STRATEGIES, TACTICS AND OBJECTIONS AND DENIALS THAT SHOULD BE MADE

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FROM THE WEISBAND APPEAL we can see that the absence of objections and denials was relied upon heavily by both the trial court and the appellate court. The lesson is that you should assume nothing and deny or object to anything you don’t know for sure is true. Lessons from this opinion are the following:

1. File the adversary proceeding in the bankruptcy court or file a law suit in state court so your record is preserved.
2. Avoid filing schedules that enhance the ability of a pretender lender to file a proof of claim or file a motion to lift stay. If the title record only shows the originating lender, then you probably (check with bankruptcy lawyer) need to list the creditor has having a disputed unsecured claim. Force the pretender to file a proof of claim without being listed as a creditor in the schedules. They are more likely to be seen as an interloper than if you already listed them as a creditor.
   
3. File an objection to the proof of claim: Make it as simple as possible. Deny that the pretender is a creditor. Procedural grounds are best: the code requires the “creditor” to file all evidence in support of their proof of claim. Chances are they did not do that. Fabrications of new documents usually occur only after the matter is considered contested by the Judge. The objection should show that the title record does not include the pretender, or if the pretender is mentioned in the a document recorded in the title registry, then the objection must be both lack of proper documentation and the authenticity and foundation of the documents used. Attaching a copy of a third party report might be helpful.
   
4. Do not admit the closing documents in the transaction since they describe a transaction that did not occur — in every table funded loan the real lender is concealed so the first point is that the lender was not properly identified. The second point is that the loan was securitized so the terms of the the loan are not actually alleged in the Proof of Claim nor any attachment unless they show BOTH the homeowner’s closing documents and the documents shown to the investors (prospectus, PSA etc.)
5. Allege that the real transaction is undocumented and that the parties at closing used a paid straw-man instead of the real lender. Then they used documents from the straw-man to give credence to the idea that the closing documents actually described the transaction when in fact it did not.
6. Deny the default. The servicer is probably continuing payment to the real creditor.
7. Deny the note, since it is not evidence of the actual transaction.
8. Deny the Deed of Trust or mortgage deed, since it secures the defective note.
9. If a merger is alleged, deny that the merger occurred and demand proof, and especially deny and demand proof that the defects in the documents were in any way cured by the merger.
10. Allege that there is equity in the property. If the mortgage is not a valid lien, the equity is there. Don’t assume the burden of proof that the mortgage is invalid or unenforceable — make them prove it.
11. Move for realignment of parties — such that the forecloser becomes the plaintiff and must plead and prove its case. Your case simply becomes an answer denying, the claims of the forecloser, denying the default, denying the authority of the forecloser to declare a default,and denying the authority of the forecloser to initiate sale under the power of sale both because the documents showing the authority are absent and because the mortgage itself is defective in that it was procured through fraud in the inducement, and that it is defective in that it purports to create a security interest in a debt that is denied.
12. Allege waiver and abandonment of claim as affirmative defense because the real creditor-lender has opted not to enforce any claim — equitable or legal against the homeowner. 
13. Deny that adequate protection payments are due, or in the alternative demand an evidential hearing on determining whether adequate protection payments are due and if so, how much. Since the servicer is most probably making the payments the declaration of default and notice of sale are defective. But if the servicer is making payments, the adequate protection is already there as to the creditor — even if the servicer has some claim in equity for restitution or unjust enrichment for making the payments on behalf of the homeowner.

WEISBAND TRIAL COURT QUOTED BY APPELLATE COURT: “Here all that is required is that the movant have a colorable claim. You assert that they don’t have any claim; but that would require an adversary proceeding. The note shows that the lender was First Horizon Home Loan Corporation. The deed of trust shows the lender was First Horizon Home Loan Corporation. There’s evidence of an agreement of the merger between First [Horizon] Home Loan Corporation and First Tennessee Bank. You don’t deny that that merger occurred. You don’t argue there’s any equity in the property. You don’t argue that your client is making adequate protection payments. . . . In a lift-stay proceeding, I have to rule on what is in front of me. And what is in front of me is that there is cause to lift the stay here under both 362(d)(1) and (2). . . . Accordingly the stay lifts.”

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