DALE WILEY: NICE WIN IN KANSAS CITY

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EDITOR’S NOTE: Just remember that while the Judge is thinking “landlord Tenant” you need to remind him or her that this is Foreclosure and that the only allegation that can be made to sustain the eviction or unlawful detainer action is that title changed — because otherwise your client would still have every right to remain in that house. It is NOT a case where there was a rental agreement and the tenant didn’t pay the rent. It is a case where there is a genuine dispute over whether the evicting party was ever the creditor and whether the Principal due was the amount claimed or was wiped out or reduced by third party claims (regardless of who the creditor is).

If they have alleged the title change then you have an absolute right to file an answer denying the claim, adding affirmative defenses and counterclaims if permitted. If there is something wrong with the title — i.e., that it didn’t change because the of one of many reasons you discovered in a COMBO title and securitization report or Forensic analysis, then you win, they lose — if the Judge is paying attention.

In most cases the pleading is sloppy by the Banks, so you can take apart their allegations in numerous ways. But you can’t do anything if you admit the default, which you don’t even know is true unless you get a loan level accounting of every penny that came in and went out with respect to the creditor who is now engraved in stone as the Plaintiff in the eviction (forcible detainer) action.

And look carefully at the wording of how they style the case and how they describe the Plaintiff. It might be and often is a fictitious entity even though it looks right at first glance. Even Wells Fargo or Bank of America could be a fictitious entity if they are appearing not as the Bank itself but as trustee or agent for an unspecified trust without any trust or agency document.

Think of it this way: if you sued the Bank as itself and not in its representative capacity, what would they say? They’d say we have nothing to do with this except as trustee/agent for series xyz certificates. And remember you can’t be agent for certificates and certificates can’t be trustors of a trust — only real people or legal persons can be trustors or beneficiaries and only real people or legal entities can perform a legal act like file for eviction.

The good thing about eviction actions is that some party must come forward and assert they are the new owner by virtue of a credit bid they made at auction. That means they are saying they were the creditor. Subpoena the auctioneer and ask him/her whether he has any personal knowledge as to whether the bidder was a creditor. The answer will be no. Subpoena the representative of the Bank and ask the same question. Nobody will be able to give an affirmative answer if you start asking questions about how they arrived at the principal due, who the note or obligation was paid to, and why the foreclosing bank chose to initiate foreclosure in its own name when others were to get the proceeds — which by definition means the Bank could not submit a credit bid.

The devil is in the details. Once it gets to eviction (forcible or unlawful detainer) they have no where to hide. At that point they have committed themselves as to who is the creditor. If you show they were not the creditor then the Judge must consider the fact that the auction was conducted under false pretenses and that title, while recorded, was not legally changed. In that event, they are not entitled to possession.

Big Win In Kansas City

Posted by Dale Wiley at 11:49 PM

Tags: bankruptcy, borrower, countrywide, dale wiley, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, Kansas City, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND
Posted in bubble, Corruption, Eviction, securities fraud |