11 FORECLOSURE DEFENSE CONSIDERATIONS
CJ's Presentation to the Attorney General Regarding Recontrust Foreclosure Fraud
video: Foreclosure Defense Overview
This presents the facts of fraudulent foreclosure documents used to steal homes.
IRS Whistleblower Link
International Directory of Banks
Following is an overview of what owners should consider when faced with the potential loss of their home. The first eight considerations focus on fighting back to keep the home. The last three can potentially delay the home loss, but in the end, will most likely lose the home. How each owner chooses to proceed is up to that owner, their situation, their time, their ability to fight, and their resources.
CJ Holmes is not an attorney, CPA, loan modification or securitization expert, but these strategies seem to be the most effective ones of which many don't depend on third parties to perform, can be done by the owner with minimal fees paid to others, and will likely result in at least foreclosure postponement, possible foreclosure cancellation, outright loan rescission or wrongful foreclosure restitution.
No actions or efforts of any kind can be guaranteed - we're fighting against entities that use fraud as a business model. [HOFJ does not represent or endorse the accuracy of reliability of any information provided or discussed, nor does HOFJ accept responsibility or liability for any loss or damage of whatever nature that may arise as a result of your use of or inability to use this information or this website. Content may change without notice.]
Warning: Owners sometimes get lured into dangerous traps - like recording documents of their own on their properties. DON'T DO IT. If you have, here are some documents to use to rescind (take back) the documents you recorded. DAs will find these owners "easy-pickin's" to prosecute for fraudulent document recordation.
Reconveyance Rescission Document pdf General Rescission Document pdf
Warning: Foreclosure Consultants must be licensed in CA since 2009. The CA legislature passed a Foreclosure Consultant Law that requires anyone, other than licensed attorneys, who charges for any type of foreclosure defense assistance, must be licensed and bonded with the California Department of Justice. Protect yourself by asking those selling assistance to prove they are licensed to do so. Californians, please do yourselves a favor and suspect all "out-of-state" help. These entities are beyond the CA Department of Justice. Demand proof of allclaims no matter what the claims are or who makes them.
CA Desist and Refrain Orders for Unlicensed Loan Mod Activities
File a complaint to the Department of Justice for Unlicensed Loan Mod Activites
Warning: Audits. Typical "Loan Audits" or "Securitization Audits" often with Bloomberg screen shots, do not get the powerful results that shrewdly using the law does. Most of the information used in these audits are freely discoverable from demanding the information from the servicer, reviewing the recorded documents, or accessing the SEC internet site. The whole point of any technique is to ensure it will actually help get a loan modification or cancel the foreclosure. Please contact us before spending thousands of dollars on an audit, that in the end, most likely won't stop the foreclosure of your home.
Foreclosure Defense Attorneys: Good, honest, knowledgeable, effective attorneys for foreclosure defense can be impossible to find or very expensive. The best suggestion is to search your county and nearby county's courthouse records database for lawyers who are suing the bank/servicer you are fighting. Whom you are fighting will be listed as a defendant in wrongful foreclosures. Note the names of attorneys representing the plaintiffs (homeowners) in these actions and contact them. If you find yourself cheated by an attorney falsely claiming to do foreclosure defense, as many have, please file a complaint with the California State Bar.
Some reasons good attorneys won't do foreclosure defense:
- there is weak law or precedence for foreclosure defense (law changes might help)
- they don't want a "foreclosure predator" reputation
- they aren't comfortable defending a foreclosure in front of the local judges
- they are in the "good old boys club" and this type of defense is just "not done"
- borrowers are broke and can't afford to pay them, and they can't work for free
- they don't really understand the issues nor that the banks are breaking the law
PRO SE HANDBOOK - Northern California
1. Always, and for every mega-bank infraction, file an OCC Complaint.
video: OCC Complaint Overview
Whether you are in default or not or even after you've lost the home to foreclosure, for each and every infraction by a mega-bank, file/amend your OCC complaint. The OCC Complaint strategy has helped many get their foreclosure auctions postponed. At this time at least delay the potential loss of your home and stay in the fight to keep your home. If/when we shut down the foreclosure mills so owners no longer risk losing their homes, then the focus will be on appropriate loan mods and/or justice and restitution.
The OCC has an Enforcement and Compliance (E&C) division. As you may already know, the five major banks were ordered by the Court on April 4, 2012, to clean up their act, stop committing forgery to foreclose, and ensure all foreclosures "are supported by competent and reliable evidence." This is almost a year after the OCC ordered 12 Servicers to Cease and Desist their fraudulent practices in April 13, 2011.
As you will discover, evidence is rampant that servicers continue to forge foreclosure documents and steal homes. Any time and every time you identify a bank violation of these Consent Orders and Judgments, complain to the OCC Department of Enforcement and Compliance.
April 4, 2012 Consent Judgments: GMAC/Ally BofA Chase Citibank Wells Fargo
April 13, 2011 OCC Consent Orders: Aurora BofA Citibank Everbank HSBC Chase MetLife OneWest PNC Sovereign Bank USBank Wells Fargo
Read just the first 2 pages of these OCC Consent Orders. Then you'll understand why thousands of owners decide to fight back instead of giving up and giving in to the theft of their homes.
IF you are not being serviced by a mega-bank, PLEASE complaint to the Consumer Financial Protection Bureau [CFPB]. There is a wealth of information on their website.
2. Submit at least two Qualified Written Request Letters. video: QWR Letter Overview
This is key to proving whether the Lender foreclosing on a home has "standing" - the legal authority to foreclose.
This is the 'Backbone of Owner Defense' and works for every owner in every state, as it is based on Federal Laws. No matter if you are current in your payments, in arrears, or facing foreclosure, send your servicer/mega-bank Qualified Written Request letters. These letters are based on RESPA, 12 USC 2605(e), the Real Estate Settlement Procedures Act and the FDCPA, Fair Debt Collection Practices Act.
Submit these letters immediately even if your loan is not in arrears. Everybody needs to verify they are making their payments to the correct party. It turns out that thousands of borrowers are NOT paying the correct party and losing their homes over it. Be sure to send at least one followup letter whether you receive any information back or not, and keep a log of every interaction, response, and information received. You may receive different information with the different requests. Keep track of everything. The second letter would be a repeat of the first if there was no response from the servicer, or would be a follow up letter demanding clarification of information received, or demand to know why specific information was missing.
These demands and the information you may or may not receive, has EVERYTHING to do with:
(a) "exhausting your legal options" if you end up in a court lawsuit against the bank;
(b) forcing the bank to state which securitization trust your loan is in (opening themselves up to more proof of fraud);
(c) provide more good reasons for OCC complaints and OCC Enforcement action; and
(d) extending the statute of limitations as claims against the bank for non-response or bad response is three years starting 60 days after the LAST demand letter was sent.
We've been told that with the correct attorney who knows how to do these lawsuits, getting damages is easy and can help fund a foreclosure fight war chest for the owner.
1. Submit QWR to Servicer "certified, signed receipt requested."
2. Keep a detailed log of mailings, correspondence, and phone calls
3. Re-request missing Information; demand clarification as appropriate
4. Use in package of Owner Statement of Suspicious Documents
Mail these letters certified, signed-receipt requested, to all parties at the same time as listed on the QWR letter. SampleQWR [word] [pdf] The document name includes the date it was drafted. Check to be sure you are using the latest version. QWR letters last updated May 16, 2013.
QWR timelines were shortened by the Dodd-Frank Act and took effect in January 2013. The sample QWR letter reflects these changes.
The Consumer Finance Protection Board enforces RESPA issues.
article Mar 2012: Securitized Distrust: Mortgages found in Multiple MBSs
article Dec 2012: MI Supreme Court Requires Chase to Prove Loan Ownership
3. Stop Servicers/Debt Collectors from hounding you. If you recently defaulted on you loan payments, for approx 60 days servicers/debt collectors may make repeated calls, threatening, promising or bothering you by phone. You do not have to accept that treatment. These actions are a direct violation of the Fair Debt Collection Practices Act [FDCPA]. You may request in writing they only contact you by mail. You are welcome to use a sample letter below. Remember Servicers are exactly what they claim to be: Debt Collectors. And as debt collectors, they DO NOT and have NO RIGHT to OWN YOUR LOAN. This is a key issue mostly overlooked to date. FAIR DEBT COLLECTION PRACTICES ACT Sample letter to stop harassment [word document] Sample Letter - pdf format
4. Get copies of the Foreclosure Documents if/when recorded and analyze them to start fighting back.
Forged documents are a glaring sign that the foreclosing party does not have the authority to foreclose, that they lack "standing." This is now a "material" violation of CA SB900 and the lender, servicer, and foreclosure trustee can all be sued for damages, before or AFTER foreclosure.
video: Analyzing Recorded Documents
sampleDeedofTrust sampleDOCS used in workshop 1
Use this editable spreadsheet to fill in your document information. (xlsx format)
Here is a pdf spreadsheet to view/copy if excel doesn't work.
video: Analyzing Recorded Docs 2
editable spreadsheet  pdf spreadsheet
Suspicious Signatures Webpage to check sigs on your docs
Recontrust NOD example
Until a Notice of Default [NOD] is filed, there will likely NOT be any Assignments or Trustee Substitutions recorded on the property. This is the "secret underworld of MERS" in operation, where all ownership and note manipulation is kept secret from the public for as long as possible. Just a few minutes prior to the NOD being filed, there may be one or more assignments and trustee substitutions filed.
When you receive notice an NOD has been filed, go to the county recorder's/registrar's office and get certified copies of every notarized document, and plain copies of the others. In a non-judicial, Deed of Trust state, foreclosures are just a count of days: 90 for the NOD, 21 for the Notice of Sale. In a judicial, mortgage, state, foreclosures are handled in a court process. In either case, if the owner doesn't fight back, the home will be lost. If the owner fights back, often the foreclosure auction (sale at the courthouse steps) is delayed. If the owner fights back very shrewdly, leverage is gained in negotiations - from loan modifications to a "draw" (both sides stop while owner stays in the home) to an owner win. It's definitely worth a fight.
The recorded documents you want to get are all of those filed AFTER the Deed of Trust/Mortgage in question. Only those documents will have meaning to this current situation. Assignments, Substitutions, Rescissions, and Trustee Deeds on Sales are notarized. Notices of Default and Notices of Trustee Sales are not notarized. Don't worry if you don't have each of these types of documents. Just get what you have.
Input all requested information making sure that documents are in order by date. This makes it easier to spot broken chains of authority (assignments recorded AFTER NODs) and see at a glance all document signers and notaries so you can check our for the same names as used on your documents.
These efforts are building your file of forgery and fraud, the building blocks of the next strategies to save your home and get criminal prosecutions started on the banksters.
article Jan 2013: Thousands of Foreclosure Cases Left in Lurch
5. Focus on the forged foreclosure document signatures with notary complaints and journal entries.
video: Notary Complaint Workshop
'Robo-signing', which is honestly called 'forgery', is a key element we can use in the fight to stop foreclosures. Forged signatures are a building block of fraud used by Servicers as they legally have NO RIGHT to foreclose. Therefore, bringing all this fraud and forgery to light will be key to shifting the political and legal winds of this war in favor of owners.
Simply summarized, this strategy calls for requesting signer signatures from the notary's book, called journal entries, and getting notary signatures from the secretary of state with which to compare the signatures on your documents. IF a notary complaint requires a certified notary signature, be sure to order that. Also check out the Suspicious Signatures webpage to possibly find other signatures for the signer names on your documents. Once you can show any sign of forgery on any of the signatures, file the appropriate notary complaint(s), notary bond complaint(s), and include these complaints in the Owner Statement of Suspicious Documents.
This strategy is explained in more detail on the Notary Complaints webpage.
article Mar 2012: Robostamped: Deposition of Michele Sjolander, Exec VP of Countrywide. All signatures on documents coming out of RECONTRUST are forged, signed by unknown persons at unknown times. Let's get Recontrust shut down.
CJ's Presentation to the Attorney General Regarding Recontrust Foreclosure Fraud
6. Complete an Owner Statement of Suspicious Documents and send to elected Officials.
video: Owner Statement of Suspicious Documents
suspicious documents (word format)  suspicious docs (pdf format)
CJ's Presentation to the Attorney General Regarding Recontrust Foreclosure Fraud
This strategy combines the document analysis from #4 and the proof of forged signatures and false notarizations from #5 into one package to be presented to the owner's local officials such as the DA, Recorder, Sheriff, and Supervisor(s), the OCC or CFPB overseeing the servicer trying to foreclose, with a copy sent to HOFJ to pass on to the statewide grand jury in each state.
Then we encourage redacted copies (private information whited out) to be sent to every mainstream media station. "Plastering the planet" with proof of fraud is the best hope the people have of shutting down the foreclosure mills and keeping their homes.
Suggested Owner Statement Distribution List:
County District Attorney
State Attorney General
To MEDIA with redacted copies (white out name/address so they focus on forgery)
Local and National TV Stations of choice
Local and National Newspapers of choice
File complaints against any California Corporations with the CA Department of Corporations.
article Nov 2012: Lorraine Brown, Founder of DocX, just pled guilty to directing employees to forge over 1M foreclosure documents. Why can't we get all Foreclosure Mill Forgers, like Recontrust, Cal-Reconveyance, Quality Loan Servicing charged and shut down like this one??
article Jan 2013: Foreclosure Mill Marshall Watson to be Shut Down!
7. File a Quiet Title lawsuit. This strategy is subject to state law as property statutes are at the state level. Some states have bonding requirements that have stopped owners from filing, but there may be workarounds. This is the one type of lawsuit where recorded documents are NOT presumed to be accurate. The bank must provide proof of ownership claim and right to foreclose.
PRO SE HANDBOOK - Northern California
8. Consider applying for a loan modification.
video: Loan Modification & SB900
California SB900 Loan mod denials appealed, p11
Lender "standing" p.22. "...accurate and complete and supported by competent and reliable evidence."
All foreclosure participants can be sued for "material" violation p.19
800,000 families improperly denied a loan modification
FDIC NPV Calculator [Net Present Value]
Homeowners just want an affordable loan for the home they purchased or refinanced at the top housing price bubble. This bubble was intentionally created and manipulated by the bankers and the Federal Reserve, just as this foreclosure crisis was intentionally created and manipulated by the same thieves.
Make no mistake, homeowners are victims in this ruse to steal their land. Simply listen to William K. Black and Catherine Austin Fitts on the home page of this website.
Other webpages cover various aspects of loan modifcation in more detail, with links to free help and discovering if Fannie Mae or Freddie Mac owns your loan: Loan Mod Links & Info, HAMP, and HARP2. Beware working with NACA. NACA has contracts and is paid by the very servicers which decide on your loan modification terms. In real estate, this is called "dual representation." NACA has refused to respond to my demand for full disclosure of their fees and servicer contract terms. Watch out.
Other warnings: "Trial Loan Modifications": Loan Servicers frequently tell borrowers that if the borrower will just send "trial loan payments," typically half the normal payment for 3-6 months, then the borrower will qualify for a loan mod. These trial mods are not substantiated by any paperwork. Not only is this FALSE, it is ILLEGAL. If your Servicer suggests you do this, immediately file a complaint with the OCC. Word on the street is that every penny sent to the Servicer AFTER the borrower defaults on the loan is pocketed by the Bank and illegally not applied to your loan or impound accounts.
Send Qualified Written Request asap: Prior to signing any loan modification paperwork, please be sure you have submitted the Qualified Written Request, strategy #2 above, to ensure their payment history on your loan matches your records and that your payments will be going to the correct party. A recent study of OCC data found over 800,000 families in the nation were illegally foreclosed because banks broke the rules for loan modifications. And Washington is letting the banks get away with this.
Log Every Conversation: Be sure that every time you speak to anyone about your loan, document the conversation with the company name, the employee name, the employee ID, the department name, the geographic location, and that employee's supervisor name. This will give you greater power in advocating your case with the OCC and others.
9. Sell the home in a short sale. If a loan modification is not workable due to income or other loss, then a short sale may be the most elegant and least stressful way out of the home. A short sale is where the sales price of the property is less than the amount of the loan(s). Sometimes short sales can postpone foreclosure auction dates, particularly when combined with an OCC complaint (as appropriate).
Frequently there are HAFA 'move out' moneys available for an owner at the close of a short sale. Be sure to work with a competent short sale representative that can get the transaction completed and ensure you get the most benefit possible. Contact us for complete details and how a short sale might benefit your situation. We are very successful with this challenge for any property in the state of California.
There may be tax consequences of selling a property short, and speaking to your tax adviser is highly recommended.
CA Rule Changes: Short Sales Protect Owners - No Lender Recourse
CJ's video and blog article about this topic. This is general information only for California State. Please seek competent legal and tax advice for your specific situation.
How a short sale can hurt: Credit Damage when Selling Short or Foreclosure
Jan 1: Mortgage Debt Relief Act of 2007. 12/31/2012 deadline extended to 12/31/2013. This applies only to Federal Income Taxes, and is for "Purchase Money" owner occupied single family homes only. Does not apply to refinanced moneys. Purchase money is the loan used to purchase the property. CA tax debt relief expired 12/31/12. SB30 is in the works to conform state law to federal law and be retroactive to 1/1/13.
10. Consider a Deed in Lieu of Foreclosure. This involves the owner deeding the house back to the servicer without as many unknowns as a foreclosure auction. The owner will still face the same tax consequences of income tax on phantom gain as in a short sale. Owners have to determine their willingness to let the home be taken illegally from them.
11. Bankruptcy. Bankruptcy has been a mainstay of foreclosure auction postponement. If you decide to file bankruptcy, please be sure, whether representing yourself in court or using an attorney, that the schedule of assets presented to the court lists the loan as an UNSECURED debt. This is a key technique in forcing the bank's attorneys to prove the bank owns the note and has the right to foreclose. IF the debt gets discharged as unsecured, then the owner should immediately get the title company to demand the settlement paperwork from the bank to remove the loan debt from the property record.
Evidently for farmers, there is a Chapter 12, which is a force down of the loan principle to current market rates. If you think this might apply to you, please mention it to your attorney.
Weblinks for complaints:
the Consumer Financial Protection Bureau [CFPB]
the California Attorney General: BofA, Chase, GMAC/Ally, Citibank, Wells Fargo
the AG complaint website
the California State Bar
the California Department of Corporations