary ones) that are supposed to be in place to attack the lower echelons of “the system of things”.  The upper echelons (the federal system) are used to plunder the county treasury if the Risk Manager, the County Commission and the perpetrators themselves refuse to “do the right thing” (and/or settle).  You DO NOT do this on your own dammit!  You have no mandate to report wrongdoing to the bar or the judicial review panel … ONLY ATTORNEYS AND JUDGES DO!   So stop with the pro se, pro per, sui juris Patriot crap and start thinking “system” … as it is and has it has been set up to function.  Stop trying to cram your giant square peg into the small, round hole (that is “the system of things”)!  If you ignore this, you do so at your own peril.  You risk creating bad case law for everyone else by not knowing what you’re doing and you also risk potential, physical harm to you and your family (remember Ruby Ridge … I was going to post Vicky Weaver’s autopsy photos but my “legal voice of reason” talked me out of it).  I cannot begin to emphasize how serious this shit is once you’ve awakened “the beast” (in other words, you’d best have legal help … and not a Patriot, non-lawyer either).

The original, certified copy remains with you for the potential follow-through with the State Tort Claims Act suit, if one is necessary, against the county or city in question, which would force “the system of things” to either litigate the matter or settle with you.

You are NOT prosecuting a criminal action here.  This is a civil matter involving statutory and ethical violations!

THE NON-JUDICIAL SETTING

I haven’t spoken much about non-judicial issues here because it is incumbent upon the homeowner to do one of two things: (1) pack up and move; or (2) file a lawsuit to stop the foreclosure and fight.   If you look at your chain of title and you see a chain of assignments … ALL of them come into play here.  If one of those assignments can be proven to be false and misrepresentative (it’s likely almost all of them are or will be), then you can rattle the other side’s cage and topple the entire chain of assignments like dominoes.  Proving fraud on the court cannot come out of your own mouth however.  That determination comes out of the mouth of the judge, who does “the right thing”!   “The system of things” does not offer YOU that opportunity.  You have to put together a civil action (preferably based on declaratory relief and negligence), coupled with proving a civil conspiracy (NOT RICO!), which is easier to prove because the burden of proof is lower.

If you are frustrated because you are currently losing, it’s because you’re not paying attention to “the system of things”.   You are acting out of desperation and not using the common sense and wisdom God gave you.

This is why we wrote the 40-page booklet explaining it:

I do not hand this work out likely, for what’s in this book is that “baby with a stick of dynamite with a short fuse” … and you are NOT going to abuse “the system of things” out of sheer desperation.  We are not going to allow that to happen.  There is a right way and a wrong way to approach how the scenario plays out.  We have to create the big, bad ass paper trail, starting with your chain of title.  Every chain of title tells a story.  What does yours say?   BTW, leave the word “fraud” out of your vocabulary here.  The new words to affix in your brain are:  “statutory violations”, “ethical violations”, “false and misrepresentative”, “negligent misrepresentation”, “negligence”, “misrepresentation” and “felony behavior”.   Why?  Because the insurance companies clearly understand what these terms are and are NOT likely to pay out claims based on these terms!  THAT can work to your advantage and to the other side’s disadvantage!

If the judge does the right thing (like the cases noted in Part 7 of this series of posts), and you get your evidentiary hearing, you may find yourself either settling out of court or in the alternative, awarded hefty damages by a jury or sanctions by a judge (like your home).   One thing is for certain, every insurance company in your state is going to know what’s going on … as you cannot allow the law firm you would be pursuing or its attorneys an opportunity to become “re-insured” through another carrier due to their propensity to commit the same torts and felony behavior.  If you’re going to do a takedown … well … it’s like that old saying, “If you’re going to shoot the King, you’d better make sure you kill him!”   That means, whatever judge allows the felony behavior to continue in his court … and/or … the ethical violations … without doing due diligence to “peel away the onion” and expose bank illegality for what it is … will expose the county (as well as the judge) to a very long-winded, unpleasant experience in U.S. District Court … and you better make sure that judge never returns to the bench (otherwise, you face possible retribution)!

ALL THE WHILE MAINTAINING CIVILITY

And remember, we’re being “civil” here.  This is not politically motivated speech, like “push back”, a statement used some time ago by a congresswoman who doesn’t even live in her own district which has polarized America.  This same congresswoman even said, “if you shoot me, you better shoot straight”.  What kind of B.S. is that?  I’m sure Steve Scalise didn’t find that at all funny.   But then again, this is America, where BOTH parties have contributed to the mess we’re all in. BOTH parties voted “the system of things” into being.

Don’t think that barricading yourself in your house is going to make a statement either.  Remember what happened to Martin Wirth?   We don’t want to see you end up like that.  Or Vicky Weaver.  Or David Koresh.  These people were stubborn and all became victims of their own ignorance and political beliefs.  This is what “the system of things” is geared towards.  Absolute power corrupts absolutely … and if you’re going to lock horns with the beast, you’d better make sure you’re within striking distance of its underbelly; otherwise, all of this is for naught.

THE STATE TORT CLAIMS ACTION = SHTF

The “other side” knew that at some point I’d be getting to this part.

Remember that suit the two Oregon lawyers filed against their own state bar?   It was filed in U. S. District Court, right?

Why is that so?  Because the attorneys were quoting federal statutes, which put it firmly within the jurisdiction of the federal court!

You can’t expect the “county” or “state” itself to allow you to sue it, do you?

Major obstacles, if not a total cover-up.   Major threats will probably be bandied about.

Late night phone calls.  Silence, followed by breathing and maybe, if you’re lucky, a whispered,  “I know where you live.”

Stalking by suspicious vehicles either outside your home or at places you frequent.

Tapping your phones without a warrant.

Breaking into your home and putting keystroke technology into your computers to read your emails.

Bugging your home or office.

Bribing federal court clerks to hide your paperwork so it’s not timely filed and thus gets excluded.

Texting death threats to your cell phone (showing pictures of your kids playing in the front yard).

Changing the locks on your doors when the foreclosure sale hasn’t even happened.

Cleaning out the contents of your home before the foreclosure sale has even occurred.

Real estate brokers showing up to your home wanting to know when you’re going to move out.

Your family pets disappear.

Oh, you think I’m joking?

Every one of the things I just described above has happened to homeowners in the course of the last twenty (20) years, since securitization and bad banking behavior started running rampant across America.  We’re talking billions of dollars of insurance payouts here and the banks and their henchmen (their servicers) are going to ratchet up their illicit behaviors.  You will have to be strong when it comes to this point in “the system of things”, because this is no longer a “game of thrones”, to see who will be King.  This is a matter of survival for those who are able to procure the most evidence in the shortest amount of time, because the other side is going to have fair warning and is going to have ample time to either come to the table or retaliate.

You cannot file one of these actions unless you give the county (the political subdivision) fair warning.

THIS is what risk managers are for.   If the county is too small, then the County Executive gets the warning.  They have to be warned to be given time to settle.

That is a statutory requirement in most states.  Sorry … you don’t get to ambush the county with a lawsuit in federal court without trying to negotiate settlement first.

Yes, it’s administrative bullshit.  But it’s “the system of things”, right?

Most counties have general liability insurance and vehicle insurance to cover the expected … a slip and fall on an icy courthouse step … a collision with a county vehicle driven by a county employee performing his lawful duties … yet no one expected “the system of things” to “right itself” on the backs of phony documents, did they?

There comes a breaking point, when someone has to “cry Uncle”!   … and this is that breaking point.  There has to be a way to deal with phony assignments.  The system of things has had that in place all along.  We just didn’t realize it … and what it was going to take to make it work the way it’s supposed to.

There’s more to the story in the final segment (Part 10) of these posts, so stay tuned!

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 8

(OP-ED, first posted: September 22, 2018) — 

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

In the segment numbered “Part 7” of these successive posts, there was a boatload of case law wherein judges did the right thing.  As you probably noticed from reading In re Wilson, it involved improper reporting of the posting of payments (all while the foreclosure was still being commenced).  Another case (M & T Bank v. Smith) involved multiple manufactured promissory notes (after the fact) that could have not possibly happened the way the bank’s attorneys said they did. To that end, the judge did the right thing, by: (1) holding an evidentiary hearing; and (2) sanctioning the Marshall C. Watson Law Firm, noting that the Marshall C. Watson Law Firm has gained notoriety for filing false assignments in the land records!  This is EXACTLY what I intimated was STILL GOING ON in the real property records, included in the OSCEOLA COUNTY FORENSIC EXAMINATION.

And sadly, these same attorneys that are representing the banks’ servicers went to the same law schools as the foreclosure defense attorneys seated at the opposing table.  The “good ‘ol boy network” reaches up into the judiciary, because judges were attorneys at one point.  Everybody who’s anybody knows somebody in the profession.  Their relationships are more than cordial.  Many of them run so deep that some foreclosure defense attorneys have tempered their aggressive behaviors, despite the fact they want to do the first thing by their clients (whether their clients know it or not).  The bigger part of the problem is the one thing that all attorneys learn in law school: find some way to settle.  When someone’s home is at stake, settling for less than a completely positive outcome shouldn’t even be on the table.  In fact, it’s an insult to the homeowner’s intelligence (what was the lawyer thinking?).  This is not to say that someone cannot rise up and call this chicanery for what it is: fraud on the court, compounded by felony components and ethical violations worthy of disbarment.  This is what should have happened in every case posted in Part 7!

Aside from all of the arguments over the various issues you hear in the courtroom, the judges keep tabs on everything that’s said and they watch the clock fastidiously. You only get so much time, which is why getting all of your discovery done ahead of time is important, along with the intended depositions.  This is all part of building that big, bad ass paper trail I talked about on earlier posts. The bigger the paper trail, the more evidence you have to help the affected insurance company either deny a claim or pay out on a claim!

Now we’re going to get even more serious …

The Oregon State Bar was sued by two of its member attorneys in U.S. District Court under 42 U.S.C. §§ 1983 and 1988.   Read the 7-page Complaint here:

Gruber, Runnels v Oregon State Bar, US D. Ore No 3-18-cv-1591 (Aug 29, 2018)

CASE IN POINT: THE DETAILS

Notice here that the Defendant is referred to as “a public corporation” established pursuant to Oregon Revised Statutes § 9.010 (imagine the liability there)?

Also notice that on the last page, the Oregon State Bar put out a press release that smacks of political overtones.  Is this organization a State Bar or a political action committee?

And this is just the tip of the iceberg.  By publishing that single-page ideologue, the State Bar hierarchy has just “positioned its own agenda”.  And you wonder where judges get their agendas?  Who put this “free house” crap in their heads in the first place?  This is only part of the bullshit that has most Americans distrusting their judicial system.  That is not a good thing under “the system of things”.  Stuff like that leads to civil unrest (or hasn’t Congress noticed?) or civil disobedience.  Hey wait!  We’re already seeing that in America … just read the State Bar’s ideologue!

The State Bar Associations have errors and omissions insurance that can be challenged if they fail (as a public corporation) to do the right thing by the people and instead, push their own agendas on the body politic.  I’m talking foreclosed homes by attorneys who lied in court and used phony assignments to bolster their claims of standing, created by servicers and their employees to steal private property because they didn’t do the paperwork properly when the loan was first executed (and potentially securitized).  This makes the entire process liable (if not in the least, suspect), especially when the state bar (in this case, Oregon) sets a bad example by putting out political statements instead of remaining neutral and unbiased.  Why not say something like most judges do in foreclosure courts (and I’m being really sarcastic here):

“When’s the last time you made a mortgage payment?”

At that point, it doesn’t matter what you say, the judge already has his mind made up, despite whether the banks’ attorneys are all accessories to felony conspiracy and fraud, along with a multitude of ethical violations that could get them disbarred (and potentially imprisoned)  I am waiting for the day (and I think I’ll see it in my lifetime) when a judge gets his bond revoked and gets removed from the bench because he (or she) was warned of the felony components of the attorney’s behavior (for the bank) and ignored it … and didn’t do the right thing.  The damage is suffered when the judge issues the final judgment of foreclosure.  At that point, a sale date is set and all is lost unless somebody recants or the judge changes his mind.

And it’s all based on the phony assignments.  Shouldn’t someone be held liable?  I’m not talking about a corporate fine here either.  I’m talking about prison time for the perpetrators of the documents! 

MOTIONS TO VACATE

Lest the judge not have fair warning and be allowed to change his (or her) mind, based on newly-proffered evidence, the bank’s attorneys may end up losing more than their case.  In fact, because of felony behavior, or any collusion with felony behavior (i.e., Oh, sorry I robbed that bank … I was only the getaway driver; here’s the money back) … fraud can pierce not only corporate veils, but all operating agreements sanctioned by the state to where the individual managing attorneys and partners are all personally liable to the homeowner.  If it’s a major law firm, they’ll probably try to avoid filing an insurance claim, because the felony behavior would “come out in the wash” and the firm would never get insurance coverage again and would have to either self-insure or dissolve. And that, my friends, is how we take down a law firm … because they’re going to want to settle … but if there’s a class action of over 1,000 homeowners … who is going to cough up all that money to pay those 1,000 claims under statute?  Someone is not only going “broke”, but the State Bar had better make sure they don’t commit felonies again (through disbarment).  Now they get to figure out, with a felony involving moral turpitude, good luck getting a job at Wal-Mart.  How would they pay off those $250,000+ in student loans?  Boo-hoo!  (sobbing)  … NOT!

So the Motion to Vacate serves as a tool to make the court aware of the illicit behavior … and why.  If the court ignores it, the judge and the county he acts in become participants in the fraud and felony behavior.  This is when things get dicey.  The “system of things” is going to try to draw a “fine line” as to whether the behavior was unintentional or malicious.  This is why we need court transcripts!  If the judge makes an “agenda statement” (i.e., “No one gets a free house!”; “When’s the last time you made a mortgage payment?”; or “You’ve lived in that house for free long enough!”).  This type of speech not only promotes a specific “agenda”, it could lead to more sinister issues. AND …

No one to this point has thought to inform the county’s risk manager with the proper ammunition.  Every pro se litigant that has tried going through the risk manager has failed miserably because they do NOT know HOW to properly “connect” with the person responsible for “damage control”.

SOVEREIGN IMMUNITY

All judges in every state enjoy this privilege.  Unfortunately, many of them let it go to their heads.

States also enjoy this privilege.  Isn’t that amazing how they get to legislate themselves this privilege?

Judges get to “play God for 5 minutes” in foreclosure court, not realizing the scenario may present itself to mandates that require them to “do the right thing”.  Because they have “agendas” (“NO ONE GETS A FREE HOUSE!”), they are more quick to “step into the pile of shit” that is about to be created for them.  They have to answer to a judicial review board.  If it can be shown that a felony was committed, on top of multiple ethical violations … and the judge did nothing about it after being called out on those violations … their sovereign immunity is in jeopardy.  Any judge reading this article should take to heart what I’m saying, because the counties are self-insured and most of its officials have to answer to voters.  What if that class action also includes the judge (or judges) involved in the multiple felonies committed in hundreds of cases still applicable in their county?  What if the statutes of limitation are tolled because of the ongoing behavior?  Sure, it’s going to be a sticking point, but, the fact is, no insurance company or bonding company is going to shell out any legal fees to pay for the accessory criminal behavior of an attorney or judge in representing them (paying their attorney’s fees).  The judge will not be able to get another bond, ever, because his or her bond would have been revoked.  That “bond” is an insurance policy designed by “the system of things” to compensate the injured for their losses.   The “senior judges” that were brought out of retirement to preside over foreclosure courts could find themselves and their estate liable as well.  In most states, personal injury judgments are NOT dischargeable in bankruptcy … especially when the parties were warned of potential felony issues and ignored them! 

If the entire Supreme Court of the State of West Virginia can be impeached for felony misbehavior (embezzlement, unjust enrichment and misappropriation of state property), then what makes the judges in the foreclosure courts think they can get away with imposing their political agendas on homeowners when the banks and their servicers are feloniously culpable for fraudulent document manufacturing (or in the least, being co-conspirators to that effect)?

And no, this is NOT going to collapse the entire system of things.  This “too big to fail” bullshit is nothing more than fear mongering.  The “system of things” was created “By the People, For the People”.

Thus, if a class action lawsuit of affected homeowners went after just ONE LAW FIRM and its supervising attorney and its managing partners and took a judge along for the ride as well, especially if the judge had anything to do with the properties he issued orders of final judgments against, now THAT would be something!  That would send a clear message that the “safeguards” that are in place in “the system of things” actually work!

C & E’s JUST BECAME MORE EFFECTIVE! 

These same principles work outside of the realm of the foreclosure proceeding, especially when challenging phony documents or statements made in the pleadings of foreclosure mill attorneys that are false and misrepresentative.  It doesn’t take a rocket scientist to figure out that an Affidavit from an Expert Witness Attorney who identifies the false and misrepresentative information, along with the ethical violations, will strike discord in the heart of the lawyer(s) bringing the foreclosure action.  And you wonder why there are substitutions of counsel when things get dicey in a foreclosure case.  Again, it has everything to do with something illegal happening behind the scenes that the foreclosure mills want to avoid exposure on.  That makes the C & E (Cancellation & Expungement) action even more important!

C & E actions are declaratory in nature.  They open up discovery like a Pandora’s Box.  Once the court is notified of the statutory and ethical violations, it must do the right thing and hold a hearing to preserve the sanctity of the justice system.  If ignored, the judge hearing the case deserves what’s coming because the entire “system” that’s supposed to be in place (in his Court) just went to shit!  Then it’s no holds barred.  His county is self-insured and would rather put him on administrative leave and attempt a crack at “damage control” and quietly settling out of court.  Of course, this is why attorneys are taught to settle FIRST in law school.  That way, they don’t have to air dirty laundry in front of the judge.  Again, and I reiterate this with utmost sincerity, most Americans don’t trust the justice system as it is, which is why “the system of things” is in existence … it all involves insurance and who pays for the damage claims, if in fact they pay out anything (this work to the opposing party’s detriment, or it could work to your benefit … you don’t get both most of the time).

THE CONSPIRACY AND THE UNDERLYING TORT

Fraud is a tort.  The elements of fraud are also expensive to prove.  The elements of negligence however are not.  KNEW OR SHOULD HAVE KNOWN … BUT FAILED TO ACT would seem to apply here.  This is much easier to prove, especially if it was willful.  Imagine getting discovery from one of the robosigners or the notary involved in the document creation, all singing like canaries to avoid felony perjury prosecution.   What are the banks and their servicers (and title companies) going to do?  Kill all the notaries so they can’t testify against them.  Three words here: Remember Tracy Lawrence?

Misrepresentation is also a tort.   Couple that with negligence and you have negligent misrepresentation.   Go to your jury instructions to find out WHAT you have to prove to win your case … see here, see here (courtesy of the State of Tennessee, where MERS ain’t shit!):

Jury_Instructions_-_Misrepresentation

Jury_Instructions_-_Negligence

Remember (from previous posts) that conspiracy is only actionable as a tort in certain states (by statute).  In a majority of states, conspiracy, while not actionable, can be used to prove an underlying tort, through discovery, while exposing all of the parties involved, especially if a law firm is involved in creating the phony assignment being used to prove standing to foreclose on you!   Yes, it costs money dammit!  You want justice?

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 6

(OP-ED, first posted: September 11, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

In my last episode (Part 5) of this series of posts, I talked about risk aversion and the creation of a paper trail.  In this episode, I cover the “why” this becomes necessary.

DOCUMENTATION IN SUPPORT OF A CLAIM

The very first thing I look at (as a title consultant) is the chain of title, especially the warranty or grant deed (proof of ownership), the mortgage (or deed of trust) and any subsequent assignments coming against the chain of title.  All of these documents (in certified form) become the initial evidence in support of any claim I may have against a law firm, a judge or any other party that put that false and misrepresentative information into the public record and then relied on it to steal my property.  After all, in judicial states, where I see most of the atrocities committed, the foreclosure mill attorneys are the ones attaching these documents in their pleadings, as exhibits, or in the alternative, making reference to said exhibits, to be used as evidence to support their complaints to justify the foreclosure.

The pleadings themselves (in original or amended form) also become part of the evidence package in support of my claim, because they contain the language that relies on the false and misrepresentative statements where an assignment was posited or referenced therein as evidence in support of their claim.  This package should include every single document placed within the court docket, including the index sheet … certified copies (and 1 plain copy for review). 

You’re probably asking yourself where the promissory note comes into play here, because judicial states mandate you have to have the original note in order to foreclose. In non-judicial states, possession of the note is not required to foreclose; thus, all foreclosures are assumed to be legal unless otherwise challenged.  This means that if you’re in one of the non-judicial states, you have to institute suit based on the chain of title you have, in order to start the paper trail.  Thus, non-judicial state property owners are at a distinct disadvantage because they must spend the money filing a lawsuit to stop the foreclosure and obtain a temporary restraining order (TRO) and they are limited at best as to what is provable and what isn’t because the other side has not responded to the suit.  You can’t make boisterous claims either, as you will be denied the TRO and that is what you’re seeking to shut down the foreclosure sale.   You see, until the other side responds, they’ve created no paper trail you can assert contains false and misrepresentative statements, which is why I like using a C & E (an acronym for Cancellation & Expungement Complaint) “right out of the gate” if I realize I might not be able to make my mortgage loan payments any more.  Waiting until the 11th hour to file one of these Complaints (in of itself) has been definitely proven to be a waste of time and financial resources.  Filing a wrongful foreclosure action (before the fact) is also a waste of time and financial resources because the foreclosure has not occurred yet (and this is supported by case law).  I mention all of this because your research becomes fundamental as part of creating the paper trail.

Any oral statements made in court have to be supported by some sort of record.  This is why we have court reporters.  Most pro se litigants and uneducated homeowners conveniently forget to retain a court reporter to document everything said in open court to their disadvantage. This means that with no court record, there’s nothing to take up on appeal or challenge because you’ve “stiffed” yourself out of a paper trail.  Besides, having a court reporter has been shown to keep the judge honest.  Don’t think that just because the county can afford to have its own court reporter there means you can simply rely on getting a copy of the transcript from the county’s court reporter.  They are backlogged with work and will take their time getting anything to you, at a time when having a transcript of the proceedings might be timely necessary.  This always works to the homeowner’s disadvantage.  That is deliberate!  Why?  Because the county is using its own court reporter to “cover its own ass” and you can bet stuff will be left out of the record.  Then it’s your word against the county’s.  So, tis better to get your own court reporter!  You need to create your own “timely paper trail” for future use and reference.  This is not a traffic ticket we’re talking about here!

Discovery is vital whether or not you are doing a C & E (which allows you to do discovery of the party executing the assignment and the notary who acknowledged the assignment) or a full-blown complaint to stop the foreclosure.  Discovery responses becomes part of your evidence package … and the “paper trail”!  If you don’t propound discovery on the other side or at least the relevant parties (the ones who created the assignment), you’re on a sinking ship.  All of the discovery (and the responses you get) become part of the paper trail.

Depositions are a must!  These are taken using a court reporter who writes down every single word that is spoken and many of them use video cameras (which is allowed) to take taped statements, which is even more intimidating.  I find that going after the creator of the document, the executor of the document and the notary who acknowledged the document are vital to creating a proper paper trail (not so much the creator of the document, unless you’re trying to solidify that the law firm or servicer was involved in a civil conspiracy with the agents who executed the assignment).  You’re only talking a minimum of TWO DEPOSITIONS here … the executor of the assignment and the notary who acknowledged it.  What authority did they have to execute the document?  Where is the notary’s bond?  Is there even a bond?  Can we attack the notary’s commission even though there is no bonding requirement?  YOU BET!  Attacking a notary’s bond (if there is one to go after) can be a source of cash flow to support your court fight. You can bet the other side will object to everything you ask for because they don’t want anything said on the record that can be used against them in court.

In all matters related to your case, PHONE CALLS DO NOT WORK!  You cannot take phone calls into court!  DO NOT CALL THE NOTARY!  Do not contact the notary by mail!  If you’re sending them a subpoena to appear at a deposition … their deposition … you do it through a process server … which is also a legitimate part of your paper trail!   I have people who have contacted me who do exactly what I just suggested NOT TO DO.  They scare the notary into hiding.  When it does come time to serve them with a subpoena, they can’t be found.  Duh!  And these people actually think they’re doing the right thing?  Seriously?  What part of desperation is incorporated into stupidity?  This is where you have to put your emotions aside and start thinking “common sense”.

THE EXPERT WITNESS AFFIDAVIT AND LIVE COURT TESTIMONY

I’m talking “expert witness attorney” here, not your average forensic loan or securitization auditor (who thinks they’re an expert witness).  Why an attorney for an expert witness?  Allow me to re-arrange your brain’s priorities through the following three reasons:

REASON #1: Litigation Consultant … your expert witness attorney can also serve as a litigation consultant to help you frame some damning discovery centered around statutory violations!  This is important because using the stuff I mentioned previously in The Quiet Title War Manual has nothing to do whether or not you can challenge assignments because you’re not a third-party beneficiary.  That is a bullshit banking argument that has nothing to do with the statute in question!  The statutes speak directly to the recording of documents known to contain false and misrepresentative information!  Separate the two distinctions in your mind because the borrower’s name is in the assignment; the borrower is a party to securitization (if that’s an issue) and because the document involves misrepresentations that may include “MERS” (in whatever form), which claim that Mortgage Electronic Registration Systems, Inc. had something to do with negotiating the instrument (the note), which runs contrary to what’s in the assignment, generally.

REASON #2: Personal Knowledge of the Facts … this happens when the expert witness attorney reviews all of your documents.  He can testify as to their factual basis AND render a legal opinion … BOTH under oath and under penalty of perjury as a lawyer!  This is way different than having a so-called “expert” that’s NOT an attorney testify as to anything factual … they can’t give legal opinions; otherwise, in doing so, their testimony could be impeached or effectively diluted under cross examination. Not only that … because the attorney who serves as your expert witness is sitting in the court (prior to giving his testimony), he actually gleans personal knowledge listening to the other side’s attorney further the false and misrepresentative information to the court … for which the damage is immediate (see In re Wilson, U.S. Bkpt Ct E.D. La No 07-11862, Memorandum of Law in Support of the United States Trustee’s Motion for Sanctions against Lender Processing Services, Inc. and the Boles Law Firm), which says:

“Untruthful statements made in bankruptcy proceedings undermine the integrity of the bankruptcy process. The bankruptcy system relies on the candor and accuracy of information presented by all parties, creditors and debtors alike. To ensure candor before this Court and to protect the integrity of the bankruptcy system, this Court should impose on Fidelity and Boles monetary sanctions and other non-monetary relief as this Court deems appropriate pursuant to its inherent authority to sanction abusive litigants coming before the Court, and pursuant to 11 U.S.C. § 105(a).”  And from the following footnote, No. 16):

“Rule 9011 provides a 20 day “safe harbor” in which a party may withdraw the challenged written representations, unless they are contained in the bankruptcy petition. If the challenged paper is withdrawn, it would not be considered by the court in its decision making process. However, there can be no safe harbor for untruthful statements made in open court, because the harm that results is likely to be immediate.”

(I just told you the Expert Witness Attorney would be there to hear all of the “immediate” misrepresentations.)  This is an actual case where Wells Fargo Bank got hit with a $1.3-million sanction!

This is an attorney, namely, the Bankruptcy Trustee, reporting misconduct! He is telling the other side (through his memorandum, they’ve been given fair warning to recant what they’ve placed into the court record).   If you didn’t catch that so far … let me make sure to clarify this in the following “reason”:

REASON #3: Rule 8.3 – Reporting Professional Misconduct … this is a mandated state bar rule (how many foreclosure defense attorneys actually follow it?)

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

The foregoing mandates (which is what “shall” means, not “may”) are put there to hold attorneys accountable to report misconduct. What forensic loan auditor or securitization auditor is mandated by the Bar’s own rules to to this?  Come on, think?  Where’s the mandate?

(long pause, heavy sigh)  Come up with one yet? Didn’t think so.

This means that when the expert witness comes into personal knowledge of the facts that the other side’s lawyer has committed felony perjury by making false and misrepresentative statements in open court, he has a mandated duty (for which the State Bar must listen) to report the other lawyer’s misconduct!

This also means that if the judge hearing your case doesn’t give a shit and let’s this scumbag attorney for the bank say whatever he wants and get away with it and hands your property over to the bank AFTER your expert witness attorney advises (through a legal opinion) that the other side’s lawyer, in both pleadings and exhibits and oral statements made, has committed misconduct, not only is the judge exposed and now at risk, but the county he is employed by may also be “on the hook”.

At least bankruptcy judges have the decency to “do the right thing”.  I recently noted the results of the Sundquist ruling in California.  Sundquist-Memo-Opinion

A lot of this depends on how “stacked” your paper trail is and what evidence of misconduct you were able to actually PROVE (not just assert).

EXPOSED RISK FACTORS 

BTW, for those of you “Patriots” out there … a majority of the judges’ oaths of office I’ve seen were actually recorded in the public record in the county they serve in!  This is important to recognize the WHY you’d want a certified copy of their oath of office.   THE PAPER TRAIL!   It’s proof he/she (as a judge) is serving IN THAT COUNTY!

Most counties are self-insured.  The county has either a County Executive or Risk Manager who handles their claims because of something an employee did wrong.  Who would think to tag a judge?   After all, aren’t the judges bonded?   What happens if the bond is attacked, challenged and successfully revoked?   The judge can’t sit on the bench, right?  He will probably be placed on administrative leave while the county investigates what happened.  But that’s not all the county has to worry about.

As a result of the trial or hearing (whether it be evidentiary or just one of those 5-minute “rocket docket” style pieces of crap), there are two other complaints that must be reported … a complaint on the lawyer to the State Bar that can discipline him … and a complaint on the judge to the appropriate judicial authority.  More paper trail to show the County … to give them fair warning that they need to step up or face the consequences!

ALL OF THIS HAS TO BE DONE BY THE EXPERT WITNESS ATTORNEY … WHO IS MANDATED TO “PULL THE TRIGGER”!   PRO SE LITIGANTS (who think they know more than the expert witness attorney) WILL ONLY F**K THIS UP IF THEY TRY TO DO IT THEMSELVES (calling into the county or the bar or the judicial review board and whining about their silly little issues, or filing crap judicial misconduct complaints, which is how the major insurance players in this game will view their cheap efforts to avoid having to pay for an expert witness attorney).  I put this part in the back end of this post as a caveat, because it’s the expert witness attorney who has the “big stick of dynamite with the short fuse” … NOT YOU! 

It gets better … stay tuned for another round of insight into the insurance game in the next segment! The title companies are also in this up to their ears (among other places)!

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TO FIGHT THE GOOD FIGHT … OR NOT!

OP-ED — THIS IS STEP THREE OF A 3-PART SERIES BY DAVE KRIEGER, AUTHOR OF CLOUDED TITLES

I have conducted intense research for over ten years on chain of title issues and what it means for affected homeowners.

Foreclosure mill attorneys could care less about the chain of title, so long as they can come up with a game plan to steal the property, even if it means participating in the manufacturing of title documents that create standing for their client to allow their little “scalping party” to appear in court.

Once the mess of confusion has subsided and the educational process has begun, the average homeowner discovers (over time) that the method by which the alleged “lender” has preyed upon them has imbued them with a combination of guilt, rage, entitlement or empowerment or the combination of one or more of the above.  This is where things get tricky because the average homeowner generally does not know what the chain of title could possibly reveal in their particular foreclosure case.

As the clock ticks, depending on where you live, the process of foreclosure continues.

If you’re in a deed of trust state, you generally get about 45 days prior to the date of the sale to react.  By “react”, I mean file a lawsuit and get a Temporary Restraining Order (TRO) to stop the sale and have your case heard before a tribunal.

If you’re in a mortgage state, you generally get 20 days to file an answer ONCE YOU’RE SERVED with process.  This is key to your understanding. Once a party to a foreclosure action finds out the lender is attempting to serve them through a process server, they hide to avoid service.  This only works for a short time, as the process server will figure out (through skip tracing) what your daily routine consists of and will eventually catch up with you and serve you with the foreclosure complaint when you least expect it.  Avoiding service usually means the attorneys for the bank (or the servicer) could end up going to the judge and requesting what is known as substituted service, which generally means that a relative who knows you can be served with the papers instead.  Then the 20-day clock starts.  By the end of that 20th day, you would have had to file an “Answer” or face default judgment.

Answer #1 … to Run or Not to Run … 

What you’re about to read is NOT all-encompassing, because every homeowner seems to choose a different path.

95% of homeowners who are served with a notice of foreclosure … RUN AWAY from it!  I know that figure is hard to believe … BUT … that is exactly what the lender wants you to do.  The alleged “lender” knows it’s a “numbers game”.  The majority will run away but some will stay and fight.  By avoiding the foreclosure (by running away or doing nothing), you’ve made the lender’s job 95% easier … provided the lender (or the alleged lender) has done their job right.  When the average homeowner gets served they RUN because they lack education or the funds to get educated and fight the foreclosure.  The lenders know that 95% of all homeowners do not have a legal defense fund set up to wage war in the court against the lender to save their homes.  The lenders know that in most cases, they will end up with the house (whether free and clear is debatable here) because the homeowners are scared away from a fight.  Those who do not understand that the court systems in America are motivated in favor of lenders will soon find out that fighting “the good fight” is not the easiest task in the world.

Now let’s look at the 95% of the homeowners who “run away” from the problem.  Many pack up and move out as soon as they are served with notice.  A certain percentage of them will simply “freeze in place” once served.  They don’t know what to do next.  Rather than pack up and move right away (upon service of process), they stay put and either ignore the paperwork (denial) and whatever notice they are served with and simply wait for the county Sheriff or constabulary to evict them and put their belongings to the curb.  I can’t begin to tell you what that feels like, so I’ve included a video clip to refresh your memory in the event you can’t visualize it.

I cringe watching that video, almost to the point of tears.  This is not HOW I planned to peel away at the onion!   I pray to God that no one has to endure this, but sadly, in order to avoid what that video depicts, the homeowners plan their move accordingly, knowing the bank will eventually show up to their doorstep with law enforcement and they are “moved” whether they like it or not.  This does NOT have to be you!  Even if you have a PLAN B in place, the best well-made plans take time.  You do NOT have to run, now or then.

Answer #2 … to Fight the Good Fight … or Not! 

Not fighting “the good fight” manifests itself with bad behavior.

Remember I first discussed guilt, rage, entitlement and empowerment (or any combination thereof) earlier in this post?

Fighting based on guilt is totally inappropriate.  It basically means that you’ve let the lender and/or its henchmen (the servicer’s $9/hour cubicle employees) take over and run your life based on “power over” collection tactics.  The mortgage loan servicer is obviously trying to fleece you for every dime it can get because that’s how it makes money.  You fight the urge to say “no more” based on guilt feelings.  You fight the urge based on guilt because failing will bring on more guilt.  You want to keep your house and so you’re literally “bending over” at every whim of the foes coming against you.  While this appears normal as part of our built-in defense mechanism, letting guilt drive your emotions means making bad decisions (decisions based on emotion rather than common sense and logic).  It’s basically fighting with yourself because the servicer is making your decisions for you and you’re not making them yourself.  You feel guilty because you let them win … and they’re just getting started!  Guilt can fuel the unthinkable, like murder-suicide.  That is not the answer.

Fighting based on rage is also totally inappropriate, unless your rage is channeled into the fight itself.  Walking around being pissed off at the world, being pissed off at your family and friends and whoever you happen to engage in any related financial conversation is not the answer.  Rage, like guilt, is also an emotional element not worth pursuing if you’re going to fight “the good fight”.  Rage will make you do extremist things, like spend money where it doesn’t need to be spent logistically; spending money going on lavish vacations while ignoring the responsibilities of American homeownership; substituting rage for logic in failing to develop a business plan in order to make things happen.  Rage can also fuel the unthinkable, like murder-suicide. That also, is not the answer.

Fighting based on entitlement is understandable based on the political times we live in.  Most of America has been so conditioned to live off the government (via entitlements) and trust it implicitly that most Americans have been conditioned to believe that “the world owes me a living” and that “if I complain to the government, the government will step in and save me”.  This is false conditioning.  Complaining to any government agency about your foreclosure is a colossal waste of time!  This conditioning was by design, based on deceit by some very powerful oligarchs who have made themselves gods, thinking that their rationale is better than the average Americans’ and that they should be entitled (self-entitlement works in strange ways when you have lots of money) to make decisions for everyone else, including letting the banks run America. When you start to believe that the world owes you a living, then you can easily fall into the trap (when seduced into this false belief) of, “the bank screwed me, so I deserve a free house!”  That is not only illogical in thought, but the courts in this country, who feed off of entitlement, can spot an attitude of entitlement a mile away and shut it down!  Entitlement does not fuel the unthinkable, but it does fuel ego and pride … and pride goeth before a fall. Being entitled means you know everything.  That too is dangerous.  Ego has also hurt the banks in playing their “numbers game” too; however, the banks make up for it through the numbers of homes they’ve “stolen”, making them a more powerful legal adversary.

Fighting based on empowerment is the most desired aspect of fighting “the good fight”!  Knowledge is power and wisdom is knowledge applied.  Knowing WHEN to apply knowledge is what wins battles (Sun Tsu, The Art of War).  Knowing WHEN the enemy is weakest and where their weakest points are to begin with puts the homeowner in a condition of empowerment.  Even Tige Johnson, a transactional lawyer out of Chicago who has lectured at my workshops, has even stated that when homeowners are fully aware of the facts in their case and what the law says, they make very empowered clients.  Employing “rage” as a “fuel” to empower you to search is the greatest attribute, because it’s what drives you to succeed no matter what.  Rage alone, without empowerment, spells doom for every homeowner who wants to fight “the good fight”.

Answer #3 … the average homeowner who litigates a foreclosure can delay a foreclosure for up to 2 years! 

Ahhhh!  The naysayers and the gainsayers will chastise me for creating false hope; however, the foreclosure defense attorneys have figured out a gameplan that will delay a foreclosure for 2 years or longer and in doing so, “buys” their client time.  Time for what?  To sit on their laurels and enjoy the scenery?  Those who are embroiled in litigation MUST stay on top of it.  There is no time to dawdle or take a vacation to the Bahamas just because you’ve forced the alleged “lender” to prove its case. By the tone of your response to the foreclosure notice, whether in a deed of trust or mortgage state, the foreclosure mill law firms can measure how much of a fight is necessary to accomplish their mission.  They want to win.  They want to help their client get your home.  Many of them will engage in misleading tactics designed to throw you off point.  Many of them will commit deceitful acts and make false representations to the court.  This is all part of their game.  It also keeps the foreclosure mills in business longer because there’s no more income stream to them once the foreclosure is over and they’ve won.  And you wonder why the foreclosure mills aren’t coming after me?  It’s because through my efforts, they stay in business because I’ve empowered homeowners to fight “the good fight”!  Think about the logistical financial issues posited to the banks and their attorneys.  As Tige Johnson has stated (in my workshops), “I’m here to make the banks bleed green.”  Thus, it costs the banks to fight your “good fight” too!  This is something to consider.

In a deed of trust state, by law, most states do not allow for anything past the taking of the security, which means that once the foreclosure is complete, there is no deficiency judgment.

However, in order to keep the foreclosure hounds at bay, you have to initiate a lawsuit in the proper court, because deed of trust states do not provide for your “day in court”.   You have to “create” your day in court by filing a claim against the lender or its alleged representative.  Once that suit is filed, you also have to ask the court to stop the foreclosure sale by granting a temporary restraining order (TRO).  Simply filing a lis pendens only “gums up the title”.  It does NOT stop a foreclosure.  I had to get that through my head when I started helping homeowners fight “the good fight”.  As I teach in my Foreclosure Defense Workshop (along with attorneys who lecture at them that are well versed in this subject matter), you have to follow rules of civil procedure and rules of evidence to the letter, which means you have your work cut out for you unless you have the resources to retain counsel to represent you.

In a mortgage state, by law, most states provide for deficiency judgments (post-sale) and attorney’s fees, which means this has to be taken into consideration before you fight “the good fight”.

Many times, a straight forward “Answer” that is timely filed with the court and appropriately served on the foreclosure mill law firm representing your alleged “lender” adds an additional 30-60 days to your “fight”.  Simply put, ANSWER the damned complaint, point for point.  However, just because you’ve filed an Answer to their complaint (in a mortgage state) does NOT mean you get to sit back and relax.  Your fight is just beginning.  Many reading this post have kept the lenders at bay for 8 years or longer!  Whatever made you think you can’t do the same?  Would having an extra 8 years of time give you time to get your financial affairs straightened out to the point where you can strategically leave the suit and enter into a new financial realm you created during that time frame?  Many smart homeowners have figured out that if they can “buy time”, they can re-strategize their financial position and move on! Sadly however, most homeowners aren’t that smart when it comes to litigation, which is why I hold workshops.

Answer #4 … opening the door to “empowerment” by doing your homework! 

Over the years, I have learned that every alleged “lender” (generally through its mortgage loan servicer) creates at least one “assignment” and causes it to be recorded in the land records in the county your home is located in.  Many of these assignments are created just prior to a foreclosure action, which becomes suspect as to its legitimacy.  You can bet that the assignment was “designed” to “manufacture standing” so the lender’s representative can complete the foreclosure without question from the court.  It’s like “manufacturing evidence”, which can be used to the lender’s advantage … or in many cases by you … to the lender’s disadvantage.

Starting with evaluating your chain of title may prove to be the key to discovering the strategies you need to fight “the good fight”. Filing bankruptcy to stall the inevitable is the “cheap way out”, that will hurt your credit more than the foreclosure itself (by more than 300 points), which is why I’m not quick to even think that way.  Unless you have a defined strategy involving an adversarial proceeding, along with a huge mountain of unsecured debt with no way to pay it back, I would never consider filing bankruptcy.  Filing bankruptcy is not empowering anything.  Filing bankruptcy is giving up in a feeble attempt to “stop the bleeding”.  Even if you stop the bleeding, the damage has been done and there will still be a scar, a scar you will live with for ten (10) years (even if you are successful in removing the bankruptcy from your credit reports).

In order to become MORE successful in your efforts, you need to plan a strategy,which includes an exit strategy in case things don’t go as planned. These days, I’m seeing a lot more investors using “end game strategies” (which I also teach at workshops) because they are “calculated” and their financial weight can be measured.  The average homeowner however will find themselves in a different scenario because as I stated before, the “war chest” simply doesn’t exist in most cases.

Thus, once you obtain your entire chain of title, you can look for clues as to how to unwind your dilemma or in the alternative, find the most efficient and affordable way to restructure your life and move on.  The “devil is in the details” and most of the time, the evidence found within the promissory note does NOT match up to what the recorded assignment says.  The other side will twist the truth to prove its case; or in the alternative, throw in stumbling blocks to increase the cost of your litigation in an attempt to discourage you from fighting further and to resort to settling when settling may not be an option when you know the truth and have figured out ways to prove it.

I’ve been involved in numerous cases throughout my years of involvement in the world of foreclosures, which is why I’m called in to consult attorneys on various cases and conduct chain of title assessments (COTAs) for homeowners, which saves them time and money because the attorney can get to the real issues faster, which saves the attorney time as a benefit to the homeowner, especially where time is of the essence.  I can genuinely live with myself in what I’ve been doing, which is to educate homeowners using the research I’ve conducted since 2007.  Whether the research pans out for the homeowner depends on how the homeowner chooses to fight “the good fight”, which is why I’ve developed workshops that teach foreclosure defense.

In closing, I also warn of using “rage” as your guide when it comes to picking your litigation strategies.  You have to have a level head in order to evaluate what strategies are going to work best.  Suing everyone over everything is a sure way to stretch your finances to the limit.  While I believe that walking away (strategic default) from a future problem (home foreclosure) has been used not only by myself but by multitudes of others as well, knowing the truth about the matter may have changed the strategy I’d planned as well as the case outcome.  How then can you make an honest decision without a level head, a true set of facts and multiple strategies with which you can cloak yourself in empowerment?

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