ARE YOU UP FOR THE CHALLENGE TO TRY TO PREVENT THE LENDER OR LOAN SERVICER FROM LIFTING THE AUTOMATIC STAY WHEN THEY CANNOT PRESENT A COLORABLE CLAIM THAT THEY ARE THE PARTY ENTITLED TO ENFORCE THE NOTE?

For California bankruptcy lawyers filing Chapter 7, Chapter 11, and Chapter 13 cases for their California clients, you have to ask yourself one thing: “ARE YOU CHALLENGING THE ALLEGED SECURED CREDITORS MOTION FOR RELIEF FROM AUTOMATIC STAY”?  The motion filed by the alleged secured creditors may not have the legal proof to prove much at all.  We get calls from homeowner/debtors all the time who are in bankruptcy and wonder why their bankruptcy attorney will not assist them.  Perhaps if you had a sample opposition pleading with most of the major 9th circuit memorandum of points and authorities, and a “lift-stay guide” to help you make the legal argument you would take on the battle.

Every debtor in bankruptcy is entitled to the FULL BENEFIT OF THE AUTOMATIC STAY until and unless a true secured creditor, who is the real party with standing can show a colorable claim that they are entitled to lift the automatic stay.

Click here to view more about this topic, and to get your own copy of a motion that you can use to fight for your clients legal rights in the bankruptcy courts.

We have launched a new website (which is an ongoing work in progress) where we seek to provide California real estate, foreclosure and bankruptcy attorneys with foreclosure related information, video case briefs, tools, tricks, checklists, tips and strategies. Here is a general outline of what Phase I has to offer (which should be completed by September 30, 2011). The foreclosure training website for attorneys can be found at Foreclosure Warrior.

Yet, when you have a good case for TRO or Injunction (ex. TILA rescission, failure to follow the foreclosure laws, notary fraud/forged signatures on critical foreclosure documents etc.) you want to make sure you are ready to respond. These can be profitable cases where the right case presents itself. If you need to know what the Courts are looking for when you go for the TRO, and want to hear some first hand experience of how the judges are responding to these issues, and what happens if someone is facing an eviction action, then this is information you will want to hear.

We have secured a good number of TRO’s and our seminar will share some tips, tricks, strategies and insights to help you get the TRO.

Typical scenario, your Client has a refinance loan within the last three years, and they have equity in their house (we see this more with elders it seems) and yet you are facing foreclosure either due to an exploding option arm loan, or negative amortization loan, or simply run into hard financial times with work. Whatever the reason, the borrower goes into default and servicer wants to foreclose. Client either figures they have no rights and give up, or they hire a law firm, or “attorney-backed” modification company (where there is usually no attorney, or an attorney who does not provide any legal services), to help them. After several months of wrangling with the loan servicer, the final denial letter comes saying you do not qualify for any loan modification. IN A PANIC YOU CALLL AROUND CALLING FIRMS LIKE MINE ASKING WHAT CAN BE DONE.

After asking some basic questions we learn you may have “material” truth in lending rights that allow you to rescind your loan up to THREE YEARS AFTER THE LOAN IS CONSUMMATED. Yes, you read that right, you may be able to rescind your loan up to three years after consummation of the loan. What consummation is and when the clock starts running is the subject of a recent blog post you can read here http://tinyurl.com/45ppjf3.

We discuss how TILA works in general terms on this blog.

However, that is not the point of this article. The point of this article is that TOO MANY PEOPLE (INCLUDING THE ATTORNEYS AND ATTORNEY BACKED MOD COMPANIES REPRESENTING HOMEOWNERS) ARE EITHER NOT LOOKING FOR TILA RESCISSION CLAIMS, OR THEY ARE NOT BEING ASSERTED OR EXERCISED IN A TIMELY MANNER. IN FACT, IT IS MY SUSPICION THAT MANY ATTORNEYS DON’T EVEN KNOW WHAT TRUTH IN LENDING LAW IS, WHAT IT MEANS, OR HOW TO EXERCISE ONES RIGHT TO RESCIND AND TREAT THE LOAN AS UNSECURED EITHER IN A CIVIL LAWSUIT SEEKING A TRO AGAINST INJUNCTION, OR IN BANKRUPTCY IN AN ADVERSARY PROCEEDING.

IT SEEMS TO ME IT IS LEGAL MALPRACTICE TO MISS THESE CLAIMS, ESPECIALLY WHERE A BORROWER HAS EQUITY IN THEIR PROPERTY AND AN ABILITY TO TENDER THE BALANCE OF THE LOAN.

I just got off a call with an elderly woman in her 80′s who is losing her home to foreclosure, the three year right to rescind has arguably expired, and she wants to know how to avoid being thrown to the streets. On top of that, she was represented by a loan modification law firm that took a tidy sum to “save her from foreclosure.” Now they are calling me.

Point is, as realtors, brokers and real estate professionals, it is your job to look out for people, understand the laws that affect your business even though you cannot practice law. In this foreclosure crunch, TILA is one of the most powerful weapons to try to turn the tables on the lender, rescind the loan, treat is as unsecured, seek attorney fees, and force them to return all funds they received over the last few years. TILA rescission applies to ALL loan assignees including those “back-room” lenders and trustees guarding the securitized loan pools.

If you know someone facing foreclosure, just ask them if they have a refinance loan within the last three years. If yes, good, if they have one of the several “material” TILA violations and equity in their property (or ability to obtain cash by selling other property, or some other legitimate argument that they can fulfill their tender obligation), then make sure you tell them to see a TILA attorney or otherwise consider sending in a rescission letter within three years of signing their loan documents. That is being a professional consultant and making a difference.

One easy way (and FREE) method of determining whether you have a “material” TILA violation is to look back in our most recent loan documents and see if EACH BORROWER OR PERSON WITH SECURITY INTEREST IN THE SUBJECT PROPERTY GOT TWO SIGNED AND COMPLETED NOTICES OF THEIR RIGHT TO CANCEL (FOR A HUSBAND AND WIFE THAT IS 4 TOTAL COPIES). ALTHOUGH THIS MAY SEEM TICKY TACK, OFTEN THERE ARE ONLY COPY LEFT FOR THE BORROWERS, OR NONE, OR THE DATES FOR RESCISSION ARE NOT FILLED IN, OR ARE FILLED IN BUT NOT ACCURATE. THESE ARE MATERIAL VIOLATIONS TRIGGERING AN EXTENDED THREE YEAR RIGHT TO RESCIND THE LOAN UNDER FEDERAL TILA LAW.

If your clients were neglected by their professional advisor, contact our office to discuss a potential malpractice claim.

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Steve Vondran, ESQ. is a real estate, predatory lending, and bankruptcy lawyer licensed to practice law in Arizona and California. He is a former mortgage loan officer, and a real estate broker licensed in CA and AZ. He can be reached at (877) 276-5084. Visit us also on Foreclosure Defense Website at http:www.ForeclosureDefenseResourceCenter.com and our Foreclosure Radio Show at BlogTalkRadio

I am interested in this area of law but I am concerned that many home owners are reading on the internet information that creates unrealistic expectations regarding the success of foreclosure defense litigation. I am also concerned that lenders, mortgage loan servicing companies, and others seeking to enforce security instruments such as deeds of trust are not following basic legal requirements in the “foreclosure process.” Judges are unprepared to handle the issues and often rule based upon the established methods but ignore very important basic principles of law.

HERE WAS MY RESPONSE:

You raise valid arguments.

However to address your question I offer this: (1) you have to find cases that have a unique angle (not the typical “my lender won’t modify case” but rather a case dealing with Robo-signer Fraud, Failure to Follow the Foreclosure Statutes, Breach of a Modification Agreement, Elder Abuse, TILA rescission, etc…), (2) you have to create realistic expectations as to potential outcomes; and (3), in regard to judges, yes, you need to ask them to follow the law, some of which is being challenged for the first time.

Homeowners want to fight, and need lawyers to help them. And just because some (yet to be ascertained judge) may not be overly enthusiastic about this concept of siding with homeowners who may be in default, justice is supposed to be blind, and this is where advocacy skills kick in.

If clients have a legal right to fight and file a lawsuit, and if people want to pay you for the fight, and you create realistic expectations, you never know what the outcome will be. This is a valuable service and badly needed. HUD does not help people; Legal Aid does not help people, but you can. What if someone was dying of cancer and they were trying to kick them out of there house and they had no choice but to find a way to fight? How about people who are facing eviction and removal from their ADA customized house with ramps and rails and things they need? What about seniors facing being kicked to the streets after their option arm (negam loan) explodes forcing them to a homeless shelter at 90 years old? These are all real cases with lenders and loan servicers who refuse to modify. Who is going to fight for them? Of course you need valid legal grounds to sue, but if you look hard enough into these loans, the foreclosure process, and the chain of title, you will normally find interesting things that create valid legal grounds to file.

In fact, even if you refused to ever file a lawsuit, you can make a good living with just paid one-hour consultations that explain things like: (a) your foreclosure options (ex. strategic defaults, bankruptcy chapter 7 and 13, short sales, etc.), (b) deficiency liability (what happens if you are foreclosed on), (c) discussions regarding affect of foreclosure on credit, (d) cash for keys options, etc. Many people just want to separate the fact from fiction and get a good solid game plan.

One other thing to consider, we are seeing an influx of in pro per filings. Many judges are advising people to get attorneys. I get people wanting me to take over cases that they have filed, and try to help them move the case along. Some people have money and some don’t but some fight it on their own to try to keep costs down then realize they can’t handle the litigation and need an attorney. This is happening a lot right now. Good source of business. Again, you have to pick and choose the right cases.

And from the foreclosure calls you get, you will find at times (a good number of times) that bankruptcy is best option. There is a bankruptcy lead for you to convert. And what you will find in bankruptcy is parties that come in wanting to lift the automatic stay the first month of bankruptcy. Most BK attorneys roll over rather than challenge their legal standing to bring the motion for relief from automatic stay. It is the homeowners right to defeat that motion where grounds exist, and send the so called lender packing. This may even create grounds for an adversary proceeding where warranted.

Also, what if a new law comes down or legal ruling that changes the legal landscape for homeowners. You gonna jump on the bandwagon then, or are you already going to be established helping people?

What about people being sued for deficiency judgments, or other things related to their real estate? I just got a call today from someone needing representation because MERS (the software company) is suing them. I cannot wait to take the case, and they think they can get their legal insurance to pay me. They need someone to help them as well.

So, the point is, you can take the “this is a tough racket approach” or you can dive in and start helping people who are in dire need of sound assistance, many of which will pay you for your services. At the same time, you are making new client contacts that may help you later on down the road if, and when the economic crises is over.

Did I mention commercial loan modifications being the next wave and what about credit repair that seeks to eliminate short sales and foreclosures from ones credit? I have proof of a short sale removed from a credit report.

At any rate, I think you might get the point by now. Thank you for your question.

Steve Vondran, Esq.
Real Estate, Foreclosure, and Bankruptcy Lawyer

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IF YOU ARE IN ANY OF THE FOLLOWING CITIES, WHY NOT CONSIDER TAKING THE STEVE VONDRAN FORECLOSURE TRAINING COURSE AND START HELPING PEOPLE IN THESE CITIES:

CALIFORNIA CITIES

Alameda
Albany
Berkeley
Dublin
Emeryville
Fremont
Hayward
Livermore
Newark
Oakland
Piedmont
Pleasanton
San Leandro
Union City
Amador
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Ione
Jackson
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Sutter Creek
Chico
Gridley
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Paradise
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Colusa
Colusa
Williams
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Clayton
Concord
Danville
El Cerrito
Hercules
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Martinez
Moraga
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Pinole
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Richmond
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Walnut Creek
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South Lake Tahoe
Clovis
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Kerman
Kingsburg
Mendota
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Parlier
Reedley
San Joaquin
Sanger
Selma
Orland
Willows
Humboldt
Arcata
Blue Lake
Eureka
Ferndale
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Rio Dell
Trinidad
Imperial
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El Centro
Holtville
Westmorland
Inyo
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Kern
Arvin
Bakersfield
California City
Delano
Kern County
Maricopa
McFarland
Ridgecrest
Shafter
Taft
Tehachapi
Wasco
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Corcoran
Hanford
Lemoore
Lake
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Lakeport
Susanville
Los Angeles
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Artesia
Azusa
Baldwin Park
Bell
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Bradbury
Burbank
CalabasCarson
Cerritos
Claremont
Commerce
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Duarte
El Monte
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Gardena
Glendale
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Industry
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ARIZONA CITIES

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Star Valley
Gila Bend
Wellton
Miami
Huachuca City
Mammoth
Tombstone
Fredonia
Patagoni
Hayden
Dunca
Winkelman
Jerome

Noone would believe it, but now we have a semi-admission. So-called lenders and loan servicers have been asked to halt foreclosures and review their foreclosure processes after certain acts of fraud have come to light – mainly the acts of ROBOSIGNERS. Here is a link to the story: http://www.nytimes.com/2010/10/04/business/04mortgage.html?_r=2&partner=rssnyt&emc=rss&pagewanted=all.

Apparently there is one guy at a “foreclosure mill” (Jeffrey Stephan) that would literally sign anything they put in front of him. Supposedly he signed like 10,000 documents a month (for 5 years) under penalty of perjury basically testifying to the court that he had personal knowledge of facts he did not have knowledge of. What is that? That is the crime of Perjury. So, there were roughly three quarters of a million homes foreclosed on based upon a false declarations and a failure to follow the law.

How does something like this come to light? By lawyers challenging the system and protect the legal rights of homeowners facing foreclosure. Some people think if you are in default you might as well just leave your home and hand it over to whoever is claiming to own your loan (even though they cannot often prove THEY own the loan). Some people would call all these declarations signed under penalty of perjury a mere “formality” or “technicality” and say why bother.

As foreclosure and real estate lawyers, we think the law matters, and we think the process is important. Now, we are seeking a bunch of major fortune 500 lenders called out and asked to “review their processes.” Amazingly, a vice president for one of the banks said “we doubt any homeowners were injured here.” Really? If his parents house was taken by false declarations that do not comply with legal requirements he would not have a problem with that. This shows the rest of the public the attitude we have been seeing from the major lenders and loan servicers over the past few years. A “we are aboe the law” and “we decide what the law is” attitude. Well now it has come home to roost, at least temporarily.

So this may halt foreclosure for a little while – while the lenders put some more compliant window dressing on their foreclosure practices – but I am sure they will be right back at it in a few weeks saying they have better systems in place now and all foreclosures will be legal. I doubt anything will change. Of course, magically the promissory notes will not appear, so they will have to continue with their false declarations one way or another claiming they have original endorsed copies of the note showing they are owed the money. We will keep an eye on this to see the interesting new talking points they come out with next.

For now, here are the lenders impacted by the OCC ruling (SOME HAVE VOLUNTARILY DECIDED TO HALT THEIR OWN FORECLOSURES WHILE THEY CHECK OUT “GLITCHES IN THE SYSTEM”):

Bank of America
Wells Fargo
HSBC
JP Morgan Chase
GMAC
Citibank
PNC
US Bank

DOWNSIDE: OF COURSE, IT LOOKS LIKE THEY ARE ONLY GOING TO HALT FORECLOSURES IN “JUDICIAL FORECLOSURE STATES” WHERE THE LENDERS MUST FILE A LAWSUIT TO FORECLOSE. In all the non-judicial foreclosure states I suppose they will just keep doing what they are doing since they can get away with it. Here are the non-judicial foreclosure steps where ostensibly ROBOSGINERS can keep doing their thing (singing documents under penalty of perjury with no knowledge of what they are attesting to).

Alabama

Alaska

Arizona

Arkansas

California

Colorado

District of Columbia

Georgia

Hawaii

Idaho

Iowa

Michigan

Minnesota

Mississippi

Missouri

Montana

Nevada

New Hampshire

North Carolina

Oklahoma

Oregon

Rhode Island

South Dakota

Tennessee

Texas

Virginia

Washington

West Virginia

Wisconsin

Wyoming

Here is a list of judicial foreclosure states:

Connecticut
Delaware
Florida
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Nebraska
New Jersey
New Mexico
New York
North Dakota
Ohio
Pennsylvania
South Carolina
Vermont

At any rate, what we are seeing validates what we have been saying all along – the Banks and Loan servicers will do just about anything when it comes to foreclosing on homes, and thanks to the efforts of foreclosure lawyers these practices are coming to light and the system should be put on trial.

Steve Vondran is a Real Estate, Foreclosure and Bankruptcy Attorney practicing law in Arizona and California. He has appeared on Fox News, and is starting http://www.ForeclosureCollege.net to teach other lawyers how to battle the so-called lenders and loan servicers in the war on foreclosure. More foreclosure resources can be found at http://www.ForeclosureDefenseResourceCenter.com. IF YOU ARE A LAWYER LOOKING TO HELP HOMEOWNERS, SIGN UP FOR OUR JANUARY 2011 FORECLOSURE COLLEGE.

(1) New attorneys looking for a meaningful practice area.

(2) Attorneys looking to make a lateral move into foreclosure and bankruptcy.

(3) Foreclosure Defense lawyers looking to gain additional expertise and take their legal representation to the next level.

(4) Bankruptcy attorneys looking to better understand MERS loans issues and how they may relate to Bankruptcy challenges that allow you to better serve your clients and potential curb malpractice liability.

SIGN UP NOW – APRIL 2011. START THE NEW YEAR OFF WITH A BANG.

TO SHOW THE POWER OF TRUTH IN LENDING LAW, READ ONE OF OUR BLOG POSTS ON ONE HOMEOWNER WHO WORKED OVER A LENDER IN CALIFORNIA. HERE IS OUR POST.

http://www.foreclosuredefenseresourcecenter.com/tag/nguyen-tila-case/

SO, YES, IT IS POSSIBLE TO DEFEND AGAINST FORECLOSURE.

WHY NOT SIGN UP FOR FORECLOSURE COLLEGE AND GET A FOUNDATION OF THE MAJOR CONCEPTS AN ATTORNEY MUST BE FAMILIAR WITH IN THIS BUSINESS.

TWO DAY SEMINAR – NEWPORT BEACH, CALIFORNIA – SEPTEMBER 2010 (Date to be announced)

__________________________________________________________________________________________

Introduction: Foreclosures and bankruptcies do not appear to be ending anytime soon.  The lenders, loan servicers and investors of securitzed loans are making things more difficult than ever on desparate homeowners.  SB94 passed in October 11, 2009 literally forcing brokers and attorneys out of the loss mitigation business and left California homeowners grasping for information about how to best take on these 5000 pound gorrillas.  Is there anything a conscientious lawyer can do to legally and ethically help these homeowners in financial distress and trying to save their homes from foreclosure?  YES THERE IS!  There are still a certain class of lawsuits that can and should be filed against financial institutions that willingly violate the state and federal rights of homeowners.  It is literally shocking to see the amount of abuses that go on, and if not identified, go unnoticed and unchallenged.  For example, foreclosure laws that are not followed, invalid substitution of trustees, selling homes while a modification was in effect, TILA rescission letters ignored, RESPA QWR’s ignored, demands to identify the holder of the loan ignored, demands to agree to unwarranted deficiency judgments as part of the loss mitigation process, etc.  These are but a few of the things that are becoming somewhat typical in the foreclosure marketplace.  This foreclosure seminar will help the legal practitioner identify, assert, and stand up for the legal rights of their clients through civil lawsuits and bankruptcy actions.