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Sunday – March 24, 2019

Four New Foreclosure Defense Strategies for Challenging the Standing of Pretender Lenders

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Until recently foreclosure case law has enforced three threshold requirements for foreclosing: (1) proof of the existence of a loan agreement coupled with a security interest in real property, (2) proof of the existence of a loan general ledger showing a payment default, and (3) proof of the existence of timely service of a notice of default and right to cure as a contractual or common law right.

Recently, a majority of state jurisdictions have added a fourth requirement — standing — not as an affirmative defense, but as a part of a foreclosing plaintiff’s initial burden of proof: (4) proof of the existence of entitlement to foreclosure, usually requiring proof of possession and ownership of the promissory note OR the underlying security interest, in some jurisdictions proof of possession and ownership of BOTH the promissory note and the security interest, and in some jurisdictions proof of that possession and ownership AT INCEPTION of the foreclosure lawsuit.

There are many cogent reasons for requiring proof of standing: preventing exposure later to lawsuits by others, effectively exercising loan modification rights, conducting meaningful discovery, filing counterclaims, and participating in meaningful settlement efforts.

The absence of standing not only harms a foreclosure defendant, but is a wasteful and fraudulent misuse of court processes and procedures.

Nevertheless, foreclosure calendars continue to be overwhelmed by pretender lenders, pretending to own loans in their own right, or claiming through assignments or bearer endorsements received from other pretender lenders who had nothing to assign or transfer in the first place or who even did not exist or never even existed or where in bankruptcy proceedings whose assets were owned by a trustee.

Some of the worst pretender lender offenders, well known to the foreclosure defense community, include:

1. Mortgage Electronic Registration Systems, Inc.;

2. America’s Wholesale Lender, Inc.;

3. Washington Mutual Bank, F.A.;

4. New Century Mortgage Corporation;

5. LSF9 Master Participating Trust;

6. Option One Mortgage Corporation, now known as Sand Canyon Corporation;

7. Bayview Loan Servicing. LLC;

8. Aurora Loan Services, Inc.;

9. Ocwen Loan Servicing, LLC; and

10. CitiMortgage Inc.

Each inherently possesses one or more standing defects, still however largely being ignored by most homeowners facing foreclosure today, which John and I will briefly discuss on today’s show, time permitting.

Yet those homeowners who do challenge the standing of their foreclosing plaintiffs whose paperwork is tied to any of these pretender lenders, nevertheless usually lose in state amd federal foreclosure courts.

Why? Because pretender lenders play an expensive game of hide-and-go-seek with homeowners as well as courts.

They keep changing loan servicers. They keep changing attorneys. They keep changing foreclosing plaintiffs. They keep stalling and blocking discovery. They keep reassigning mortgages. They keep transferring promissory notes. They keep delaying cases. They even keep dismissing cases without prejudice only to refile once or even twice more. They put homeowners into loan modification processes ending in denials. Meanwhile the amounts claimed owing accelerate.

It is time to switch games on pretender lenders and play search-and-destroy instead, by targeting their standing defects in four new ways:

1. by filing new independent lawsuits to expunge fraudulent mortgages/deeds of trust and fraudulent mortgage/deed of trust assignments at the recording office, naming the head of the recording office and the offending pretending lenders as defendants,

2. by filing new independent fraud on the court lawsuits against the offending pretending lenders for damages,

3. by filing motions to dismiss for lack of real party in interest in existing foreclosure cases, and

4. by filing law enforcement reports against the offending pretending lenders.

John and I will discuss each of these approaches on today’s show and how homeowners can organize to fund such otherwise effective but expensive strategies.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

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