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Foreclosure Defense
Let’s get one thing straight, the banks/lending insitutions have a lot of fighting muscle, political power money and world influence.
Like in any fight, you must first look at your opponents weaknesses in order to exploit them. Over the years lenders and banks got fat and a little lazy. They are also highly computerized with high turnover and mostly low paid employees. I guess they assumed that they would always rule the land from their hill top estates and glass houses. Knocking homeowner, after homeowner out for the foreclosure count. Winning fight after fight.
Call it cockiness, greed, or stupid, but the banks have made many mistakes in the laws which they tend to manipulate with campaign money. They rely on the fact that consumers mostly do not fight back. Now, as a foreclosure defense attorney, we will look at where to fight back.
1. Truth in Lending Act (TILA) –
Does your loan have legal violations? Are you the victim of predatory lending? Did you know that 90% of victims do not even know they are victims? Did the bank make undisclosed fees on selling you insurance products or incorrectly compute or manage escrow accounts.
These are the most abused laws by lenders and the one that has the most teeth. We perform predatory lending mortgage audits. Some national statistics show and legal violations on over 80% of the loans.
Home owners can use this defense even if they are not late on their mortgage and it can be an effective tool to litigate against their lender or to mediate a loan modification.
CASES: Class Action Under the Truth in Lending Act
Andrews v. Chevy Chase Bank, FSB (2007 WL 112568, E.D. Wisconsin, January 16, 2007). Borrowers alleged that the lender: (1) failed to properly disclose the payment schedule because the schedule did not reflect that the required payments were due monthly; (2) did not clearly disclose the APR and variable rate feature, based in part on disclosures reflecting a note rate of 1.950% and a five year fixed period that applied to the payment and not the rate; (3) added information to the TILA disclosure that was not directly related to the information required to be); and (4) failed to properly disclose the possibility of negative amortization.
Barrett v. JP Morgan Chase Bank, N.A. (445 F.3d 874, 6th Cir., April 18, 2006). The borrowers refinanced their mortgage with Bank One in May 2000 and again in January 2001. In May 2001, the borrowers refinanced the loan with another lender, and Bank One released its security interest in their home. The borrowers requested that the Bank One loans be rescinded based on alleged TILA violations.
The Sixth Circuit stated that nothing in the TILA or its implementing regulations provides that the act of refinancing extinguishes an unexpired right to rescind, and that the right to rescind gives consumers the right to recover fees in addition to the right to the release of the security interest.
2. Challenge the Ownership of Your Note –
Does your lender really own your mortgage? Are you sure? Why don’t you make them prove it?
In Ohio Judge Christopher A. Boyko of the Eastern Ohio United States District Court, on October 31, 2007 dismissed 14 Deutsche Bank-filed foreclosures in a ruling based on lack of standing for not owning/holding the mortgage loan at the time the lawsuits were filed.
April Charney, a powerful legal aid attorney and foreclosure defense pioneer in Jacksonville Florida said this about the Ohio rulings, “This court order is what I have been saying in my cases. This is rampant fraud on every court in America or non-judicial foreclosure fraud where the securitized trusts are filing foreclosures when they never own/hold the mortgage loan at the commencement of the foreclosure.”Charney said, “That means that the loans are clearly in default at the time of any eventual transfer of the ownership of the mortgage loans to the trusts. This means that the loans are being held by the originating lenders after the alleged “sale” to the trust despite what it says per the pooling and servicing agreements and despite what the securities laws require.
3. Non disclosed insurance income, interest rate mark-ups, and impound violations.
The banks have played games with escrow accounts and have made profits where they should not have, hoping that no one would really look.
4. MERS and Robo-signing
These cases will ultimately lose, but are one of the many delay tactics that keep you in the home for many months.
The goal of the litigation varies, among our clients, but include anticipated future revenue, hardship and lack of capital to move into a new home, children’s school and friends, negotiating leverage to reduce the interest rate or the principal, bridge to a short sale, and others. We generally charge a flat fee per month as long as you are able to stay in the house.
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