From time to time, I get emails from these yo-yo wanna be lawyers. They want to discuss the law with me. I am not adverse to having intelligent conversations with people. But this is a different breed of people that I am talking about. These people that make me nuts tell me, point blank, that the are not lawyers but that does not stop them from giving people advice about their mortgages. The problem with this is that their advice is wrong and is calculated to cause more damage to people who are looking for help. If you need help with you Michigan Mortgage, call or email me, Attorney Gary Nitzkin at (888) 293-2882. You can also visit my website for free information and short instructional videos at www.micreditlawyer.com.
The bothersome email that was sent to me is below. The guy is simply WRONG about almost everything in his email. DO NOT FOLLOW ANY ADVICE GIVEN BELOW.
Although I don’t practice law, I do educate people about it, and send them to practitioners for help when necessary. I saw your web site and articles you wrote to your blog. I thought I’d write to you with a couple of points:
1. Lots of people need help defending against foreclosure in Michigan. A number of people have asked me for a referral to a good attorney in Michigan. I ask you: can you refer me to one or more attorneys who specialize in foreclosure defense and have a laudable track record?
2. I thought my commentary and call to action on foreclosure defense AT THIS POINT in history might interest you. I welcome any feedback you choose to give. I have posted the article to my email lists, one for attorneys and law philosophers (fewer than 100), and one for people seeking legal remedy or more data on popular law topics (nearly 1500).
Thanks for your time.
Call to Action for Foreclosure Defenders
I suppose everyone reading this has heard or read the news over and over and over: 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 the courts have accompliced judges to 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. Ahh, this breath of air gives foreclosure victims a window of opportunity to ACT, and to do so in concert with one another.
But act HOW? I write to ask you to submit to me your opinions and strategy positions that answer this question. What should people do to take advantage of this break in the storm (which might last only till elections have ended in November). Please formulate and forward them to me by return email. Bob at BobHurt dot com, in case you wondered.
MY VIEW OF THE BOILING CAULDRON
I wouldn’t consider the following as legal advice if I were you – get a lawyer’s opinion if you think his experience in the legal landscape will do you any good in these horrifying times .
FIRST, MY 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 Alleged Loan of Alleged Money. The borrower THINKS “I’ll borrow mortgage money from the bank,” fills out a loan application, gives it to a mortgage broker, who gives it to the lender, who reviews it and approves a loan for a certain amount, providing an appraisal justifies it and the selling price falls within the appraised value. The real estate contract requires the buyer to consummate the purchase within a certain time of receiving the funding approval from the lender. At closing, the buyer and seller sign their respective papers including the deed or deed of trust, and the borrower signs the note and mortgage, then the closing officer hands out a title insurance policy and checks drawn on the title company’s bank account, to which the lender supposedly wired money earlier that day or the day before. Everyone walks away happy, uninjured. The title company or attorney files the necessary documents (deed, lien, deed of trust) with the county recorder. All goes well…
• The Default… Until the borrower fails to make timely mortgage payments. That triggers the foreclosure process. The mortgage servicer demands payment, gives notice of acceleration of the loan to make the full amount due and payable at once (no more mr. nice guy), and then either files a foreclosure complaint for breach of contract or requests the trustee to initiate the foreclosure and sale. At the conclusion of the action, the trustee or court orders sale of the property, with proceeds plus expenses going to the note holder in due course, and any balance to the debtor or to pay of lower echelon liens. These days the property does not bring enough to retire the debt, so the debtor not only loses the house but also owes a judgment lien for the balance. Typically, the debtor files bankruptcy to eliminate the judgment lien, and the debtor suffers ruined credit for the next 10 years.
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:
• Understand the point. You have a chance now to ATTACK, and you should ALWAYS attack when the enemy has weakened and you can do it effectively without getting killed in the process. You ATTACK by identifying strengths and weaknesses, building an arsenal of weapons for killing the enemy or his resolve, and strike the most vulnerable spot with all your force, killing instantly if possible. Several tools exist to attack without warfare – public relations, litigation, criminal complaints, pressure from associates. In this case, your number one tool lies in litigation. You MUST SUE and put the enemy on the defensive. Get a good attorney to help you. I know a few. Contact me if you cannot find one.
• Examine real estate and mortgage related documents carefully and find the frauds in the transaction, including appraisal, mortgage, HUD-1 report, note, allonges, real estate contract, signatures, notarizations, dates, etc. Go here and here for help with this. Don’t delay. Do it right now.
• Engineer a Quiet Title / Slander on Title Action in DCUS (District Court of the United States). See a sample here. You use the lawsuit to force your opponent to prove standing to foreclose, such as by showing the original note and mortgage, and divulging hidden data about the transactions. DO not fear joining a lot of parties in the suit, like the appraiser, the realtor, the mortgage broker, and even the seller, ALL of whom defrauded you with an unrealistically high appraised value.
• Carefully draft your affirmative defenses to foreclosure and your attack demanding proofs in quiet title, and your disclosure interrogagories, request for admissions, request for production, and deposition questions. You will have to hammer hard to get the court to force your opponents to cooperate with discovery because they absolutely do not want the truth known
• Remove any existing lawsuit from state court to DCUS and keep removing till it sticks. State judges have become part of a conspiracy to destroy the wealth of mortgagees, and most seem like they actually work for and receive paychecks from foreclosure mill law firms.
• HAMMER the court to declare state laws unconstitutional which limit access to the court, due process, presentation of evidence, or petitioning for redress against lender/servicer fraud, or which enable scurrilous foreclosure and eviction attorneys to dispossess owners with impunity and without express approval of the court. See an example here.
• File CRIMINAL COMPLAINTS against government actors and attorneys who violate your rights or break laws even a little bit, and file further criminal complaints against other government actors who receive your complaints and take no action on them to bring the perp to justice.
• File BAR COMPLAINTS against all attorneys and judges who enable the fraud or turn a blind eye to it
• File JQC COMPLAINTS against all judges who involve themselves in ex parte meetings with your opponents or flout loyalty oath or ethics rules
• File Great Writ Petitions to the appeal courts (Mandamus, Prohibition) to force judges to behave, as necessary
• File Motions to DISQUALIFY for judges who refuse to cooperate with the law
• File Petitions for CORAM NOBIS WRIT OF ERROR and Motions to VACATE against all judges who render illegal judgments
• File IMPEACHMENT PETITIONS with the state/federal House Committe on the Judiciary, demanding the ouster of any uncooperative judge.
• KEEP THE MEDIA INFORMED – make some friends at the local news outlets (newspaper, TV, radio, internet) and get them interested. Conduct seminars for the community to keep them informed about your case. Support others in their cases. KEEP COMMUNICATING.
• HAMMER HARD, OFTEN, LOUDLY, and FOREVER, as my good friend JT has counseled me in hushed tones and with a deadly glare and steely glint in his eye. DO NOT EVER GIVE UP, NOT EVER, N-E-V-E-R. Remember that in America, as everywhere, Persistence and IRON-WILLED DETERMINATION become king in every adventure. Win or die in the effort (or quit and go live in a tee-pee somewhere). 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.
Now, HEED THIS CALL TO ACTION
• Distribute this message to foreclosure defense activists, strategists, practitioners, attorneys,
• Devise your new strategy for fighting foreclosure during this lull in the storm
• Comment on my suggestions above
• Email both to me
• If you are not a lawyer, become one or get one on your side that you can trust. When you swim with the sharks, you must become a shark, or you will become shark food.
“No man is an Island, Entire of itself… Therefore, Send not to know for whom the bell tolls, It tolls for thee.”
John Donne, 1624
Bob Hurt – Home Page – +1 (727) 669-5511
2460 Persian Drive #70 – Clearwater, FL 33763
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If you have been victimized by a debt collector or have items on your credit report that are incorrect, call or email Attorney Gary Nitzkin for a free consultation at (888) 293-2882. For more information about your credit rights as a consumer, visit our blog at www.micreditlawyerblog.com. Visit our website at www.micreditlawyer.com.