MSNBC - "Angel" of foreclosure defense bedevils lenders

[Phoebe Loosinhouse]

http://www.msnbc.msn.com/id/28277420/

'Angel' of foreclosure defense bedevils lenders
Florida attorney trains hundreds of others to help troubled borrowers

By Mike Stuckey
Senior news editor
msnbc.com
updated 6:39 a.m. ET, Fri., Dec. 19, 2008

skip

Charney, a lawyer with the Jacksonville Area Legal Aid agency, is quickly developing a national reputation as a champion of homeowners facing foreclosure and a serious adversary for those attempting to take possession of those homes. Her encyclopedic knowledge of contract law, debt-collection practice, securitized mortgages, the trusts that hold them and the agreements that govern the trusts have put her at the forefront of the rapidly expanding specialty of foreclosure defense.

skip

First, because of the way mortgages have been securitized, it’s often unclear who actually owns the debt, she said. “What we see is that systematically, the originating lenders only pledged these loans and didn’t actually transfer them” to the trusts that are supposed to hold them and issue the securities, she explained.

But only the true debt owner has the legal standing to be a plaintiff in a foreclosure, she continued. “That’s first-year law school stuff. If you’re Joe and the debt doesn’t belong to you, it belongs to Marjorie, then Marjorie better be in court, not Joe. Don’t come in as Joe and tell me you have the right to be there when you know full well you don’t.”

skip
Making an issue out of the actual ownership of the securitized title might strike some as a shameless stalling tactic aimed at abetting a debtor who, after all, owes the money. But Charney said that if such basic legalities aren’t adhered to, a homeowner could pay his or her way out of a foreclosure jam only to wind up in another when a new plaintiff emerges claiming to own the debt. She described cases in which homeowners have been sued for foreclosure by two different trusts, each claiming they owned their house, and cases where trusts have been sent documents on the same case by two different servicers.

I have heard of this before. There is some lawyer who has lived mortgage free in his Florida condo for years and staved off foreclosure once he realized that the chain of assignment in his mortgage note appeared to be irrevocably broken.

I really don't have any sympathy for the lenders. Their JOB is to do paperwork correctly. Most mortgages say that it can be "assigned". Whose fault is it if these idiots are too busy polishing their Rolexes to make sure that the transfers and assigments are done correctly.

Now, I have read that mortgages may even have been sliced when they were securitized, which would explain the example of the homeowner being sued by 2 different trusts. Again, whose fault is that? Not the homeowners.

If you are facing foreclosure, it seems that the first best thing to do is to make sure your attorney asks the bank or servicer -"prove you even have the right to foreclose."

[phantom power]

1. I told a couple friends of ours about this tactic last month.

They are facing possible foreclosure, and I told them they can, if they want, demand that the bank proves they actually hold the mortgage.

I mean, why not? Like you said, fuck the banks. They made their bed, they can lie in it.

[Vincardog]

2. FuckinAright

[wryter2000]

3. Wow

Awesome. I hope this information gets out.

[TheWraith]

4. Kicked and recommended. nt

[Ikonoklast]

5. Makes sense to me. Prove it is *you* I owe money to.

Can't legally show proof? Go the fuck away.

[liberal N proud]

6. Take that Mr Potter