1. Contact lender find out what options they are offering if unacceptable get 2.
2. Broker opinion Letter of Value
3. make Offer pursuant to 2923.6 with interest 5% or less
4. Challenge validation of Debt 15 USC 1692(g) they do not posses the note
5. Write QWR Qualified Written Request ask for accounting.
6. If Refinance write TILA rescission letter send certified
7. Attempt to make payments pursuant to 2923.6 offer as in number 3
8. Write hardship letter and ask for Modification submit financial s
9. Copy lawsuit and file lis pend.sample-bank-final-complaint1-2.docx
10. serve Lawsuit
11. repeat offer from #3 to lenders attorney under civil code 998
12. Get injunction or temporary restraining order if no funds for bond consider Bankruptcy Chapter 13
13. Have relative or party with good credit get qualified and make Short Sale offer as #3 if accepted
14. Make rent to own contract and record contract
Challenge everything — monthly statements, letters, delinquency notices, default notices, sale notices, eviction and unlawful detainer, and even go after the house you lost and vacated. Write letters and file pleadings. Letters should be certified return receipt requested. Make reference to THEIR sworn filings with the SEC (10k annual report etc.). GET A FORENSIC MORTGAGE AUDIT. In California and other states a sworn pleading must be answered by a sworn pleading from the other side. This could end the case quickly. Just because you get a sworn affidavit doesn’t mean the person who signed it knows anything or any part of the trail of loan origination and securitization of your loan. Ask questions.
PRELIMINARY CHECKLIST FOR FORECLOSURE DEFENSE AND OFFENSE:
We also have numerous possible stages at which a borrower can ﬁnd him/herself
1. Loan not in default but TILA claims can still be made.
2. Loan approaching default.
3. Loan in default
4. Foreclosure suit ﬁled or sale date published
5. Judgment entered
6. Sale occurred to either third party or the lender. I have advised people to go to the sale and inform all potential bidders that the matter is in dispute which usually stops anyone from bidding.
7. Notice to Vacate
8. Eviction notice from Sheriff
9. Evicted — but TILA claims survive for (a) recovery of money and (b) possibly recovery of house from lender
Origination of loan:
1. REAL BANK THAT GIVES MORTGAGE AND HOLDS NOTE THEMSELVES. Direct relationship between the lender and borrower and it is not sold, migrated or otherwise transferred in any manner shape or form. Borrower gave honest information, tax returns etc. My guess is that the only claim here would be fraudulent appraisal but even that is weak because the bank is actually at risk.
2. Mortgage broker steering borrower to worst deal for highest fees. Inﬂated income and appraisals submitted. Lender is selling off or has entered agreements to provide
“inventory” to mortgage aggregators who will sell the aggregated loan portfolio to investment bank who in turn will sell “derivative” securities (CMO – collateralized
Mortgage Obligations or CDO — Collateralized Debt Obligations) to investors who are defrauded by representations from the lender, appraiser, mortgage aggregator,
investment bank, and intermediate sellers of securities. Bank is NOT in any relationship with borrower but that is not disclosed. Bank has no risk or interest in whether borrower pays on loan or not.
3. MOST COMMON: A “bank” that is actually a front for one of the major players. In actuality the bank is a mortgage broker steering customers to worst loans for highest fees.
4. While the “lender” takes the position that they were defrauded by the borrower, the mortgage broker and the appraiser, the truth is that they intentionally defrauded themselves by setting up the structure and giving themselves the position of “plausible deniability.” Their intent was to create a plausible record for the mortgages and notes they were selling to mortgage aggregators and investment bankers.
1. Fixed rate 30 year mortgage fully amortized.
2. Fixed rate 30 year mortgage amortized but partially negative — i.e. the borrower is
paying less than the full payment and the balance owed on the note is going up.
Possible TILA violation.
3. Fixed rate mortgage interest only, negative amortization. Clear TILA violations in most
4. Adjustable rate mortgage fully amortized. First adjustment after teaser rate in 1, 3, 6, 12 or more months. Borrower “qualiﬁes” for mortgage because income ﬁgures support paying the teaser rate. At the ﬁrst or second adjustment owever, they no longer qualifyand the lender knows it by deﬁnition. TILA violation, fraud, etc.
5. Adjustable rate interest only, negative amortization — OPTION ARMS, TEASER 2/28,3 /27 ETC.
6. Multiple mortgages and notes for multiple properties for speculators — usually involves falsifying information that buyer is going to use the house as primary residence, falsifying income and falsifying appraised values. TILA, fraud etc.
7. APPRAISAL FRAUD: Everyone at the closing and hidden behind curtains that you didn’t even know were there had a vested interest in you signing the papers — to justify their sale and collection of funds from investors. Because of the volume of money generated by sales to “qualified” (big) investors, and because of the need to keep appearances of an upward, active market, appraisals were vastly inflated beyond the real value of the property.
- As early as 2005 honest appraisers signed a petition to require that all appraisers follow industry standards because the honest appraisers weren’t getting any business.
- The difference between the inflated appraisal (made as instructed and paid for by the “lender” who really was standing in for the true source of funds) and the real market value was on average about 25% of the appraised value.
- Thus, a house appraised at $300,000 was really worth $225,000 at most. In many cases the figure was 40% and so our example would be a true fair market value of $180,000.
- This excess accounted for the entire down payment of most buyers and a substantial portion of the debt they acquired when they signed the loan papers. In our example, the borrower/buyer might have suffered a loss of $120,000.
- Adding this cost to the points, interest (APR) the violations of all federal and state laws multiply exponentially.
- Principally, it raises the specter of usury, which makes the loan voidable or void, and provides a basis for recovery of attorney fees, and might allow for treble or punitive damages.
Authority and ownership of loans — Legal Standing and Jurisdiction
1. Originating lender still servicing the loan, holds note and mortgage. No assignment, sale or other fancy ﬁnancial tricks.
2. Originating lender is actually mortgage broker, loan migrates to senior lending institution, to mortgage aggregator to investment banker to seller of securities to investor.
3. Trustee in non-judicial sale states posts notice of sale based upon information from a source that (a) does not service the loan and therefore does not know if the borrower is in default or not and/or (b) does not own the mortgage or cannot prove that it owns the mortgage and/or (c) does not own the note or cannot prove that it owns the note. IN most cases an investor owns the mortgage and note and the people involved in the foreclosure don’t have a clue as to which bundle of mortgages went into which bundle of securities and how many investors bought into that bundle of securities, and there areno proper assignment documents that were designed much less signed in anticipation of being able to establish legal standing in sale, foreclosure or eviction.
4.Originating lender ﬁles foreclosure or posts notice of sale and does not have servicing rights, ownership of mortgage or ownership of note.
1.DOCUMENTS AT AND BEFORE CLOSING
2.TILA COMPLIANCE AUDIT AND OTHER LEVELS
3.FULL FORENSIC AUDIT — POSSIBLY NEEDED FOR LITIGATION ONLY
1.Federal Claim for TILA, Respa, RICO, fraud, USURY etc.
2.QUIET TITLE AGAINST NOMINAL LENDER, ALL OTHER KNOWN PARTIES WHO MIGHT CLAIM INTEREST IN MORTGAGE OR NOTE AND ALL UNKNOWN (JOHN DOES 1-100) PARTIES WHO MIGHT CLAIM AN INTEREST IN MORTGAGE OR NOTE).
2. Memorandum of Law in support of complaint.
3. State Court claim for Fraud
4. State court action for stay of sale, eviction etc.
5. Emergency Petition for temporary Injunctions- State and Federal Courts and memorandums in support thereof.
6. Motion to expedite discovery.
8. Requests for admission
9. Request to Produce
10 Notice of deposition duces tecum
11. Adversary proceeding in Bankruptpcy Court – BE CAREFUL ABOUT WHAT YOU PUT ON SCHEDULES.
12 Memorandum and pleading in opposition to Motion for lifting stay
13. Demand letter to Originating lender — for documents tracing where the mortgage went and for refunds and damages, enclosing TILA audit.
14 Rescission letter
15. Form retainer agreement for audit an checklist for retaining auditor
Many a client call me when its toooooo late however sometimes something can be done it would envolve an appeal and this application for a stay. Most likely you will have to pay the reasonable rental value till the case is decided. And … Yes we have had this motion granted. ex-parte-application-for-stay-of-judgment-or-unlawful-detainer3
When title to the property is still in dispute ie. the foreclosure was bad. They (the lender)did not comply with California civil code 2923.5 or 2923.6 or 2924. Or the didn’t possess the documents to foreclose ie. the original note. Or they did not possess a proper assignment 2932.5. at trial you will be ignored by the learned judge but if you file a Motion for Summary Judgmentevans sum ud
template notice of Motion for SJ
TEMPLATE Points and A for SJ Motion
templateDeclaration for SJ
TEMPLATEProposed Order on Motion for SJ
TEMPLATEStatement of Undisputed Facts
you can force the issue and if there is a case filed in the Unlimited jurisdiction Court the judge may be forced to consider title and or consolidate the case with the Unlimited Jurisdiction Case
2nd amended complaint (e) manuel
BAKER original complaint (b)
Countrywide Complaint Form
FRAUDULENT OMISSIONS FORM FINAL
California stop foreclosure and get your own shortsale COMPLAINT
And in some cases an injunction is in order
Foreclosure injunction TRO
and a Lis Pendence