Tag Archives: foreclosure defense attorney

Nothing has changed much in Washington State, post-Bain!

Op-Ed —

August 16, 2012 is a day that will go down in Washington State’s history when it comes to dealing with the issues created by the licensed lenders in that State who rely on MERS to cover up “dead spots” in the chain of title to properties.  I’m attaching the Supreme Court’s en banc ruling to refresh your memory and to fill in any gaps that might be missing in your thought process.

BAIN V METROPOLITAN MORTGAGE GROUP, INC. ET AL

Only a handful of states in the union agreed with the Washington Supreme Court’s decision insofar that MERS was NOT a real “beneficiary” because it didn’t loan any money and therefore, had no interest in the borrower’s promissory note.  In fact, during the oral arguments presented before the Supreme Court, counsel for Mortgage Electronic Registration Systems, Inc. (not “MERS”, which means MERSCORP Holdings, Inc.; I’ll explain in a moment) could NOT identify WHO owned Kristin Bain’s mortgage loan! That didn’t bode well before the justices, who were stunned at the lack of knowledge and almost sheer arrogance of MERSCORP’s counsel.

You see, what the Washington State Supreme Court justices were never presented with, and thus did not have in evidence to be able to make a determination of, is that the Rules enacted by the parent of Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc. (then MERSCORP, Inc.), specifically note that under Rule 1 § 1, when the term “MERS” is used, it means the PARENT, NOT THE CHILD!  Mortgage Electronic Registration Systems, Inc. is THE CHILD. The lack of knowledge by the attorneys for the homeowners (for Bain and Selkowitz) and the deliberate omission of MERS’s own “rules” by its representative counsel should be cause for alarm in the way cases are being litigated all across the country!

THE PARENT AND THE CHILD ARE NOT THE SAME!

In fact, they are two distinctly separate Delaware corporations. This was a contrived scheme of mass proportions, created in favor of the banks, which caused tens of millions of fraudulent and misrepresentative documents to be recorded into the land records of all 3,041 counties, townships and boroughs in the United States, literally clouding titles to over 80-million properties!

Thus, when Mortgage Electronic Registration Systems, Inc. shows up in any legal proceeding, it’s the “empty shell” (a bankruptcy-remote entity with no assets or liabilities; no income or expenses; and no employees) that shows up in court … NOT THE PARENT!  MERSCORP is footing the legal costs in every proceeding (because it is a roughly $2.7-billion a year business model) that operates and argues on the flawed idea that the agent (nominee) and the beneficiary can be one in the same party.

The Tennessee Supreme Court completely gutted the MERS business model in the Ditto decision. MERS v DITTO_TN Supreme Court rules against MERS!  To NOT understand all of the basic tenets of real property and mortgage law could be fatal to you in your foreclosure case!

This is why I am hosting the Foreclosure Defense Workshop in Orlando on September 30-October 1, 2017.  (see below)

Part of the “good fight” in dealing in foreclosure actions is knowing the truth and how to find it (or go after a determination to get at it).  This is a lot of what we are teaching in the workshop, even if you’re going pro se!

You have little time to make reservations, because airfare is going up the closer you get to the date and the number of seats to the event has dramatically shrunk.  If you are even thinking of remotely preparing yourself to “fight the good fight”, you need to be at this event!  Since Hurricane Irma hit Florida and knocked out a lot of the internet connections, many Florida consumers won’t know about this event until this weekend and likely, there will be an onslaught of registrations at the last minute.

FDW ORLANDO REGISTRATION FORM

Meanwhile, back in Washington State … 

It appears that the regulatory agencies that govern the behavior of the banks aren’t falling all over themselves to stop the continual process of recording documents in the land records that makes use of MERS as a “beneficiary”, post-Bain.  Here is one such Consent Order, issued in 2017, that exemplifies my point (sent to me by one of the readers of this blog):

Planet Home Lending

The Consent Order appears to have noted that a violation of the Washington Consumer Protection Act [RCW 31.04.027(2) and (13)] occurred when Planet Home Lending, a lender licensed under Washington law to conduct business in the State, caused several Assignments of Deeds of Trust to be filed in counties all across Washington State, post-Bain, characterizing MERS “as the beneficiary when MERS did not hold the corresponding promissory note.”

While I was not provided with any specific Assignment to review, I would guess (and my guesses are usually pretty right on) that the Assignment was created by employees of the servicer of the loan. Recognizing this scenario is important for two key reasons:

  1. If a consumer is economically affected by the recording of one of these subject, suspect Assignments, the consumer would have to assert a specific violation of the foregoing state statutes; and
  2. If the Assignment of Deed of Trust used MERS to characterize the Assignor as a “beneficiary”, post-Bain, for the purposes of transferring any rights in the note to a REMIC, or even more importantly, to the servicer, who then commences a foreclosure action against the Property, then there may also be a violation of 15 U.S.C. §§ 1641(f) and (g), the Federal Consumer Protection Act.

Through the use of the federal citation, the case then becomes a federal issue, so one would have to get a competent attorney to sort through which would be more effective to prove (as a Plaintiff) against Planet Home Lending, the violation of the Washington Consumer Protection Act (which has a supporting Consent Order to apply to the case as evidence) or the Federal version of the same.

The problem is however, that the Consent Order implies that Planet Home Lending didn’t admit to guilt, even though the State found violations of the foregoing Act (under Agreement and Order Paragraph C). For all intents and purposes, the Order basically said, “Don’t do it again!” and by agreement, any further violations of the Order would be dealt with in the future (to what extent, we do not know).

Now, I can surmise that all of the litigious folk out there affected by the issuance of this Consent Order have realized that there is nothing stopping a consumer from bringing a private right of action against Planet Home Lending (or any other lender or servicer violating the Washington CPA). However, I caution those considering such to use due diligence in determining “damage”, whether actual, compensatory, exemplary or punitive.  Without some sort of financial loss, it may be more difficult to press forward with a CPA violation claim.

That being said, it appears that suit may be brought under the foregoing state statutes in lieu of any decision like Yvanova v New Century Mortgage Corp. et al (California) and Miller v. BAC Home Loans Servicing, LP, 726 F. 3d 717 – Court of Appeals, 5th Circuit 2013 – Google (Texas) that gives consumers the right to challenge the creation of (and subsequent recording of) a suspect document affecting chain of title in the land records of any county in Washington State.  This may also apply in other Consumer Protection Act-related statutes across the country, but it is likely that a consumer would have to conduct some pretty specific discovery (against the mortgage loan servicers’ employees and notaries) to see who ordered the creation of the document and who caused it to be manufactured, for what purpose and determine accountability.

It should also be noted that civil conspiracy is defined in virtually every state statute.  While this term does not in of itself, constitute a cause of action in the literal sense, the act of one or more actors getting together and conspiring to do a thing to scheme that adversely affects the economic or financial well-being of another would certainly be an issue to be considered.

In Florida, for example, Florida Criminal Code § 817.535 makes it a third-degree felony to record a document containing false and misrepresentative information with the intent to deprive another of their property.  While consumers cannot commence criminal proceedings directly, they can file a criminal complaint with the local sheriff’s department (the county land records are the sheriff’s jurisdiction) and pursue a criminal case that way, especially if discovery shows that a civil conspiracy to create the document indeed occurred. You should understand that (based on our past dealings with a certain sheriff’s department) detectives at the county level are either lazy, in defiance of or lack the knowledge to properly and fully investigate such matters, as evidenced by the Osceola County Sheriff’s Department, who could find no wrongdoing in the OSCEOLA COUNTY FORENSIC EXAMINATION.

The foregoing subject matter is only PART OF what we’re going to cover in the upcoming Foreclosure Defense Workshop.  Thus, the tools and weapons that pro se litigants and litigants being represented by counsel are being refined to be more effective and the means by which documents are challenged has also been refined (AND PROVEN) to work!  There are three specific things I’m going to be sharing at the workshop in this regard, in addition to the newly-developed tactics by Rich Kalinoski, the attorney lecturing to those attending this workshop.

Again, this is the ONLY workshop we’re doing in 2017.  We have not decided whether we’re going to do another workshop again. Rich is very busy implementing his new developments and for this reason, may stifle any efforts to conduct a workshop in the future.  Know this … legal tools will be available to all of those who attend!

In the meantime, keep researching and “fighting the good fight”.

Dave Krieger is the author of several books, including Clouded Titles, available on his website.  He consults attorneys in foreclosure matters and drafts pleadings and conducts research for attorneys and litigants. Mr. Krieger is Managing Member of DK Consultants LLC in San Antonio, Texas. 

 

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REMINDER: FORECLOSURE DEFENSE WORKSHOP COMING TO ORLANDO, FLORIDA!

(BREAKING NEWS) — 

This event features a foreclosure defense attorney, a title consultant, a forensic document examiner and a Florida Circuit Clerk.

Where else can you mingle with other attorneys, investors, affected homeowners and paralegals that are “fighting the good fight” than at this Workshop!

Saturday, September 30 and Sunday, October 1, 2017 at the LaQuinta Inn & Suites Airport North (9:00 a.m. to 4:30 p.m. both days).

This is the only Workshop of its kind that teaches you how to navigate the treacherous waters of state and federal court, even if you’re going at it alone pro se because you either don’t have the money to pay an attorney or don’t trust attorneys.

On Day 1, we explore the Rules of Civil Procedure, Title Issues and Fraudulent Documents; and on Day 2, Rules of Evidence, along with a Q&A session.

Murphy’s Law: If anything can go wrong, it will, and at the worst possible moment. 

There is nothing worse than blowing your case (and creating bad case law) because you missed a step in filing, answering or appealing your case.

There is nothing worse than being socked with the other side’s attorney’s fees because you weren’t prepared to take calculated risks to wage a court battle!

There is nothing worse than having your case being dismissed because of deficiencies in your case because you didn’t know when and how to posture discovery.

There is nothing worse than having your case removed to federal court because your state pleadings were poorly written or your filed case was totally deficient and devoid of proper claims.

Most importantly, there is nothing worse than being messed over by a biased court judge because you lacked the knowledge necessary to make the other side prove its case!

It’s one thing to go into court and fight a traffic ticket.  It’s totally another to go into court and fight to save your home.

If you’re in the middle of a foreclosure action, bring all your case files with you!   You may get answers to questions you have involving your specific case throughout the course of this Workshop!

The cost to attend is $695 per person; $895.00 for a married couple.  

This is way less than most homeowners’ mortgage payments!

What?  You can’t afford this Workshop?

Then ask yourself whether you can even afford to stay in your home.

Maybe fighting a foreclosure is a complete waste of your valuable time and resources!

Maybe you’re simply thinking about abandoning your home.  That’s just what the banks want you to do! 

Maybe this class will show you some tricks of the trade that you haven’t even thought of!

Hotel reservations in our group room block end on September 15th, so you have 10 days left to make hotel arrangements!

Responsible American homeowners don’t quit.  They fight!

In fact, your chances for “buying time” simply increase exponentially if you engage in a court battle!

Don’t let the banks steal your home!  Sign up today and attend this important workshop!  FDW ORLANDO REGISTRATION FORM

 

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FIVE REASONS NOT TO AVOID SERVICE OF PROCESS!

(OP-ED) —

I just received an email from a homeowner which stated that he “refused” service of process.

I flew into a fit of rage.  It took me 10 minutes just to calm down before answering his actions.

By nature, we have a tendency to avoid conflict.  We don’t like confrontation.  A process server coming to your door, at any hour of the day or night, means that a confrontation is about to occur which is at best unsettling, causing conflict in your life.  In the case of a married couple, you can expect that once a process server delivers their spate of bad news, you can bet that there will be immediate strife in the household.  Tempers flare.  Blood pressure goes up. Insomnia due to worry sets in.  For all practical purposes, emotion rules.  Common sense goes right out the window.  So, naturally, our tendency is to avoid service.  I believe this is wrong (and so do many attorneys I’ve talked to).  So I’ve put together a list of 5 brief reasons why NOT to avoid (or in the alternative) refuse service of process.

REASON #1: You won’t know who your enemies are! 

You’ve heard the old saying, “Keep your friends close and your enemies closer.”  This saying came about for a reason, especially in the legal profession.

When you don’t understand WHO is coming after you, you won’t know how to establish an “End Game Strategy” to beat down the action being taken against you.

REASON #2: You won’t know why your enemies (whoever they may be) are coming after you! 

If homeowners (as Borrowers on a Note) haven’t been able to make their mortgage payments, chances are likely they’ll figure out why a process server is attempting service of process … because the bank (or servicer) wants their money and they are tired of waiting.  On occasion, a servicer will send out notices (in the form of door hangers) through their local contacts, tipping off homeowners that service of process for a lawsuit (or non-judicial foreclosure sale) is likely imminent.  If you have more than one property, you definitely won’t know which property is being affected because you’re “not in the loop”.

REASON #3: You won’t have a legal “foot in the door!” 

One of the first ways foreclosure defense attorneys can defeat a case is to make the other side do its job properly. On many an occasion, a servicer has hired a process server to serve process and it was done improperly for whatever reason (tacking a note up on the door, which later blew away; false attestation, etc.) and thus, attacking service of process is the first line of defense in making the entire foreclosure process have to be refiled again.  Homeowners (as Borrowers) do not understand this principle because they’d rather “play ostrich” and stick their heads in the sand.  Remember, avoid conflict at all costs, unless it proves to be fatal.  In many states, refusing service when confronted can also mean service was accepted.  Judges don’t like it when the party being served deliberately says “NO” to process, because it’s their right to know what they’re being accused of doing (or not doing).  Judges have also been told to clear their dockets of issues like this, which is a precursor to a default judgment being issued against you.  It’s one thing NOT to be home when the process server calls, it’s quite another to refuse service when it could be something financially critical to your future well-being (and that of your family).

REASON #4: You have no idea how to strategize a defense to the service, let alone anything else! 

Many foreclosure defense attorneys understand that attacking improper service of process only frustrates the foreclosure process and doesn’t stop it altogether.  However, understand that if the other side is going to bring a claim against you, don’t you think they need to follow the letter of the law?  After all, this likely involves dispossessing you of your property and if they don’t do something as simple as to properly serve you with the paperwork, how do you know if everything else they’ve done is right too?

REASON #5: Time is of the essence! 

No matter what the outcome of service, time is working against you the longer you wait to accept service.  I’ve known at least one person that has deliberately made himself scarce when he knows a process server is attempting to serve him with papers.  He thinks that by avoiding service, he’s going to be able to delay his day in court.  Unfortunately, after a time of trying to serve a party at their residence, the process server will contact the attorney handling the opposition’s case and make mention of the facts (that you’re either avoiding or refusing service) at hand and the attorney may then request from the judge to allow for substituted service (meaning someone else close to you can be served in your stead), which makes you an open target for service at your place of employment or through a relative who lives nearest to you.

Once service has been completed, you have a timetable in place.  In judicial states (mortgage states) you have 20 to 30 days to respond to the complaint. If you don’t, a default judgment can be entered against you and the foreclosure will be commenced against the property without your knowledge and probably at a time most inconvenient to you (or your loved ones).  The last thing I’d want to see is someone being kicked to the curb.  See below (from the film 99 Homes): 

The setting of a timetable forces you to have to act to stop whatever is coming after you.  For the average homeowner, this means spending money you don’t have hiring an attorney to draft and file and answer to the Complaint.  The average homeowner should also understand that many attorneys aren’t real well versed in foreclosure defense and are likely to admit to things that they don’t understand.  Even worse, should a pro se homeowner proceed without at least some assistance of counsel, they are likely to screw themselves out of their home permanently, while putting their spouse or family at equal risk.

This is one of the reasons why we set up the FORECLOSURE DEFENSE WORKSHOP! 

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

Here is an opportunity to learn from one of the best foreclosure defense attorneys in Florida!  (see below)


Here … you have an opportunity to learn to fight back!

Download the Workshop application here: FDW ORLANDO REGISTRATION FORM

Yes, DK Consultants LLC is sponsoring this event.  This is the only event in 2017 and the ONLY event custom tailored to pro se litigants!

This means, you’re going to get educational information that is vital to saving your home … not just some sort of “delay game” strategy used by most Florida foreclosure defense attorneys!

ENROLL NOW!  SEATING IS LIMITED!

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TWO-DAY “END GAME” STRATEGY WORKSHOP COMING TO BILOXI!!!!

BREAKING NEWS — UPDATE:

Clouded Titles author Dave Krieger and Quiet Title Attorney Al West will be lecturing at a 2-day workshop in Biloxi, Mississippi in July … the only workshop being held in 2017 … called END-GAME STRATEGIES!

This workshop is keyed towards investors (as it is being hosted by Lou Brown’s “StreetSmart” program); however, the readers of this blog have been extended an invitation to attend, whether you are a distressed homeowner, an attorney who wants some new ammunition in foreclosure defense and quiet title actions or simply interested in learning new strategies to hang the banks out to dry at their own game!  This is the consumer litigation workshop you do NOT want to miss!

The two-day workshop is being held at the Treasure Bay Casino & Hotel (1980 Beach Blvd, Biloxi, MS, 39531; (228) 385-6000) on Thursday and Friday, July 13th and 14th, 2017 and features Clouded Titles author Dave Krieger and Quiet Title attorney Al West (who has beaten REMICs in court)!  Mention you’re with the StreetSmart group for the group rate! 

Here’s what you’ll get when you attend this event as a guest of Lou Brown’s StreetSmart program:

Every attendee to the workshop will be provided with a copy of the 512-page  The Quiet Title War Manual, which contains some of the strategies talked about in the workshop, PLUS, an Investor End Game Strategy Workbook, containing about 400 pages of dynamite “end game strategy” material including 16 end game-specific working documents, never before offered in any previous workshops taught by DK Consultants LLC!  Come get your head cleared in the fun and the sun and excitement and get ready for two days of jam-packed educational instruction, accompanied by an “End Game Strategies Training Disc”, enclosed with every workbook provided!

Here’s more of what you’ll learn in this two-day educational workshop … 

  • How to unhinge the foreclosing bank’s first lien position!
  • How to properly use an LLC to monetize your rental property!
  • How to cancel and expunge recorded documents that are interfering in your property’s chain of title!
  • How to effectively utilize quiet title actions, even when facing foreclosure!
  • How to fight the bank, post-sale, after the servicer has stolen your property!
  • How to make bankruptcy your friend and ally rather than have it ruin your life for the next 10 years!
  • How to effectively clean up your credit, post-anything  … and so much more!

You will also learn HOW the mortgage loan servicers are screwing over American families and HOW they pocket ALL the money after they’ve stolen your home and sold it!   

The closest airport is Gulfport, MS (GPT) and airfares are very reasonable to get to this vacation destination!  You will have to take a taxi cab to the hotel (11 miles away) from the airport, as Uber is banned from pickup at the airport.

Again, the Clouded Titles Blog readers are invited to attend as a courtesy of Lou Brown’s investor group.  All you need to do is reserve your room and airfare and get to Biloxi and be ready to roll on July 13th and 14th!   In order to attend, please email your interest in attending (to get more information) by CLICKING HERE!   You will be paying Lou Brown’s group to attend this workshop!  When you email us for more information, we will provide you with a syllabus and the contact information to reserve your seat in this spectacular event!   This is the ONLY event we will be doing in 2017!   You have roughly 45 days to figure out HOW you’re going to get here! 

As a side note, I have been asked whether this program will be offered for sale AFTER the workshop.  The Answer is YES!

Lou Brown has a full camera crew at the workshop.  He video tapes everything and will generally release a 10-DVD video set.  This is what he did for the Chain of Title Assessment Workshop in Atlanta that I taught last year.  For those who cannot attend, you can also participate in streaming video through a feed directly from the workshop.  The END GAME STRATEGIES Workshop will be available on DVD about 30-45 days AFTER the program appears in July (13th and 14th) of 2017.  However, the advantages in attending far outweigh the disadvantages of NOT because you get to ask questions and strategize live, rather than just watching 10 DVD’s and reading through roughly a 400-page workbook. As I  stated previously, this is the only workshop that Al West and I are teaching this year.  This is the time to act, especially if you are either a serious investor or have issues with your chain of title or foreclosure issues looming.  The price of the DVD set is the same as attending the live event. Because it is offered through Lou Brown’s investor group, there will be no discounts, which is why I am recommending you attending the workshop and get your questions answered.

 

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