Major mortgage "lenders" have initiated moratoriums on foreclosure actions, mostly in judicial foreclosure states, and now in some non-judicial foreclosure (deed of trust) states. So, I write to tell you what I think you should recommend to your clients and advice seekers:

Strike Now While You Have A Hot Iron In Hand.

Please let me elaborate.

Foreclosure defense attorneys and other practitioners have found myriad reasons to get the courts to stop the rocket docket summary judgments, principally frauds, foreclosure mill attorneys and their clients have perpetrated upon the courts and trustees. But that has NOT stopped them, has it? Rocket Docket summary judgments continue apace, virtually unabated in Florida, even though the Florida Attorney General and Statewide Grand Jury has numerous investigations running against foreclosure mill law firms for a host of fraudulent and illegal acts.

Bottom line, their clients universally do not have standing because they don't function as parties in interest or holders in due course of mortgage notes and foreclosure mill attorneys routinely lie to the court and the Defendant in foreclosure complaints. But I have yet to hear of a single arrest or conviction for the associated perjury, so it seems the courts have judges helping commit those crimes. It's a cold day in hell when a foreclosure victim can get justice in a state court.

But one favorable factor has risen over the horizon like the dawn of a new day. The temporary, politically motivated halt to foreclosures by major lenders has caused a lull in the storm and cessation to Unlawful Detainers in deed-of-trust states that don't require judicial foreclosures. This breath of air gives foreclosure victims a window of opportunity to ACT, and to do so in concert with one another.

Assessment

I refer you to the most thorough single indictment of the fraud in non-judicial foreclosure states like California: Dr. Charles Lincoln's third amended complaint to Santa Anna USDC judge David O Carter. He has at least outlined a couple of dozen arguments for striking down state laws that allow evictions regardless of victims' affirmative defensives, and thereby deny them due process, access to courts, petition for redress, and presentation of evidence. He seeks to have the court declare 42 USC 1981 "color blind" for generally protecting everyone's constitutional (civil) rights, not just people suffering racial discrimination. He seeks to make it easier to remove foreclosure defense actions from state to federal court, ending state court limited jurisdiction. He seeks to spotlight the various levels of fraud, racketeering, and conspiracy including lenders, servicers, their attorneys, and state court judges that result in the wholesale theft of real estate from lawful owners. He seeks to spotlight the loan fraud that has become an industry - the alleged lending of alleged money a bank does not have or own and the securitization of masses of notes without abiding by fiduciary responsibilities to the borrowers, while reaping huge undeserved profits.

I consider all that a tall order, and you will spend some time if you read and think it all the way through, but it will give you a pretty good circle-the-wagons feeling of understanding about the debacle and at least some potential ways to cure it.

Essentially, I believe Dr. Lincoln has correctly analyzed the matter and highlighted salient out-points that the courts and legislatures must correct to restore sanity and integrity to the business of lending mortgage money.

However, I believe he has missed some fairly important areas of explanation about how the system operates, like WHERE the bank gets the alleged money it allegedly lends, the nature of the implied contract for the lender to lend and borrower to borrow and repay, the privity of the lender to the contract that gives the contract its force and effect, and the manner in which securitization destroys the ability to enforce the mortgage. As much as I have read and studied these issues for the past couple of years, I still have muddy areas in my understanding, and suffer a dearth of experts who really seem to understand and have the ability to prove the merit of that understanding.

And when you cannot explain the messy mechanism fully and credibly to people of intelligence and good will, you cannot build a proper case, and you have to rely on trickier devices than the simple truth. We don't want to have to do that, do we?

So, back to the basics - did a loan really occur and who owes whom what and when - how does it work?

The Basic Problem and Your Opportunity

UNFORTUNATELY, every imaginable class of lie, fraud, and deception arises during the above two paragraphs' events. True, the debtor wants to get out from under the debt and get the house free and clear. Who wouldn't want that heavenly scenario?

But on the other side, the highly intelligent masterminds of the mortgage banking and securitization industry have devised means of enriching themselves through fraud and deception without unduly alarming the debtors. Nearly everybody can see that the debtor did get the loan, buy the house with it, live in or use the house to earn income, and therefore owes the mortgage payments. Nearly everyone believes that if the debtor cannot repay the loan, the lender should have the right to take the house and sell it, as the mortgage and note clearly indicate. But until it has become too late, virtually no debtor really sees all the frauds the lenders and their enablers have committed, including wrecking the system of currency in America and throughout the world to facilitate their earning profits without LENDING ANY MONEY OF THEIR OWN. Nobody really sees how the currency of America amounts to a figment of imagination and has no intrinsic value at all, but since nothing else exists as a practical medium of exchange, the people have no choice but to use it for commerce. And few know or see that fraud vitiates (nullifies) contracts

UNFORTUNATELY, we will get nowhere attacking this system in court, but the remedy we seek must include that as a collateral effort anyway because that led directly to the banks’ lending money they did not have or own.

If you want to put a gun to the heads of the real culprits, start with Congress, for they created the Federal Reserve System and allowed private bankers to own it and pay no tax on their earnings.

But we need to focus on legal, not political solutions right now. So we can strike while the iron is hot. And note that the problems and apparent lack of effective remedy will ALWAYS GUIDE YOU to the ultimate remedy. I don't recommend shooting the culprits just yet. But I do recommend taking legal action against them and doing your best to hammer them into a pulp for their wrongs.

My Advice: Hammer Hard, Often, Loudly, Forever

I give this advice to practitioners helping others with foreclosure defense:

HAMMER HARD, OFTEN, LOUDLY, and FOREVER, with a deadly glare.

DO NOT EVER GIVE UP, NOT EVER.

Remember that in America, as everywhere, Persistence and IRON-WILLED DETERMINATION become king in every adventure. Win or die in the effort. Litigation is all about outlasting the opponents to whom you cannot deal a death blow at the outset. Find a way to continue litigating at low cost to yourself and high cost to your opposition. Most will eventually give in if you persevere.

See Also: Dr. Charles Lincoln Amended Complaint 09 Cv-01072

Amended Complaint Suggestions, Notes and Opinion

Introduction

 

Thanks to Bob Hurt.

Contact information: 

website:http://bobhurt.com/                                                             

Phone: 727-669-5511

Mailing address: 2460 Persian Drive #70 - Clearwater, FL 33763

 

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