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Who Can Foreclose on Your Home?

Posted on September 7, 2016 by

Picture this: a man purchases a house in 2007 with a loan from a major mortgage lender who then securitizes the loan.  After 9 years of making payments, the homeowner loses his job and defaults on the loan.  The lender sends a foreclosure notice to the homeowner, claiming the ability to foreclose on the loan.  But does the lender actually have the right to foreclose?  The answer is a bit complicated, and does not look good for the major banks.  To understand why, let’s take a closer look at exactly what the banks did and what it means for homeowners and real estate investors.

When a loan was securitized it was lumped together with a massive pool of loans and then sold in parts to investors around the world.  The investors were then paid from the principal and interest payments on the loans based on their percentage of ownership.  It sounds simple enough.  If it was that simple, why did mortgage lenders begin the process by selling each loan in the massive pool of loans through a sequence of sales?  And why was the last sale almost invariably to a single-purpose entity, usually a trust with a major bank as the trustee?  The point of this sequence of sales was to separate the pool of loans from the assets and liabilities of the originating lender.  They did this in case the lender was to file for bankruptcy or go into receivership.  If the loan had not been completely separated from the lender, the lender could then claim the loan by right of redemption, effectively leaving the investors with nothing.  Read More→

Through the 1990s and early 2000s millions upon millions of loans were created. This created some interesting issues for the banks. In some cases, they were looking for ways to cut down on the steps in the process in order to reduce the time it took to process a loan in order to keep up with the flood of business. In some other cases, they were looking for ways to take advantage of the system to bilk homeowners, their investors, and the government out of as much money possible. Unfortunately, the solutions the banks came up with for both of these issues resulted in a system of rampant mortgage fraud that the courts are only now finally catching onto. So how can you determine if your loan or the loan on a prospective deal is fraudulent?

In order to prove that they have the right to foreclose on a property, it is becoming standard for lenders to be required to produce the original note on the property.  The note is required before a court will allow a lender to sell a property.  It must show that the true lender is named with a recorded economic interest in the property.  The note as submitted by the lender in a foreclosure hearing may clearly be fraudulent because it was notarized after the fact with a stamp that was not even valid at the time the mortgage was taken out.  Read More→

I’ve been writing this column for several years now, and I’ve covered a lot of in-depth information about the securitization swindle pulled by the major banks that led to the mortgage crisis and the Great Recession. What I’m going to do this month is to take a step back and give a quick recap of what the securitized loans scam is and how the banks got away with it for so long.

First a little background. The way a bond is supposed to work is that an investor purchases a bond from a trust. The trust then uses this money to purchase mortgages or originate their own. The trust then uses the money made off of these mortgages to pay off the bonds to their investors.

In the case of Mortgage Backed Securities (bonds issued by trusts that consist solely of mortgages), the money the investor paid to purchase the bond was never given to the trust. Since the money wasn’t paid into the trust, it never had any money to purchase or originate ANY loans. Instead the bank essentially put the investor’s money into its checking account. A note was made that said the investor purchased a bond, but the trust never received the money and a bond was never issued. Read More→

Can any bank foreclose on your house? You would think the answer would be a resounding “no!” A reasonable person would assume that only the bank that lent you the money to buy your house or bought your loan through a legitimate sale would be able to foreclose on your home. Well, until a recent decision in the California Appellate Court, that wasn’t necessarily the case.

In a May ruling from the California Court of Appeal, it was finally and clearly declared that “only the person or institution entitled to payment may enforce the debt by foreclosing on the security.” That is to say that a bank must prove a clear chain of title on any loan on which it intends to foreclose. In this specific case, there was a void assignment of a Monica Sciarratta’s note to US Bank. US Bank then claimed the right to foreclose. Sciaratta then sued for wrongful foreclosure and won in this decisive ruling from the Court of Appeals.

The court also included in the Sciarratta ruling a clear indictment of the attitude many judges take that says that a borrower who defaults deserves to have their home foreclosed upon, no matter who does the foreclosing. The Court stated that “The borrower owes money not to the world at large but to a particular person or institution” and that person or institution is the only one allowed to foreclose in the case of a default on that debt.  Read More→

In the last 15 months, thousands of TILA rescissions have been filed across the country. As a result we are finally seeing the patterns in how the banks are responding to rescissions. In case after case, the banks are obfuscating. They try to intimidate homeowners and confuse the courts into ignoring the clear letter of the law; that rescission is effective upon mailing as a matter of law. While they keep up this charade in the courts, they refuse to admit to federal regulators the risks posed by these wrongful foreclosures and the mortgage backed securities swindle as a whole.

First let’s clarify a few things about rescission. Whether disputed or not, a rescission is effective at the time it is mailed as a matter of law. It doesn’t matter what a judge WOULD rule if a challenge is filed by a party with legal standing. The rescission is valid until a party with legal standing can prove through a lawsuit in federal court that it should be vacated within the 20 day window.

Servicers will rarely try to dispute that the rescission happened, but will argue that it is not effective. First they usually send a letter to the homeowner stating that the rescission is invalid and they will not honor it. If the homeowner (correctly) challenges this, the bank will try to get a judge to ignore the law through motions that allow the bank to avoid having to prove actual facts in a lawsuit to vacate the rescission. The bank is trying to get the court to agree to the premise that the disclosures made at the time the loan was made were adequate and that the loan was consummated on the date they allege. All of these are questions of fact for a jury to decide the merits of, not a judge. Read More→

I have written dozens of articles about the massive mortgage swindle the banks pulled over on us. The article that generated the most response was one I wrote in 2013 in which I detailed how Countrywide created 3.5 million fraudulent mortgages. They did it by creating a trade name (DBA) called America’s Wholesale Lender (AWL) that would write loans for them in all 50 states. Well, it took a little while, but we finally have a court ruling that could demolish the America’s Wholesale Lender scheme!

For those of you who don’t know the origins of this scheme, it all started with Countrywide trying to save some money. In order to avoid the licensing fees, corporate taxes, and regulatory costs that each state charges a company looking to operate within its borders, Countrywide created the trade name America’s Wholesale Lender, which they registered in each state. Then they got to work writing mortgages. The problem with this scheme is that a trade name is not a legal entity. It has no ability to own property, file lawsuits or hold security interests.

When a few state recorders noticed that AWL wasn’t an actual company, but a trade name, they refused to record the loans. Countrywide decided to go full throttle into the fraud and listed the lender on their mortgages as “America’s Wholesale Lender, a Corporation organized and existing under the laws of New York”. After that, their loans went through without a hitch. Read More→

The last several months have been huge for real estate investors and homeowners who are fighting back against the banks. Court case after court case has been decided in the homeowners’ favor, and things are only looking better going forward. JPMorgan Chase has just been ordered to pay an additional $48 million in fines for using fabricated documents and now we find out that since 2014 the banks have been buying rescission insurance. But what does all of this mean for real estate investors?

In November of 2012, the president of DOCX, a subsidiary of LPS, pled guilty to producing over one million fraudulent mortgage assignments to be used in foreclosures. In many of these cases, the assignment was created to “prove” that a trust had acquired the mortgage on which it was trying to foreclose. This wasn’t some mistake; signatures were forged, job titles were made up, and notarizations were added after the fact to make things look above board. These fraudulent assignments were used in trusts controlled by Wells Fargo, US Bank, HSBC, Deutsche Bank, Citibank, Bank of New York, and JP Morgan Chase among others. Read More→

Homeowners across the country owe a debt of gratitude to the states of Hawaii and Illinois. No, not for deep dish pizza and black sand beaches, but because their Appellate courts just handed down two of the strongest, pro-homeowner rulings on the issue of rescission that I have ever seen. Despite the fact that the Supreme Court of the United States was explicit in its Jesinoski decision, many lower courts across the country have been acting on their own and interpreting the law as they see it. As you can imagine, this tends to benefit the banks, with their high-priced legal teams, and not the homeowners who are fighting to keep their houses. Fortunately, this is not the way our government works. Our friends in Hawaii and Illinois are the latest and strongest courts to clear things up and ensure that TILA rescission continues to be a strong tool for homeowners to use to fight back against the banks.

One of the most important things that the Illinois court clarified is that ALL notices of rescission are effective upon mailing. It does not matter if the rescission is right or wrong. If the bank does not respond and contest the rescission in court within 20 days from the date they receive it, the rescission is done. Sending a letter at 19 days saying they aren’t going to approve the rescission is not a valid response by the bank. If the bank believes a rescission was mailed too long after consummation of the loan, they have to be able to prove their standing, prove that the rescission is wrongful WITHOUT using the note and mortgage as proof, then hope that the court sides with them and reinstates the note and mortgage. If they don’t file within 20 days of receiving the rescission, they are out of luck. Read More→

Picture this… you buy a house in cash that you plan to renovate and sell. Two years later you have renovated the house and you try to take out a line of credit to purchase another property to renovate and sell. You’re excited to move forward until the bank tells you that you don’t own your house anymore because it has been foreclosed and sold to someone else. This is exactly what happened to a Montana couple. The family sued, and during the trial the bank did everything they could to get out of their responsibility for the error. Fortunately the court and the jury saw through the bank’s lies and ordered them to pay $350,000 in lost profitability, $100,000 for emotional distress and $1.6 million in punitive damages. This is part of a larger national trend that shows courts coming down hard on the side of wronged homeowners, creating opportunities for investors across the country.

Florida’s 4th District Court of Appeals recently made a very subtle change that changes what the banks are allowed to submit as business records to prove a loan was made. The banks have been utilizing the tactic of sending employees with no knowledge of the loan in question to court in order to testify about the general practices of the bank instead of actually addressing the specific loan. The witness uses all the right buzzwords, stating that they are familiar with the books and records used by the bank and that entries were made near the time of the transaction. However, they have no direct knowledge which transactions were done by their employer. Before this ruling, the courts were acting under the presumption that the homeowner did indeed receive a valid loan from someone in the chain that leads to the foreclosing party. Now the presumption is that, though documents might have been executed, a loan was not necessarily made. This now puts a burden on the foreclosing party to prove with actual, valid documentation that a loan was made and that they have the right to enforce the loan.  Read More→

Despite what you may be hearing in the news, foreclosures are increasing nationwide. Sure the media has been trying to paint a rosy picture by showing areas where foreclosures have been decreasing, but those are only specific areas. When looked at nationwide, things do not look so great. Foreclosures are bad enough, but the fact that the vast majority of these are sham foreclosures pushed through by pretender-lenders with no right to foreclose should be a source of national shame. Fortunately there have been two major court decisions that show the tide is continuing to turn against the banks and in favor of homeowners and real estate investors.

In US District Court for Oregon, a judge reaffirmed that the Supreme Court of the United States settled that a rescission is effective at the time that the notice is sent, whether or not it is sent within the three-year period set out by TILA. The bank in this case was arguing that the law was never intended to let borrowers cancel their loan transactions. The court specifically shot this notion down, saying that, while the banks and trustees have an interest in the finality of these transactions, consumers have a “countervailing interest in avoiding wrongful foreclosure.” This is a HUGE decision because it affirms that, no matter what the banks say or what lower courts try to argue, a rescission is effective as an operation of law the moment it is dropped in the mail. It does not matter if the rescission is done 15 years after the loan is consummated. If the bank fails to contest the rescission during the 20 day period established by TILA, the note and mortgage are gone. Their only option after that period is to go to a court that has the proper jurisdiction and prove that the rescission is wrongful and that they can prove standing without using the note or mortgage (now legally nonexistent) as evidence. Read More→

Let’s say you’re behind on your mortgage and the bank has filed foreclosure. You look into it a little bit and you see that your loan was securitized and sold as part of a big bundle and has been traded around the banking industry for the last 5 years like almost every other mortgage out there. You decide you’re going to take action and, using the rules established in the Truth in Lending Act (TILA), you send a notice of rescission to the bank and anyone who might try to claim ownership of your loan. The 20 days have passed and all the bank has done is sent you a letter saying they’re not going to honor the rescission. If you’ve been reading my previous articles you know that holds no water, and that by operation of law your note and mortgage are void. You can now be expecting the bank to return your canceled note, remove it from the property records, and return all of the money you ever paid on the loan, right? Wrong. You still have more work to do.

While the Supreme Court has given homeowners some power back against the banks with the January’s Jesinoski ruling, the chances are you will still need to take the bank to court to enforce the rescission. You’re going to want to move quickly because after one year from the rescission, you lose all right to the money that you paid the bank for the loan. The mortgage is still void, but you’re never going to get your money back. On the flip side, after a year the bank can no longer collect any of the money that you received with the loan. Read More→

The process is supposed to be simple. If you have a securitized mortgage, you make your payments to a servicing company. The servicing company is granted the authority by the certificate holder of the loan to collect the payments and enforce the terms of the loan. But what if that servicer never actually had the right to collect? Even if they had the right, what if they covered all of your missed payments to the certificate holder and its trust that owns your mortgage? If this were the case, your loan is current. Would the servicing company have the right to foreclose on your loan that is current with the certificate holder/trust?

In most cases the servicers are making the mortgage payment to the certificate holders (the owners of the debt), whether the borrower makes their payment or not. This means that the certificate holders of the loan are getting paid, therefore there is no default giving them a reason to foreclose. This certainly explains why you very rarely see a declaration by the certificate holders or their trusts claiming a default! The servicer makes the payments and collects their service fees until they decide to foreclose, despite the fact that the certified holder of the debt never experiences a default. Once they foreclose on the loan, they can collect even more fees. Pretty sweet racket for the servicers, right? Read More→

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