Delay The Foreclosure Process or Not to Delay?

Foreclosure Defense is tricky business, as a fraud examiner I have heard may varied versions of the same tactics. Inclusive of the Foreclosure delay tactics. This is a process that I am familiar with and cannot completely agree with it’s intent and purpose. Allow me to expound further, many consumers that are facing foreclosure tend to appreciate the idea of delaying the process in the hopes of finding the money or some other way of curing the default allegations of the creditor who is dead set on foreclosing on the consumers property. It is of my opinion that if you truly seek to simply delay you may be opening up a larger can of worms that you may not have expected.

Realize that every day that a consumer is in foreclosure there are fees that accrue and interest. This interest is known as Per Diem interest. Many times in reviewing documents I look for any clause in the mortgage or origination documents that would allow for the calculation and implementation of any such interest on a defaulted note or mortgage. If not there may be an argument to bring before the court regarding the accounting used to claim the amounts claimed as due. Many times the Per Diem interest in a foreclosure can escalate the totals by leaps and bounds! This is a matter that should be discussed with your attorney and then after you have done that talk to as many other attorneys as possible without leading on as to what you have already learned. This way you can learn more about the possibility of this argument in your state and you do not give the attorney a reason to avoid the possible claim should there be one and it received negative review from an attorney that may not know too much about this particular animal.

You must always keep in mind that not every attorney knows what he is talking about. In today’s plethora of foreclosure cases across America I have found myself in hundreds of conversations over the last few years that lead me to the conclusion that too many attorneys are only now trying to catch up on the foreclosure defense arguments. For this same reason many attorneys simply look for the easy route and stall foreclosure without actually defending against it. Your biggest challenge while in foreclosure is to find a competent attorney that will actually defend your consumer rights and seek liabilities against your creditors versus being complacent and keeping the age old mindset of ” You owe the money, you should pay”. The issue for many is simple.

I know I owe the money, but do I truly owe it to the foreclosing lender or creditor?Can the lender or creditor lawfully validate and verify the alleged debt?Has the lender or creditor taken a tax write-off or claimed an insurance policy to payoff the amounts claimed as owed?Has the Foreclosing lender or creditor (Plaintiff) sold off it’s true interests in the note and mortgage to an unknown party leaving the lender without rights to foreclose on you?Has the lender sold off the mortgage without the promissory note?Are the assignments made to a subsequent lender or creditor valid or made solely for the purpose to foreclose?Are the named authorized parties real persons and if they are are they truly authorized to create such documents that support claims of debt against you?Does the chain of title reflect the true owner in due course status of the court record?Did the foreclosing lender or creditor actually have the right to foreclose when the foreclosure was filed?Is the accounting for the loan or credit account accurate? Is it possible that you paid more than you were supposed too and actually be up to date on the account? This happens with adjustable rate mortgages more over than fixed.OK, it was not fair to say “Simple”. For an examiner there are basic questions that are formulated in a qualified written request or Fair Debt Collection Practices act request. Of course they are better stated but for example purposes they are here in this simple form.

The point being that if you ask the right questions in the proper manner and form utilizing Federal consumer rights mandates such as 15 § 1692g Fair Debt Collection Practices act or section 6 – 2605 of the Real Estate Settlement procedures act you may place the lender or creditor between the same rock and a hard place that you were in! You see in today’s foreclosure arena there is a world wind of falsified affidavits as can be proven by the Chicago example of Shapiro and Fisher a Foreclosure Mill Attorney firm who in March 2, 2011caused to be issued a General Administrative order No. 2011-1 which stayed 1,700 foreclosure cases. Of course there should have been sanction for altering affidavits and basically perpetrating fraud on the court we find that a slap on the hand was suffice. The defendants should ban together and hold every player accountable and seek damages for this scheme and artifice to defraud if the court isn’t willing to do it. Then there is what has not been addressed yet the practice of Foreclosure mill attorneys who create assignments for the Plaintiff. The list can go on and on.

It never ceases to amaze me how often questionable or out right fraudulent documents pass the muster in a cour of law. The main reason this happens is because everyone trusts the attorneys and the court to do the right thing as it should be. he truth of the matter is be skeptical of every document, date, signature and claim. Everything should be verified and authenticated. this is where you dig deep and find where they intend to create illusory authority. I even go to the Illinois State website to verify each and every notary commission. You would be shocked to find how often the notary seal and signature is a fraudulent acknowledgment!

1. Verify every signature! is it legible? No? Then it may be a forgery. A google search for the name may reveal that the person is signing documents across the country for different lenders as an authorized party.

2. Do the math! Calculate every page that has numbers, compare and see if they all match. If not then there may be a problem with the amounts claimed as owed or a problem with the Truth in lending which can lead to relief of claims or even the right to cancel the loan through a process known as rescission.

3. Verify the signatures that are alleged to be yours. They could be cut and paste or a robot may have duplicated your signature which is often difficult to know unless you have the original, to get the original arrangements need be made with the lender and the court.

4. What they don’t have the note or mortgage original? Then what rights or authority do they have to foreclose? This is a very iffy matter that requires professional help and an understanding of contract law, the uniform commercial code and other laws that will be discussed in further detail as the blog develops.

You may also visit or or any of the foreclosure confidential web pages that will have varied information regarding different articles, news stories and foreclosure. loan modification or short sale help or foreclosure self help products.

One thing that I always look to do is first find evidence that may disprove any obligation by the consumer to pay! Hey that is what all the fuss is about! Then I look for any evidence that would prove that the foreclosing attorney may have used some artifice or scheme to force jurisdiction over the subject matter or personal jurisdiction. Even if the lender or creditor does have the right to foreclose a jurisdictional issue will remove the ability for the court to hear the case or better yet for those who have already been foreclosed on, can actually reverse the whole foreclosure process! Yes, get the house back! The lender will definitely re-file but this will allow you to do your homework and find claims against the lender that may cause a workout or Quiet Title.

Interestingly enough I have witnessed first hand situations in which the lenders or creditors receive requests to verify and validate the debt they immediately, and without any hardship letters or any financial information qualify and offer a approved Loan modification. This is a sign of an inability of the lender to validate the debt under the provisions of Federal Law. An opportunity for a better settlement or quiet title.

As this blog further develops I will give detailed information that will allow the average person to locate claims and defenses that can fight a foreclosure versus simply buying time or delaying the foreclosure process. It’s about results not delays. You must also be aware that many courts (at least in my opinion) are creditor friendly and consumer deadly. There are cases in which the consumer is better of recusing the judge ( switching Judges) as there are some who will not give you a fair shake. Regardless of what the evidence reveals. There are Judges that have made special orders to even speed up the foreclosure process

More to come…

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