Bagels at a Bar mitzvah Part II

Survivor_IN

LoanSafe Member
The responses here outline the various defenses and counter claims that can be used in a response to a foreclosure. Given the different states, I thought this federal form might help anyone who finds themselves needing to respond to a foreclosure complaint without an attorney. (Some courts provide pro se assistance but not all.) Some of these can be grouped such as laches, statute of limitations, and estopple. It's just a reference on how to answer the complaint... when answering, you don't have to outline a defense in full and give away your legal direction. Usually these things are developed after discovery or with evidence attached.

Of course, getting an attorney is the best move but it doesn't always happen. Sometimes local legal aid will provide one for free if you are under a certain income or elderly.

 

Survivor_IN

LoanSafe Member
The responses though do not support my SOL argument and keep my out of foreclosure though. So I'm freaking out.
I think you will be okay but, regardless, if they file a foreclosure you are required to be served. Just file an answer and include the statute of limitations, accord and satisfaction, laches, ANYWAY. Keep everything you have that says zero principal balance and scan it and save on disc or thumbdrive. I have lost so much crap on old hardrives and paper that was water damaged. (which I DID need later to defend the foreclosure only to find it no longer existed!) You don't want it to be lost when you need it in 3 or 4 years. Hopefully not 3 or 4 months but you know what I mean.
 

cookiemom

LoanSafe Member
I think you will be okay but, regardless, if they file a foreclosure you are required to be served. Just file an answer and include the statute of limitations, accord and satisfaction, laches, ANYWAY. Keep everything you have that says zero principal balance and scan it and save on disc or thumbdrive. I have lost so much crap on old hardrives and paper that was water damaged. (which I DID need later to defend the foreclosure only to find it no longer existed!) You don't want it to be lost when you need it in 3 or 4 years. Hopefully not 3 or 4 months but you know what I mean.
I'm in michigan though which non-judicial.

I did find one case that agreeded that the PSA superedes the heloc agreement in respect to foreclose...then that allowed the SOL to run starting at default not maturity date
 

kraftykrab

LoanSafe Member
Filed this last Monday.
Couple of thoughts--

1--claim preclusion is "with prejudice". Claim preclusion is res judicata, meaning you are barred from ever relitigating that claim since it's already been litigated previously. There is no version of claim preclusion that is without prejudice.

2--Malcolm Cisneros--when he made the false statement re: claim preclusion in the trial court, unless you timely objected to his lie, you did not preserve the issue for appeal. The appeals courts are ONLY able to consider issues properly preserved for appeal at the trial court. You may run into a snag on this one.

3--you discuss the phantom debt. I believe you've already presented evidence showing these issues before? I'd be prepared to present it all again.
 

moretrouble

LoanSafe Member
Couple of thoughts--

1--claim preclusion is "with prejudice". Claim preclusion is res judicata, meaning you are barred from ever relitigating that claim since it's already been litigated previously. There is no version of claim preclusion that is without prejudice.

2--Malcolm Cisneros--when he made the false statement re: claim preclusion in the trial court, unless you timely objected to his lie, you did not preserve the issue for appeal. The appeals courts are ONLY able to consider issues properly preserved for appeal at the trial court. You may run into a snag on this one.

3--you discuss the phantom debt. I believe you've already presented evidence showing these issues before? I'd be prepared to present it all again.
I am not worried. Will be filing a motion to set aside the foreclosure judgment and make this case life again rebutting the claim preclusion. Found a knowledgeable atty to work with either coaching or representing. Still have way to go.


Anyway, NewRez's parent, Rithm with the servicing scam slowly exposed could not steal enough homes, has to file for $350 mills stock offering. Stock is down %5 today. My goal is to exposed the scheme nationwide, especially in federal court, all the way to US Supreme Court.
 

cookiemom

LoanSafe Member
Attorney stirred the pot a bit and we might have woken a sleeping beast. He reached out to a local Attorney that has represented shellpoint in a recent case to request all communication be routed to his attention. They have not taken legal action against me...YET...but who knows. They have followed the trend of the other servicers and fired off tons of paperwork at me. Although they seem to have been trying to actually stay course and follow servicing "rules" unlike the others. Ive actually recieved monthly statements.....which is bullsh*t. So BOA, RTR, and SLS can completely neglect my account and SP come in 18 yrs latter to act and can stand up and say they are not in violation of any regulations. Being a sitting duck has been driving me insane. So at least now I might know their intentions out of this. The PSA does note they have to seek approval for spending (foreclosure cost, which would also include buying out my 1st) and with the trust filing form 15d...I'm wondering if that is why none thus far has done anything further than threats.

My heart goes out to all of you still fighting this like me. I know its not much...but I honestly want to thank those of you for sharing your experiences and learnings with me. I am a big picture thinker and a problem solver and this continues to baffle me on how complex and corrupt this really is. I have my Masters Degree and this sometimes makes me feel incredibly dumbfounded. Lol. I'm still in the thick of things but with what I've learned I hope to help others. I've emailed my state Sentor's Trump administration, Attorney General office and many others.
 

moretrouble

LoanSafe Member
Attorney stirred the pot a bit and we might have woken a sleeping beast. He reached out to a local Attorney that has represented shellpoint in a recent case to request all communication be routed to his attention. They have not taken legal action against me...YET...but who knows. They have followed the trend of the other servicers and fired off tons of paperwork at me. Although they seem to have been trying to actually stay course and follow servicing "rules" unlike the others. Ive actually recieved monthly statements.....which is bullsh*t. So BOA, RTR, and SLS can completely neglect my account and SP come in 18 yrs latter to act and can stand up and say they are not in violation of any regulations. Being a sitting duck has been driving me insane. So at least now I might know their intentions out of this. The PSA does note they have to seek approval for spending (foreclosure cost, which would also include buying out my 1st) and with the trust filing form 15d...I'm wondering if that is why none thus far has done anything further than threats.

My heart goes out to all of you still fighting this like me. I know its not much...but I honestly want to thank those of you for sharing your experiences and learnings with me. I am a big picture thinker and a problem solver and this continues to baffle me on how complex and corrupt this really is. I have my Masters Degree and this sometimes makes me feel incredibly dumbfounded. Lol. I'm still in the thick of things but with what I've learned I hope to help others. I've emailed my state Sentor's Trump administration, Attorney General office and many others.
Based on my experience, state law (note holder status especially for judicial foreclosures) governs foreclousres, so servicers (current subprime note holders) use the default servicers (shellpoint, SPS, BOfA...) forge the notes claim they are the holders. What they have going for them is legal presumptions: the note is presumed to be authentic, endorsements are authorized, and they hire attorneys and employees to lie in courts, and the courts have to grant them judgments unless you can argue and provide evidence otherwise. YOU have to come up with evidence to rebut all these presumptions, and that takes time and money to discover. Learn about state and federal debt collection laws, research cases in Westlaw. Westlaw has been my saver. I knew of the scheme, how to present to court but did not know where to look for cases to support my arguments till I found Westlaw (and its is free at the local court house, your tax money at work).
Anyway, it's not free house as they claim we want if you count the hours of researching, discovery to understand the scheme, but I sleep better when I continue to fight because I know it's right. I sent my complaint to CPFB, and other federal agencies, ResCap creditors, law firms representing them, and short sellers.
 

kraftykrab

LoanSafe Member
Based on my experience, state law (note holder status especially for judicial foreclosures) governs foreclousres, so servicers (current subprime note holders) use the default servicers (shellpoint, SPS, BOfA...) forge the notes claim they are the holders. What they have going for them is legal presumptions: the note is presumed to be authentic, endorsements are authorized, and they hire attorneys and employees to lie in courts, and the courts have to grant them judgments unless you can argue and provide evidence otherwise. YOU have to come up with evidence to rebut all these presumptions, and that takes time and money to discover. Learn about state and federal debt collection laws, research cases in Westlaw. Westlaw has been my saver. I knew of the scheme, how to present to court but did not know where to look for cases to support my arguments till I found Westlaw (and its is free at the local court house, your tax money at work).
Anyway, it's not free house as they claim we want if you count the hours of researching, discovery to understand the scheme, but I sleep better when I continue to fight because I know it's right. I sent my complaint to CPFB, and other federal agencies, ResCap creditors, law firms representing them, and short sellers.
The argument to oppose the "free house" nonsense is actually a simple concept in theory--follow the precedent in CA Supreme Court:


" The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security. "

Of course, CA court rulings are not binding on other states' courts, but the concept of standing exists in every state. And this case ruling goes on to say:

" It is no mere "procedural nicety," from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so. "

"The logic of defendants' no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee's sale — and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an "odd result" indeed. (Reinagel, supra, 735 F.3d at p. 225.) As a district court observed in rejecting the no-prejudice argument, "anks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust." (Miller v. Homecomings Financial, LLC (S.D.Tex. 2012) 881 F.Supp.2d 825, 832.)"

"Defendants note correctly that a plaintiff in Yvanova's position, having suffered an allegedly unauthorized nonjudicial foreclosure of her home, need not now fear another creditor coming forward to collect the debt. The home can only be foreclosed once, and the trustee's sale extinguishes the debt. (Code Civ. Proc., § 580d; Dreyfuss v. Union Bank of California, supra, 24 Cal.4th at p. 411.) But as the Attorney General points out in her amicus curiae brief, a holding that anyone may foreclose on a defaulting home loan borrower would multiply the risk for homeowners that they might face a foreclosure at some point in the life of their loans. The possibility that multiple parties could each foreclose at some time, that is, increases the borrower's overall risk of foreclosure."

" A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity's hands. No more is required for standing to sue. "






My state has another requirement of law that applies here. In my state, the ability to act as "attorney in fact" for another, for certain acts, MUST be demonstrated by what's called "express authority". There is case law in my state that says that, while there's no specific required format for POA to be binding and legal, where express authority is required, that express authority must be demonstrated in writing. And the statute has a list of certain acts that authority to conduct as an agent of the principal must be expressed specifically. So, for example, if you intend to issue a POA for a servicer to assign a mortgage to you--i.e. acquire a thing--that authority must be expressly demonstrated. Your civil procedure codes may have something similar--search your civil procedure for "express authority".


This brings us to the standard practice of the pretenders bringing in a rep from the servicer to validate the POA. Y'all do know this isn't legit, right? Think about this. If I'm the principal, and I give you a POA, and there's a lawsuit and a trial, how can YOU, as the agent, verify that I as the principal indeed granted you that authority? That would be like you forging one of my checks and then you showing up in court to say, "Yes, Your Honor, he really did write this check to me." Clearly, this isn't legal, but if you don't object and press the issue, the court cannot do it for you.

By the way, if any of you are facing a representative from the servicer trying to authenticate the POA, this case is a great example of how you can and should proceed:


Long story short, the plaintiff called a witness from Caliber Home Loans. This witness was present to authenticate certain documents. However, that witness had never once laid eyes on the actual originals. This is a witness from a servicer, brought in to testify that copies of certain documents were true and correct copies of originals---that he had never once seen. Stop and think about this. Had the defense attorney not questioned this witness to these facts, the court would have allowed the testimony and entered the documents in question as evidence.

The judge agreed with defense counsel. The documents were objected to, the defense asked that they be stricken and the judge did just that. And without the POA, defense then moved for involuntary dismissal, which was granted. NOTE THIS--the plaintiff had all the other documents, offered them into evidence, and the defense only objected to two--the POA and the assignment of mortgage. In this case, they never made it to discussing the assignment. The POA itself was objected to by defense, and under voir dire, defense counsel learned from the witness that he had never seen the original paper document--he only had seen the imaged copy in their computer system. She then asked:

"
Q Okay. If you haven't seen the original of that
document, then can you be certain that that is a true and
accurate copy of it?

A It's within Caliber's business records and we
rely upon them. It is part of Caliber's business records."

When plaintiff pushed further and tried to get around the then-sustained objection by citing "Caliber's normal business practices", defense stepped in again:

"
Q How would you know for certain as you sit here
today that the person who put that document into the
system for Caliber reviewed the original if you don't know
who the person who did it is?

A I don't."

Remember this---the court CANNOT step in and defend you against these attempts. We have to do it ourselves. And if we don't argue these points and hold to these standards, we lose on unsubstantiated "documentation".

In this case, the plaintiff's counsel really keeps pushing the point even after the defense's objection was sustained twice. And the judge had enough:

"
THE COURT: Power of attorney isn't coming in,
Counsel. I've sustained the objection now. If you
have anything further, let's move on.

MR. TAYLOR: I'm sorry?

THE COURT: Let's move on if you have anything
further. Power of attorney is not coming in evidence
based on what you've presented today.

MR. TAYLOR: Your Honor, my witness has
testified that it was a document prepared --

THE COURT: Counsel, don't argue with me. I
made my ruling. Now move on; otherwise, your case is
dismissed."

Couple more bits that warrant attention--when the POA is not admissible and is therefore excluded, that brings you to this point:

" MS. BELMONT: But the witness is relying on the document that he can't get in as evidence to show that he has the authority to testify and, therefore, I would move to strike the witness's testimony completely because he has no authority to testify on behalf of the plaintiff, who was substituted in by counsel. The new plaintiff is U.S. Bank and Trust, as trustee of the LSF9 Master Participation Trust. The witness works for Caliber, not the plaintiff; therefore, the witness shouldn't be testifying today. "

Which led this judge to this point:

"
THE COURT: If you have a witness from U.S.
Bank Trust, bring him in.

MR. TAYLOR: Well, Your Honor --

THE COURT: That's the problem, you don't,
because you have not proven up your power of attorney
giving Caliber the authority to be in court today on
behalf of U.S. Bank.
Motion is granted."

This case was dismissed on the spot. The JUDGE told the plaintiff to produce a witness from US Bank Trust!
 

moretrouble

LoanSafe Member
The argument to oppose the "free house" nonsense is actually a simple concept in theory--follow the precedent in CA Supreme Court:


" The borrower owes money not to the world at large but to a particular person or institution, and only the person or institution entitled to payment may enforce the debt by foreclosing on the security. "

Of course, CA court rulings are not binding on other states' courts, but the concept of standing exists in every state. And this case ruling goes on to say:

" It is no mere "procedural nicety," from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so. "

"The logic of defendants' no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee's sale — and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an "odd result" indeed. (Reinagel, supra, 735 F.3d at p. 225.) As a district court observed in rejecting the no-prejudice argument, "anks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust." (Miller v. Homecomings Financial, LLC (S.D.Tex. 2012) 881 F.Supp.2d 825, 832.)"

"Defendants note correctly that a plaintiff in Yvanova's position, having suffered an allegedly unauthorized nonjudicial foreclosure of her home, need not now fear another creditor coming forward to collect the debt. The home can only be foreclosed once, and the trustee's sale extinguishes the debt. (Code Civ. Proc., § 580d; Dreyfuss v. Union Bank of California, supra, 24 Cal.4th at p. 411.) But as the Attorney General points out in her amicus curiae brief, a holding that anyone may foreclose on a defaulting home loan borrower would multiply the risk for homeowners that they might face a foreclosure at some point in the life of their loans. The possibility that multiple parties could each foreclose at some time, that is, increases the borrower's overall risk of foreclosure."

" A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity's hands. No more is required for standing to sue. "






My state has another requirement of law that applies here. In my state, the ability to act as "attorney in fact" for another, for certain acts, MUST be demonstrated by what's called "express authority". There is case law in my state that says that, while there's no specific required format for POA to be binding and legal, where express authority is required, that express authority must be demonstrated in writing. And the statute has a list of certain acts that authority to conduct as an agent of the principal must be expressed specifically. So, for example, if you intend to issue a POA for a servicer to assign a mortgage to you--i.e. acquire a thing--that authority must be expressly demonstrated. Your civil procedure codes may have something similar--search your civil procedure for "express authority".


This brings us to the standard practice of the pretenders bringing in a rep from the servicer to validate the POA. Y'all do know this isn't legit, right? Think about this. If I'm the principal, and I give you a POA, and there's a lawsuit and a trial, how can YOU, as the agent, verify that I as the principal indeed granted you that authority? That would be like you forging one of my checks and then you showing up in court to say, "Yes, Your Honor, he really did write this check to me." Clearly, this isn't legal, but if you don't object and press the issue, the court cannot do it for you.

By the way, if any of you are facing a representative from the servicer trying to authenticate the POA, this case is a great example of how you can and should proceed:


Long story short, the plaintiff called a witness from Caliber Home Loans. This witness was present to authenticate certain documents. However, that witness had never once laid eyes on the actual originals. This is a witness from a servicer, brought in to testify that copies of certain documents were true and correct copies of originals---that he had never once seen. Stop and think about this. Had the defense attorney not questioned this witness to these facts, the court would have allowed the testimony and entered the documents in question as evidence.

The judge agreed with defense counsel. The documents were objected to, the defense asked that they be stricken and the judge did just that. And without the POA, defense then moved for involuntary dismissal, which was granted. NOTE THIS--the plaintiff had all the other documents, offered them into evidence, and the defense only objected to two--the POA and the assignment of mortgage. In this case, they never made it to discussing the assignment. The POA itself was objected to by defense, and under voir dire, defense counsel learned from the witness that he had never seen the original paper document--he only had seen the imaged copy in their computer system. She then asked:

"
Q Okay. If you haven't seen the original of that
document, then can you be certain that that is a true and
accurate copy of it?

A It's within Caliber's business records and we
rely upon them. It is part of Caliber's business records."

When plaintiff pushed further and tried to get around the then-sustained objection by citing "Caliber's normal business practices", defense stepped in again:

"
Q How would you know for certain as you sit here
today that the person who put that document into the
system for Caliber reviewed the original if you don't know
who the person who did it is?

A I don't."

Remember this---the court CANNOT step in and defend you against these attempts. We have to do it ourselves. And if we don't argue these points and hold to these standards, we lose on unsubstantiated "documentation".

In this case, the plaintiff's counsel really keeps pushing the point even after the defense's objection was sustained twice. And the judge had enough:

"
THE COURT: Power of attorney isn't coming in,
Counsel. I've sustained the objection now. If you
have anything further, let's move on.

MR. TAYLOR: I'm sorry?

THE COURT: Let's move on if you have anything
further. Power of attorney is not coming in evidence
based on what you've presented today.

MR. TAYLOR: Your Honor, my witness has
testified that it was a document prepared --

THE COURT: Counsel, don't argue with me. I
made my ruling. Now move on; otherwise, your case is
dismissed."

Couple more bits that warrant attention--when the POA is not admissible and is therefore excluded, that brings you to this point:

" MS. BELMONT: But the witness is relying on the document that he can't get in as evidence to show that he has the authority to testify and, therefore, I would move to strike the witness's testimony completely because he has no authority to testify on behalf of the plaintiff, who was substituted in by counsel. The new plaintiff is U.S. Bank and Trust, as trustee of the LSF9 Master Participation Trust. The witness works for Caliber, not the plaintiff; therefore, the witness shouldn't be testifying today. "

Which led this judge to this point:

"
THE COURT: If you have a witness from U.S.
Bank Trust, bring him in.

MR. TAYLOR: Well, Your Honor --

THE COURT: That's the problem, you don't,
because you have not proven up your power of attorney
giving Caliber the authority to be in court today on
behalf of U.S. Bank.
Motion is granted."

This case was dismissed on the spot. The JUDGE told the plaintiff to produce a witness from US Bank Trust!
We presented, Krafty, we all wish you were THE judge.
 

cookiemom

LoanSafe Member
Again...thank you. Looks like I have another research list to keep me awake all hours of the night till I find a win in MI to reference. Yet it's hard to not fall in their trap that they have standing especially since I've read in MI MERS assignment and "copies" were allowed as their proof. This is why I hired an attorney...but of course he's never delt with this exact case. So much has transpired in my life over the past 6 years since this has blown up. Went through IVF, hot my masters degree, became a mom, got married, lost family members, got divorced...I hate this. I don't want to lose my home or be forced to refi at a higher interest rate and pay this predator 4x the original heloc. I'm now a single mom...and mentally....this gets extremely overwhelming. I really try to understand all of this. The banking. The legal aspect. The rules. Regulations. The contracts. The notes. the terms. Pooling servicing agreement. The damn court system itself. Up until last year i didn't realize different states don't refer to each other's ruling. Ughhhhhhh.....
 

moretrouble

LoanSafe Member
Drafting my motion to set aside foreclosure judgment, ran across my old transcript at trial , can't help but laugh at the foreclosing attorneys: Mr. L, Ms. B, Mr. Bo. I was arguing against all three and this guy Mr. L not only wanted to foreclose on me illegally but also wanted me to pay for atty fees. He was accusing me of abusing the legal system. Read my response and have a laugh, we all need a good laugh during this time.
 

Attachments

kraftykrab

LoanSafe Member
Again...thank you. Looks like I have another research list to keep me awake all hours of the night till I find a win in MI to reference. Yet it's hard to not fall in their trap that they have standing especially since I've read in MI MERS assignment and "copies" were allowed as their proof. This is why I hired an attorney...but of course he's never delt with this exact case. So much has transpired in my life over the past 6 years since this has blown up. Went through IVF, hot my masters degree, became a mom, got married, lost family members, got divorced...I hate this. I don't want to lose my home or be forced to refi at a higher interest rate and pay this predator 4x the original heloc. I'm now a single mom...and mentally....this gets extremely overwhelming. I really try to understand all of this. The banking. The legal aspect. The rules. Regulations. The contracts. The notes. the terms. Pooling servicing agreement. The damn court system itself. Up until last year i didn't realize different states don't refer to each other's ruling. Ughhhhhhh.....
It's not that different states' courts don't refer to each other's rulings---they actually do. The difference is whether or not a case is "persuasive" or "binding". Among state courts, a ruling from one state is not binding on the court of another state, but it CAN be persuasive. Attorneys use this all the time to try to make their arguments in court. When a case is binding, it means the court must adhere to its ruling in making its own. But being persuasive is not a bad thing. Remember, at the trial court especially, the judge issues an OPINION as their ruling.

Case in point, no pun intended, in my state, there are multiple appeals courts. Each district is considered separate from others. So, when you are in the trial court, the best thing is to have case law from that same district where the trial court is--that way, it is "binding". If I use case law from, say, the 2nd District Court of Appeals, it won't be binding on my trial court but it may prove persuasive.

In recent research, I've seen courts from other states, like New York, where lawyers there cited a state court case here to try to sway the judge in their favor.

IMPORTANT---if you're going to do this, you NEED to research the laws. Imagine you're arguing a point in court and you rely on a case from, for example, Florida, to support your argument. It is an easy 'kill' for the opposing attorney if they can point out that the law in Florida which your argument is based on is not the same as the corresponding law in your state. Don't give them an easy way to shut down an argument like that. You need to ensure that whatever law is being focused on in that case, in the specific point you're trying to make, is the same or similar enough to the law in your state so that you don't make this error. Generally speaking though, when you are arguing in state court, there are usually enough cases to form precedent around within your own state. State Supreme Court cases are intended to be binding on all lower courts in that state, so you can cite those freely. Just remember, if you find one that says "Not Designated for Publication", you should not rely on it to be binding in your case because that heading means the case is binding ONLY upon those parties in that one specific case.
 
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