Weapons for the Legal War. Offensive and Defensive. Lets train an army!

[Jeffrey L. Shurtliff]

I am not an attorney, but a homeowner like many who have had their homes taken. I am sharing this research because I feel our country is going down the drain. When a country gives these corporate citizens tax money to bail them out and then they foreclose on millions, I find that is an insult to the American people. Have you EVER heard of such negligence and that is what it is negligence! I have sued twice before both cases were dismissed, for Failure to State a Claim for Relief to be granted Rule 12b6. A common defense that is almost always invoked by the bankster's attorneys. I have done much research on this as my case does still continue.

A rule of thumb here is if you can afford it hire a qualified attorney DO IT!

If not then this thread is for you as I have done alot of research and there are many of my friends here that also have. There are a few on here that I know, that have property law knowledge far above the professional.


If you file a suit and there is an invocation on the pleadings for Failure to State a Claim for Relief to be Granted, you must slap it down with your reply pleading. Here is an argument I found that looks quite powerful. Wish I had it last spring. LOL

There is legal sufficiency to show Plaintiff is entitled to relief under his
Complaint. A Complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the Plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. See Conley
v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.
1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a
judge's disbelief of a complaint's factual allegations. In applying the
Conley standard, the Court will "accept the truth of the well-pleaded
factual allegations of the Complaint."


I have more alot more and will post more later.

[Jeffrey L. Shurtliff]

PROMISSARY ESTOPPEL

This is an effective weapon which if correctly invoked upon the Trustee will stop a foreclosure. If you have paid trial payments on time and per agreement and do not get your loan modification then you can invoke Prommissary Estoppel with it's four elements. You must show all the elements and then your invocation has power. For use in a non judicial state.

1. There was a promise
2. that was reasonably relied upon
3. Resulting in legal Detriment to the promise
4. Justice requires enforcement

If all of these elements are there and you can prove them with evidence; then they cannot foreclose and if they do you have cause for action. What you do if this is your story under this doctrine. Write a communication to the Trustee and tell him he is barred under the doctrine of Promissary Estoppel and that justice requires the enforcement of the promise rather than foreclosure.

More later.

[TomEason]

Hi Jeffrey

I just read an interesting article reference decision in CA Court of Appeal named Saluto v. Deutsche Bank Nat. Trust Co.

I think you'll find it interesting, and surprising.

Here's a link to the article. http://mandelman.ml-implode.com/2012/05/california-homeowner-in-foreclosure-wins-quiet-title-its-a-free-house/

Enjoy!

[Jeffrey L. Shurtliff]

Hi Jeffrey

I just read an interesting article reference decision in CA Court of Appeal named Saluto v. Deutsche Bank Nat. Trust Co.

I think you'll find it interesting, and surprising.

Here's a link to the article. California Homeowner in Foreclosure Wins Quiet Title ? It?s a Free House! - Mandelman Matters

Enjoy!

Thank you Tom! This is a very interesting article. All should read this. Thanks for posting................Jeffrey

[Jeffrey L. Shurtliff]

The Doctrine of Equitable Estoppel is a powerful weapon to use in the foreclosure war. In the non judicial states this doctrine can be a great weapon to use against the Trustee, who is foreclosing. In the non judicial states most foreclosures and stop sale actions can be accomplished without going to court for a TRO which is only a temporary fix and an expensive one. Remember the central point is to keep your house from selling.

The Elements required to show Equitable Estoppel are as follows:

1. Facts misrepresented or concealed ( their attempt to let delinquent balance build on the loan)

2. Knowledge of the true facts ( they know they will not modify already)

3. Fraudulent intent (their intent to foreclose rather than help you) (bait and switch Hamp tactics.)

4. Inducement and reliance (they have control)

5. Injury to the Claimant ( a good one to use is emotional distress)

6. Clear and concise evidence of proof of the act . ( you must have evidence)

SO , here is the deal on this. If you have paid trial payments on a HAMP and then you are denied, technically this is a presumption of a contract and if they switch back to your original loan enforcing the terms and then foreclosiing; you can bar the Trustee from foreclosing under the Doctrine of Equitable Estoppel.
[IF] you were induced to default, to become eligible for HAMP, then they turn you down and they begin to foreclose; You can write the Trustee a communication barring him from foreclosing under Equitable Estoppel.


More later.....

[Carolinagirl5555]

Jeffrey, I'm interested in hearing your thoughts on my situation. I'm attempting a quiet title suit against my lender and have hit a dead end. The attorney I hired says we do not have a case, but he also told me "I have never done a quiet title suit but have always wanted to do one." That should have been when the warning bells went off, right? My loan was originated by Indymac as a construction loan and the only documents recorded in the county are the construction loan docs and the permanent loan, all in the name of Indymac. Nothing is filed after that. However, they have now admitted that the loan was sold into an MBS pool and Wells Fargo is the trustee. The attorney is telling me that Indymac still owns the loan so no quiet title suit is possible, but the lender is telling me they no longer own the loan but are just servicing it. I have been attempting to modify it for over two years but they keep referring to this super-secret set of investor guidelines which will not allow modification on an investment property (owner occupied by me but loan is in my mom's name so they consider it investment). At one point about two years ago I found information on MERS that showed the loan had been sold to Shearson and then transferred to Aurora. However, a MERS search now shows no record of it at all. I thought a quiet title suit would be warranted as we have no idea who owns this loan or who has rights to it. I appreciate any thoughts you have on this. Thanks tons!

[Jeffrey L. Shurtliff]

Jeffrey, I'm interested in hearing your thoughts on my situation. I'm attempting a quiet title suit against my lender and have hit a dead end. The attorney I hired says we do not have a case, but he also told me "I have never done a quiet title suit but have always wanted to do one." That should have been when the warning bells went off, right? My loan was originated by Indymac as a construction loan and the only documents recorded in the county are the construction loan docs and the permanent loan, all in the name of Indymac. Nothing is filed after that. However, they have now admitted that the loan was sold into an MBS pool and Wells Fargo is the trustee. The attorney is telling me that Indymac still owns the loan so no quiet title suit is possible, but the lender is telling me they no longer own the loan but are just servicing it. I have been attempting to modify it for over two years but they keep referring to this super-secret set of investor guidelines which will not allow modification on an investment property (owner occupied by me but loan is in my mom's name so they consider it investment). At one point about two years ago I found information on MERS that showed the loan had been sold to Shearson and then transferred to Aurora. However, a MERS search now shows no record of it at all. I thought a quiet title suit would be warranted as we have no idea who owns this loan or who has rights to it. I appreciate any thoughts you have on this. Thanks tons!

Carolina Girl..........Thank you for your post. You come forward with a very complicated situation. With you being the occupant and not on the loan brings a question of wheter you have a right to bring such an action. I see some problems in what you say is recorded on the property showing possible negligence, but to show negligence you must show violation of the state statutes. If you bring such an action you must be able to bring enough argument to survive a motion to dismiss. There is also possible liability if you fail.
Currently I have a Quiet title in the Utah District Court that is being briefed with memoranda. It took me a year to build a case to bring. I am showing violation of a state law in the trustee's Deed and am suing Federal Home Loan Mortgage Corporation for Negligence under the Doctrine of Res ipsa loquitur, showing negligence in the recording of an erroneous deed. However I have a lis pendens claim on the property of which survived an action to release of which according to my state law, it has been given presumption. Still with this presumption and infered negligence the defending party has filed a motion to dismiss.

So understand what you want to do is an uphill battle and you must have power to get you claim off the ground. To start you must have an instrument to record on the property powered by Common law doctrine or state law. This gets your foot in the door. However if you record an instrument and have no substantial justification it could come back to bite you. This is a thread of my story and have your attorney read it as is shows my story and the last few pages show events leading to my current action. Crossing the delaware. Dont tread on me It shows proper recording of instruments and shows how to power them as this is the key for standing. It also shows how to use communications to execute the instruments............Jeffrey

[Jeffrey L. Shurtliff]

Substantial Justification
You must show substantial justification in blocking or stopping a foreclosure. This is especially important when and if you go to court, as some of these banks want attorneys fees. Showing a statute of the state or a law of common law will establish substantial Justification, thus showing you are bringing an action in GOOD FAITH. They main thing here is do not let them scare you when you challenge them.