Frequently Asked Questions

Yes and no. Yes it is perfectly appropriate for an attorney to get paid a fair fee for his professional services. You have a choice of paying hourly, which normally ranges between $250-$400 per hour. That is what people pay when they see a lawyer. In some cases, like personal injury (auto accidents etc.), lawyers have worked out a method of allowing clients to have access to their services even if they don’t have money. The lawyer takes what is called a contingency fee. That fee, which is fairly standard throughout most of the states is 1/3 of the recovery of the value awarded or settled to the client if the matter does not go to court, 40% if the matter goes into litigation, and 45% if the matter goes to appeal. Sometimes the attorney will even advance the filing fees, discovery costs and expert witness fees in a case on behalf of the client. For these foreclosure cases, or mortgage disputes, the hours spent can be very intensive and time is money. Prospective clients often forget that it is their case and their life and that the lawyer has nothing to do with it unless he chooses to accept the retainer arrangement. On the other hand, it is improper under most rules to take an interest in the property that is the subject of the dispute, particularly a home residence. But the fees still apply. So if the only way you can afford to pay the lawyer is to get a mortgage or give the lawyer a secured interest in your home after the case is settled, then in most cases the fee would be considered fair and the arrangement within the bounds of legal ethics. If the lawyer is taking a sum of money that goes far beyond the costs of the case and is basically charging you hourly plus the full contingency fee, then you are right — that is predatory. The situations you described do not seem predatory although your description sounds that way. You have a choice of paying an hourly fee plus the costs of the case and the lawyer will be perfectly happy to take your case. You don’t want to or can’t pay that fee so you want the attorney to take a risk as to whether he/she will get paid at all. You object to the amount of the contingency fee because you feel you have already been the victim of predatory behavior. You would like them to work for you for less than they charge other clients and they are not willing to do that. Why should they?

There are many such arrangements where it is only paper — the “loan” is a disguised table funded loan and the “lender” to the “lender” is not expecting or pursuing any payback. The issue of assignment remains however. Just because there were financial arrangements doesn’t mean that the note wasn’t assigned or that they had the note at the time of the foreclosure or if they did have the note that they had any interest in it. If the loan was securitized, then the “arrangement” is mere obfuscation of the fact that the holder in due course is somewhere upline and could assert a claim against you in the future. I have no way of knowing how this will play out. I would, after consultation with appropriate counsel, pursue the claim as though the facts are as we suppose them to be and produce the SEC filings to show that the note was assigned at par value all the way up the securitization chain. And now, due to this fraud on the court, you are stuck in the position of being foreclosed with an outstanding claim from an undisclosed third party. And you are correct that the holder may in fact have been paid in full from an insurance product from AIG, AMBAC or a credit default swap. Further, your loan may have been paid a s a result of overcollateralization or cross collateralization with other loans. And the payments you made might have been applied to other loans in the same way. You are entitled to a full and complete accounting of all funds from before your loan application through the present day, received or paid, who from and why, and a complete chain of title over the note, the mortgage and the assignments. You will probably find, as per the Texas lawsuit on the blog that the distribution reports do not coincident with the actual receipts. Payments might well have been made out of a reserve created from the sale of the mortgage backed security. You must emphasize that they are hiding most of the transaction from the court. The entire transaction consisted of some investor putting up the money and a lot of fees, profits, rebates and kickbacks being paid downstream to get the people motivated enough to lie and cheat their way into getting your signature on the loan documents. Besides being a violation of TILA which is not subject to the claim of res judicata (already been litigated) the documents clearly show that co-obligors were added to the stream of revenue from your “loan” and that they might have paid money on your loan or been bailed out by the Federal government on the loan.So your argument that they are double or triple dipping is still a viable argument.

Second thing either by formal interrogatories you want to know if they have the authority to do a loan modification because if they don’t own the note, they can’t modify it. And if they are not the assigned ON RECORD of the mortgage they can’t modify that either.

The borrower went into default in August of 2007: You don’t actually know that. I’m sure he stopped paying, but in the scheme of securitization, the payment might have been made by any number of co-obligors that attached to the transaction on the way up the securitization chain. For example, AIG, AMBAC are insurers, credit default swaps might have protected the payment as well, and there was a reserve in the SPV to make the payments even if the borrower didn’t. In addition, depending upon which tranche in the SPV the loan was “assigned” to, the lower tranches might have made the necessary payments. Also the notice of default might have come from a party without any authority to do so and without any knowledge as to whether the holder in due course had been paid despite the lack of payment from the “borrower.” Lastly, how can there be a default on a note that was paid in full? The mortgage aggregator paid 102.5% of the note principal to the “lender” under a Pooling and service agreement” or under the Assignment and Assumption Agreement” that usually predates the date of the loan closing and certainly predates the date of “default.Find out who the mortgage aggregator was. 2. The “lender” on the note and mortgage was Countrywide Home Loans, Inc.: You are quite right to put that in quotes. If you look at http://www.sec.gov and examine the 10k and 8k reports you will find that pools of assets (notes either signed by borrowers were set up with trustees (who may be the successors to any other Trustee or “lender.”). Countrywide was paid off by the mortgage aggregator (which could actually be FNMA or Freddie Mac). 3. The mortgage had the usual MERS language: Actually the language varies. Some states allow MERS to act on behalf of mortgagee or even successors. Florida seems to be split between decisions in the 4th DCA and 2 DCA. I would attack that in all cases because the Fla S. Ct will in my opinion go with NOT letting MERS do what it is set up for. The main focus of the attack is that the parties are trying to make it more difficult for the Borrower to rescind (they didn’t disclose the REAL lender), more difficult to assert valid affirmative defenses and counterclaims and attempts to put the burden on the borrower to bring in the necessary and indispensable parties, when it is MERS or CW that has the access to that information and not the borrower. In a Judicial state like Florida that would be a particularly powerful argument (I think). 4. On January, 30, 2008, “Carrie A Hoover-1st vice president” signed an assignment on behalf of MERS, assigning the mortgage and note to Bof NY trustee for CWALT 2005-41. (Carrie Hoover is actually a VP for Countrywide) This was prepared by the Attorney in Miami and executed in Texas. This sounds like one of Shack’s cases in Kings County, New York. See http://www.livinglies.wordpress.com. Motion to Strike based on fraud on the Court. 5. Bof NY filed a foreclosure action a few weeks later. This is a lot like a case in GA. BONY settled with wiping out the mortgage and note and giving her a reverse mortgage. Not a great settlement but she was happy. 6. It claimed they owned and held the note and there was no claim for lost note. Motion to dismiss. How did they get the note? Request to Produce the Note. Holding the note creates a presummption that they are holder in due course, but they are probably not the a holder in due course, so you need to rebut the preumption. Demand assignments and information concerning who assigned and what their authority was. Look at note carefully. It might have been signed with “squiggle” — i.e., it could be a forgery even though there is an actual note signed by borrower. They did that for “convenience.” 7. The borrower hired local counsel who filed an answer and affirmative defenses. He admitted that the Borrower executed the note and not much else. Motion to amend affirmative defenses based upon new facts elicited from filings by parties with SEC. Too late to file Motion to DIsmiss and too much work to fight over it. Just file the same grounds under the Affirmative Defenses and then file affidavit from borrower along with copies of SEC documentation as attachments for Motion for Partial Summary Judgment. 8. The affirmative defenses are notice related as well as one alleging the note is “unintelligible, unconscionable and unenforceable” – Keep the notice arguments and expand upon them. Borrower was not given notice at closing as to who the real lender was and was therefor deprived of his right to rescission because the “lender” was merely a conduit and protective layer for the real lender who was not registered or chartered to do business in the State of Florida as lender or bank. You STILL want to exercise the right of rescission (the three day rescission) as soon as they will tell you who the real lender was. By covering up the real nature of the transaction, they deprived the borrower of sufficient knowledge about the transaction to properly consider whether to go through it and now he wants to rescind — which should be stated in the affirmative defenses. Your position is that the time for three day rescission never began to run because of all the non-dislcosures of all the parties that were not revealed and all the fees that were paid to all the parties that were not revealed. Stay away from unconscionability as this is like the insanity defense. It exiss but rarely granted. If you want to keep it then go with the inflated appraisal, and the the payment of the lender and that the equities here do not allow the “lender” to get paid and get the house too. BONY will say they didn’t get paid and they probably didn’t. But they didn’t loan the money either so they are not a holder in due course. The real holder in due course are the investors who now hold the certificates of mortgage backed securities to whom the mortgage and note were pledged in tinny shares along with shares in hundrds of other mortgages and notes. 9. My question is because this was not raised initially is it now waived? (I have been retained by the client) – Being new counsel the court will usually allow some lee-way to create your own pleadings. Waiver of affirmative defenses can only be plead after judgment. Any time up to that you can amend your pleadings liberally in Florida and most states. You can even amend your pleadings at trial to conform to the evidence. If there is any prejudice the trial is continued so that the other side can conduct discovery. Of couse, no guarantees here on this or anything else. Judge could say no to everything. 10. Also what types of claims have you seen used against the alleged “assignment” when it would appear that the signatory does not have apparent authority? —This is basic law. Competency of witness: Oath, Perception, Memory and Communication. If the party signing a document has no knowledge about the “facts” asserted then they are incompetent to sign the affidavit and incompetent to testify.

Rescission is an orderly progression or a process and not a single event. So when you rescind, you are converting the secured debt into an unsecured debt. 2. If the rescission is effective either by court order or the “lender” accepts it (which never happens) THEN the time comes to negotiate tender of the money. 3. If the loan was sold to someone else, then there are two potential issues: (1) was the rescission sent to the correct party? and (2) you obviously are not going to pay someone who has already been paid so they need to disclose to you who the real owner is — something they cannot do which we have already discussed. 4. Timing of sending rescission letter. I would do it now although there are arguments to the contrary. Basically what you want to do is assert your right to the three day rescission, on the basis that they did not disclose the real parties in interest, nor did they disclose the fees that were paid to undisclosed parties, nor did they tell you that your signature was going to be used as the basis for issuance of an unregulated security and sold all over the world. 5. Remedy: You can file a mandatory injunction to force them to reconvey the Deed of Trust or you can just file a quiet title action. I like the quiet title because it is your position that they don’t have the authority to do anything, since the documents were conveyed before, during or after closing. 6. See if you can find out if the Pooling and Service Agreeemnt and/or the Assignment and Assumption Agreement actually predate the loan closing on your deal. If So, it proves that they NEVER had any equitable or legal title to the mortgage or note.

Technically the answer would be yes, you are being ordered to leave. As a practical matter however, there are several procedural steps that the Trustee or “lender” must take before they can actually remove you from the premises. And of course in most cases, it is my belief that the Trustee or “lender” doesn’t have the authority to tell you to leave because they didn’t have the authority to foreclose your property in the first place. I have seen people delay the process for many months by entering into negotiations for cash for keys, or some other deal. Also there are filings you can make in court contesting the unlawful detainer or eviction action which might include an emergency petition to stay the proceedings because the sale of your property was improper, a sham, and constituted theft of your property (because the lender had already been paid by a third party, etc.). Motions for stay are not usually granted unless you also file an actual claim against the Trustee or lender for your TILA and other claims. You might be faced with a demand for bond, which sometimes is zero and sometimes is as much as $10,000, but upon payment of a fee you can possibly make arrangements with a fidelity bond company to put the money up. And there is always the bankruptcy route which if done properly, might challenge the Trustee or lender very effectively, particularly if you show the house as YOUR asset, based upon a disputed claim (and therefore of unknown value) and you show the “lender” has an unsecured creditor for an unliquidated amount that is in dispute.

TO CREATE A LEGAL AND POLITICAL MOVEMENT THAT STOPS HOME FORECLOSURES AND RETURNS WEALTH TO THE PEOPLE FROM WHOM IT WAS ILLEGALLY TAKEN: First to Stop all foreclosures on all property financed, refinanced or subject to HELOC during 2001-2008. Second to at least force the lenders and Wall Street firms into reasonable terms that compensate homeowners of every type for the inflated appraisals arranged and paid for by the lenders, and the other predatory practices employed in order to create an outlet for the all the money Wall Street collected by selling more securities than there were mortgages to back them up. Third we want to see homeowners get money — damages, rebates of points, closing costs, refunds of payments and undisclosed kickbacks and fees that are required to be disclosed by law. And fourth, the nuclear option — we believe that it highly possible that there is no “holder in due course” or that the only holder in due course could be the investor who purchased certificates on asset backed securities. We believe that the assets that backed these securities were scrambled in financial blenders into a puree that cannot be traced. Where that is the case, it is highly probably, as dozens of people have already learned in their own cases, that homeowners could end up with their homes free and clear of the mortgage and note forever.

Mortgage backed securities only account for 2-3% of all derivatives in the world. Sure financial institutions will take a hit that is well-deserved. Someone must pay for this fraud — but certainly not the victims. The lawsuits and notices of sale are all designed to leave the lender in the windfall position of having been PAID IN FULL within days of closing on your loan, PLUS being paid an undisclosed fee of approximately 2.5%, and now they are foreclosing so they will have the money AND the property. In addition they might seek “deficiency judgments” that are also fraudulent on their face. Allowing people to regain their only source of wealth — their homes — is the ultimate stimulus package. We are not seeking to destroy anything, just save the economy, save you and save your home. Question: A lot of States are having their attorney generals file suit against the major mortgage culprits — Countrywide, OCWEN, Wells Fargo etc. Won’t that help me? Answer: In some cases, like the San Diego lawsuit to stop Countrywide from foreclosing, you might be helped. But mostly these suits are about damages and frankly there is no damage settlement on the horizon that will take care of this problem. This problem is at least a $13 to $15 trillion problem. The settlements are in the hundreds of millions which means the benefits rolling down to homeowners are less than 1/100 of 1%. Put another way, most homeowners during this period probably suffered damages of at least $100,000. The AG actions would get you $10.00. You need to be proactive and help yourself. Depending upon government intervention is probably unwise.

First of all there are no guarantees in life and this is no exception. EVERYTHING ON THIS SITE IS COMPLETELY VERIFIABLE BY YOU, YOUR ATTORNEY OR ANYONE ELSE. We can give you information and you can hire an attorney. You can and should get a mortgage audit which will help any attorney represent you, and you can use the information you get here to take to an attorney who can help you file pleadings in your own name, known in the legal field as Pro se. Many Pro se litigants have been able to get their foreclosures dismissed — hundreds of them. Most attorneys are just learning about the rights of homeowners and the fact that there is “money in them thar hills.” Most of them are not yet up to speed and advising clients to give up the keys when there are valuable meritorious defenses and offensive strategies that are already working all over the country. we prefer you get a lawyer, but if you can’t get one who is on your side and who will demand the missing note, etc., then you might have to help yourself.