LivingLies Plan of Engagement: What to Do

Posted on February 19, 2010 by LivingLies dot WordPress dot com

This
is a plan that is current in its evolution but by no means complete or
the last word. The assumption here is that even without taking mortgage
foreclosure cases into consideration, the percentage of cases that
actually go to trial is between 5%-15% depending upon how you
categorize “cases.” On the other hand, if you are not prepared for
trial and counting on settlement, your opposition will generally know
it and have the upper hand in negotiating a settlement.

WORD OF CAUTION: IF YOU
ARE ALREADY IN PROCESS, YOU ARE REQUIRED TO ACT WITHIN THE TIMES SET
FORTH BY STATE LAW, FEDERAL LAW, OR THE LAWS OF CIVIL PROCEDURE.
FAILURE TO DO SO LEAVES YOU IN AN UPHILL BATTLE TO REVERSE ACTIONS
ALREADY TAKEN.

CONSIDER BANKRUPTCY, ESPECIALLY CHAPTER 13, WHERE THERE ARE MORE REMEDIES THAN YOU MIGHT THINK IF YOU FILL OUT YOUR SCHEDULES PROPERLY. WE ARE SEEING BETTER RESULTS IN BANKRUPTCY COURTS THAN FEDERAL OR STATE CIVIL COURT PROCEEDINGS.

  1. Get your act together, stop fighting amongst the members of your
    household and make a decision as to what you want to do — fight or
    flight?
  2. If you choose flight, then by all means try the short-sale or
    jingle mail strategies that have been discussed on this post. Do not
    try to make money on the short-sale, since nobody is going to give it
    to you. You can make a few dollars by riding out the time in
    foreclosure without making payments (and hopefully saving the money you
    would have paid) and by negotiating as high a price (a few thousand
    dollars)  as you can in a deal known as “cash for keys.” Even for this,
    you should employ the services of a local licensed attorney — at least
    for consultation.
  3. If the decision is fight — then the second decision to make is to
    answer the question “fight for what?” If you want to buy time, there
    are many strategies that can be employed, which basically are the same
    strategies as those used if you are fighting for real. And you might be
    surprised by the result. Some people get a year or two or even more
    without payments. You are going to take a FICO hit anyway so why not
    put some cash in your pocket while you hold back payments.
  4. AVOID crazy deals where you give your property or share your
    property with a stranger. If you persist in engaging such people at
    least call references and make sure the references are real. Ask
    questions about their situation and how they feel it worked out to
    them. Get as much detail as possible.
  5. AVOID mortgage modification firms. If you persist in engaging such
    people at least call references and make sure the references are real.
    Ask questions about their situation and how they feel it worked out to
    them. Get as much detail as possible.
  6. In all cases, if at all possible:
  7. (a) Get all your information together along with a short executive
    summary of your “journal” (even if you create the journal now). That
    means all closing documents, any information you have on title,
    recording in the county recorder’s office, the names of all parties who
    were “at” closing (that means not just the actual people who were
    there, but he names of companies that were represented or mentioned at
    closing). Also, include in the file any notices of default(NOD) or
    notice of Trustee sale(NOTS) or summons from a court.

    (b) Get a TILA Audit of the loan transaction itself.

    (c) Get a Forensic Mortgage Analysis of your mortgage  to determine
    whether the loan was securitized and who the real parties are in the
    transaction. Who is your creditor? The TILA Audit alone does nothing
    without taking further steps. The Trustee’s “Take-down” report should
    be demanded in non-judicial states and if the house is in foreclosure,
    your written objection should be sent to the Trustee.

    (d) If someone tells you they are “pretty sure” or can
    “definitely”  stop your foreclosure or promises a favorable outcome,
    and asks for money up front, then run like hell. This is a scam.

    (e) Only a Court order stops foreclosure or a Trustee Sale. No
    letter of any form or substance will stop it unless the other side is
    intimidated into stopping the action, which sometimes happens when they
    know their paperwork is “out of order.”

    (f) Get a Forensic Mortgage Analysis Report that summarizes in a few pages the potential issues that you should be investigating.

    (g) Get an Expert Declaration that uses the forensic report and the
    expert opinions of specific experts (like appraisers, title analysts)
    and which identifies the probable chain of securitization and the money
    trail. You’ll be surprised when you find out there were two yield
    spread premiums not disclosed to you and that they can total as much or
    more than the “loan” itself. GET EXPERT OPINION ON PROBABLE DAMAGES
    INCLUDING RETURN OF UNDISCLOSED FEES, INTEREST, ETC. (SEE LAWYER’S
    WORKBOOK FROM GARFIELD CONTINUUM).

    (h) Send the Forensic Report and expert declaration to the known
    parties, with an instruction to forward it to all other parties known
    to them in the securitization chain. Include a Qualified Written Request(QWR) AND a Debt Validation Letter(DVL) (which is really a debt verification
    letter). Don’t be surprised if your pretender lenders will come back
    and tell you your QWR is defective or improper in some way, but that’s
    OK, you have followed statutory procedure and they didn’t. With the
    help of an attorney and with consultation with your experts decide on
    what resolution you will demand — damages, rescission, etc.

    (i) Don’t believe a word about modification.
    Practically none of them go through. They are leading you into default
    so they can collect more service fees, and get money out of you that
    you think is stopping the foreclosure.

    (j) Don’t believe a word that any pretender lender or representative
    says or represents, even if they are a lawyer, particularly verbal
    communications that they refuse to confirm in writing. Challenge
    everything.

    (k) Don’t accept any document as authentic. Many documents are being
    fabricated or forged, including affidavits. This is why you need a
    lawyer and an expert and a Forensic mortgage analysis — to determine
    what documents and parties are suspect and what you should be asking
    for in discovery and in the QWR and DVL.

    (l) YOUR FIRST STRATEGY IS TO RAISE NOT PROVE
    ISSUES OF FACT. BY PRODUCING A FORENSIC REPORT AND EXPERT DECLARATION,
    NEITHER YOU NOR YOUR LAWYER NEEDS TO ACQUIRE EXPERTISE IN SECURITIZED
    LOANS. YOU ONLY NEED TO RAISE THE ISSUE OF FACT BY SHOWING THE COURT
    THAT YOU HAVE EXPERTS WHO SAY THE PRETENDER LENDERS/TRUSTEES ETC. ARE
    NOT CREDITORS AND NOT AUTHORIZED AGENTS WORKING FOR THE CREDITORS. THEY
    SAY THEY ARE IN FACT THE CREDITORS OR HAVE SOME AUTHORITY GRANTED BY AN
    ALLEGED CREDITOR. IT IS NOT FOR THE COURT TO ACCEPT ONE VIEW OR THE
    OTHER, BUT RATHER TO ALLOW DISCOVERY AND AN EVIDENTIARY HEARING ON THE
    ISSUE OF STANDING (SEE RECENT FLORIDA CASE).

    (m) Be very aggressive on discovery. They will argue that even if
    they are not the creditor and even if they refuse to disclose the
    identity of the creditor, they are still entitled to disclose because
    they are the holder of the note and/or mortgage. Your argument will
    probably be that they still have a duty to disclose the identity of the
    creditor and the source of the their authority to represent the
    creditor, along with proof that the creditor has received notice of
    these proceedings.

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