In a typical foreclosure, ABC Company, the last entity the borrower was paying, simply contacts its foreclosure company to issue a Notice of Default and move forward with the foreclosure process. Everyone seems to assume that ABC Company has the ability to foreclose in the first place since that was who the borrower was paying recently and who the borrower may have received a notice that their loan was â€œsoldâ€ to.
Because of these assumptions, most lenders, attorneys, and borrowers altogether skip or completely assume the negotiability requirements of UCC article 3 have been met during all previous transfers of the promissory note, and jump straight to the UCC article 9 security interests issues.
Check your Deed of Trust and Promissory Note. Chances are that XYZ Company is the original lender, not ABC company, and you simply received notice that your loan was sold some time ago. But keep in mind what really took place. Chances are, in todayâ€™s securitization market, that your note was securitized in a pool with other notes to a Trust, that was then sold to a substantial number of investors on Wall Street.
So in effect, even though XYZ originated the note, the note eventually concluded its transfers and now resides in a Trust. Or, as which often happens, the Trust owns the note, but somewhere along the note transfers, the actual possession of the note never made it to the Trust.
So in this example, we will assume that New York Bank is the Trustee now owning the note in the ZZZ-1234 trust. Whether New York Bank actually possesses the Note is a different matter. And since possession allows enforcement rights, it is possible that New York Bank may own the Note, but has no ability to foreclose.
In a perfect world, the transfers were all proper and New York Bank as Trustee of the ZZZ-1234 Trust has the ability to enforce the note and foreclose if payments are not made. Nevertheless, Trustee of the Trust does not service the note. Instead, another entity services the note. Sometimes, it may be the original party that originated the note, such as XYZ company in this example, and the borrower thinks they had the same lender the entire time without knowing their loan was sold.
Often, however, is that the servicer changes and the borrower concludes that the new servicer owns the note. Again, this is not true since the Trust owns the note and the new servicer is simply servicing the note on behalf of the Trust. Then, when a foreclosure action is started, another entity usually enters the scene since the Servicer typically hires an outside foreclosure entity to conduct the Trustee sale, such as ReconTrust, Quality Loan Servicing, etc.
The confusing transfers of the Note should also not be confused with the Deed of Trust filed with the County Recorder, and any of its subsequent transfers and assignments. While the underlying Note is the genesis to any enforcement issues, the Deed of Trust is merely an accessory to the underlying note, and only provides rights to the collateral real estate if payments are not met. The Deed of Trust is meaningless without a Promissory Note. Indeed, case law is well defined in California, that a Deed of Trust without the underlying note is a â€œLegal Nullity.â€
Remember, that the entity that is attempting to enforce the note is the Servicer. So that means that either the Servicer actually has the ability to enforce the note under CCC 3-301 or that they are the agent of the entity that has the ability to enforce the note under CCC 3-301. Assuming that the Trust (in this example ZZZ-1234 Trust with the New York Bank as Trustee) owns and possess the note and that the servicer has a valid agency relationship, we now come full circle to whether New York Bank is in compliance with CCC 3-301.
For New York Bank to institute a valid foreclosure proceeding, they must be able to establish compliance with CCC 3-301, at commencement of the foreclosure proceeding, the recording of the notice of default, and throughout the proceedings until sale date. So then the following most basic requirements of CCC 3-301(a) or CCC 3-301(b) must be met:
3-301(a), Holder of the instrument: Was the entity filing the Notice of Default and subsequent actions, the Holder of the Note the entire time? This analysis turns on transfer and possession, and under California law, there are two requirements for a person to qualify as a Holder:
(a) ACTUAL POSSESSION: the person must be in actual physical possession of the instrument, and
(b) TRANSFER BY ENDORSEMENT: the instrument must be payable to that person where the transferor must indorse the instrument to make it payable to the transferee See CComC Â§ 1201(20); See CComC Â§ 3205(a);
If your sale date is fast approaching, it is important for you to know your options:
1) Declare a bankruptcy for the purpose of delaying the sale:
Please consult with a competent attorney that will be able to advise you on the benefits of a Chapter 7 or a Chapter 13 bankruptcy and its implications (both personal and financial).
2) File a civil action and get a Temporary Restraining Order:
A Temporary Restraining Order (TRO) may postpone your Trustee Sale for a short period of time, typically 10 to 14 days. A judge may grant you a TRO depending on your individual circumstances. Unfortunately, the judge can simply deny your request for a temporary restraining order.
3) Develop a Proactive litigation strategy:
This may be an option if you feel like you have a realistic option at modifying your existing home loan or if you have reasons to believe that you have been taken advantage of by your lender or your mortgage servicer. Currently, banks are spending even more of their money defending lawsuits brought on by homeowners and institutional investors. When you initiate a lawsuit you are sending a message that you are aggressively pursuing a loan modification. In response, the bank may temporarily stop or postpone your sale date until they can reach a resolution with you.
4) Challenge/Subpoena the Trustee:
This may be the least effective method off stopping your sale date but nevertheless it is an option. You will want to analyze the Deed of Trust and all foreclosure documents: Notice of Default, Assignments, Substitution of Trustee, Notice of Sale, and Trust Deed upon Sale. In the analysis, you may find illegalities and weaknesses in relation to existing laws that can give you leverage and may postpone your Sale Date temporarily. In majority of the cases you will find that the notice of default was filed prior to a trustee being assigned to foreclose on your property. In Judicial Foreclosure states, a judge reviews the legality of the foreclosure proceedings to ensure the homeowner is being protected against lenders. In Trustee States, lenders employ a â€œthird partyâ€ trustee company to replace the legal function of a judge to orchestrate the foreclosure process. Since the trustee assumes the liability in auctioning the property, they may not foreclose on the property if there are potential violations discovered prior to the Auction Sale Date. Therefore, if the lender files the notice of default prior to a trustee being assigned they are not following foreclosure laws and procedures.
5) Short sale your property:
Check if there are any benefits of listing your property for a short sale. Some banks offer incentives to follow through with a short sale. They know that it is an easier solution for them to undergo rather than foreclose on your property. You may want to consult with a CPA and completely understand it's financial implications before you make this decision. This may prove to be a good option if you are underwater (owe more on your home than it is worth). Short selling your home may be a difficult decision to make since it may affect your credit and potentially prevent you from getting another loan for several years. However, if you decide to short sell your home it may be the best time to do so now. Listing your property may buy you time.
Key Elements to Consider
Securitization is the most important factor in proving the true status of the original obligation ("Note"). The only way you can determine the true status of the Note is through a fundamental understanding, analysis, and application of the securitization process and how it affects you. It is a complex process that involves the pooling of home loans into securities that are sold on the secondary mortgage market to investors. It will do you justice to consult with an attorney that completely understands the securitization process and how to use it for your benefit.
If you have any questions or need assistance, please feel free to reach out to me and I will do my best to help you. If you do have the need for legal/attorney services, I will point you in the right direction. Please also take a moment to do some research on the process, the beneficiary (your lender), and Trustee; all of which are â€œsupposedâ€ to follow the legal procedures when foreclosing on your home.
I wish you the best and I hope you overcome this hurdle in your life.
Alternatively, the transferor may indorse the instrument in blank, and thereby make it enforceable by anyone in its possession (much like paper currency). See CComC Â§ 3205(b). Bottom line, did the Servicer possess the note or where they acting as an agent for the entity possessing the note? And if so, was the note either endorsed to the Servicer or its Principal, or endorsed in blank?
If the servicer meets these two requirements, then it has the ability to enforce the note and foreclose. Again, it all depends upon POSSESSION and ENDORSEMENT.
3-301(b), Nonholder in possession of the instrument who has the rights of a holder: Was the entity filing the Notice of Default and subsequent actions, in possession of the Note, without endorsement, but with Holder rights? Typically, this occurs where a note was transferred to a new owner pursuant to a purchase and sale agreement, but without endorsement. In other words, the new owner obtained possession of the note pursuant to a valid purchase and sale agreement, but for some reason or another, the seller never signed off and negotiated the note through an endorsement. In that case, the new owner meets the possession requirements of 3-301 (a) and (b), but is not considered a â€œHolderâ€ by reason of CCC 1-202(b)21 to qualify under CCC 3-301(a) due to the lack of endorsement, but nevertheless has the rights of a holder due to the purchase and sale agreement. In this situation, a prudent debtor would demand inspection of the purchase and sale agreement to confirm whether the alleged owner has the â€œrights of a Holder.â€
Only when the underlying enforceability issues of the Promissory Note are established, can an entity then look to any Deed of Trust which is only an accessory security interest which then gives rise to a foreclosure right. Most lenders miss the forest between the trees at this stage, and just assume that since the Deed of Trust was assigned to them, they can automatically foreclose.
But the Deed of Trust is only incidental to the underlying Promissory Note. It has no effect without the note. It is legally impossible to foreclose on any real property without the Note. The Deed of Trust is a legal nullity by itself, and means nothing without the note. These lenders entirely skip the underlying enforceability of a foreclosure which only arises upon actual Note possession and proper endorsement/obtaining Holder rights.
So if you are facing foreclose, you may wish to demand inspection of the original note. Even if the note is produced, then demand proof that possession existed when the Notice of Default was entered. And even if possession existed properly at all times, endorsement and negotiability must be proper and timely. When was the note endorsed? Who was it endorsed to. Is there an agency relationship between the foreclosing agent and endorsee? Is the endorsement in blank? If there is no endorsement, is there a purchase and sale agreement that gives Holder rights, and did it exist prior to the Notice of Default?
As always, seek a competent attorney that will investigate these issues if you are having any doubts as to the enforceability of a foreclosure proceeding you are a party to.
I recently met with a family who was advised by an attorney that they would be better off just walking away and letting the bank foreclose. This attorney warned of tax implications - and his information was both outdated and bogus. In this situation, the debt qualified for tax exclusion under the Mortgage Debt Relief Foregiveness Act of 2007 - plus the family would be insolvent at the time of the discharge of debt. He told them that there would be no difference credit-wise to their situation between foreclosure and short sale. He was wrong. A foreclosure and a short sale are looked at very differently by creditors looking to extend credit in the future. A prime example is Fannie Mae. When losing a home, sometimes it's difficult to see forward to a time when you might want to embrace being a homeowner again, but this too will pass, and homeownership remains the number one vehicle for building long-term financial security for most Americans.
Here is a link to the changes that were implemented in Fannie Mae with regards to qualifying for a conventional loan again after bankruptcy, foreclosure, short sales, and deeds in lieu of foreclosure.
The guidelines were changed in 2008 as the foreclosure crisis grew and this issue became relevant. Based on todays rules, one can qualify for a Fannie Mae conventional loan 2 years following a short sale - however, it will be 5-7 years if there is a foreclosure - AND special rules, like higher down payments will be required in years 5-7. unless there are special circumstances, which will need to be demonstrated and found acceptable to Fannie Mae, in which case it will be no earlier than 3 years following foreclosure.
In 2 years, very likely, homes will still be within reach for most who would qualify today. But in 5-7 years? Are you really willing to risk that in order to avoid making a solid attempt at short sale? We can't change our past, but tomorrow is up to us. N'est-ce pas?
Jeri Creson, Broker
TotalAccess Realty Advisors
If you received a home loan or have refinanced over the last
seven years, there is a very good chance you have been a
victim of predatory lending!
This means that in the process of getting a home loan or
refinancing your home, your lender caused you financial
harm and placed you in a loan that violates your rights under
Federal and/or state laws and for which you are now entitled
to seek justice.
Although your current mortgage situation is unfortunate, the
opportunity to challenge your mortgage and hold your
lender accountable for past actions and misconduct is great
Loans must be legal to remain enforceable by the lender. Loan
Violations are serious offenses of Federal Consumer
Protection Law and lenders may face stiff fines and legal
consequences for breaking these laws.
A Forensic Mortgage Audit determines violations of the laws
governing lenders. An audit report provides a powerful tool
for negotiating with your lender.
If you want to know how to get started email me.
More details would be needed to accurately be able to answer the question - http://ForeclosureIQ.com
Wow, this is from last year. While most of what I saw was about Bankruptcy, which will stop the sale, a TRO will also stop a sale dead in its tracks. What I notice most of the time is Short Sale offer.
If you send the lender your full Loan Mod package with all of your financials and talk to the manager / negotiator you have a very good chance of stopping the sale. Of course the homeowner needs to have a scenario that makes sense to the lender example:
1: Is the original 1st mortgage payment is more than 31% of the gross income?
2: Debt to income can non priority debt be reduced?
3: Is mortgage your largest bill
4: Modifications do go thru.
If you have
Wachovia, Chase GMAC, Aurora, Litton, just to name a few they do modify loans and in some cases reduce principal.
You need to be on the ball with this it requires a lot of time.
Looks like this already happened last year!!!
Your NUMBER ONE PRIORITY IS TO GET CONTROL OF YOUR SITUATION.
What does that mean? It means taking back the control for your home from the lender. There is a simple multi-step process to follow that will lead to extricating yourself from this dilemma. It's starts with a "Q" letter. You may need to do more if your are posted for foreclosure and have extremely limited time. The reason most people lose their homes to foreclosure is ignorance. You have lots of real power to stop this even if you don't have two thin dimes to rub together. If anyone want free advice about how to GET CONTROL OF YOUR SITUATION use the link below. I will be happy to give you my opinion of your situation and your options. It's free and we make every effort to relieve the suffering of those in this situation even if you are "DEAD BROKE".
Whenever, we, as a society start buying into the idea that our government has the right to restrain our trade, and make it illegal for us to do our jobs so that only a government agency can do that work legally, we have handed over our constitution, rolled over, and given in to communism. I for one, am not prepared to do that.
In the wake of predatory lending, we, as a people, need to take care that we do not allow our government to color and categorize us as weak, helpless and too feeble minded to make our own informed decisions. Once that happens, the balance of power is tipped. If government must step in and protect us from ourselves...allow me to give you a history lesson: government also wins the right to make your choices for you and take away your freedoms. It is a yin/yang, balance of nature sort of thing. He who has the responsibility, also has the rights. They are a bundled package.
Are you ready to give up your rights, so that your government can provide you with the illusion that you are protected? If so, please buy a ticket now to the closest communist country, and get a jump on the rest of us learning how stand in bread lines.
I am in the USA Since 1965; I had many diff. businesses, paid my taxes and bills on time. I am a Consumer and soon will celebrate my 72nd Birthday.
Matter fact I was doing business with most banks for over 45 years. I had never any late payments, my credit was Excellent All my mortgages where paid on time.
Until the Year 2006, I purchased an investment property fixed the place up and put it on the market for sale and make a little extra money. Like so many other people did in the past.
My fico score was almost 800. Every time I went to the Bank, the Manager came over and said, hello to me and I have noticed, that you carry big balances with out bank, why donâ€™t you get a line of credit, and I make it possible for you. Since I was not in need of any extra money at that time I declined. Then there was one other time the manager approached me again and said, with all the investments you have going, CDâ€™S Savings etc. you need security, he convinced me and said, how much money do you want, 200K or 300K so I told him make it around $220,000 I signed the document in good face, since I thought he was my friend.
The BIG change took place in the beginning of 2008 when the business was slowing down and Bank of America closed my Credit Line in the amount over $220,000 witch was secured by my Residence as a(HELOC). This action took place, the moment I wanted to transfer some money to my checking account; the bank didnâ€™t have then courtesy to tell me about the changes. I had to call in to find out, that the changes where do to declining Real Estate Values. A couple of month later all of my Credit Cards where cut down to the balance owned. I was never late; again all of this came to me as a BIG nerve raging surprise and nightmare. I used to have Credits Cards with unlimited spending Money.
What all of this did to my good credit you just can imagine is that from now on, I was always maxed out. For example a credit line of $50,000, I used to owe $8,000 that was a good ratio. But know owing $8,000 on a Credit line of $8,000 that maxes your account out and drives your credit score down. The Credit Card Companies raised the Interest Rate from 12.5% to 55% after being 1 to 2 Month late. I called the bank for a loan modification and was told you are not qualified, since your payments on time. I was forced to short sale my investment property and lost over $250,000. Here went my Investment& Savings and thanks to the Banks my FICO SCORE is now 480.I is facing many challenges that include bankruptsâ€™. The newest is there are Credit Card Companies that can legally charge the Consumer 79% Interest on a Credit Card limit of $ 300.00.
P.S. Just a little note here USBank is one of the Lending Institutions, the legally charge you if your account is over drawn $35.00 per check plus $8.00 every day you are short on Funds. This did happen to me; I was in the Hospital for several days and got the Big News from my wife.
I called the USBank Manager in the Hollywood Branch and he refused to reverse the charges, he said not one penny.
I know I am not alone in this Disaster that was created by Creed of the Financial Industry and I feel that we have to stand up and form a movement and file Endless-Class action Suits against the Banks and the Lending-Industry.
Stop them now, from stealing/robbing our hart earned Money and Change, their Card Blanch Unlimited Possibility Status!
We need the Government to Step in and control, where our Tax - Money was spend.
Your and My Tax-Money that Bailed out the Banking, Housing Industry and Detroit!
Where did the Billions of Dollars go to? NOT to the small Consumer like You and Me.
Think about it, wake up! This has to stop! I will stay in the Background for the time being!
Any inquiry will be forwarded to my Attorneys!
I certify the an going is the truth!
If you are the owner of this property, you may want to consult a real estate attorney who will be able to file a motion to set aside the trustee's sale or who may be able to provide you with alternatives that may postpone the sale and can offer you legal advice. If you would like a referral, I suggest you contact the All American Loss Mitigation Group, via their website. http://www.aalmg.com/ They have attorneys on hand, who will be able to speak to you and perhaps even help you.
GET THE FACTS
My representive was Vic Pallai, call him at 714 486-0654.
Pay no attention to his advice unless he discloses he is also an attorney and provides you with his license #.
For your edification however: most of the answers in this blog are right on, and the advice is very sound. Do a short sale if you can, unless there is serious real equity in your home. Without equity, doing a modification means you have to have cash or other financial resources to fix any major items the property may need in the near future (0-5 years), as there will be NO WAY to refinance and pull cash out. Don't look for your property to be a source of equity any time soon.
Also if you were planning a relocation a short sale is ideal. Forget the mod. It just delays your home purchasing ability sooner, while your home market values are most likely still much lower than they will be later.
Best of luck!
1) You would need a legitimate reason.
2) Contact an attorney who would file for a preliminary injunction based upon your legitimate reason.
These reasons could be as follows:
1) Lender Liability - Attorney would need to determine if you may have a claim against predatory lending practices.
2) Start negotiating settlement - courts will always grant time if the two parties would rather settle than litigate. This is of course if you have a case filed would stop the sale.
More details would be needed to accurately be able to answer the question.
In most cases, you will need to retain an attorney.
Especially if your probably going to be late again and fall behind once all you cash is gone. String out the money you have and make the reinstatement payments. 2. start a short sale with an aggressive agent- with experience! not a newby or a friend- not ever a friend!!! 3. loan modifications are a joke - but if you opt to try one of these, make sure you don't pay up front and go with a company that spends alot of money on advertising and you have heard of for at least the last year. Don't pay all up front. I believe that is illegal now anyway. There are some companies that you pay monthly to keep postponing and so forth.... its not ever a guarantee - EVER.
These companies are getting really aggressive right now! They are taking back properties and selling to FannieMae....because FannieMae is buying them..duh.
I broke this information up, because your more inclined to read it.... it worked huh.
So, honestly, after being in the loan biz for 20 years and GOING THROUGH THIS MYSELF!!!!!, I truly believe that you need to look at the situation. Can you afford this home, maybe with a roommate. if YES, then fight if NO, then live in reality... Move on, do a short sale. I only say this because I care SINCERELY. To everyone who suffers out there with this stress, may the wind be at your back.
There is NOTHING in the law that prevents me, as a professional, with the skills to advise and help a consumer, from sharing what I know in a public forum.
Jeri of NoHo ....your correct! (an expert witness is hired by the attorneys in court to testify in matters of judicial claims, such as a realtor) ...hello!
In reference to Christina's comment about getting fined $25,000k for illegal practice of foreclosure consultanting,
What consulting , what? Consult, consultation, consellation?
Go to web for good article .
Fight the sale Damg it
There are a few ways to pospone a foreclosure sales but you need to Know depending on your situation none of them are guaranteed untill it is approved.
1) submit all financial docs to start a loan mod.
2) hire an attorney and file a temporary restraining order
3) file bankruptcy the automatic stay should stop bankruptcy for a while.
4) reinstate your loan, make a good faith payment.
More than one way however you really should evaluate your situation that caused the hardship.
Please be carefull you are not to pay ANYONE in advance for this. I work for an attorney and some of the new info is not having realtor do these types of transaction according to new paperwork comming out from Realtor.org.
You would want to first make sure you can afford the mortgage payment if you do stop the sale.
Working for an attorney I have stopped several foreclosure sales. Depending on how far out they are.
Feel free to call for a consultaion
Volo Law Group
925 699 5041
The second fastest way is to put the property on the market with a Realtor who specializes with Short Sales.
Most likely you home is woth less that the current loan balances. You might be able to sell the home in 1 week to 10 days if the price is competatove. Then a short sale package will be sent to the lender. That can also stop the foreclosure process.I am a short sale professional.
The third fastest way is to file for bankruptcy, You should consult with an attorney before choosing this option.
The fourth fastest option is a forebearance agreement with the lender. This may take some time to receive.
The fifth option is to try to refinace your property. Its not fast. You may not qualify.
The sixth option is very slow. It is a loan modification. You may or may not qualify for this option. It takes 6 months on average to complete.
Call me for a free conslutation on your specific situtaion at (831) 588-1988. I am also a Home Retention Counselor and Realtor.Visit my web site for more information at http://www.mikecastle.com. Good luck! Mike Castle, CA License # 00620895
In most cases, depending on your financial situation, bankruptcy will only stall the sale, it' won't solve it. What this means is that when the house is released from the bankruptcy, the lender will continue the foreclosure from where they left off. This means that they can do an immediate sale so you really need to ensure you're informed and working with the right agent.
http://www.mainstreetsolutions.info has information for buyers and sellers which enables you to access information to avoid costly mistakes. Also, a recent report indicated that 70% of buyers and sellers are NOT satisfied with their real estate agent. The number one complaint - lack of communication. I offer a cancellation guarantee to my buyers and sellers. If at any time, they are NOT satisfied with the level of service, they can cancel at any time.
Make sure you're working with a professional.
I am a short sale expert located right in your area of La Jolla. Note the following based on Obama's new plan
1) Once your NOD is filed you can wait the 90 days before your notice of Foreclosure Sale is filed. At this point the best way to stall the foreclosure date is to file for a modification which will extend the period for another 90 days likely. During this period you will want to get with an expert who can tell you whether your modification is likely to succeed. In most cases modifications do not go through. In fact only several thousand were done all last year.
2) Now that your modification has not gone through you have a couple options a) short sale or b) ride it out and live free until foreclosure. If you want to protect your credit and move on to bigger and better things... then short sale. My office is in downtown la jolla. I am an Asset Manager for CHASE, GMAC and FANNIE MAE as well as a BROKER and REALTOR right in la jolla. Believe me when i tell you that you are not alone and I am working with several people in your exact same shoes right now in La Jolla with Multi-million dollar homes. Give me a call 619-823-2120 http://www.TheLaJollaLife.com
My firm has successfully completed many short sale transactions and I would be happy to help. A 5 min phone call will help in your decision process. Thanks
Not necessarily in order. You may wish to weigh all your option before calling your lender.
1. Call you lender and ask them what it will take to get the foreclosure off calendar
2. Call an experienced real estate attorney and ask way you can do to gain an advantage in your negotiations with your lender. You may also wish to find out if you will owe for a deficiency if you take a foreclosure. While speaking with a lawyer you may ask about bankruptcy or filing a suit to block the foreclosure.
3. Consider applying for a loan modification
4. Consider presenting a short sale package to the lender. Make sure your Realtor can show you that they have closed at least 10 short sales. You may wish to work with a Realtor who has a real estate attorney on their team who will work with you.
If you do not qualify on makinghomeaffordable then consider other options such as a short sale.
Our entire team holds the CDPE designation and we are true experts when it comes to executing smooth short sales. We believe it is the most common sense way to prevent foreclosure
Here are some don't qualifies:
NO Credit Union, USAA, Wells Fargo (probably) or private money loans though we have other products that might help you such as loan mod (with in AZ) and a way to use debt to pay off your debt (see http://www.primeequitybuilder.com/freeanalysis -- Beth H. in drop down -- to see what it can do for you. Contact me to sign up for a free 7 day trial. Works anywhere, not just AZ.)
NO Bankruptcy in process or conlucluded within 6 months
Loan will likely have to be a 2007 loan or older.
I want you to know that my company in Arizona has been successful in 3 cases concluded so far in getting the note (deed of trust in AZ) effectively nullified. If you know of someone living in Arizona who has one of these types of mortgages (see below for basic criteria), you or they can contact me in Tucson at 297-8572 (answering machine picks up first). This is a great process for ILLIMINATING YOUR MORTGAGE where, at the end of 6-12 months, the only thing the owner owed on the house was the legal fees (base on current market vaule which cn be found by comparing zillow.com and bankofamerica.cyberhomes.com to see what that might be.) There is an initial $1500 up front legal fee to start the process but, if you don't want the house in the end, you won't have to pay anything and can walk out with cash in the pocket.
I am taking appointments for this week and for Sunday 22 Nov. as there are a few openings and I understand that the week may be busy. What someone going through this process will need to bring to the ~1 hr appointment (or email if not in Tucson area but property in AZ) are all the documents received at close. Pima County Recorder's office told me that they have a copy of all that but when my friend went to get her copy because she is careless with documents, they only gave her the deed of trust. All loan docs and not just the deed of trust are needed in order to conduct a forensic analysis to see if the loan first contains any errors in the loan itself that prima facia will qualify you or does not have a note to back it up. (For example, a MERS number probably means it also qualifies.)
Beyond that, call me (as I have been having computer issues) to get an appointment in Tucson or by telephone (property must be located in AZ) at 297-8572 (3) where my answering machine will take your information and I will get back to you.
Understand that I make no promises as a loan has to qualify and we only take clear cut cases. Also, no know-it-alls who think they can improve on what we are doing. There was one case like that and we don't want a repeat. We only take cases we know already that we can win. Therefore, we will refund any money after the initial $1500 if your case is not successful as if we loose (and it wasn't because you were a intruding know-it-all), then it
is our fault. We are that confident of our success. (Do note what the Attorney General of Arizona is threatening on doing.)
And do get in quickly as we don't want to take more cases than we can handle and Congress is bound to shut this down in the not too distant future because the banks will insist upon it.
Here some good explanations of the whole thing.
Ever wonder how so many Collateralized Debt Obligations (CDO) were able to get their footing?
Of course, the banks are eager to blame the borrowers, who they say were reckless and bought homes above their income brackets. But no one talks about the bank's participation and the concept of "packaging."
Well, no one was really talking about it before.But that might be about to change. We'll get to why in a moment.
Just Because it's a Package, Doesn't Mean it's a Gift
Packaging is nothing new in the banking / brokerage world. It's the norm, not the exception.
Because many of you may not fully understand what happened behind the scenes, and others of you may be facing foreclosure, I thought I would give you some insight into what happened that might help you understand or even take action if you are in foreclosure yourself.
While many borrowers might have bought above their means, the banks were just as complicit in creating the CDO disaster.
The loan-originating company sells the note to an investment banker or hedge fund and collects the full value of the note upfront. A copy of your note is created and stamped "paid in full." The loan-originating company has no right to foreclose because it received all its money when it sold the note.
Before greed took control of the market, the holder of the note (i.e., an investment banker) would store the note in a vault. If someone defaulted on their loan, the investment bankers would produce the note to prove they owned it and that they had bought it from the loan-originating company.
But greed changed all that.
Instead of vaulting the original note, those notes were "re-packaged" with thousands of other notes into what became known as CDOs. There were low-risk CDO mortgage packages, moderate-risk CDO mortgage packages and high-risk CDO mortgage packages.
Most of those original packages are still valid and producing income.
However, the moderate-risk and high risk-mortgages were not easy to sell. To resolve this, these mortgages were re-packaged by mixing them with low-risk mortgages, and sold to conservative investors.
Remember, the investment banker paid only one time for the instrument and only has the right to place the note in one package. Repackaging was a highly illegal use of mortgages.
In order to hide the trail of their activities, investment bankers destroyed the notes so no one could trace which CDO packages the note was actually put in. But since the notes are destroyed, ownership is difficult to establish.
Who Really Owns Your Loan?
When borrowers default on their loans, investment bankers want to foreclose quickly so they can retain some value to their mutual funds. They quickly sell the mortgage to a foreclosure bank. They can't sell the note because it was destroyed. This leaves the foreclosure bank vulnerable because it does not have proof that it owns the note.
Remember, the only thing that the borrower signed is a note. The only asset is the note that represents the actual property.
And even though the investment banker has a record of monthly payments that he sells to the foreclosure bank, this may not be sufficient to establish actual ownership.
When a borrower is foreclosed upon, the foreclosure represents a lawsuit. The foreclosure bank brings a lawsuit against the borrower for failure to pay. The bank is the plaintiff and the borrower is the defendant.
Since the borrower is the defendant, he has the right to call for "discovery." Discovery is the pre-trial litigation procedure in which both the plaintiff and defendant request relevant information and documents from each other. Discovery generally includes depositions, requests for inspection and document production. The defendant requires the plaintiff to produce the note.
The problem for the foreclosing bank is either it does not have the note at all because it was destroyed to stop the audit trail, or it says "paid in full" -- in which case, nothing is owed to the bank.
If the note has been modified in any way (even with a stamp on it), the defendant can say, "That is not the note I signed; produce the original note to prove you own it. The bank needs to produce one just like it to prove ownership, not one that says "paid in full."
Deutsche Bank: The Warning, Not the Example
Here's one for the little guy that just happened to Deutsche Bank on July 14, 2009. This may now change the entire foreclosure situation.
One New Jersey judge decided to take a stand by dismissing a foreclosure action brought by Deutsche Bank Trust Company of America. The defendants required Deutsche Bank to produce the note as part of their discovery process.
To avoid last minute panic, ask the negotiator or the banks representative once every other week if a trustee sale is scheduled, then you will ample time to deal with getting it postponed.
Next, do seek legal advice, but please be aware, lawyers are not necessarily "knights on white horses" coming to your rescue. Often they have a financial agenda that isn't necessarily in your best interest. I would suggest, in addition to anything you hear from an attorney, that you bring that information and your situation to one (or more) of the many non-profit agencies who are authorized to help homeowners in foreclosure. They can be found here:
Please know this - you do your best - and if the answer is, "it's too late", know that you can recover from foreclosure. It isn't the end of the world. All we can ever do is our best, and then we have to accept life as it comes.
I wish you the best of luck, and if you decide, after getting some advice from the HUD approved agencies, that you would like to attempt a short sale, I'll be happy to answer your questions about that process at that time.
Jeri Creson, Broker
TotalAccess Realty Advisors
This "simple fix" is not so simple.
I believe Realtors and others need to commit to memory the following phrase; "In my humble opinion." Supported with, "I am of course not offering any legal advice."
Further, I'm amazed at how many will actually violate their own Code of Ethics by solicitng people, in wiriting, who have clearly mentioned they are working with an Agent and are simply asking a question.
I realize honest professionals are at a competitive disadvantage. Our non-profits goal is to level the playing field and promote only those professionals who are willing to set themselves apart and be held to the highest standards.
Why would you want to stop the trustee sale, if you aren't going to be able to keep the house? just gaming the system to keep it a bit longer???? if so, you have remarkably low morals.
1. File Bankruptcy.
2. Call Lender ask for Loss mitigation unit & give them your financials.
3. Go for short sale.
4. Give lender deed in lieu of foreclosure.
5. Loan modification.
What you should do will depend on individual circumstances.
Fortunately over the past several years, a growing number of homeowners in the foreclosure process have started to fight back, by stalling foreclosure proceedings or stopping them altogether. The legal strategies employed by these homeowners is known as foreclosure defense.
Some of these foreclosure defense strategies that can postpone a trustee sale include:
- File For Emergency Bankruptcy Protection
- Apply For A Loan Modification and Get It Into Formal Review (Eliminate Dual Tracking)
- Make the Lender Establish a Clear Chain of Title For a Mortgage and Promissory Note
- Mount a Legal Challenge To The Foreclosure For Fraud
- Explore Whether The Lender is The Real Party of Interest
- File A Predatory Lending or Wrongful Foreclosure Lawsuit in Court
- Obtain a TRO or Injunction From The Court
If you are considering implementing a foreclosure defense strategy, it is critical that you retain the services of a legal professional. A successful foreclosure defense strategy may prohibit or delay the foreclosure process or may increase the likelihood that your lender will offer to negotiate a loan modification that allows you to stay in your home.