Archive for PHOENIX BK LAWYER
WHAT LAWYERS WHO REPRESENT LENDERS AND LOAN SERVICERS REALLY THINK ABOUT YOUR ATTEMPT TO FIGHT TO SAVE YOUR HOME FROM FORECLOSURE
Here is a recent email exchange I had with one of the large lender/loan servicers in regard to asserting my Client’s Truth in Lending rescission rights.
This email allows you to get a little flavor of what the big bad bailed out banks think about helping other people who need a bailout.
HERE WAS HIS EMAIL QUESTION TO ME:
It is a mystery to me why lawyers get involved with clients simply to delay the inevitable. The only reason I’ve been able to fathom is that the lawyer gets paid instead of the bank, while the borrower continues to live in the house. Doesn’t seem like a good way to keep one’s malpractice insurance premiums down.
I’m not suggesting that is what you’re doing here. However, XXXXXXX must protect itself and the loan owner from such pointless shenanigans.
I’m not aware of a new date for the foreclosure sale, but this doesn’t mean that one hasn’t been set……
NOTICE HOW HE SEEMS INTENT ON LECTURING ME ABOUT MY MALPRACTICE INSURANCE AND ASSUMING EVERYTHING IS INEVITABLE. IN HIS WORLD, THERE IS NO TAKING ON THE BANKS, NO QUESTIONING THE BANKS, NO DEFIANCE THAT WILL BE TOLERATED BY THE BANKS, THEY GOT THEIR MODIFICATION BUT HOW DARE YOU TRY TO ASSERT YOUR LEGAL RIGHTS, ESPECIALLY WHERE VALID TRUTH IN LENDING RESCISION RIGHTS WERE PRESENTED AS PROOF TO THIS GUY. HERE IS MY RESPONSE TO THE GENTLEMAN.
XXXXXXXX,
I can appreciate your position here are a few mysteries I am looking for answers to:
(1) Why when banks get bailed out big time, do they act like no homeowner deserves a decent bailout?
(2) Why in all of my cases where I find a bona fide Truth in Lending (”TILA”) violation, does the lender always either (a) deny that the violation exists in the face of attached documentary evidence, or (b) refuse to even respond to a TILA rescission letter?
PRODUCE THE NOTE SAYS ONE CALIFORNIA HOMEOWNER………FORECLOSURE DEFENSE UPDATES.
Posted by: | CommentsUnfortunately, court says “no way” and declares THERE IS NO REQUIREMENT THAT THE ANYONE PRODUCE THE ORIGINAL PROMISSORY NOTE AS A PRE-REQUISITE TO PURSUING A PRIVATE TRUSTEE SALE. Here are a few snipets from the case:
MY COMMENTS ARE IN BOLD AND MERELY REPRESENT MY OPINION.
Chilton v. Federal Nat. Mortg. Ass’n, Slip Copy, 2009 WL 5197869 (E.D.Cal.)
ORDER RE PROPOSED ORDER TO SHOW CAUSE AND MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff filed a complaint on December 16, 2009, alleging that Defendant, Federal National Mortgage Association, violated unspecified provisions of federal law within “Title 15 U.S.C. and/or Title 18 U.S.C.” because Defendant initiated non-judicial foreclosure on her property, located in Clovis, California, without possessing the genuine original note.” She advances no other bases for relief.
Plaintiff has also filed an “order to show cause and motion for temporary restraining order,” in an attempt to block the foreclosure process.
To obtain temporary or permanent injunctive relief, a plaintiff must demonstrate likelihood of success on the merits. Here, Plaintiff’s only legal theory has been resoundingly rejected as a basis for relief. It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.
THAT’S THE PART THAT HURTS. I SUPPOSE ANYONE WHO SHOWS UP ON FORECLOSURE DAY CLAIMING TO BE THE HOLDER OF THE LOAN (WHETHER IT IS MERS PRETENDING TO BE THE BENEFICIARY OR THE NOMINEE OF THE LENDER, THE LOAN SERVICER PRETENDING TO BE THE HOLDER OF THE LOAN OR SOME OTHER THIRD PARTY, LIKE WALLMART FOR EXAMPLE, CLAIMING TO BE THE HOLDER OF THE LOAN) GETS AN UNFETTERED RIGHT TO FORECLOSE, AND A FREE PASS FROM ANY JUDICIAL SCRUTINY WHATSOEVER.
The Court went on to state:
“Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which relevant section provides that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.” California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, (case cited), and are “intended to be exhaustive,”(another case cited). There is no requirement that the party initiating foreclosure be in possession of the original note.
AFTER LEVELING THIS BLOW THE COURT CITED A FEW OTHER CASES THAT RESULTED IN THE SAME OUTCOME FOR PLAINTIFFS ASSERTING THE “PRODUCE THE NOTE” FORECLOSURE DEFENSE STRATEGY (OBVIOUSLY IN AN ATTEMPT TO TELL FUTURE LITIGANTS IN CALIFORNIA “GIVE UP TRYING TO VERIFY ANYONES CREDENTIALS”):
(1) See, e.g., Nool v. HomeQ Servicing, — F.Supp.2d —-, 2009 WL 2905745 (Sep. 4 2009) (”There is no requirement that the party initiating foreclosure be in possession of the original note.”);
