Contesting Foreclosure

[InOverHead]

What is involved with constesting a Foreclosure? Is an attorney a necessity?

Any other options/tips/techniques for stalling the process?

This is in Florida - Palm Beach County to be exact.

[justbroke]

If you are in Florida, you are best finding an attorney that charges a flat fee (about $1,500) and will make the lender prove its case. These foreclosure "defense" attorneys can typically delay the foreclosure by a year (from the notice of deficiency). However, nothing is guaranteed and they will remind you of such.

The first thing to stall is to absolutely hire this attorney AS SOON as you get your Lis Pendens and let them do their thing. There are many foreclosure "defense" attorneys out there. Some will charge a retainer PLUS a monthly fee. Some will charge a flat rate (retainer) good for so many hours which will typically be enough to get your case dismissed.

The attorney will ask you what you want in the end. Whether that's negotiating a modification -- which the will do but typically at an additional cost, a deed-in-lieu, or an eventual foreclosure.

[subking]

We've just began to contest as our discharged loan has now gone from BOA to this Resurgent services company.

Our mortgage began with GMAC, then to Coutrywide who then was taken over by BOA (the worst lender ever to deal with), and now BOA claims to have sold the servicing rights to Resurgent. We are contesting any validity as to who actually ownes the note and who has servicing rights. BOA took over after the loan was discharged and its our firm belief that none of these lenders or servicers filed proper paper work since the GMAC mortgage to Coutrywide, the very last register of deeds shows the Countrywide mortgage being discharged as well as our second with Irwin being discharged.

[subking]

We plan to do anything necessary to fight and make them prove they hold the note, and that all documents were properly filed and excuted, and were not gonna make it easy. We've done everything we were asked sent loads of paperwork only to be told we don't qualify for a mod and they refuse to explain.

[Martha31]

The original note was probably destroyed. Countrywide was notorious for shredding notes.

[justbroke]

The original note was probably destroyed. Countrywide was notorious for shredding notes.

That is irrelevant in Florida foreclosure proceedings. Florida has the "re-establish the note" procedure which allows them to start a foreclosure and affirm that they only had (physical) "possession" of the note when it was lost or destroyed.

[Martha31]

If you did not sign the lost or destroyed note it becomes very relevant.

[justbroke]

If you did not sign the lost or destroyed note it becomes very relevant.

I don't even know how this post adds anything to this particular discussion. How do "you" -- as defendant -- prove that you did not sign the note? Florida courts are pretty generous with re-establishment of the Note.

[JimKutkowski]

Picked up a defense case last month. Get this:

Loan was allegedly sold to a non-revocable trust that closed in 2006. They sold the loan in 2012. It was a non-conforming loan. Someone tell me how a closed trust can purchase a non-conforming note. They can't!

So who owns the note? I surmise no one does and the loan is now unsecured. The original loan was paid off and the second note wasn't properly securitized.

I may be wrong, but heck, they are going to take a year or longer to figure it out. I sent them a cash for keys offer of $50,000. If they are wise, they will take it. If they did add the mortgage to the trust, they have to file 72 months worth of SEC filings late and pay the fine (hundreds of thousands of dollars). Every certificate-holder needs to be issued new 1099s for the last six years and they will have to file amendments to at least six years of tax returns.

This is why you hire a lawyer.

[justbroke]

Yes, definitely hire an attorney. At least in Florida, this typically does not stop a foreclosure from happening when the plaintiff (lender) shows up with the original signed note. It could have tax and REMIC issues for the Trust, but there are many loans out there with problems. In a particular bankruptcy court case, a Trustee tried to claim exactly the typical defense. That is, the Trustee insisted that the Trust was ineligible to receive the note, so the note was bifurcated and the loan unsecured. The bankruptcy court judge didn't find that amusing and ruled against the Trustee. The judge, quite aptly, noted that whether standing is an issue is one thing. As to whether the person who mortgaged the property owes "someone"... is another.

I can't find the case right now, but may look it up later.

[JimKutkowski]

If a trust continued to press for foreclosure, I'd say fine go for it and then contact the SEC. Decimate one trust and the rest will fall in line.

[justbroke]

If a trust continued to press for foreclosure, I'd say fine go for it and then contact the SEC. Decimate one trust and the rest will fall in line.

Many have tried over the last few years. The REMIC issue is a tax issue and so far, no one has been able to get any single trust to pay any penalty. I have not seen one mortgage-backed security (under REMIC) decimated or fall. In fact, thousands have tried this and have failed even in Florida, where many judges will actually listen to a good argument (even during the rocket-docket days).

I am very interested in this topic as my loan is part of an MBS pool. I personally tracked it down and it is not in the assigned pool! They did try to foreclose once, while in Bankruptcy (but that was due to me switching which property I was keeping in my Chapter 13), and that's when I noticed that they even put the wrong MBS Certificate Series on the motion. Funny stuff! But, no one went to jail, no fines were paid, the SEC and IRS didn't do anything. Business as usual.

I don't really care anyhow. I mortgaged my home and I owe someone, an amount certain. So long as they show up with the "wet-signature" promissory note, and an (recorded) assignment, they are pretty much good to go here in Florida. I'm good with that. I'm good with that because the enforcement of any tax laws broken or skirted, is just that... an enforcement issue. If my mortgage was illegal, then that could be interesting for me.

[JimKutkowski]

Many have tried over the last few years. The REMIC issue is a tax issue and so far, no one has been able to get any single trust to pay any penalty. I have not seen one mortgage-backed security (under REMIC) decimated or fall. In fact, thousands have tried this and have failed even in Florida, where many judges will actually listen to a good argument (even during the rocket-docket days).

I am very interested in this topic as my loan is part of an MBS pool. I personally tracked it down and it is not in the assigned pool! They did try to foreclose once, while in Bankruptcy (but that was due to me switching which property I was keeping in my Chapter 13), and that's when I noticed that they even put the wrong MBS Certificate Series on the motion. Funny stuff! But, no one went to jail, no fines were paid, the SEC and IRS didn't do anything. Business as usual.

I don't really care anyhow. I mortgaged my home and I owe someone, an amount certain. So long as they show up with the "wet-signature" promissory note, and an (recorded) assignment, they are pretty much good to go here in Florida. I'm good with that. I'm good with that because the enforcement of any tax laws broken or skirted, is just that... an enforcement issue. If my mortgage was illegal, then that could be interesting for me.

Well I just filed an objection to a proof of claim against the trust issue. First one in the Eastern District. Will be heard next week. Get out the popcorn.

[subking]

Two BOA employees are whistleblowers and have admitted that BOA gave them bonuses and gift cards as an incentive to deny modifications and force the homeowvers into foreclosure.

[tobee43]

Two BOA employees are whistleblowers and have admitted that BOA gave them bonuses and gift cards as an incentive to deny modifications and force the homeowvers into foreclosure.

i just don't understand it? why would they do this? it leaves the bank holding the property no buyers since they aren't lending and people without homes. this is so terrible i hope they all go to hell, really and i know shame on me but i really hope when it comes time to meet their maker they are ready. the millions of people that were hurt by this and while i don't want to get into a political discussion, our government allowed all of this to happen and turned a blind eye on it's people. the same people foolish enough, like ME to vote for them. i'm so ashamed of myself! i almost feel like i'm partially responsible.