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AMERICA BRACES FOR MASS FORECLOSURES AS ECONOMY RE-OPENS!

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

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

FOR MANY BORROWERS, THE SHIT WILL HIT THE FAN! 

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

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

DAY 91 FACTORS INTO THE ACCOUNTING, MORATORIUM OR NOT! 

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

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

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

THE GSE’S HAVE REMICS TOO!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

POTENTIAL SOLUTION … ATTACKING THE DOCUMENT ON DIFFERENT GROUNDS!

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

In a brief step-by-step process …

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

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

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

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

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

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

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

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

 

 

 

 

 

 

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THINGS TO PONDER WHEN IT COMES TO THE “DELAY GAME” IN FORECLOSURES …

(OP-ED) — The author of this post is a consultant to foreclosure defense attorneys and does not offer the following as legal advice but rather as that of the author’s own views based on past experience in paralegal and consulting work.  The post, with the related case example, is for educational purposes only.  

THE “DILEMMA” ONLY GETS BIGGER

I have seen countless cases where a foreclosure defense was mounted against a bank’s attempt to foreclose when there are obvious “glitches” with the bank’s case.  It is in this instance where I offer the following case for your perusal:

US Bank v Manning, 2020 ME 42 (Apr 2, 2020)

The one thing you’ll notice right up front is that at the time of this author’s post, this case was almost 10 years old by the time it got to Maine’s highest court.  I believe I can use any case from any state to exemplify what constitutes a “do-over” after 10 years of throwing money away on attorney’s fees.  I would venture a guess that the property was worth almost what the homeowner (Manning) shelled out in attorney’s fees.  He would not be the first party (as a defendant in a foreclosure case) to spend exorbitant sums trying to stay in his home, all because he thinks he’s “right”.

I would have posted this earlier but due to the corona-crisis and the resulting issues that followed our first recognition of it as a pandemic, I’m now just getting around to this.  My point here is that foreclosure defense means putting whatever remaining resources you have at risk.

Let me explain in ten (10) easy points …

  1. Fighting any case where a REMIC trust is involved means that it’s highly likely bogus documents were created by the servicer’s employees at the direction of either the servicer or the foreclosure mill law firm prosecuting the foreclosure.  That in itself is a minimum of an 18-month delay if the court indulges declaratory relief.
  2. Fighting a foreclosure case when you’re unemployed with limited resources is futile, especially if you’re faced with draining a retirement account, like a 401(k), which by the way, the bank won’t ever get access to via judgment; however, you’d be surprised at how many cases I have gone through where the homeowners did just that in order to pay attorney’s fees.
  3. Fighting a foreclosure case when you’re simply holding the property as an investor is also risky given the courts’ propensity (as in this case) to give the bank a “d0-over”, even if the investor was “right” all along.  Those attorney’s fees are risked capital that could be put somewhere else if the market value and economic condition of the property won’t support it.
  4. As a follow-up to the last paragraph, many homeowners don’t actually make an honest effort to get their property evaluated, whether through an appraisal or a comparable market analysis (CMA) by a real estate agent, to see what the “gamble” is worth compared to risk. Their fight is driven by emotion and not common sense.  If the property is economically challenged, meaning it’s going to need thousands of dollars in repairs and upgrades to make it marketable, it’s not worth spending the money while fighting a foreclosure just because you don’t like the idea of moving to new digs.
  5. On the other side of this equation, I could imply that I’ve spent the last 12 years of my life helping homeowners fight to stay in their homes, only to see the bank win after the homeowners have spent thousands, many of whom got stuck paying the other side’s attorney’s fees because they lost … plus, they had to pay their own foreclosure defense attorney’s fees.  Talk about a great case for neurosis.  I feel guilty sometimes because I’ve given the bank’s attorneys an income, because the banks will pay to get a “win” in their favor.  That is counterproductive in my book, when the homeowner could have cut and run and moved into something more affordable and put it into a trust before things got “dicey”.
  6. Fighting standing issues is the most common thing and judges are keenly aware of that modus operandi. Every attorney will tell you that you should claim the other side lacks standing because it’s a great catch-all if all else fails; however, claiming anything comes with a price.
  7. Because many foreclosure defense tactics are emotionally driven, this has created a “cha-ching, cha-ching” scenario for attorneys who see a real monthly annuity staring them in the face every time a disgruntled homeowner thinks they’re “right”.  It creates impetus that has fueled the business model that many law firms and sole practitioner’s rely on to “stay in their game” even if you lose in the end.
  8. In Manning’s case, this 10-year stretch compares to other cases I’ve looked at, where homeowners have sold businesses to pay lawyer’s fees, knowing that the chain of title documents were trash to begin with, yet a lot of these types of attacks fall on deaf ears with the courts. Without proper case planning as to how the court will react, it’s throwing good money after bad.  What homeowners end up doing is “kitchen sink” pleadings … and these types of pleadings are what racks up attorney’s fees … on both sides of the equation.  This is the primary reason why foreclosure mill law firms don’t come after me (if they happen to find out I’m involved in a case) because they’re getting attorney’s fees too … and then some.  How does it feel knowing that this kind of risk exists, even though you’re trying to do the right thing?
  9. I was given a specific sum certain of over $100,000 spent in fighting a foreclosure for 10 years … and the homeowners lost anyway. What I could have bought with that $100,000 over time (a duplex, where I live in one side and rent out the other side to make my mortgage payments; an apartment building, maybe a 4-plex, where I live in one of the apartments and rent out the other three) instead of giving an attorney an opportunity to create a thriving law practice at my expense.
  10. In this case, the economics of “the game” don’t make sense.  With all of the moves and countermoves in this case, which parallel many other complex cases I’ve looked at, giving a bank a “do-over” (dismissing a case without prejudice), means the bank gets to hit your “reset button” and you get to start all over again defending another foreclosure.  My point on this last comment is, “What’s it worth to your health?”

Given the corona-crisis, with over 15-million claims for unemployment benefits being applied for (many of them mortgagors), you can bet when the moratorium on foreclosures has expired (whenever that may be), there may be some mortgage loan servicers that are going to “take it on the chin” in advance payments so much so, they’ll look for the first opportunity to come after your house.  You can bet if they haven’t filed documents in the land records to “support their claim”, it’s highly likely they will either during or shortly after this crisis ends.

My bottom line (while trying not to be verbose here) … foreclosure defense costs money.  Delay tactics cost money.  Playing the game costs money. It is a “game” to the banks because they play by the numbers while you’re playing with your hard-earned money and equity.  They have the clear advantage because they’re the mortgagees.  They have a contract that you signed.  The deck is already stacked ahead of your decision-making processes.  Understand that whatever claims you bring should be supported by a Plan B.  This is part of foreclosure defense too.  What happens if what you’re trying to do doesn’t work?  This is why I wrote Clouded Titles.

THE CORONA-CRISIS HAS MULTIPLE “SIDE EFFECTS” … 

The corona-crisis is going to produce more than just statistical death tolls.  We have been victimized by both the World Health Organization (who is part of the United Nations), who failed to give us the information before the virus spread to America and the Chinese Communist Party (who created the synthesized product in the Wuhan Level 4 lab in the first place … then covered it up with a lame “wet seafood market” story), which is going to create more than a viral pandemic in terms of loss of life. We’re talking an economic twist of the tail that is going to set off another serious wave of foreclosure filings across the country due to the servicers’ struggle to make advance payments to REMIC investors.

Loan modifications are going to be rare after this is over.  Forbearances … well, if you’re lucky.  You may be emotional now … but just remember what kind of financial position you were in before the corona-crisis hit.  This doesn’t stop foreclosures already in progress.  On top of that, you’ve had a financial “hit” just trying to stay alive during the “lockdown” period and the neuroses this has caused … you also have to look at the emotion and health issues (fueled by stress) which weaken your body’s immune system because of what’s coming.  You will be looking to the government for answers … and the answers won’t be there.  The courts will be backlogged.  Your judicial foreclosures will cost more as the courts clear the pipeline of cases. Non-judicial foreclosures will proceed at lightning speed because the servicers have had plenty of time to crank out paperwork (default notices, notices of trustee’s sales, suspect assignments, etc.) during the crisis while the moratoriums existed.  They know this crisis has hit everyone in the pocketbooks, including the mortgage loan servicers themselves.

Now’s the time to come up with a Plan B.

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NOTE TO INVESTORS: WHAT THE GREEN EMERALD CASE HAS TAUGHT US

(OP-ED) — The commentary provided within this post is not legal advice.  The author of this post leaves it up to the reader of the material contained herein to determine its educational value and to always conduct due diligence prior to assuming you have rights that may not have been afforded to you, either in the chain of title … or in litigation. 

For some reason, this case was seared into my conscience.  I’ve seen a lot of investor cases, but this one … this one really spells it out for investors and third parties who attempt to acquire properties AFTER a foreclosure case has commenced, instead of BEFORE (as were the facts supported by this case):

Green Emerald Homes LLC v 21st Mtg Corp, 2D17-2192 (Jun 7, 2019)

Yes, I know it’s a Florida appellate case; however, it can be said that the facts contained within the case provide a complete measure of justice for investors throughout the entire State of Florida, the third most populated state in the U.S.

Notice that Florida Bar-suspended attorney Mark Stopa first litigated this case?  He was later replaced by the listed attorneys and their respective firms.  Notice Greenspoon Marder is representing the Defendant Bank (as Appellee)?  Put them on your radar as a definite “foreclosure mill law firm”.

This case also represents that Florida Circuit Court Judges are notorious for quickly granting judgments of foreclosure. Of course, in Stopa’s disciplinary hearing before the Florida Bar, a judge who testified in Stopa’s favor admitted that judges were getting pay raises based on their ability to clear their dockets of foreclosure cases, courtesy of the Florida legislature. So not only is is apparent that Florida judges have a conflict of interest, their pension funds are vested in the very securities they grant foreclosure judgments for. This makes every Florida judge (and virtually all other state judges throughout the country) susceptible for recusal based on a conflict of interest.  Most states allow recusal for cause.  Some states allow recusal of a judge without cause.  You have to do your homework.

My point on this case is found in the citations listed throughout the ruling. There are oodles of case citations from every appellate district in Florida that support the arguments being propounded by the 2nd DCA!  These cases feed directly into the reasoning this appellate court took in noting that Green Emerald (the investor) took title BEFORE the filing of the Lis Pendens notice, not AFTER!

Further, notice the caveats (to investors) within the concurring-dissenting opinion filed by one of the judges.  ALL of the sticking points for safe investing are found there!  This case was full of “nuggets”, which is why I suggested reading it in the first place, especially BEFORE you drop a dime on any investment.  Believe me, if I were in Green Emerald’s shoes, I would have researched the chain of title to check for “hiccups” in the chain that could be attacked.  It’s always the dirty assignments, which is why C&E’s are so useful in attacking their false and misrepresentative statements.  Defeating assignments (whether you recognize it or not), knocks the “standing” legs out from under the Plaintiff bank (through its mortgage servicer), while placing unwanted scrutiny on the bastards that created the document and under whose direction!  You’ll find the foreclosure mills in many instances are directly tied to the creation of the phony documents they intend to rely on at trial (or in deed of trust state by advertisement and sale) for the prosecution of foreclosures.

Taking property “subject to” could mean one of two things … (1) you either want to continue to pay on the note and keep the mortgage “in play” until it’s paid off; or (2) you ignore the note and mortgage and prepare to spend thousands of dollars defending your position in court when the foreclosure suit is commenced.  In either case, it pays to have your name on title BEFORE the SHTF!  The other aspect NOT PURSUED here, noticeably, is that Green Emerald didn’t present any evidence that it had an assignment of the borrower’s litigation rights bestowed upon them (another key ingredient to having standing to litigate a foreclosure complaint.

And that’s all I have to say about that.

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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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