Basic Foreclosure Litigation Defense Manual

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21 Responses to “Basic Foreclosure Litigation Defense Manual”
  1. Lily says:

    Thank you so much for all the great info posted. Am currently in Ch 13 BK to fight foreclosure in AZ. I found an atty that “gets it.” Banksters of America have been holding us hostage since the took over from Countrywide, and refused to honor the AG settlement loan mod Countrywide gave us. The Banksters finally agreed to honor the loan mod… and did reduce our interest rate and payment amount, but are breaching other terms and stopped taking our payments — altho they know we have the funds to pay EVERY back payment — in order to file foreclosure. It’s a long, long, complicated story. We have our first Trustee meeting in a couple weeks. Our atty will challenge what they say we owe, but also quiet title. Our atty says we have a good judge — Redfield Baum. Our hope is for the court to order the Banksters to honor all terms of the loan mod, dismiss all late fees and legal fees and all the other bogus charges they pile on, we pay the back payments immediately, the Banksters pay our legal fees, and the bankruptcy is dismissed. That’s our hope. Any and all prayers are welcome 🙂

    Once I have the BK behind me, I intend to take this as far as I can. These Banksters have violated every TILA and full disclosure law, maliciously defrauded and defamed us and breached our contract with full knowledge and intent. They have ruined my credit and made it impossible for me to seek out their competition, but because of their willful bad faith have made it impossible for me to do business with them. I won’t stop until Banksters of America pay off my mortgage in full. They do not deserve to make one dime off of this mortgage.

    But I know I’m just one of many. These banksters are hurting EVERYONE with their greed and avarice. It has to stop. I didn’t want to be in this position, but since I am, I’m playing for all its worth.

    I have my work cut out for me, and I cannot tell you how much I appreciate the valuable advice, since I will have to go pro se — we had to borrow from our 401k to pay for our BK atty. And there are not many attys that will work on behalf of the homeowner, much less ones that will work pro bono or even on a contingency basis. They’re missing out on a gold mine — cowards.

  2. DLC 55 and holding says:

    If you have filed a law suit that directly concerns your property and who has standing to foreclose then a non-judicial foreclosure becomes a judicial foreclosure. You have essentially raised questions of fact concerning the legal ownership of the Note & Mortgage and questions of fact should always be decided by a jury (request a jury trial) , do not let the Judge act in both capacities.

    I live in a non-judicial foreclosure state and this is the path I have been on for 55 months now. Good luck and keep up the fight for as long as you can.

  3. Katheryn says:

    I am pro se also. JohnR posted this on another blog earlier and I thought it would be helpful to re-post here for anyone that might have missed it. Hope you don’t mind the re-posting JohnR but it is some really helpful information!

    Some pro se help.

    Didn’t help me but might someone else… 300 numbers are paragraph numbers from pleadings… others are footnotes below.

    314. Pro se pleadings are to be construed liberally and expansively, affording them all
    opportunity in obtaining substance of justice, over technicality of form.99

    315. If the court can reasonably read the submissions, it should do so despite failure to
    cite proper legal authority, confusion of legal theories, poor syntax or sentence
    construction, or a litigant’s unfamiliarity with particular rule requirements. 100

    316. When interpreting pro se papers, this Court is required to use its own common
    sense to determine what relief the party either desires, or is otherwise entitled to.101

    317. Indeed, the courts will even go to particular pains to protect pro se litigants against
    consequences of technical errors if injustice would otherwise result.102 Moreover, “the
    court is under a duty to examine the complaint to determine if the allegations provide for
    relief on *any* possible theory.” (emphasis added)103

    99 Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938); Picking v. Pennsylvania Railroad Co., 151 F.2d
    240 (3rd Cir. 1945); Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Haines v. Kerner, 404 U.S. 519, 520-
    21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31
    L.Ed.2d 263 (1972); Puckett v. Cox, 456 F. 2d 233 (6th Cir. 1972); and, etc., etc., practically ad infinitum.
    100 Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S.
    97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
    L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v.
    Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir.
    1992); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999); and, etc.
    101 S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992). See also, United States v. Miller, 197 F.3d 644,
    648 (3rd Cir. 1999) (court has special obligation to construe pro se litigants’ pleadings liberally); Poling v.
    K. Hovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000); and, etc.
    102 U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1996).
    103 See, e.g., Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting
    Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)), and numerous other verbatim citations.

    • I agree with what you have to say, most know the greatest problem with loss of income, major life changes & foreclosure is depresssion makes one move far too slowly and also very trusting in whoever has a kind word. Was told by fannie mae lawyers I had 3060 prior to eviction, the persons were right I no longer own the property, dead beat homeowner and omg have another home to go too; pending short sale; it was illegal entry, locked out was wrong, and of all people you would think fannie mae would want to make this right, No one cares, whatever they say goes, no one will even listen, living in california I thought there were laws. now civil matter, well just let me get my check book and see what attorney will take this for me, clearly it is no big deal, and of coarse I have loads of cash to pay the attorney??? this is plain nuts; moving right along too foreclose on all three homes that I own, guess that is the plan.

  4. Joann Loffler says:

    I am in foreclosure with no sale date.Wells Fargo,in New York.There are no lawyers who will take these cases so Pro Se is the only way.Does not matter if your in a judicial or non-judical state like California and others who are,non judicial.Look at Court house records, lawsuits and how they are detailed, processed and the information is there.In non judicial states, you must commence an action against the lender.Case laws will show on the lawsuits filed.Copy and apply your own information.File your case.Do not wait.Get it done and stop worrying about the lawyer who is not there or the ones for the lenders.You can speak your case and the courts can have a problem who refuse to accept your paperwork.

  5. DLC 55 and holding says:

    I wish I had seen some of these comments alot sooner but I hope my input can be of some help to others in my same situation: Foreclosure fraud and the failure of the pre-tender lender banks to distribute any of the billions of TARP dollars earmarked to help down on their luck homeowners stay in their homes.

    It doesn’t matter if you bought a house you couldn’t afford, or you received a loan you didn’t understand until it was to late, or you had good credit but some lowlife Broker partner of the “too big to fail banks” steered you into a mortgage product that you were over qualified for just so all those involved could line their pockets with our money. WE HAVE ALL BEEN VICTIMIZED by these institutions, even those who don’t have a mortgage or don’t have one of the millions of fraudulent and deceptive mortgages that collapsed our once great economy.

    Lawyer or no lawyer, fight, fight as best you can anyway you can. I live in a non-judicial foreclosure state, Colorado, but the law here does require that a Judge approves the foreclosure procedures at the start and then again that the Judge reviews the sale before it is final. Rubber stamped all the way unless you get involved. That is not to say that the courts won’t get involved if you bring up the issue of standing (who has the legal right to foreclose), which nowadays is probably someone other than those trying to foreclose on your home.

    It isn’t easy to go at this alone but you’ve got everything to lose if you do nothing, The Courts are suppose to view a pro se litigants court filings, motions, replies and answers with less of an eye on procedural requirements versus content.

    Find all the documents you can on sites like these that apply to your case and copy them the best you can changing the pertinent parts to reflect who you are and what your issues are. Then go down to your local courthouse and talk with the Clerk of Courts and ask for a copy of the “Local Court Rules” and study them front to back.

    If there is time it is very important that you make a request, in writing, to the bank that is attempting to foreclose for certified copies of the original loan documents, specifically the Note and the Deed of Trust or the Mortgage and title this letter as a “Qualified Written Request” (QWR) pursuant to Section 6 of the Real Estate Settlement and Procedures Act, (RESPA). Google this to find out exactly how it should be formatted. I believe that the party you send this to has or is required to acknowledge receipt of your request within 20 days and they have 60 days in which to comply or explain why they can’t and there are not to many excusses that will get them off the hook. It is an actionable offense if they ignore or fail to comply with your QWR and grounds to move a non-judicial foreclosure into a judicial foreclosure setting.

    This doesn’t get any easier but once you get your teeth into the fight you’d be amazed at the resources you can find and the strength and resolve you can develope in defending you and yours from these predators who have been feeding off of middleclass america for way to long now.

    I hope this help, even a little. Remember, you are not alone out there. There are a few million of us in this fight and we need to try and help as much as we can, while we can.

    Good luck to all of you and thank you to those who continue to contribute to this fight.

    From one who has been in it for a long time.

    55 Months and Holding and still in MY Home as of today……

    • I Ipanicked and moved almost completely out and cleaning and painting prior residence, my loan former countrywide/boa was sold to federal housing, then at march 15 purchased by fannie mae/then march 17 agent comes by with zeroxed copy, ten days to call, etc. called to set up walk through, was going to give cash for keys 2,000 take tenant with after claiming that he was checking to make sure their attorneys hadn’t posted the 3 day quit notice(panicked of coarse) declined cash since room mate wasn’t there and couldn’t throw everything on my back, he came back prior to scheduled walk through, guess tenant called him(had rented out master bedroom and quit charging rent in Nov) anyway gave tenant cash for keys, after mowing the lawn down the street approach my home on April 13, locks being changed; claimed house was empty so they were allowed to come in??? of coarse that is a lie however once again they have fannie mae/fannie mae attorney/so who cares if what they did was against california law/doesn’t matter, now have locksmith/2bounchers 1 agent and local city police who inform me the house is no longer mine, please leave, locked out, with remainder of things and unfinished business / call their attorney/fannie maes their story is now different and who cares what you bum not making payments has to say……….Even in liberal state of california there are no laws to protect you, I had a tenant that partially contributed to this mess, 4 months behind on rent for 7 months by the time they trashed the placej $5,000 just too clean it up, I would like too know are the laws only for those of us who intemindate, or are concerned about obeying the laws, go figure, any ideas please let me know, wrongful eviction and totally sick of fighting with banks they’re most likely right, why would we keep fighting for a rate reduction on property that is now 75% less??? must need ones heads examined to do the right thing being victimized one should still file something, this shouldn’t be allowed to happen, it is just me and my dog, what if this was happening to a family with ten kids?? would they act differentlty?? for a commission of 10,000 I think not.

    • LINDA says:

      contact me Dude! I am in Colorado too and up against U.S. Bank and Castle Stawairski…
      49 months and fighting like a pit bull… would love to compare notes with you!!

      • DLC 55 and holding says:

        Hi, just saw your response and realized it was directed at me…. I too would love to compare notes on all of this. BAC just recently had to withdraw its NED and foreclosure on my property because they let it go over one year without holding the sale. Only problem is Castle, Stawairski just sent me another one of those your delinquent notices and that means 30 days from the date of that letter they’re going to file for foreclosure again.

        I’m ready this time and I’m going to committ to a pre-emptive strike and make them the Defendants this time instead of me. Will be filing Civil Action to Quiet Title before they file the NED.

        You can get to me at DantheGrey@msn.com, I’d really like to go over this stuff with another Coloradian. It sounds like you’ve been at this just as long as I have, what a mess….

  6. mw says:

    Does anybody know contingent basis lawyers in Ca. taking these cases like they do in Florida? We can’t afford a lawyer and just found out we are in foreclosure after a year and a half of loan mod circus.
    A lot of properties are popping up with for sale signs around my neighborhood and some are already empty.
    Our docs show two interest rates,does that mean anything?

    Thank you.

    • Bryan Hufford says:

      Hi,
      I am in the same situation here in Cali, did you find a lawyer, or group to join ?

      • mw says:

        No,I didn’t.But found a bankruptcy law firm that charges $300 up front and then affordable monthly payments,that’s aside of the deal they try to work out with the bank.I don’t know your area but this law firm is in Downtown L.A.- Simon & Resnick ,I was pleased with their work,we bought time for $300,just what we needed.

        510 West 6th Street Suite 1220 Los Angeles,CA. 90014
        231-572-0800

        We’re not going with the BK process because we’re trying to work out something else but,the CH.13 terms were not that bad.
        CH.13 is when you work out a repayment plan for a 5 year period maximum.This is just to catch up with the debt.

        Sorry for the late reply.

      • cindy says:

        Dear MW,

        I am writing in response to your March 15th reply about using the legal services of Simon and Resnick in Los Angeles. I had contacted them prior to my foreclosure sale and was also impressed by them. My house sold and I am fighting to stay in it and want to file an illegal foreclosure suit against bank of a and countrywide. My question to you is this: ypu said that you were working on something different than a bk with them and I am interested because I thought that all they did was bk’s. I am interested in retaining their services but don’t want to file bk. Do they do unlawful detainers and do they file suits for illegal foreclosures? I live about 25 miles outside of LA. I just received my eviction notice and have to reply by Tuesday, May 24, 2011. I am at a loss and in a panic and overwhelmed. I am in awe of all of you who are fighting the battle so strongly.

        Can filing a bk stop the eviction process? You must live in proximity of me and I would really like to talk with you, if that’s ok with you. You can contact me at 909-908-1347 or my e mail. Anyone else who knows of a great attorney who accepts payments, please let me know. Thank you so. much

  7. KATHLEEN LA FAMAN says:

    HELLO I NEED HELP NOW PLEASE I NEED AN ADVOCATE TO HELP ME I LIVE IN NJ HAZLET 07730 LONG STORY ALOT OF PAPERS I AM IN FORECLOSURE SHERIFF SALE 6/7/10. i AM A WIDOW THAT HAS BEEN FIGHTING FOR A YEAR AND A HALF. I NEED HELP IT IS A LONG STORY I AM BEEN USING THE CONVENTIAL WAYS TO GET HELP AND ANYWAY LONG STORY PLEASE COULD YOU RECOMMEND SOMEONE THAT CAN HELP ME AND MY FAMILY NOT LOSE OUR HOME? FORENSIC LOAN AUDITOR/ ADVOCATE TO COME TO COURT WITH ME. SOMEONE TO HELP ME I CAN ASSURE YOU THERE IS SOMETHING TO BE PROVEN IN MY CASE THAT CAN STOP THE FORECLOSURE PROCEEDINGS AND GIVE US MORE LEVERAGE FOR LOAN MODIFICATION (MY EXTENDED FAMILY HAS SUBMITTED LETTERS TO HELP) ANYWAY PLEASE I NEED HELP TO FIGHT PLEASE MY KIDS MY ANIMALS WE WILL BE HOMELESS LITERALLY (THERE IS NO PLACE NO MORE SECTION 8 VOUCHERS NO PLACE WHO WILL RENT TO ME MY CREDIT IS CRAP PARDON ME. AGAIN I NEED HELP PLEASE THANK YOU KATHLEEN LA FAMAN HAZLET NJ 732-500-2026 HOPEANTHONY@AOL.COM THANK YOU IN HOPE WITH FAITH i await

  8. KATHLEEN LA FAMAN says:

    hello is ther an advocate that can help in nj come to court look through papers and fight for my family so we can remain in our home. there has got to be somebody out there who can help stop the foreclosure proceedings (sherif sale) who can come with me to court after reviewing my papers. my husband passed on nearly two years ago and it has been a struggle to survive. but, by the grace of god and some of his earths angels my family has sustained. but now, please i need help the thought of court scares the daylights out of me. i have gone through and learnt so much. i want to trust but i need an advocate to ensure my family will not lose our home. not become homeless (too devistating after losing their father too devistating. we have animals too and there is a major shortage of section 8 housing they are not even taking anyone on the waiting list that is how bad it is. there is no place could you please help any one in nj be it attorney or advocate or forensic loan auditor of sorts to look through my papers and help me stop the foreclosure and get mediation. i need strength please is there anyone that can help my family

  9. lpw, Legal Research Group says:

    I don’t know if you still need the help you requested on May 24, 2010 but bottom line is this, you need to demand that the foreclosing party produce the original note and copy of the Deed of Trust. If they cannot do that then you must allege in your pleadings that they are not the “lawful owner(s)” of the property. If they cannot produce the “Original ” not a copy, of the Promissory Note then they are not the true Owner(s) and donot have “standing” or “the authority to foreclose on your property'” . In other words they are not the true and lawful owner(s) and lack the authority to bring a foreclosure action against you. Do this before you go to court, if you can”t then tell the Court and opposing Attorney in court at the foreclosure hearing. If the foreclosing party is not a resident of your state and has no agent for service of process, and does not have physical possession or the “Original Promissory Note” and a copy of the Deed of Trust then you will prevail in court since the foreclosing party cannot prove to the satisfaction of the court that they are, in fact the “true and lawful” Owner of your property. Get back to me and let me know that you won your case.

  10. cindy says:

    In response to the Officer of the homeowner advocate amendment – there are so many resources out there now that can help you fight the battle….

    Those resources lead to nowhere. All the information given does not give the homeowner “how” to do it. People and “resources” need to remember that homeowners are stressed out of their mind. They don’t know how to apply the information provided. There is no resource out there that is willing to provide a pro bono attorney to the case. There is no resource that will handle the homeowner’s writing of an opposition or provide a template where the homeowner only needs to plug in their specific information such as name and address. The government resources have such strict requirements that it filters out most homeowners. What would be of tremendous help is to provide homeowners with templates of dockets that worked. Example, we know that Chase Bank motions for dismissal claiming they purchased Wamu assets without liability therefore they are not liable for TILA, or breach of contract, or other claims. A template that has typical proven responses to those answers would be a great resource to homeowners fighting Chase. Many of us already noticed the defects in the assignments but how do we take that and put that into a pleading, or a motion, or an opposition in the court. It’s clear to all of homeowners fighting for life that we need an attorney. What attorney is willing to work for free? What attorney is willing to take a lender litigation or foreclosure case that is already underway? For those that are dreaming and thinking that the money saved from not making a mortgage payment could be used for an attorney. Well guess what, there is no money because there is no job. There is no job because all focus, energy, depression, court appearances has caused us to not beable to obtain employment. Not to mention, layoffs, company closures, job outsourcing to india and south america, and let’s not forget all high tech companies comprise of foreigners who are now legally authorized to work in the US. Those who think, well if you don’t have a job, then you can’t expect to have that home. Guess what, I can have a job if the bank would back away and let me focus on getting a job. The resources all lead to nothing. Info is in abundance but without knowledge of how to use the info and apply it in a form that is beneficial in the homeowners fight is useless to the homeowner.

  11. Elyse says:

    The help that is needed for homeowners to file lawsuits is certainly NOT out here where it is needed. But there is help!! Every Court has a RULE OF THE COURTS…giving directions as to what to file first and in what timeframe. Good luck understanding some of the “Lawyer language”…however, if you contact your County Clerk and ask what days they provide an Attorney to help people FILL OUT THE DOCUMENTS needed to file a Complaint then moving forward with all that is needed for your day in Court.

    So many Attorney’s still don’t “get it” and are asking homeowners for up front fees and then to find out they did nothing….they don’t “get it” to do what is needed. Horrible situation but you must begin the fight and way before you realize the foreclosure is going forward.

    In the State Of Florida, there is a “NEW RULE” that a “meet and confer” or a “Mediation” MUST take place before the Judges can make a ruling to foreclose or not. That means the Attorney for the Bank attempting to foreclose on you, MUST present the NOTE or MORTGAGE or SOMETHING that proves they actually own it!! In California, you can’t buy or sell a car without a “pink slip” so the banks should not be able to foreclose on a home they do not have “proof” of owning!!

    If at the medaition, the Lawyer for the Bank or Mortgage Company does not provide the legal documents…and certainly not the forged Assignments giving rights to someone you know nothing about, then you will have a better opportunity to win with the Judge. Millions of cases are being filed every day in Florida and the Jusges have realized if they do this “PROVE YOU OWN THE NOTE” process at the very beginning, their case load will be less because A BANK CANNOT TAKE YOUR HOME IF THEY DO NOT OWN IT….

    Be strong and don’t give up…it’s more work than you can imagine, however, if you leave your home from sheer exaustion, you will never get another one and may not even qualify for an apartment because your credit is shot…Don’t give up…ever!!

    Need help?
    I’m not an Attorney but I’m 2 years into my own battle and am helping dozens of people…
    Pay It Forward!!
    Elyse Del Francia
    elyse@gte.net

  12. laura tan says:

    GOOD FOR YOU WE ALSO NEED TO SUE THE BANK FOR OUR HOME WHERE IS ARE BAILOUT.

  13. Aray says:

    Elyse@gte.net

    I appreciate your info and comments on this site. However, I live in a state that has a non-judicial foreclosure. I had to file bankruptcy to stop the foreclosure, but had filed a lawsuit a few days prior to the sale date. I have since hired an attorney who took over my pro se lawsuit and have not been able to get in touch with her for 2 months. I will need to fire her, but am afraid to take over the case myself. My concern is that most comments on this site are related to judicial foreclosure process — any experience with a non-judicial process?

    Thanks.

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