Foreclosure Offense and Defense: Basic
Rules, Discovery, Affirmative Defenses and Audits
GOOGLE AN ARTICLE CALLED
http://www.larcc.org/pamphlets/housing/my_house_is_being_foreclosed.htm LARCC took it down but YOU CAN FIND IT
The above URL is one set of materials, the text below
is another set! Different.
To recover on a promissory note, the plaintiff (the
Lender in the case of foreclosure) must prove:
(1) the existence of the note in question;
(2) that the party sued signed the note;
(3) that the plaintiff is the owner or holder of the
note in due course; and
(4) that a certain balance is due and owing on the
note.
Pennsylvania supreme court TRINSEY v PAGLIARO, D.C.
Pa. 1964, 229 F. Supp. 647: "Statements of counsel, in brief or argument,
are not sufficient for a motion for summary judgement."
They weren’t there when the contract was signed.
They don’t know if the contract was signed.
It is presumption that you have a contract, that you
did sign a contract, that there is a contract in force, and yet where is the
proof? Can someone show us the contract? Can somebody prove that I signed it?
Can anyone tell us that they have firsthand
knowledge?
2) If the “ORIGINAL” note you signed in ink that
contains your signature is claimed to be lost, stolen, missing and/or
destroyed, then your defense is as follows:
3) the “named” Plaintiff is not the ‘holder in due
course” of the note and only an agent or nominee for the true beneficial owners
and holders in due course;
4) there may be fraud upon the court in that the
named Plaintiff may not have ANY interest to the note and that the supposedly
lost note is not lost, but may have been intentionally destroyed due to missing
assignments on the note which may have made it void and a legal nullity, thus
they have exploited key and vital evidence;
5) there is no proof that the named Plaintiff ever
held the note or took possession of the note and thus has no claim or right to
bringing about the foreclosure;
6) there is no proof, without the note, that a
proper chain of assignments took place and that the lien positions were
properly perfected;
7) other unnamed and disclosed real parties in
interest may have a claim to the note and be the rightful beneficial owners to
the note and must be identified and brought before the court;
8) there may be several unnamed and disclosed real
parties in interest may have a claim to the note and be the rightful beneficial
owners of the note;
9) that the party sued signed the note
10) If the “ORIGINAL” note you signed in ink that
contains your signature is claimed to be lost, stolen, missing and/or
destroyed, then you need to notify me and also put on affirmative defenses that:
11) the note in question is not the note you signed
and executed in ink and only the one you signed in ink that presumably contains
your fingerprints can be relied upon by your handwriting analysis expert;
13) that the plaintiff is the owner or holder of the
note in due course;
14) If the “ORIGINAL” note you signed in ink that
contains your signature is claimed to be lost, stolen, missing and/or
destroyed, then you need put on affirmative defenses that:
a) the mortgage industry, investors, and GSE’s such
as Fannie Mae, Freddie Mac, and FHLBs etc. have a requirement that the last
endorsement to them be undated and “blank” leaving the payee line blank and
making the negotiable instrument a sort of “bearer bond” and instrument. as
such, any party finding or stealing the note can place their name on the payee
line, claim ownership of the note, and sell the note to others who may make a
demand upon you in the future. As such, you require money to be deposited in an
escrow account or with the court in an amount equal to the amount claimed owed
on the note, until such missing note is found or upon your death. notes have a
life of their own…
b) if the note was destroyed or lost intentionally
(the industry maintains this practice) then they may be trying to hide the
beneficial owners and shield them from any assignee liability arising from the
actions of the servicer who they hire, supervise and most importantly authorize
to foreclose upon you. without the note, since subsequent endorsements are not
recorded to avoid payment of taxes and t hide true and real beneficial
interests, there is no possible way to determine who ever held a rightful
interest in the note and who you may have claims or counter claims against and
who should be presently before the court as a real party in interest.
c) Furthermore, if there are missing assignments of
the original note and the assignment went from Lender A to Lender B to Lender D
without an intervening assignment from Lender B to Lender C and From Lender C
to Lender D, then the note may be void and a legal nullity in your state.
d) It is industry practice to not name the GSE,
investor, or real party in interest in foreclosure and to use as a front for
the Plaintiff:
i) The very original lender who may or may not even
be in business any more or sold their interest in the note long ago, only to
have a claim made upon them for repurchase;
ii) A Servicer of even “special servicer” who is
acting as an agent for the investors, GSE’s or real party in interest, but has
no beneficial ownership in the note since they are only being paid to collect
and foreclosure by the real parties in interest
iii) A “nominee” such as MERS who has no legal
authority to foreclose upon you and do business in your state and who according
to their own written documents and verbal assurances never hold the note or own
“any” beneficial interest in the note!!!!!
e) Notes are pledged, sold, bifurcated, and traded
in various derivative transactions like bubblegum baseball cards and their
transfers, sales, pledges etc. Are not publicly recorded. As such, only
possession of the actual original note can prove the actual owner and holder in
due course of the note and who you can make an offer of payment to for purchase
of the note by yourself, another family member or partner. You have a right to
know the rightful owner of the note so an offer for payment of the note at a
discount and at fair market value can be made. If the note has been pledged and
encumbered, then that party must be made aware of the foreclosure and your
right to negotiate with them a payment and release of the note by you, other
lien holders or private parties;
f) Notes are traded often and you need to inspect
the physical note to see who the real prior parties were that held and endorsed
your note since you may have counter and cross claims against them and need to
bring them before the court for the action, since they may have improperly
inflated your principal balance, amount owed or escrow account by not applying
your payments correctly; adding fees not legally owed by you to the principal
balance; miscalculating the interest and not properly amortizing your loan;
fraudulent selling your loan or misreporting you on your credit report.
g) Federal Circuit Courts have ruled that the only
way to prove the perfection of any security [including promissory note] is by
actual possession of the security. Current or prior possession must be proved
up.
(h) that a certain balance is due and owing on the
note.
15) You must have the master transaction histories
and general ledgers for the account since a “dump,” “summary,” or redacted
record cannot be relied upon to determine the rightful amounts owed by having a
complete audit of your account. In order to conduct a proper audit, master
records and all prior records must be compiled, reviewed, analyzed, and
reconciled. In is not you responsibility to prove each payment was made. It is
your responsibility to say a payment was made and provide evidence, including
your word that it was made. It is the note holder’s duty and responsibility to
validate the claims being made on the note and the amount owed. If they have
the master records or claim that the records of prior servicers are missing,
then there is no rightful way for anyone to prove up the balances and amounts
they claim are owed!!!! Furthermore, you must claim:
b) That the loan has not been properly credited and
amortized;
c) That the current servicer cannot be relied upon
to testify and certify that prior amounts, transactions, credits, debits,
charges and fees added by prior servicers were indeed proper and correct and
that the account they were transferred was properly amortized and credited. As
such, the person holding the ledgers at the prior servicer must come and
testify as to the amounts owed on the note.
d) dumps and summaries of amounts owed cannot be
relied upon and only original ledgers and master records and the keeper of
those records cant testify as to the amounts claimed owed and due.
See Pacific Concrete F.C.U. V. Kauanoe,
62 Haw. 334, 614 P.2d 936 (1980), GE Capital Hawaii, Inc. v. Yonenaka 25
P.3d 807, 96 Hawaii 32, (Hawaii App 2001).
*Promissory Note (very important)
*Mortgage or Deed of Trust (very important)
*Application for the loan, if available
*Good Faith Estimate (very important)
*Settlement Statement (very important)
*Right to Cancel/Right to Rescission (very important)
*TILA Disclosures (very important)
*RESPA Servicing Disclosures
*Any and all disclosures (very important)
A copy of the current billing statement.
A copy of any notifications from the lender or other
party of a change in where the borrower is to send the payments.
This may be because the lender sold the note (a new
assignee), or sold the rights to collecting the payments (a new servicer).
A copy of any default notices, acceleration papers,
or foreclosure paperwork.
A copy of any and all court paperwork if the property
is in foreclosure or there is any court process ongoing that involves this
property. If you do not have this paperwork, it must be obtained from the
court files.
If the answer to any of the following questions is
“yes,” you are most likely a victim of predatory lending practices and may be
able to void the mortgage and apply 100% of your payments to principal. And,
you may also be able to recover money damages.
Such violations can be used as a defense to a
mortgage foreclosure. If there is a violation,
2. Did you increase rather than lower your rate upon
refinancing?
3. Are you paying an interest rate in excess of 9.5%?
4. Was the loan obtained to pay for home improvement
work that was not done properly, or even at all?
5. Have you had problems with the mortgage company
regarding untimely posting of monthly payments? Sudden increases in payments?
Adding amounts to your balance for insurance, “property preservation,” or other
“advances”? Does your principal balance never seem to go down?
6. Were you charged high closing costs (points and
fees) on the mortgage?
7. Did the terms of the mortgage change to your
detriment at the last minute before the closing?
8. Did the lender pay money to your mortgage broker
(look on your HUD-1 Settlement Statement for a “premium” or “YSP” or “yield
spread premium” or “POC”, “Paid Outside of Closing”)?
9. If you have an adjustable rate mortgage, were any
adjustments done improperly? Can you even tell if the adjustments were correct
or not?
10. Does your loan contain a prepayment penalty?
11. Do you believe you were treated unfairly by your
mortgage company? Has correspondence with the mortgage company gone unanswered?
(Mortgage companies have a statutory obligation to respond to complaints and
requests for explanations of accounts. Often, they don’t. Each failure may
entitle you to $1,000. If your claim against the mortgage company may exceed
the number of monthly payments you allegedly missed, the mortgage company may
not be able to prove that you are in default.)
12. Did all collection letters sent to you by debt
collectors comply with the Fair Debt Collection Practices Act? (Up to $1,000
more if they did not.)
13. Did you (or anyone else who has an ownership
interest in and lives in the house) receive a “notice of right to cancel” that
was not completely filled out?
14. Did you receive your copy of the loan documents
at the closing (as opposed to being sent to you later)?
15. Did you sign a document at the closing stating
that you were not canceling?
16. Did the closing occur by mail, or at your home,
or in another city?
Junk charges (i.e. yield spread premiums and service
release fees)
Payment of compensation to mortgage brokers and
originators by lenders
Unauthorized servicing charges (i.e. the imposition
of payoff and recording charges) Improper adjustments of interest on
adjustable rate mortgages
Upselling
Overages
Referral fees to mortgage originators. (i.e. a
lender who pays a mortgage broker secret compensation may face liability for inducing the broker to breach his fiduciary or
contractual duties, fraud, or commercial bribery)
Failure to disclose the circumstances under which
private mortgage insurance (”PMI”) may be terminated.
Underdisclosure of the cost of credit
Excessive escrow deposits
Breach of Fiduciary Duty
You may also find breach of contract claims.
There is a common assumption (among judges,
borrowers, and the public) that mortgage companies do not desire to foreclose
and acquire real estate. This assumption is no longer well founded.
There are an increasing number of
“scavengers” that buy bad debts, including mortgages, for a fraction of face
value and attempt to enforce them. Such entities profit by foreclosure.
“Mortgage sources confide that some unscrupulous lenders are purposely allowing
certain borrowers to fall deeper into a financial hole from which they can’t
escape. Why? Because it pushes these consumers into foreclosure, whereupon the
lender grabs the house and sells it at a profit.
Kenneth M. DeLashmutt
“Predatory Lending Defense Specialist”
email: bankfraud@cox.netwebsite:
http://mortgage-home-loan-bank-fraud.com
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