Bagels at a Bar Mitzvah

[isisis]

Bagels at a bar mitzvah. I used that term recently in a forum to describe the eagerness with which I would be handing out modifications to vocal individuals who "get it" if I were a bank that had made a gazillion dollars double dipping in securities fraud, credit default swaps and fraudulent assignments and wished to continue to do so. It would seem a thrifty form of insurance as a happy homeowner with moderate payments is far less likely to dig deeper, engage in conversations about fraud that in this new world of communication spread and might even grow to the point there could be consequences for greed. I was kind of kidding and didn’t really expect that sort of prudence from banks and the following is probably coincidental…but….

I’ve been in foreclosure three times and two years ago was essentially lured into Countrywide’s modification program and then misled into default. A few QWR, Civil Code and RESPA violations later no modification, a sale date and finally a preventative BK.

Knowing the terms of the BK were economically prohibitive even if I cut out luxuries like heating my home this winter and inspired by the stories of others fighting back I went into battle mode and became vocal on this forum and elsewhere. I submitted complaints to the OCC and Attorney General, faxed the CEO and OOP with my concerns. I then began investigating the loan trust into which my loan could only have been placed by magic or unlawful means and county records where there is evidence of notary fraud voiding the foreclosure initiation.

As expected my attorney bailed on me after I told him I wanted to file Bofa as an insecured creditor as they had no standing to foreclose and the chain of title was broken. He told me this judge thinks standing should be determined in civil court and people like me just want a free house (yes, I told him it wouldn’t be free unless they returned my $300,000 with interest). He completely side stepped the evidence of fraud and brought paperwork to court to sign me over as pro se.

Just a few hours later after getting a continuance on the confirmation of the BK plan to gain more investigative time a Mercedes pulled into my driveway. She might as well have been carrying a sign that said short sale. Instead she was from Bofa, said they’d been trying to get a hold of me, wanted me to call.

So, I called Bofa and Maurice told me they have a trial modification ready for me. What????????????? I made Maurice repeat himself a couple of times. Same story.

The word “trial” seems operative enough to prevent jubilance, until I see it on paper I’m not counting on it and the timing of it all is perplexing.

I’ll be the first to acknowledge that coincidence is a mathematical inevitability but come on! Two hours after getting a continuance to investigate the evidence of notary fraud found at the recorders office three days earlier and numerous posts and google searches inquiring into CWAB 2006 SD2 I get a personal visit to let me know about a modification?

I would imagine Bofa has some sort of risk analysis section in which troubling loans like mine are placed – the ones who make a fuss over details like adherence to the law. Is it inconceivable that the balance between making a reasonable income on the interest of a loan and fleecing someone for everything they’ve got might be tipped by the risk of litigation or even the need to mollify vocal borrowers investigating the same issues as the Attorney General or questioning whether their loan trust still exists?

Bofa has asked me on various occasions for my email and I obliged though they’ve never contacted me by that means but if that enabled them to monitor google searches….
...Ok, I’m not saying that typing T. Sevillano notary fraud or CWABS 2006 SD2 hundreds of times is an incantation that results in a Mercedes delivered modification. Maybe it was the OCC complaint mentioning Civil code and RESPA violations and unfair business practices, letters to the CEO, emails to my “investor”, debt validation letter, all of the above, coincidence….? Or perhaps just a trial mod to fund the foreclosure before tossing me out, still it’s bought me some time.

Maybe I’m just putting a positive spin on my paranoia but if I hadn’t gotten aggressive, hadn’t learned the law and my rights I wouldn’t still have my home and I think the more we learn about what’s happening and the more we speak up the better our chances are of keeping our homes.

I want to encourage people not to give up even if it looks bleak. Just because you can’t afford an attorney doesn’t mean you can’t learn your rights and try to assert them by letting the banks know in writing that by proceeding with a foreclosure they will be breaking the law.

Two Loansafe threads I recommend reading to see how others are fighting back with some success are Freedomwon’s “My recent letter to Bofa” and “Forged, robo signing, mismatched signatures”

Thanks Loansafe!
Isisis

[freedomwon]

Hi isisis - Thanks for giving us an update on your experience in court. Some things in life are coincidence while others simply are not. The timing of the Mercedes pulling up into your driveway is no accident. Last thing BofA wants is more "discovery".

I've become a bit cynical at this point in the process. I sincerely do hope a trial mod you can actually live with is on it's way to you shortly, however; DO NOT LET YOUR GUARD DOWN. Don't let a day go by that you aren't moving forward like a steam roller on your discovery process & gathering additional evidence.

It will be interesting to see if you get any sort of loan mod that actually makes good financial sense. Keep up the good work!

[freedomwon]

Still, if I were one of the Emperor’s ministers and saw some kid snickering and getting ready to point his finger I think I’d distract that kid with a loan modification.

Apparently, the woman in the mercedes was one of the Emperor's ministers! LOL

[Tarin Myhairout]

Isisis:

Many of us chortled at your 'Bagels at a Bar Mitzvah' line - I adored it!

"Coincidence" is a tricky concept, and I think pure coincidence is rare. The Mercedes in the driveway is just too precious - and a very striking image. We would be naive to think that BofA et., al aren't stalking this Forum. I don't know about the quality of other sites, but just look at the evidence you, Freedomwon and others have found - and shared publicly here. Big Brother may not be watching, but BofA is!

Of course they are data mining! If their own programmers can't do it, there are plenty of companies dedicated to digging up uncomplimentary cyber news, and defending against it. I envision the counters at the bottom of the screen spinning like the wheels on a one-arm bandit.

Your stories are detailed, complete and credible. The Risk Management team has not only dropped the ball, they have accidentally kicked it into the opposing goal. It might be that the fraud and incompetence is just too vast to overcome easily. They are scrambling now, but can't unring the bell.

I think Barb D. knows too much and now they are edging her out the door. It would be in their best interests to grant her not a golden parachute, but a platinum orbiter. I hope she leaves the dark side and blows that whistle long and loud!

Attorneys bail on their clients because taking on BofA or any big Bank is an office-closing proposition. If you don't have enough $$ to pay to keep that office open, the attorneys can't carry the case. (I don't like it, but I get it)

I don't think we should underestimate the power of strength in numbers. Just think of all the people who find this Forum, see the similarities in their stories, and join up and in with their own ideas! This is empowerment, and results in a true force to contend with.

Finally, maybe it is also part of that whole karma thing. You have been helping other people with your story, and been generous in sharing your research and expertise. You never know how or why that might inure to your benefit.

I echo Freedomwon's worry that this is just another trick; but I don't think so. Wouldn't it be great if it showed up as a perm mod? Stranger things have happened. (I would prefer a 'paid in full', but probably not...) You are not fooled - if they try something else, you will be ready.

For now, just take a moment to savor this victory!

As Always,

Tarin

[isisis]

That was nice, Tarin, thanks for saying it ...and you were insightful as always, Freedomwon, both in suggesting caution and remembering our use of Tarin’s analogy.

As it turns out the keyword is distraction not modification. Distraction has been the purpose of the loan modification from the start and being wiley (the Emperor’s ministers) they’ve made the process itself distracting, painstaking and personal too so it becomes the focus of attention and we lose track of the fact that the need for modification is due to their misdeeds and the damage they caused. They want us distracted with the hope and pursuit of the nearly unattainable loan mod so we don’t pay attention to how they got us in this mess, and the laws they broke in securities and then covered up with another fraud.
Then we are supposed to go hat in hand and ask these criminals if they would please allow is to have low enough mortgages payments so we can afford to feed our families.

Finally, I found they were wiley enough to not quite give me a mod yet but to distract me with “a little more paperwork” – so I don’t know about this….,,,

[stephanies]

isisis...FYI....if you are still in need of a FC defense attorney in the North Bay, I just noticed that on Max Gardner's Boot Camp website, he lists 'graduates' of his courses, one which is now FC defense, and there are several that have done both BK and FC defense bootcamp that are in the bay area....

[isisis]

Thanks Stephanies,

I do have some names of Gardner graduates in my area that I ‘d like to speak to; if you or anyone has specific recommendations that would be great. An important lesson learned about pro se representation this week that might be fairly obvious to those of you with legal experience is that being right doesn’t mean you’ll win. A Judge with his mind made up would also trump a Gardener graduate with evidence of fraudulent assignments and lack of standing though they would at least be aware of the Judge’s leanings beforehand.
I still think that Freedomwon’s approach has the wisdom of economy as well as appealing to my idealistic side that would like to think that the justice system is set up in such a way that an individual can interoperate laws and demand they be complied with in a dispute and that that minimally would provide groundwork for any subsequent legal action.

The question that I keep wondering is how most effectively to use evidence of their various unlawful actions to negotiate a modification. How (in a QWR?) and with whom (addressed to the bank, the negotiator?).

[fightforit]

just a quick question-
why would you sign any mod paperwork after disputing the debt?
I am assuming you disputed it right?

[Annie Mac]

There is so much wisdom from the postings of this group. Like in an auto accident, afterwards, it doesn't matter who was right, who had the legal right of way, if you died in the accident..the goal is to come out of it uninjured and alive. I know we will not come out of this uninjured, but we will be strong, courageous, and elders who will still be alive with core values that won't be swayed or bought off.
I saw the film Meltdown, produced by Aljzeera and shown on Canadian BBC. It is a powerful view globally of this crisis. Sometimes it is good to step back from one's own documents and details and see the picture from a wider lens. It was physically hard to watch footage of the CEOs in their meetings, but it gave a panoramic view of the financial crisis.
Isisis is right about the distraction.....thinking this about a modification being dangled like a carrot in front of our eyes. We have all by now learned how to stepdance, quicktime and play the fiddle simultaneously. After going back through some old postings, freedomwon, you were writing about quiet titles at the end of last year. What did you discover, and what are your current thoughts on this? I know they vary state to state, but they seem to be one of the few tools available. May we all come out of this car wreck, standing on our two feet.

[freedomwon]

Hi Annie Mac,

What I learned about quiet titles in Ca. is that in order to file a Quiet Title, I must have a pending action against my lender. So, in other words I would need to file suit & take my lender to court. In addition, courts in Ca. require a bond be posted that is equal to the remaining balance owed on the loan in question. I haven't found a way to circumvent that; however, if I remain in the home, get foreclosed upon, and then get served with an unlawful detainer, I could file an answer & ask that the case be moved to a different division of the court & counter complain with quiet title in my answer to the court. But I'm not certain how or if I would have to file a bond with the court. That's still the big mystery to me.

[isisis]

Hi Fightforit,

I disputed the debt back when BAC switched to Bofa. When they didn't respond I wrote again starting with "Your lack of response indicates to me we are in agreement regarding the questionable nature of this "debt"" and later,

Please provide a written affidavit under penalty of perjury from someone who has first hand knowledge of the facts that stipulates the following:

a) The debt is valid and no discharge has occurred on this debt.
b) No tax credit was received for the discharge (if any) of the debt.
c) The debt has not been paid in full when the loan was securitized.
d) That Bank of America, N.A. has the authority to collect the debt on behalf of
CWABS 2006-SD2.

This is BTW is a personalized version of Freedomwon’s brilliant dispute of debt letter.

Again no reply from Bofa. It seems to take two to resolve a dispute.

I’m continuing to look for a trail to the money, i.e. see if it is possible to find proof that the debt was satisfied and consider quiet title but not necessarily counting on that. I’ll grant you it feels a bit creepy trying to negotiate after all I’ve found out but the goal is keeping my home. The only option I won’t consider is giving up or selling. I won’t leave voluntarily, if nothing else works I’ll see if Occupy will come out.

Any ideas or suggestions?

[freedomwon]

isisis - I believe BofA has answers to those questions sitting in their financial records somewhere. (A,B,C,D). I would imagine the answer can be found within a highly specialized department within the bank. (Certainly not records that are made public). BofA employees are kept insulated with many layers of corporate protection it seems. If you find yourself back in court, perhaps you can incorporate this line of questioning as required "burden of proof" from BofA. I don't see any other way to get answers to those questions. (I designed it that way on purpose)! he he he

isisis - Did I show you "the plan" on what can be done once the trustee sale takes place? If not, let me know & I'll post. I'm not giving up & I'm not selling either!

[fightforit]

Maybe I’m just putting a positive spin on my paranoia but if I hadn’t gotten aggressive, hadn’t learned the law and my rights I wouldn’t still have my home and I think the more we learn about what’s happening and the more we speak up the better our chances are of keeping our homes.

isisis - your words in this post say it all and should be printed on a poster and given out to everyone in this fight.

Educating ourselves is the key.

Watch and read everything and concentrate on our own States laws and Court cases.
Let your AG know what is going on. Pressure them if they are not of the few that are fighting the settlement.
Also make yourselves aware of what is happening in your own neighborhood.
Check out all your neighbors mortgages info on your Registry of Deeds website. Watch the Public Notices in your local paper.
Do you know how many of them are are in this battle too?
Most will not share this info until you let them know you too are in this.
It is public info.
Share your knowledge with whomever will listen. Try to educate them about MERS if they have it on their mortgage.
We have power in numbers people.
Share the knowledge.
It will not only help others but it will help you.

[stephanies]

isisis... I have discovered this past week, that if you are serious about saving your home, then you need to be on some of these other sites out there that have attorneys and experts in foreclosure defense commenting and bringing the community up to date about what is going on, and what defenses are working... I am a bit frustrated that this forum is having us all advise each other, when we have no experience doing such, and there are other sites out there that are educating consumers on what their rights are, and what resources are available to save their homes.... I have learned more from those other sites this past week, than I have learned from this forum in the past 8 months... that is just my opinion, but I am now invigorated about what I have discovered on these other sites.. some of which list ALL of the cases out there by state, and lender on foreclosure and bankruptcy matters...here is my two cents, which I can empathize with you as I am in the same boat as you, but several months behind in the timeline....from everything that I have read, to show your hand with a QWR BEFORE you have the protection of the court in getting the other party to HAVE to give you that information, you risk them not having to tell you all that you need, or give them the time to cover their tracks and make sure that all paperwork is in order before they are confronted with having to give you a mod... it appears that the banks in most circumstances are not doing mods unless its in their best interests to do so ( equity in the home, clouded chain of title or note issues that a mod would fix, or public pressure to do so... ) OR, if a court makes them do so.....I believe that the best use of your information that you have gathered is to present it to a court, and get the judge to order the other party to show a legal chain of title and standing....I have read about too many instances of when the other side has to do this in court, and can't, then they are more than willing to give you a modification to make things all better...sorry to be a downer, but this is a chess game, and you need to anticipate the other sides every move and every possible option, and you need to do so with the court's oversight, if you want it to be a fair fight....

[Tarin Myhairout]

Isisis:

Finally, I found they were wiley enough to not quite give me a mod yet but to distract me with “a little more paperwork” – so I don’t know about this….,,,

(Emphasis mine)

I think you have just named the latest in a long line of tactics.

After all my wailing and gnashing of teeth, I was contacted on Friday by both my FreddieMac guy, AND the new person to whom I am supposed to send my new application. They began by saying "...since you are in a redemption state, we are able to rescind the sale (Me, gasping for air, finally! this is gonna be over, I can have a life again, etc., etc)"

Then, I get the email with the new HAMP APP, and a letter stating, "...as we discussed (NOT), you must qualify for a modification before we rescind the sale. "

So, what did I get, exactly? Nuthin'. Our redemption period runs to April 18th, 2012.

I can predict with almost 100% certainty, how this is going to play out, ( except I won't let it).

This is the scene as written by the bank:

1. We send in the Hamp app.
2. They lose it, or don't receive all the supporting docs.
3. Time goes by, and they finally do find all the docs, and then sit on the file for as long as they can.
4. They run the redemption clock nearly out, and then either:
a. Improperly deny the application, or
b. Offer a modification that makes no sense to accept.

In either a. or b. above, the redemption period has run, and we are finis. They are going to argue that they took the extraordinary customer service step to let us re-apply for HAMP after the foreclosure sale; but regretfully, we just didn't qualify, and now time is up.

I know we qualified the first time around and they foreclosed anyway, so why would look for a different result this time around? They wouldn't reveal the basis for their earlier decision; but had they followed the rules, this mod would have been done months ago.

Probable areas of 'error':

Income calculation
Late fees
attorney fees and costs**

** Is going to be the big one, because I am sure they are going to try to charge me for the wrongful foreclosure costs and fees.

The new HAMP application contains an agreement that " I will accept the modification that is offered." That makes it sound really non-negotiable, because it is coupled with another statement that the loan is not modified until the trial payments are complete, and the counter-signed docs are received.

Even under the most optimistic scenario, there is not time for us to make three trial payments before the redemption period runs.

Isisis, you are right to be worried and frustrated about this. You're also right that this is another distraction. BUT, since you have figured out the name of the game, BOA won't get away with it, and neither will US BANK.

Thanks for your insight.

Tarin

ps. Lest we just seem too paranoid, hop over to Estela's latest post, Chase Executive Escalated Claim...

After making a $5,000 'contribution' the bank kept, monthly payments the bank wouldn't accept, a promise to rescind the foreclosure sale, dismissal of the UD proceeding, and over three weeks of 'account maintenance ' all under the watchful eye of the Iowa AG; it appears that the house file is back in the Collections Department now!! The bank rep even asked a supervisor about the file, and then called back with with a snide comment about Estela living rent-free for so long; and demanding to know what they were going to do about it.

You and me? We are a long way from a loan modification.

[Annie Mac]

Well, if things go really south Isiss, we can all come camp out at your house and have a bagel party! Bagels are as good a defense as anything.
Stephanie, you are absolutely right about the other sites...especially Mandelman, ssgoldstar, Max Gardner. I am reading Fool's Gold, the story behind Chases' role in this. It is important to understand how they think. One of the most important pieces of information is John Stuart, who says to toss out everything you think you know about this. This is a different bank than we grew up with, and certainly different than just recently when we signed those original deeds of trust.
Freedomwon, it seems in Oregon that there is a one year period of waiting to allow any parties to come forward after one files a Quiet Title. Most of the cases are from the turn of the century, and it was originally to take care of mining claims, grazing rights, etc. There have been a couple of most recent cases which don't seem to have a solid pattern from the court. The good thing is, though, that in a non-judicial state, it does put things into the court system. So far, there is no need to have an action from the other side, and I have not yet come across the requirement to post the money upfront for what is owed on the note. Still researching.

[isisis]

Stephanies,

I value your insight and I am likely to end up in court. I think sending QWRs through out the process is helpful and if they don’t provide the information requested that’s helpful too because it’s a RESPA violation which can be part of a wrongful foreclosure action.

I find the law fascinating; there are even some lawyers I like but there are others who think the law belongs to them – like the Medieval Church that kept the bible in Latin so the laity couldn’t read it. I think the law belongs to us all so I’ll learn as much as I can and interview a ton before retaining one – and subsequently driving him/her crazy.

I do spend time on other sites - most often Living Lies but your input explained why this is my favorite site; because I felt like you told me that because you cared and that was really nice. This site feels like community, like I’m not fighting this alone. A support system in the midst of something as devastating as foreclosure can’t be overvalued.

This isn’t just about our houses, this is becoming a social movement where people are seeing we need to work together to bring change.
Sometimes awful things have to happen so that we exercise the muscles of democracy.. It forces us to become involved in government and in keeping justice real. Who is more equipped than homeowners to understand the importance of fairness and equity?

On a personal level, I am reassured to find that decades of comfort haven’t rendered us complacent. My own fears of homelessness were dwarfed by the sacrifices I saw the people of Egypt make in their ongoing struggle. Then I was wonderfully surprised to see our often self-indulgent culture recognizing the power of our right to protest and oppose injustice and their willingness to suffer for that essential aspect of representative government.

I think those of us who are computer literate and have the sort of minds that don’t object to weaving through the legal intricacies should do what we can to make what we learn accessible to people that are overwhelmed and need to know how to fight back. That knowledge is power. I believe it should be free

Freedeomwon,
As for the location of the information, yes, much of it would be within Bofa where it could only be brought to light by hackers (Julian Assange where are you? Is there a Bofa Bradley Manning?) or legal discovery but the other end of the transaction – it can’t all have stayed there – that’s the trusts.

Neil Garfield has an interesting perspective on our relationship to the investor. He calls us not borrowers but issuers; that’s according to his view of the rules in a PSA and secruritization and suggests we work with them. Just now I was talking with a forensic expert who works with Garfield and he said they think the pools never made it into the trusts at all. I’m still trying to get him to explain the ramifications of that.

As always, Freedomwon, you will have a pleasant, tactical maneuver for us but I can’t help trying to second guess…something preemptive to de-incentivize eminent foreclosure…clouded title or something that would void the sale itself? On the edge of my seat.

Thanks for the bagel invite Annie Mac, make mine onion with lox cream cheese and capers!

[nugirl]

Hi Annie Mac,

What I learned about quiet titles in Ca. is that in order to file a Quiet Title, I must have a pending action against my lender. So, in other words I would need to file suit & take my lender to court. In addition, courts in Ca. require a bond be posted that is equal to the remaining balance owed on the loan in question. I haven't found a way to circumvent that; however, if I remain in the home, get foreclosed upon, and then get served with an unlawful detainer, I could file an answer & ask that the case be moved to a different division of the court & counter complain with quiet title in my answer to the court. But I'm not certain how or if I would have to file a bond with the court. That's still the big mystery to me.

Hi Freedomwon,
Can you explain about the different division of the court, please?

[Tarin Myhairout]

Freedomwon;

But I'm not certain how or if I would have to file a bond with the court.

Would you have to file a bond if you filed a lis pendens, not on a quiet title action, but some other claim; say under consumer protection/ deceptive trade practices, or similar?

That is my strategy.

As we near the end of the Redemption Period here, (remember, I missed the sale date because they told me they weren't foreclosing) I am going to file my notice of lis pendens with the county recorder. The corresponding action is going to be in District Court and calls title of the property into question, but it won't be a quiet title action, it is going to be a deceptive trade action. (Important here is that MN has a Private Attorney General statute which authorizes treble damages and encourages punitive damages in deceptive trade cases.)

Just another research thought: You can often find a shortcut to things like bond requirements by looking at Court Rules - these are not found in statutes, but are separate things published in Practice Guides. They are supposed to be just procedural rules, but are often used to kick non-lawyers out of court for violating them. Those rules cut to the chase about just what you have to do in each type of claim.

It is important to know the unpublished rules, too; those informal 'customs' that are unknowable to regular people who don't hang around courtrooms. It may be worth asking a legal aid attorney about them. For nothing more than the cost of a lunch, you can get a lot of good procedural information. Goddess knows how we would ever have time to do it, but volunteering at a Legal Aid office can give you a great legal education.

Freedomwon, you are already a great researcher and have a gold mine of information. Have you shopped it to any Law Firms who would take your securitization fraud case on a contingency basis? You have already done all the work! And it seems to me that CA is a goldmine of similarly situated plaintiffs. One good win is all they need to create a full -employment- for- the- firm plan.

Regards,

Tarin

[freedomwon]

Hi Freedomwon,
Can you explain about the different division of the court, please?

Hi nugirl - I'm still working on studying this. The way aI understand it, If you have a couple different cases going on with the courts, there's a way you can basically have it consolidated & heard all in one division of the court. That's where I was heading with that idea.

[freedomwon]

Hi Tarin - Thanks for pointing out there may be other strategies to invoke. Regardless of strategy, in Ca. it will run 5-8K to start & could run up 25-50k in legal fees by the time all is said & done & still no guarantee I would win. Be certain you speak to a competent attorney in Real Estate Law & feel comfortable that you're getting a REALISTIC & honest assessment of what to expect.

Have you shopped it to any Law Firms who would take your securitization fraud case on a contingency basis?

I have not approached it from that perspective. That, is a good idea. I will inquire about that. Most attorneys in Ca know what the judges rulings have been in these type cases. I'd be surprised if I found one to take the case on contingency. But, I'll never know if I don't ask.

[nugirl]

all in one division of the court. That's where I was heading with that idea.[/QUOTE]
Hi,
Would you happen to be referring to the "at law" and "private" sides? Or perhaps, chancery?
I filed a complaint and a lis pendens back in July in State Court. In August, I successfully obtained a 2 month TRO (temporary restarining order) in order to halt a trustee's sale. 2 days before the hearing for a Preliminary Injunction (which is a premanent restraining order) the defendants strategically removed my case to federal court. Which meant everything in state court was vacated including TRO. I re-filed an emergency TRO along with a motion to remand back to state court. The TRO was denied and my house was sold on 11/14 at the auction. It went back to the servicer (Aurora). My motion to remand was granted on 12/7. I am still in my house and I plan on fighting until there is no more fight in me.
Freedomwon, I don't know your story that well. For some reason I picture you with small children. But I KNOW you have what it takes to represent yourself. Representing yourself is very challenging and it does take over your life. You can become consumed. In the midst of this hell, I have found my passion in life. I know that what I have done so far would have cost thousands of dollars, although I have saved money it has cost me time. Fotunately, I'm self-employed, single, my daughter is in college and THANK GOD, I live only 20 minutes from both the state and federal courts. In stating that, I have the freedom to pursue this wholeheartedly. For those of you who are not in a position similar to mine, representing yourself may not be worth it. But, I do encourage everyone to stand up and fight for what you believe in. If we all pooled together our wisdom, knowledge and resources we could cause some damage.

[isisis]

Hi Freedonwom,
Still looking forward to seeing your latest, the Plan. Meanwhile, I have something you might want to add to your arsenal, a bit of Uniform Commercial Code that spells out what the promissory note has to do with a foreclosure and this will not make Recontrust a Happy Camper but I’m not sure that ReContrust deserves to camp happily. I will hop over to “My letter to Bofa” and leave the uniform and California version on that thread

[freedomwon]

isisis - I just might incorporate that verbage into my next letter for request for postponement. (With your permission of course). Recontrust however simply follows instructions from BofA. One interesting tidbit for you . . . the next sale date is for middle of January. As I look at the sale calendar, most trustee sales in my area for January have a sale amount. My home does not. I'm beginning to wonder if this somehow connected to the fact they never answered my debt dispute letter. So long as the debt is being disputed, I would think BofA does not provide any final sale instructions to Recontrust.

[Tarin Myhairout]

It went back to the servicer (Aurora). My motion to remand was granted on 12/7. I am still in my house and I plan on fighting until there is no more fight in me.

Nugirl:

You do my heart good! That removal to Federal Court was just a procedural maneuver to make you back down; and you DIDN'T! How dare they? If it makes you feel any better, it is a huge slap in the face and professional embarrassment for them to lose one of these - to a pro se party!!! Huzzah for you!

Freedomwon: Pro Se is where it's at for us. We don't have the $$$ to retain counsel; even if we could find someone to take it on. If I go down, I will go down swinging; and it is going to cost the bank. I am sufficiently angry about this that they aren't going to be able to just wave me away.

I know for many Forum members dealing with HUGE mortgages and impossible payments, this seems like a real yawner - who can care about a $36,000 mortgage? But I came up poor. I have always seen the poor paying the highest interest rates, getting the worst quality of goods and services, being the last hired and the first fired.

The people who need the modifications the most are the last to get them. Why? The first foreclosures were happening in areas nobody really cared about anyway. It wasn't until middle America started seeing the neighborhoods flooded with the 'foreclosed property' signs that it seemed important enough to do anything about it.

And the modification process itself is a middle income game. From the very beginning of this ordeal, I have wondered how you ever get a loan mod if you don't have broadband internet and a computer at home, email, cell phone, copy machine, fax machine, access to all during regular business hours, and pretty good English as your first language. In our area, faxes cost $1.00 a page. I have submitted the same documents multiple times, via email and fax. People living paycheck to paycheck simply don't have the budget to apply for a 'free' loan mod; and that's assuming you have a job that allows you to be absent the time it takes to deal with the process; and you can afford an even smaller payday next week.

The irony is that our foreclosure still happened, because the bank lied to me about it. And afterward, I was repeatedly told there was nothing I could do about it. But they are wrong. I kept calling, I kept faxing, I kept writing. I can fight it to the last; and that is what I am doing.

And as of last week, FreddieMac agreed to require the Bank to finish our Hamp review and rescind the foreclosure sale when we are found eligible - which we clearly are. I don't trust the Bank, and so my lawsuit is ready to be served and filed when they try to let the redemption period run without a HAMP mod.

I'm doing it for us, and for all the other people in our neighborhood and in our city who didn't get the help they were promised; did all they were supposed to do, and were foreclosed upon anyway.

I don't know if my lawsuit will get any traction in the 2nd Judicial District, but it will cloud the title and make the Bank pay an attorney to respond to it. It strikes at the heart of the HAMP fraud perpetrated by the banks. It is unusual enough that it might even garner some media attention -and then the Bank can explain to the public why it was better to make it come to this than deal responsibly with such a tiny loan. (US Bank does NOT need more bad press in MN; and the city doesn't need another foreclosed and vacant house)

The caption is from the old advice about how to present your case in Court: "When the Law is on your side, pound on the Law. When the Facts are on your side, pound on the Facts. When neither are on your side, pound on the Table! I have plenty of law and facts on my side, but the table pounding is important, too. And in the final analysis if it is the last available option, then it has to be done.

Freedomwon - you obviously have what it takes to do this on your own; you have already done everything else!! Whether or not you decide to undertake this last step is your decision alone; but I might feel sorry for any attorney who went up against you. If you need any further convincing, just take a little poll of LS Forum members to see who else thinks you can do it.

Now climbing down off the soapbox,

Tarin

[isisis]

Received a response to my OCC complaint today which I was told would be treated like a QWR. A previous QWR was "answered" by their legal dept, Blank Rome, in which my questions regarding the violation of Ca Civil Code 2943.5 and the terms of the Stipulated Judgment they declined to answer as being outside the scope of a QWR. It did, however, provide an accounting showing over $10,000 in various fees over the life of the loan.
This time my answer was through the Office of the CEO. The OCC complaint deal with Civil Code, Stipulated Judgment , RESPA violations and with Unfair and Deceptive business practices - that's what the AG pressured them with in the Judgment.

“Bofa acted in bad faith by offering me improved loan terms, misleading me regarding crucial information, not following the laws of foreclosure procedure meant to protect borrowers by ensuring actions are overseen and signed by proper parties, by ignoring correspondence requesting an explanation for these things and finally delaying denial. I think laws were broken and the modification process used for the opposite reason it was created – it was used as a means to maneuver me out of my house. There is no proof that they acted intentionally. All I can show is a series of actions, their results and that I have been injured due to unfair and deceptive business practices.”

With the receipt of this answer, I am now convinced that in order to move up the ranks in Bofa you must become tremendously adept at the art being evasive. There can be no question that she read my letter as the bulk of hers was in paraphrasing mine but without answer or explanation until she hit on something that could work as a theme and jumped on it. However, a misconception I may not cure her of it – she became convinced I’d been turned down for not sending in paperwork (for which I received a little lecture). That seemed cute to me, after reading off a list of legal violations that they are guilty of I got scolded! LOL. Then finally, she exhorts me to work hand in hand with my very own Customer Relationship Manager and thanks me for my business. Maybe it’s even stranger that I’m finding this amusing. I will probably become less amused before too long and send back the complaint with the questions numbered and blank spaces for answers.

Still doing tons of legal research and trying to put a complaint together and met up with the Occupy group in my area which was interesting.

[isisis]

Nothing’s quite as valuable in battle as finding out what the other side is thinking. That’s not as easy for us as it is for them. We dominate the search engines: Loansafe has WEB PRESENSE. But every so often a nugget comes my way.

Here’s one advising lenders on navigating the perils bought on by the Ibanez ruling. It suggests – imagine this – that they not initiate foreclosure proceedings without having their paperwork in order. Here's a segment.

Tips On Special Servicing (Loss Mitigation) After Ibanez

Your Collateral File Should Contain (guidelines of ownership chain-of-title given by the Ibanez court):

1. An assignment of the note AND the lien that is -
   
   • Recorded - although in Ibanez, an assignment did not need to be in recordable form at the time of notice or foreclosure sale (under Massachusetts law), "recording is likely the better practice."
   • Made by a party that itself held the mortgage
2. The assignment (or other document containing the transfer) should contain conveyance language of a present assignment ("does hereby assign" and "does hereby deliver") - rather than conveyance language of an intent to assign in the future.
3. A transfer document containing an assignment of multiple notes AND liens (into a securitized trust, if a CMBS pool) should clearly and specifically identify each mortgage being assigned.
4. This identification may be evidenced by attaching to the pooling & servicing agreement (or other assignment instrument) a schedule or listing of the assigned loans and mortgages.
   
   • A sufficient description would include a complete property address; the loan number, assuming it is referenced in the mortgage or deed of trust; filing record of the mortgage; or other similar proof which would allow tracing if any question were raised.
   • On the other hand, a mere description of the mortgage by property zip code and payment history is insufficient proof.

What an imposition for them! Keeping proper records, forgery and backdating documents is hard work. And here we thought it was all champagne, caviar and thievery.

[Tarin Myhairout]

Hi Isisis:

Been missing you.

Yes, I just don't see why we want to be so unreasonable! They simply shouldn't be expected to engage in these pesky housekeeping activities, LOL!

The scary part is that they need to be told this...I take better care of my junk mail before shredding!

I guess they were absent from school the day the teacher covered this material in class. Good thing they have servicing guidelines training now to help them do better in the future. 'Course, it isn't going to help them find and cover all those naked notes, is it?

Perhaps on the next visit to Savile Row for those custom tailored suits they can detour to your home for bagels and nosh. If this servicing guidelines training does give us a peek into the pre-Ibanez industry standards; I believe the Emperor is going to be in need of a wardrobe upgrade.

You always make me smile!

Tarin

[freedomwon]

isisis - Have you been paid another visit by the lady in the Mercedes lately? lol Just checking in to see how that "trial modification" is coming along that BofA has for you. wink wink

[isisis]

Hi Freedomwon,

Nothing, nada. When I've spoken to various bank reps they don't know a thing about it or my alleged trial mod. Hard to figure if these guys are hapless or premeditated at times. I'm also waffling between staying quiet and under the radar or going more on the offensive and leaning towards the latter particularly with the automatic stay likely to be short lived.

With that in mind I've penned a Freedomwon style “Rescind the NOD” to our friendly reconveyance company, Recontrust, dealing only with their initiation of foreclosure. I’m preparing to send it – cc to all the usual suspects, Bofa, BNY, OCC, CA AG - and would appreciate feedback such as should cease and desist been included.

Re: Loan #---------

TS#--------

OCC complaint #---------

To Recontrust:

Recontrust must cancel the foreclose sale #------------- of the property located at--------------and rescind the “Notice of Default” for the following reasons.

While there are numerous problematic legal issues with the treatment of my loan file, for the purposes of Recontrust’s involvement we will consider only three.

1. Violation of a court order

Pursuant to the Stipulated Judgment with the Attorney General, Bank of America and thus Recontrust its wholly owned subsidiary is under court order prohibiting the initiation of foreclosure proceedings on eligible Countrywide borrowers without prior contact. California v. Countrywide Stipulated Judgment states:
[IMG]file:///C:\DOCUME~1\Gabe\LOCALS~1\Temp\msohtml1\01\clip_im age002.gif[/IMG][IMG]file:///C:\DOCUME~1\Gabe\LOCALS~1\Temp\msohtml1\01\clip_im age002.gif[/IMG]

2. Violation of California Civil Code.

A. Invalid Notice of Default. Assignment of Trust after the filing of the NOD.

Recontrust did not have authority to record the Notice of Default on Feb --, 2010 because it was not the Trustee of record on that date nor had Recontrust the right to initiate foreclosure on behalf of Bank of New York Trustee for CWABS 2006 SD2 as the Assignment of Deed of Trust was not validly executed before it was notarized on March--th and then recorded on March --^th. My Deed of Trust lists CTC Real Estate Services as the Trustee and MERS as Beneficiary and states that a Substitution of Trustee must be executed by the Lender, Countrywide Home Loans, and recorded in the county.

See Ohlendorf v. Am. Home Mortg. Servicing, No. CIV. S-09-2081, 2010 U.S. Dist. LEXIS 31098 (E.D.Cal. Mar. 30, 2010) (recipient of backdated assignment may not have had authority to record Notice of Default). Castillo v. Skoba, Vice President of Aurora Loan Services, LLC2010 WL 3986953 (N.D.Cal., November 30, 2010). Ibanez U.S. BANK NATIONAL ASSOCIATION, trustee vs. ANTONIO IBANEZ (and a consolidated case) SJC-10694 10/07/2010.

B. Fraudulent documents signed by notorious robo signers.

In the person of T Sevillano, signing a backdated Assignment of Trust and then notarizing a Substitution of Attorney, we have a figure developing the legendary proportions of Keri Selman or Linda Green. While she purports to work in various capacities for MERS, BNY and Bofa, I understand she in fact works for you.

The use of robo signers with no knowledge of the documents they are signing in attempt to foreclose results in a violation of California’s Unfair Competitiion Law (UCL), which prohibits any unlawful, unfair or fraudulent business practice. (B&P Code section 17200.) and The Rosenthal Debt Collection Practices Act [RDCPA] which prohibits debt collectors from engaging in abusive, deceptive and unfair practices in the collection of consumer debts. (Civ. Code section 1788, et. Seq.)

Penal Code Section 115.5(a) states “(a) Every person who files any false or forged document or instrument with the county recorder which affects title to, places an encumbrance on, or places an interest secured by a mortgage or deed of trust on, real property consisting of a single-family residence containing not more than four dwelling units, with knowledge that the document is false or forged, is punishable, in addition to any other punishment, by a fine not exceeding seventy-five thousand dollars ($75,000).”


Clear title cannot derive from fraud. See Trout v. Trout, (1934), 220 Cal. 652 at 656 "Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase.”

Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286
"It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud.”

3. Noncompliance with California’s version of the UCC (Uniform Commercial Code) 3-301.

Enforceability of a foreclosure only arises upon actual note possession and endorsement or 3-301(b) a non-holder with holder rights. Not only is possession of the note required in California, POSSESSION and ENDORSEMENT are needed to even be considered a “Holder in Due Course” by way CCC 1-202 to satisfy 3-301.

CCC 3-306
A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds. A person having rights of a holder in due course takes free of the claim to the instrument.

The assignment of a mortgage without a transfer of the indebtedness confers no right, since debt and security are inseparable and the mortgage alone is not a subject of transfer, ” Hyde v. Mangan (1891) 88 Cal. 319, 26 P 180, 1891 Cal LEXIS 693; Johnson v, Razy (1919)181 Cal 342, 184 P 657; 1919 Cal LEXIS 358; Bowman v. Sears (1923, Cal App) 63 Cal App 235, 218 P 489, 1923 Cal App LEXIS 199; Treat v. Burns (1932) 216 Cal 216, 13 P2d,724, 1932 Cal LEXIS 554.

Upon receipt of this notice, Recontrust loses its exemption from liability and becomes subject to all remedies and penalties including a private right of action under RESPA. Any claimed exemption by 2924(b) is extinguished and you shall be subject to Title 1.6c Sec 1788.

If Recontrust wishes to take my property rather than provide me with the modified loan terns for which I am eligible under the Countrywide Stipulated Judgment it must attempt to do so by lawful means.

Fondly,
Isisis

Well, the section from the Judgment wouldn't paste because it's pdf I suppose but it specifically states that foreclose cannot be inititated without determining borrower interest in modification, paraphrased.

[freedomwon]

Gee, I'm not surprised. BofA was just trying to distract you just as we suspected. Good letter you've got there. One thing to double check before sending is to look at your DEED OF TRUST & see who the trustee is listed on there. It's entirely possible Recontrust was the original trustee on the DEED OF TRUST. (You just want to be accurate, that's all).

You've got a lot of quoted laws in your letter. Some fell in your lap & some you had to research. Carefully consider if you want to use it all at once in this first letter or save a couple for your next letter. It's all about how much time & energy you have to dedicate to this.

[isisis]

Hi Freedomwon,


The original Trustee was CTC Real Estate Services, Full Spectrum the lender and in the same deed switched to Countrywide.
Should I have done a Cease and Desist included in the letter, you think?

Re the case law: it all fell into my lap thanks to Al Gore's brilliant invention called the internet.

Not seriously expecting the NOD to be rescinded but not going down without a fight.

[freedomwon]

Should I have done a Cease and Desist included in the letter, you think?

I don't recommend the cease & desist letter & here's why. You want to lead them down the road that you're willing to work with them, you're open to ideas, & will entertain any proposal they might present. A cease & desist (gives them written proof) & sends a direct message you're not interested in working something out. I have not issued a cease & desist in my case nor will I. What I have done however, numerous times, is indicated that all communications must be conducted in writing.

[morgane_edison]

This is a great thread you guys! Thanks for sharing all of your hard work!

[freedomwon]

On a little sidenote . . . Much to my surprise, I learned the internet was actually invented back in the 1960's. It was originally developed for our government to communicate intelligence. Then it was opened up to Universities for sharing important research & after that opened up to the general public. I had read about this at the tech museum in San Jose, Ca.

O.K. Carry on everyone!

[isisis]

An honest Judge, a homeowner win and some juicy case law. Horace vs LaSalle Bank 4/2011. Foreclosure prevented dispite the securitized trust being the holder of the wet ink note because it hadn't been endorsed and assigned before the trust closed as stipulated by the PSA. The Horaces used an expert witness on the topic of securitization.
There's some good commentary by Abigail Field but I can't post a link mobile.
Thank you, Morgane and Freedomwon thanks for the advice on the C&D.
The ticklish part for me is the negotiation and positioning; at that I feel wholly inept, like playing a card game with no notion of the rules. I can learn the applicable law, gather the case law but how and when to deploy that ammo at faceless and skilled adversaries is daunting. That's one of the reasons the input from this forum is so valuable.
Re internet invention: isn't it possible that Al Gore invented it but later and subconsciously like when George Harrison got sued for "My Sweet Lord" being like "She's So Fine"? LoL

[freedomwon]

I can learn the applicable law, gather the case law but how and when to deploy that ammo at faceless and skilled adversaries is daunting.

I have felt that way since day 1. It's a daunting task to contemplate the next move. Because it feels like one wrong move & it's all over! I put a lot of trust & faith in my gut instinct & just had to "go with it". I had no example to follow. I knew I had to be a pioneer if you will.

[hotwelder3]

I just read this thread, I wish I had done so sooner. The first thing came to mind was the lady driving the Mercedes, was she a "Hot" LOL And thank you isisis I think I can use some of your ideas from this thread , if I get a chance to use them.

[Tarin Myhairout]

Freedomwon: . Hear, Hear! It has been a big problem for me as well. I have some ideas right now that would really cut to the chase and solve everything- but I don't know what to do with them! I fear that approaching the wrong person (if I could even find someone to approach) will prejudice other options, and I don't want to inadvertently derail a solution that is already in process. My stuff is different than yours, because I have the ear of FreddieMac, and now the MN AG is onboard as well. It isn't so much fighting the foreclosure (a done deal, essentially), or stopping an eviction (they have given up on that); but unscrewing it all after the fact. I am also not confident that I have the same securitization/robo-signing facts on my side. Still, the fact remains that strategizing is important, and I just don't know what to do next. I did consult with an attorney who proposed a solution, but it was an all-or-nothing approach, and if it wasn't successful, we lose everything. I don't like this, because I would like to keep more options on the table. As you have pointed out before, things are always changing. Much more is known today about robo-signing, and misleading and outright fraudulent foreclosure practices than was known even 6 months ago. Now, even very conservative economists are talking about the necessity of principle write-downs on underwater mortgages, and the behemoths Fannie and Freddie are beginning to rethink the wisdom of dumping even more foreclosed properties on the saturated real estate market. I often feel like I am wearing rollerskates and mittens on the streets of San Francisco, in an earthquake, during a monsoon, at night. I am holding three of those long poles, with spinning plates atop each one, and two of the plates are starting to wobble. Do I abandon the wobbly ones and go for the steady one? Do I try to keep all three limping along? What if someone were to come by and take over stewardship of one of the wobbly ones? Sometimes I just want to give all the poles the heave-ho and skate away down the hill. Tarin

[isisis]

Hang in there, Tarin, don't forget we're fighting a Naked Emperor! And one, it would seem, increasingly aware of the people pointing that out. I know you're not BofA but still check out the latest, (emphasis added).

"Jan. 26 (Bloomberg) -- Bank of America Corp. is impeding an investigation of its loan modification practices by negotiating settlements with borrowers who must agree to keep them secret and not criticize the bank in exchange for cash payments and loan relief, Arizona officials say.
The Arizona Attorney General’s office is asking a court to block those aspects of the settlements and require the bank to turn over all the agreements. The bank denies any wrongdoing.
One 2011 accord involving a borrower facing foreclosure who defaulted on a $253,142 mortgage included a $5,000 payment, plus $7,500 for legal fees, and the defaulted payments were waived and the loan was modified to a 40-year term with a 2 percent interest rate, court documents show. The terms of the original loan and the borrower’s complaint about the lender weren’t described in the documents.
The borrower “will remove and delete any online statements regarding this dispute, including, without limitation, postings on Facebook, Twitter and similar websites,” and not make any statements “that defame, disparage or in any way criticize” the bank’s reputation, practices or conduct, according to documents filed in state court in Phoenix. The borrower’s name and address were redacted."

This next comment is mine directed to Bank of America:

If you would like to avoid disparagement and criticism STOP TAKING OUR HOMES INSTEAD OF GIVING US AFFORDABLE PAYMENTS! STOP PUTTING FAMILIES ON THE STREET WHILE YOU GIVE EXECUTIVES BONUSES! OUT OF EVERY DOLLAR WE GIVE YOU $.46 GOES TO EXECUTIVE BONUSES AND COMPENSATION AND YET WE HAVE FAMILIES LIVING IN CARS BECAUSE YOU TOOK THEIR HOMES WITHOUT EVEN THE LEGAL RIGHT TO DO SO. THE TRUTH IS COMING OUT MORE EVERYDAY. YOU ARE NOT TO BIG TO FAIL, YOU'RE TOO BIG TO THINK STRAIGHT AND SEE THERE ARE CONSEQUENCES FOR GREED.

AS THOSE OF US FIGHTING TO PREVENT OUR HOMES FROM BEING STOLEN DIG DEEPER AND SHARE THE KNOWLEDGE OF THE FRAUD INVOLVED YOU WILL FIND IT HARDER TO HIDE BEHIND CORRUPT JUDGES AND POLITICIANS. I URGE YOU TO DEAL FAIRLY WITH US NOW WHILE YOU STILL HAVE THAT VOLUNTARY OPTION. THE TIMES ARE CHANGING, THE RULES ARE CHANGING AND YOU ARE VULNERABLE.
GOVERN YOURSELVES ACCORDINGLY.