Two Court Decisions That Could Change Everything for Homeowners

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.

The second decision comes to us from Florida’s Second District Court of Appeals. The decision states that banks cannot substitute standing in foreclosure cases by switching plaintiffs. Standing is required to file a lawsuit. Before this ruling, banks had been playing a game of musical chairs where they would file a suit and then assign a new plaintiff to the case, thereby avoiding the standing issue and moving forward with their suit. The court’s ruling in this case says in clear language that switching the plaintiff does not eliminate the standing issue that existed at the time of filing. If new plaintiff is assigned, they must prove that the original plaintiff had standing at the time the suit was filed before they can move on with their case. This is a huge step for homeowners and real estate investors because it will force the banks to prove standing when they file a suit, not at some point further down the line. This shows that the courts are finally getting serious about forcing the banks to prove that they have the right to foreclose before moving forward with the case.

Fortunately, lower courts around the country are waking up to the fact that the Supreme Court has ruled as clearly as possible in the homeowners favor. Not only has TILA rescission provided homeowners with a powerful tool to stop foreclosure and stay in their house longer, it also creates an opportunity for investors to do some pretty amazing deals. The tides have turned and the banks are being forced to negotiate on our terms. No more begging the banks to accept our short sale and REO offers only to have them demand ridiculously high prices. We can now get the banks to the table and demand that they prove they have the right to enforce a loan.

This makes it more important than ever that homeowners and real estate investors act NOW. This is a massive opportunity for real estate investors. If you know of anyone with a defaulted or underwater note, you need to get in contact with my office immediately at (706)-485-0162. I have spent the last two years building up a team of experienced attorneys and fraud examiners/forensic auditors who specialize in exposing fraud committed in the mortgage process and using that fraud as leverage to negotiate the sale of notes. This opportunity is not going to be available forever; we need to strike while the iron is hot!

We have a huge opportunity to help homeowners and do some great deals with multiple exit strategies. For more information, call me at 706-485-0162.