Think Long and Hard Before Filing Bankruptcy

The number one question I get asked when talking about the foreclosure defense strategy that we use is:

What about bankruptcy?

Bankruptcy is a very useful tool, one which our founding fathers were brilliant to give us. It is great for eliminating unsecured debt and many other things. But if your main or sole need is to keep your house, it doesn't work as well.

First, when you go into bankruptcy, you're going to have to start by admitting that you owe that $200,000 or whatever in mortgage debt. You only owe that if someone has the right to collect that. Why admit it?

Second, you then have to turn around and lay your assets on the table. If the trustee feels like there's something they can do, they are going to strip the house, do what I do, and try to get the house for the unsecured creditors. Great for them, bubkis for you.

Lastly, if the cases in front of Judge Federman are any indicator, the creditors are doing a much better job of putting together a paper trail in bankruptcies, as opposed to just a regular foreclosure. This means, to the extent that there is paperwork to be found, they are getting ready for it. This means that they will attempt to show that they are a secured creditor who should be allowed to release the automatic stay and sell the house.

Or, of course, you could reaffirm the debt. Which I'm sure they'd be happy for you to do.

For those who crave finality this may be a good offer. But those looking to push forward and show how little the banks actually have in the way of paperwork, we recommend that you call us and work with us on our strategy.

Our Reply to Their Ridiculousness

Here's the text of a brief going on file in one of the cases today.

INTERVENOR'S SUR-REPLY TO MOTION FOR SUMMARY JUDGMENT

Plaintiff’s counsel created a twelve-page paean to the billable hour in its response to Intervenor’s previous motion. The reply mainly covers cases cited by Defendant as if they were being briefed for certiorari to the Supreme Court or made into a mini-series, and yet manages only one paragraph in a dozen pages on the only subject that matters:

The Plaintiff in this case did not bid on the property in question, did not buy the property at the sale and is lying or suffering from some sort of surreal malady if it claims it did.

The only response that the research wing could manage to contrive to this seemingly highly relevant point – a statement so important that it comprised its first contention in their Statement of Uncontroverted Facts – is that the deed itself is prima facie evidence of the facts recited therein.

“Prima facie evidence” is such evidence which, although not compelling a verdict for the party whose contention it supports, "is sufficient to satisfy the burden of proof to support a verdict in favor of the party by whom it is introduced when not rebutted by other evidence." State, et. al v. Hogg, 466 S.W.2d 167 (Mo.App.Spr. 1971). See also Cavic v. Missouri Research Laboratories, Inc., Mo.App., 416 S.W.2d 6, 8-9(4); City of Jackson ex rel. Hoffmeister v. LaChance, Mo.App., 372 S.W.2d 479, 482; 32A C.J.S. Evidence § 1016, l.c. 624-625.

Prima facie evidence, then, is not dispositive.  It is merely a presumption that may be rebutted, just as any other evidence may be rebutted.  In this case, for example, an actual video of the sale itself, with no mention of Plaintiff and successful bidding by another entity entirely, is enough to rebut the prima facie presumption, and establish another presumption: That the Successor Trustee lied or at least was somehow radically mistaken when making the deed, and that the Plaintiff has no standing whatsoever to bring this action (N.B.: Intervenor would note that the Plaintiff made the same “mistake” on the same day with at least one other property).

Intervenor would also note two additional points:

1.     The Statement of Uncontroverted Fact as raised by Plaintiff was not that the property was conveyed by deed to Plaintiff; it was that the Plaintiff had purchased the property at the foreclosure sale.  In other words, the importance to the Plaintiff and its learned counsel was not the deed itself, but the purchase, which Intervenor can rebut at the place and hour of Plaintiff’s chosing (Intervenor respectfully submits a drive-in movie theater, but will gladly settle for a courtroom).

2.     The Plaintiff in this matter has been seized with crippling bouts of memory loss in this case before.  Despite the phalanx of letters written by Intervenor’s wordy counsel, and his annoying presence at the sale, Plaintiff’s counsel (whom, it should not be forgotten, has showed up in this same movie as the servicer, servicer’s counsel, MERS, Successor Trustee, bidder for the servicer, Plaintiff and Plaintiff’s attorney) miraculously forgot that they should name the only person living in the house, to whom they were familiar with as being a fiduciary named and signing on the Deed of Trust.  Intervenor should have been named and served as an original party, but for the bouts of senility on the other side of this action.

The Motion for Summary Judgment is frivolous, and should be denied.

The Moment In Which I Become Michael Douglas In Falling Down

The bank is trying to foreclose on a property where the debt was $183,000 and they have been paid TWO HUNDRED AND FIVE THOUSAND DOLLARS.  I tried to be nice, but it didn't take.

Dear Mr. Foreclosure Mill Lawyer (FML for short to make sure that, like Bon Scott, we protect the guilty):

I am feeling the need to memorialize our conversation.

First of all, you said "we we" more than a drunken French chorus girl.  Your "we" is you and your client, xxxxxx. The only "we" in this case should include my clients, xxxxxxxxxxx, since YOU AS TRUSTEE HAVE FIDUCIARY DUTIES TO THEM.  Why does the "trust" in "trustee" not mean anything?

You are preparing to foreclose on a property you have been paid $205,000 on.  A week ago, you told me this hadn't happened.  Now I provide you proof, and you indicate that they need to pay more.  I point out that I wrote your office months ago indicating that at that time we would have settled for the $205,000, and you tell me you didn't get it, and then have no explanation for why you got it and did not respond EVER.  Your office obviously got this communication, as you were more than able to respond to my concern about the lack of appointment of successor trustee.  By the way, I would love to see a copy of that document.  Please forward it to me.

Your office then sent ex-parte communication to the xxxxxxxx on numerous occasions on behalf of the bank, xxxxxx.

Despite our multiple request, there has never been any documentation on:

• the location of the original note
• the assignments and allonges
• a history of transfers
• payment history

None of that.  Zilch. Zero. Nada. Zip.  These are clear duties of the trustee.  You have not done any of them.

For a moment, let's get theoretical.  Years ago, the Missouri legislature agreed to swap out JUDGES (judicial foreclosure) for TRUSTEES (non-judicial foreclosure).  They gave them DUTIES.  These duties were because they were standing between the bank and total bloody chaos, which is what we are experiencing today.  Why?  Because the trustees are HELPING the banks.  That is not your role!  You are supposed to make sure that the bank HAS A RIGHT TO FORECLOSE IN THE FIRST PLACE.  This was different a hundred years ago when one bank would have held the paper the whole time, but now you have the equivalent of Escape From New York in every one of these bollixed-up files.  Why is this so hard to understand?

Cancel the sale, Mr. FML. It is the ONLY thing you can do as trustee.

Sincerely,



Dale Wiley

Idiocy

Here's my latest response to these ninnies, who keep sending me non-responsive correspondence and expecting me to go away:


Foreclosure Mill Lawyer

Blank Rome LLP

Re: XXXXX

Loan Number Ending in: XXXXX

Dear Mr. FML:

Thank you for your letter of May 20.

I do not believe that you have the note.  I do not believe that any of these "assignments" shown on the note are valid, or were done in a timely manner.  I am not even sure if Michelle Sjolander exists, because your clients sure haven't been able to produce her in other cases.

Please tell me where the note is.  I understand that you're not going to send it to me Pony Express.  But we want to know so that we can venture to its location like pilgrims to Canterbury and examine it ourselves.  We promise to be accompanied by BAC's armed guards and wear white cotton gloves when we do so.

A copy of a hundred dollar U.S. note is not the same as the real thing.  Try spending it at the mall.  We need to know where the real note is, and examine it ourselves.

Please provide me with a complete MERS history on the note, and a detailed explanation on how you claim that FHLMC is the "holder" thereof.

Sincerely,

Dale Wiley

cc: client

The Judge

I was talking to a lawyer the other day about the foreclosure crisis.  He is an excellent attorney in his field, but like almost all lawyers, he knows very little about this are of the law. As we were discussing the ins and outs, I came up with an analogy that I was surprised had eluded me earlier:

The Trustee in a non-judicial foreclosure is the judge.

There are two kinds of foreclosure in America:

1. Judicial Foreclosure:  The bank must take its case in front of a JUDGE before they can foreclose.  This system is used in states like New York and Florida.

2. Non-Judicial Foreclosure: In these states, a TRUSTEE is appointed, so that the property does NOT have to go in front of a judge.  This is the law in Missouri, California, Arizona and many other states.

In those states, there is no court-appointed neutral, but there is a person appointed by the parties themselves who is supposed to be neutral:  The Trustee.  The thought was obviously that this person could be trusted to look out for both sides.

• But what if the judge is also the lawyer for one side?
• What if the judge continually fails to make the party asking for foreclosure to produce the paperwork showing that they have the right to do so?

That's exactly what's happening right now.  What we do is help bring your case in front of a REAL judge, not one paid exclusively by the banks, not one helping to try to take your home from you.

Here come THAT judge.

Video

This is the amazing video done for us to explain the foreclosure crisis.

Meeting Mrs. Green

Linda Green is a very elusive lady. She signed hundreds of thousands of documents, which I'm sure would make your hand hurt. She signed so many documents, it made her signature look quite different, depending on when she signed them. Here are some examples:

And she was busy.  Boy, was she.  Why, she was working for many banks, and with most of them, she was Vice President!  Here are some of the ones she worked for:

• Wells Fargo
• MERS
• American Home Mortgage Acceptance
• Option One Mortgage
• Bank of America
• Argent Mortgage Company by Citi Residential Lending 
• Sand Canyon Corporation

 She was a very busy lady.

Mrs. Green has appeared in one of my cases.  We have very politely asked the bank who is claiming their interest under Mrs. Green's signature to give us the house in the next three weeks before we bring the Unmanned Predator Drones of the law down upon their Pakistani compound.  By May 22, we'll know if they'll make the right decision.

If you know anyone affected by Mrs. Green, please let us know.  Because I sure do want to meet her.