Tag Archives: Qualified Written Request

PREPARING FOR THE FORECLOSURE ONSLAUGHT

(OP-ED) — The author of this post is a paralegal and trial consultant on quiet title, foreclosure and document challenges and does not offer the following information for anything but educational “intake” value; thus, none of this should be regarded as legal advice nor relied upon without the advice of competent counsel.  

THE TIME TO PREPARE IS NOW!

Understand that my postulations on this blog serve as warning signals for “how to head ’em off at the pass” and my notions are served by supporting case law.

I consider Rhode Island to be a hopeless case when it comes to MERS-related cases.  Anytime you want to argue what rights MERS has to do anything in front of a Rhode Island Superior Court judge, you may as well just turn around, bend over and let him … (insert your own imaginative deviations here).

However, on occasion, a case will come up where judges’ deviant behavior is called out by their state’s Supreme Court and I make note of the following case as it relates to other matters you should be looking out for at the inception of the alleged “bank” behavior in its attempt to start a foreclosure action:

Woel v Christiana Trust et al, Sup Ct R. I. No. 2018-347 (June 2, 2020)

The very basic tenets of a foreclosure involve “notice” and what constitutes proper notice.  Many things come into play in this 16-page opinion; however, despite the rantings of the mortgage loan servicer in this opinion (Selene Finance), the state’s highest court vacated the Superior Court judge’s for summary judgment in favor of the alleged REMIC.

Preparation for the onslaught by your alleged “note holder” involves some deliberate planning:

  1. Get out all of your mortgage documents and read them, especially the part where the default and any related notices to you come into play.  If notice does not comport to the terms of your mortgage or deed of trust, your focal point becomes attacking THAT flaw, not everything else.  The foregoing case illustrates that.
  2. Obtain copies of all recorded documents NOW!  You get them from your county land records. Do not wait until you start getting notices from your mortgage loan servicer and go into a state of panic or denial and hit the “pause” button.  Because of this COVID-19  pandemic, you have the ideal opportunity to get proactive to deal with what may be coming at you head-on when the moratoriums are lifted and the servicers go on the warpath.
  3. Locate any/all Assignments of Mortgage or Deed of Trust.  These become your secondary form of attack.  You will need to analyze them fully and understand what constitutes the basis for your attack.  Come at them in the wrong way and your attack plans will fail. Examining these assignments requires due diligence and intensive research.  Plan on spending an entire day looking up everyone that is named within those assignments and background them thoroughly.
  4. Develop a timeline of your chain of title.  You have to be able to clearly identify WHAT happened during the course of ownership of your home and identify with specificity WHEN it happened and attempt to detail the reasons for such occurrences.  Knowing HOW an entity operates in order to develop suspect patterns is important in your research, so don’t skimp here, on time or details.
  5. Obtain certified copies of all recored assignments as well as “office copies” of all recorded documents.  You want a certified copy of the assignment as evidence in support of your two-pronged secondary attack.  What I will be sharing in the upcoming online Foreclosure Defense 101 Workshop will deal with this step in the process.  Keep in mind that you may have experience in dealing with previous foreclosure attempts.  Many of the defenses may have resulted in successes in your favor; however, also keep in mind that the servicers’ lawyers are going to ramp up the next time and probably won’t make the same mistake again.
  6. Open all mail and especially those certified letters and notices from your alleged “note holder” or servicer.  DO NOT let them pile up on the desk or kitchen counter. Be excited when they arrive.  Be excited when the process server comes to your door.  DO NOT avoid service.  If you do, the bank’s lawyers (who are really representing the servicers) will serve you with Substituted Service and/or when that attempt fails, you get hit with a default judgment, which is as good as gold to the bank!  (This of course, does not apply to deed of trust states!)
  7. Examine any notices you receive regarding the “alleged default” on your loan. Understand WHO the letter is coming from and WHO is attempting to accelerate the note, which requires payment in full in lieu of pursuit of a foreclosure action against your property.  The letter should fully explain WHO is claiming to be the “note holder” that has the right to enforce the terms of the mortgage or deed of trust.  If that portion is missing from the notice, you have every right to immediately demand an explanation vis a vis a Qualified Written Request under Section 6 of the Real Estate Settlement Procedures Act (RESPA).  You cannot prepare an adequate defense if you don’t know who’s coming after you.
  8. In all instances, assume that: (a.) any notices you get from a trustee or law firm are based on actions by the mortgage loan servicer, NOT the lender or trustee of a REMIC trust; (b.) any notices you get will likely contain false and misrepresentative statements; and (c.) any notices you get will rely on a corresponding assignment that has been recorded in the land records preceding a Substitution of Trustee or Notice of Default or Notice of Intent to Foreclose.
  9. At all times during the process, keep your eye on the land records!  Check them weekly for any sign of new recordings, corrections to the assignments or newer recordings, attempts to hide the assignments by using alternative means (like putting all of the recorded documents in the name of your spouse, etc.). If need be, ask your county clerk for help in determining if there’s “anything else” in the land records you’ve missed that could defeat your defense, including Limited Powers of Attorney recorded by the mortgage loan servicers, especially when they’re the “assignor” and the “assignee” (called a self-assignment) of any alleged authority.
  10. Understand that YOU are NOT the perpetrator of any alleged foreclosure scheme coming against you!  You have every right as a property owner to defend the home to the best of your ability, even if you lack legal acumen.  As a participant, you may also become the victim of identity theft and numerous felonies committed by the bank, the trustee or the mortgage loan servicer dealing with your mortgage loan.  Assume everything they tell you is a lie … and you won’t be surprised later because you’ve prepared yourself to retaliate against their false assumptions.

Mortgage loan servicers are out to make money to reimburse what they had to pay investors or whatever lender happens to allege it’s the “note holder”.

At a point in time in the near future, the moratoriums will be lifted and you should be well prepared to understand whether the servicer coming against you has any right to offer you a loan modification or forbearance … or for that matter … to come against you at all.  I’ll discuss that in my next segment.  Visit the Clouded Titles website for more information!

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WHEN THE NOT-SO-OBVIOUS BECOMES OBVIOUS …

(OP-ED) — The author of this post is not an attorney.  I hate having to put disclaimers on here, but some people can’t separate common sense from what might be termed “legal advice”; thus, given the behavior of  “the system of things” to always backfire at some point in time, caveats are always necessary in any walk of life.

Happy New Year!

Being as it’s 2019 still doesn’t change the fact that on many an occasion, mortgage loan servicers are the parties actually conducting the foreclosures both judicial and non-judicial settings.  We’re seeing an uptick in the number of cases where assignments of mortgage or deed of trust show the “assignee” as the benefactor of the mortgage loan (ONLY) which is when the conveniently-manufactured “excuse” for paperwork is discovered in the land records around the time of the foreclosure action.  This does not excuse the fact that you have no contract with the servicer, but the lender does … maybe.  Some sort of authority has to represent what the servicer can do and cannot do; however … no one bothers to check limited powers of attorney to see if such authority was ever granted.  Are we by-passing that evaluation all because of desperation, which causes us to overlook detail?

The Not-So-Obvious … 

Roughly about a year ago, a sailboat waterfront property in Punta Gorda, Florida was sold at auction.  The winning bidder paid the fees and went to closing, only to find out Select Portfolio Servicing, LP, the mortgage loan servicer behind the auction, wasn’t the proper party to be selling the foreclosed home.  The deal fell through.  Who discovered it?   The title company that was trying to close the deal!

The Obvious …

It looked like all the paperwork was there, except when it wasn’t.  And look who discovered it … the title company.  They weren’t going to insure the home because the seller didn’t have the authority to sell it, nor did the seller (SPS) have an interest in it.  How can a party with no interest in foreclosed property sell it?   Which brings me to another point.  Since this foreclosure auction was in Florida, which is a judicial state … in order to get to the point where it went to auction, a final judgment of foreclosure had to be obtained from the circuit court, which it was. This means that someone had to lie to the judge to get the final judgment in the first place!  Did the attorney(s) who made the misrepresentations in court, both in the pleadings and in oral arguments, get sanctioned or punished?  Hell, no!  Why?  Because the Borrowers (who were from Michigan; Florida has a lot of “snowbirds” that own property there that don’t bother to check condition of title when they purchase Florida property) didn’t bring it up … and …

The Not-So-Obvious …

Because Florida judges only care about the bonuses they get from the State Legislature for kicking people to the curb any way they can!  Generally, that’s done through some overlooked procedural process … or in cases where the Borrowers show up in court, the judge then ambushes the Borrowers (and their attorneys) by asking, “When’s the last time you made a mortgage payment?”  or in the alternative … “Are you in default?”  (as if you know the legal meaning of default).  You blindly answer because of intimidation.

The Obvious …

Instead of objecting to the judge’s question by fundamentally answering that the servicer may have been making the payments for you all along, there is no firm proof of when the last payment was made on the account; and there’s no real proof that anyone is in default, except maybe the servicer, for failing to make the payments as part of their contractual obligation to the lender.  No one ever goes there, especially when there’s a REMIC trust involved.  What the judge is doing is trying to justify the foreclosure by side-stepping your due process rights to discovery.  When you let him/her do that, they get a bonus … AND … you get kicked to the curb!

The Not-So-Obvious … 

The banks already know and assume, because it’s a numbers game, that homeowners don’t have the money to fight and that 95% of them will run if given the opportunity, instead of fighting for what’s theirs.  The banks may be aware that the servicer is the real party retaining the foreclosing attorney or law firm, but they simply look at the complaint caption and take what’s written in the pleadings as the gospel truth, when it is far from it.  This is why it’s disadvantageous to live in a deed of trust (non-judicial) state than in a judicial (mortgage) state, where you get your day in court … because all foreclosures are deemed to be legal until otherwise challenged.

The obvious … 

If and when you find yourself with more month at the end of the money and the mortgage payment is going to be late or short in dollar amount, it is certain your account will be red-flagged after the 10th of the following month when the mortgage payment isn’t received.  As per the patterns discovered in the OSCEOLA COUNTY FORENSIC EXAMINATION, it is also highly likely that the mortgage loan servicer will direct its employees to manufacture a phony assignment, using MERS to cover up the chain of title, to convey your property (along with the note, which MERS cannot do since it admittedly doesn’t have an interest in the note) into a REMIC trust.  This will happen within the 90-day period of you not making timely mortgage payments.  This is all done because the servicer wants your home because it’s going to get reimbursed for all of those payments (principal and interest) it made for you!

The Not-So-Obvious … 

What the servicer doesn’t tell you is that when it starts sending you loan modification paperwork, the foreclosure paperwork shuffle affecting your home is already in progress.  It is at this point in time that borrowers are distracted by distress and frustration, all by design planning on the part of the servicer.  This is why there are so many complaints against mortgage loan servicers these days.

The Obvious … 

You have a limited amount of time to prepare … either to run or to fight the good fight.  Your research should include talking to at least two different foreclosure defense attorneys.  Within 90 days to six months, you can expect to get a notice that the proceedings just got traction and are moving forward.  I can guarantee you 100% that if you do nothing, you lose your home.

The Not-So-Obvious … 

Mortgage loan servicers really hate discovery.  They have limited information in the Borrowers’ Collateral Loan Files.  Most Borrowers take the path of least resistance, which is what the servicers are counting on, and send them a Qualified Written Request under RESPA § 6, expecting to get a document dump of everything in their file, which is NOT what the servicer wants to see or hear.  Borrowers seem to forget that a QWR is not real discovery.  Servicers side-step all sorts of issues in answering QWR’s outside of a court case.

The Obvious … 

The chain of title has evidence which you can readily obtain in certified form, especially the assignments!  The devil is in the details and that is exactly where you’ll find your false and misrepresentative statements!   The Borrower should seek out counsel that is versed in discovery in order to craft questions and statements that are likely to have to set the stage for a Motion to Compel to get the servicer to answer them.  No discovery = No truth!

And the truth shall set you free!

 

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U.S. 9TH CIRCUIT RULES ROBINS HAS ARTICLE 3 STANDING!

BREAKING NEWS — 

For those of you that haven’t been keeping track of the differences of opinion between the U.S. Supreme Court and the U.S. 9th Circuit Court of Appeals in the Spokeo v. Robins case, the 9th Circuit panel has issued an opinion that the Plaintiff (Robins) did in fact allege a “concrete injury”.  I posited this dilemma in my book FDCPA, Debt Collection and Foreclosures to some extent.  Now it appears that the 9th Circuit’s holding played in fact off of the Big Top’s decision, which was narrow, wherein a violation of the FCRA (according to this decision), an acronym for the Fair Credit Reporting Act, was enough to include this in an FDCPA action to establish that when servicers (who act as lenders) wrongfully put information on your credit report or in the alternative, debt collectors report things to the credit bureaus that are known to be false (or wrongfully reported by servicers during a period of time wherein a Qualified Written Request is pending), prevents the consumer from moving forward by hampering their credit scores, which results in future credit damage, which is an actionable injury, enough to establish Article III standing.

As you may remember, the U.S. Supreme Court issued a May 16, 2017 ruling declaring that the 9th Circuit failed to address whether the statutory provisions at issue were established to protect Robins’s concrete interests, as opposed to purely procedural issues. The 9th Circuit responded that the FCRA was created to protect consumers’ interests in mandating that credit reporting agencies issue truthful and accurate credit reports, which affect a consumer’s future lifestyle changes, the ability to obtain credit and employment potential.

The 9th Circuit remanded the case back down to the Central District of California for further action.  For those of you in the 9th Circuit states, you should be jumping for joy, because the little guy has won another round.  To see the opinion, click the link: Robins v Spokeo Inc, 9th App Cir No 11-56843 (August 15, 2017)

It stands to reason that we will be discussing this in more detail in our third of four FDCPA webinars, coming soon to the CloudedTitles.com website.

In the meantime, for those of you continuing to fight foreclosures pro se, you may wish to pay attention to the following and inquire about attending our upcoming foreclosure defense workshop in Orlando, Florida:

Download the Registration Form here: FDW ORLANDO REGISTRATION FORM

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