DOES THAT LAWYER REALLY REPRESENT THE "BANK" — REALLY?

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EDITOR’S NOTE: One of the first things that happens in any foreclosure case is that someone contacts the borrower saying who they are or who they represent. I contend that those representations should be confronted. It often happens, as Charles points out below, that more than one law firm asserts representation of a particular would-be forecloser. It happens even more that the party in whose name the foreclosure is initiated knows nothing about the law firm or even the foreclosure. And in the case of assignments or substitution of trustees and so forth, there is every possibility, if not probability that the assignment is void, and that the substitution is invalid because of robo-signing and other issues. Don’t give an inch.

I think that amongst the causes of action supporting a temporary restraining order, is a demand for authority to represent levied against the lawyers involved and a challenge to the authority of the “new” trustee as having been appointed in violation of the original deed of trust. A demand letter to the substitute trustee and/or lawyer requiring production of proof that they are who they say they are and that they have the actual authority to act on behalf of anyone is appropriate. If appropriate (check with lawyer licensed in the right jurisdiction) accuse them of violating a specific cited statute in your letter since you will use the letter as an attachment to your lawsuit. You might also want to add that you believe the creditor is still being paid by the servicer and there is no default in the obligation set forth in the note. 

This is why a COMBO title and securitization report, attached to your complaint, will give you more traction, along with your denial of the default, denial that they are the creditor, denial that they have the authority to initiate foreclosure, and denial that they are the party empowered to submit a credit bid. On this score, a declaratory action seeking a declaration of rights in the event of an auction sale would be appropriate.

The would-be forecloser might prevail on the issue of whether they have the power to initiate the foreclosure proceedings — but your allegation could be that even if that is true, they are not the creditor and that they intend to make a credit bid at the auction in lieu of cash. It being a present controversy because of their initiation of foreclosure, the Judge would be forced to rule on the issue of the identity of the creditor and an accounting for the amount due to determine the proper amount of a credit bid.

This could force them to start paying cash at auction sales, which we all know they won’t do since they are intent on getting their free house on a loan transaction they never funded or paid for.

If they follow true to form, they will correct prior correspondence, giving you more ammunition to ask why and how they made such a mistake and why you should believe them now. If they cancel a sale date, I would suggest a self-serving letter acknowledging the cancellation of the sale date and stating that it was because of the defects in prior correspondence. .

submitted by Charles Cox

Interestingly, after being told in the email from the Severson & Werson attorney that he was “handling the defense of defendants” and having been told by Tim that we are unable to grant his request for an extension of time to answer the complaint (due by today)…Tim got another call from an attorney from a different firm saying they were representing Bank of America and they wanted an extension as well.  Hmmm…right hand not knowing what the left hand is doing?   Nahhhhhhhh  And yes, they were told to go pound sand as well.

I am one to jack with those guys as much as possible and as such, I didn’t want to serve the Adversary Complaint until the requisite 14 days after the summons was issued (they had 30 days from the date the summons was issued to answer the complaint, not from date of service!).  I wanted to give them as little time as possible.  At Tim’s insistence, I went ahead and served them on the very day the summons was issued giving them an extra 14 days which obviously didn’t do them any good.  It will be interesting to see what they produce today (I assume they’ll produce something).  If not, Entry of Default will be filed hopefully tomorrow even if it can’t be dealt with until Monday.

Should be “interesting”.

Tags: attorney representation, borrower, credit bid, creditor, disclosure, foreclosure, foreclosure defense, foreclosure offense, fraud, MERS, quiet title, rescission, securitization, TILA audit, trustee
Posted in bubble, Corruption, Eviction, securities fraud |