Category Archives: Fed

How Homeowners Can use “Produce the Note” in Judicial & Non-judicial Foreclosure States

24 Wednesday Jan 2018

Posted by in Banks and Lenders, Fed, Federal Court, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Mortgage mediation, Non-Judicial States, Note - Deed of Trust - Mortgage, Pro Se Litigation, State Court, Your Legal Rights

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In some states, a lender can foreclose on your home without going to court. These are called non-judicial foreclosure states. You can still use the “Produce the Note” strategy in these states, but it takes a few more steps on your part.

First, the concept behind “Produce the Note” is this: When a homeowner is faced with a foreclosure suit, “Produce the Note” requires the lender to prove it has the actual authority to foreclose, by requiring it to officially produce the original promissory note in the lawsuit. But if there is no foreclosure lawsuit, what can homeowners do? In these “nonjudicial foreclosure” states, such as California, Texas, or the thirty or more other states with similar procedures, the homeowner has to file a lawsuit against the party trying to foreclose.

Here’s how it generally works:

In a state with nonjudicial foreclosure procedures, a foreclosure sale can be initiated by the lender without using court proceedings.
Homeowners receive a “Notice of Intent” letter informing them that a foreclosure sale will be scheduled unless the overdue debt is paid within a certain amount of time.
If the debt is not paid accordingly, a “Notice of Sale” is then sent informing the homeowner that a foreclosure sale will take place at a particular time and place.
No lawsuit is ever initiated by the lender and the courts are not involved.

Without a lawsuit, you cannot use judicial procedures to require the lender to “produce the note.”
Merely sending a private letter to the lender “demanding” that it produce the original note to the borrower may be met with utter disregard or outright refusal by the lender.

So, here’s what you can do:
In a nonjudicial foreclosure state, in order to protect yourself by demanding that the lender “produce the note,” it will be necessary for you to first actually file your own lawsuit. Even in such nonjudicial foreclosure states, no law prohibits you from instituting your own lawsuit challenging the right of a lender to foreclose on your property. The lawsuit would allege that:
the lender has sent a Notice of Intent to Foreclose; the homeowner is unsure as to whether the lender still possesses the original debt instrument, upon which the lender claims the right to foreclose; the homeowner wants proof of such authority; and the court should intervene and prevent the foreclosure from taking place unless and until such proof is presented.
Initiating litigation to protect your rights is never a simple process. Requirements as to what must be contained in a pleading, how the facts must be plead, who should be named in the pleading, and how the pleading should be officially “served” on the lender, all differ from state to state.

Once a lawsuit is initiated, however, all states have judicial procedures that allow a party to require the other side to produce relevant documents, and the “produce the note” strategy can be used.

Often times, the best way to protect your rights in these situations is to seek professional help from an attorney licensed to practice in your geographical area. Getting involved in a lawsuit by representing yourself, especially if you file the lawsuit yourself, is not easy, but you can do it. Every citizen is able to represent themselves and file a lawsuit on their own. It’s called pro se, which means “on ones own behalf.”

If you can afford a lawyer, then by all means, hire one. There are attorneys who specialize in real estate matters, and either advertise or can be found in the yellow pages. Most areas have bar associations that maintain lists of attorneys willing to help in specific areas of the law.
Finally, there are usually “legal aid” organizations around set up to assist individuals who may have difficulty paying for the services of an attorney. A good place to begin your search is by going to the Legal Services Corporation website.

So, even if you are in a non-judicial foreclosure state, you can use “Produce the Note.” This is your home, and if you want to fight for it, you do have a way.

If your home is currently in foreclosure, there may still be a chance to save it. As a result of lenders buying and selling mortgages your note could have changed hands several times over the course of the loan. But where is the actual note? In some warehouse somewhere? Make ‘em prove they own the debt they say you owe.

WHO OWNS THE NOTE?
Your goal is to make certain the institution suing you is, in fact, the owner of the note (see steps to follow below). There is only one original note for your mortgage that has your signature on it. This is the document that proves you owe the debt.
During the lending boom, most mortgages were flipped and sold to another lender or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the rush to turn these over as fast as possible to make the most money, many of the new lenders did not get the proper paperwork to show they own the note and mortgage. This is the key to the produce the note strategy. Now, many lenders are moving to foreclose on homeowners, resulting in part from problems they created, and don’t have the proper paperwork to prove they have a right to foreclose.

THE HARM
If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their carelessness. This is the biggest asset in your life. It’s just a piece of paper to them, and one they likely either lost or destroyed.

When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose.
If the lender is allowed to proceed without that proof, there is a possibility another institution, which may have bought your note along the way, will also try to collect the same debt from you again.

A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.

FIGHT FOR FAIRNESS
This process is not intended to help you get your house for free. The primary goal is to delay the foreclosure and put pressure on the lender to negotiate. Despite all the hype about lenders wanting to help homeowners avoid foreclosure, most borrowers know that’s not the reality.

Too many homeowners have experienced lender resistance to their efforts to work out a payment structure to keep them in their homes. Many lenders bear responsibility for these defaults, because they put borrowers into unfair loans using deceptive, hard-sell practices and then made the problem worse with predatory servicing.
Most homeowners just want these lenders to give them reasonable terms on their mortgages, many of which were predatory to begin with. With the help of judges who see through these predatory practices, lenders will feel the pressure to work with borrowers to keep them in their homes. Don’t forget lenders made incredible amounts of money by using irresponsible practices to issue and service these loans. That greed led to the foreclosure crisis we’re in today. Allowing lenders to continue foreclosing on home after home, destroying our neighborhoods and our economy hurts us all. So, make it hard for your lender to take your home. Make ‘em produce the note!

STEPS TO FOLLOW – You can either write Qualified Written Request RESPA Letter (QWR), to your lender. Alternatively, you can use the fill in the blank request forms usually available in your local Circuit Courts:

A. If your lender has already filed suit to foreclose on your home:

Use the first form. It’s a fill-in-the-blank legal request to your lender asking that the original note be produced, before it can proceed with the foreclosure. In some jurisdictions, the courts require the original request to be filed with the clerk of court and a copy of the request to be sent to the attorney representing the lender. To find out the rules where you live, call the Clerk of Court in your jurisdiction.

If the lender’s attorney does not respond within 30 days, file a motion to compel with the court and request that the court set a hearing on your motion. That, in effect, asks the judge to order the lender to produce the documents.

The judge will issue a ruling at your hearing. Many judges around the country are becoming more sympathetic to homeowners, because of the prevalence of predatory lending and servicing. In the past, many lenders have relied upon using lost note affidavits, but in many cases, that’s no longer enough to satisfy the judge. They are holding the lender to the letter of the law, requiring them to produce evidence that they are the true owners of the note. For example:

In October 2007, Ohio Federal Court Judge Christopher Boyko dismissed 14 foreclosure cases brought by investors, ruling they failed to prove they owned the properties they were trying to seize.

B. If you are in default, but your lender has not yet filed suit against you:

Use the second form. It’s a fill-in-the-blank letter to your lender which also requests they produce the original note, before taking foreclosure action against you.
If the lender does not respond and files suit against you to foreclose, follow the steps above.
UPDATE: CNN features The Consumer Warning Network and the “Produce The Note” strategy. Borrowers are putting this plan into action and getting results!

Consumer Warning Network Featured on CNN

Borrower wins more time to fight foreclosure! At a court hearing sometime ago, a Pinellas County, Florida Judge denied Wachovia the right to proceed with its foreclosure against borrower Jacqueline O’Brien (profiled in the CNN story). Instead, O’Brien was granted a continuance, as she pursues the produce the note strategy. Wachovia expressed interest in renegotiating the terms of the loan, rather than continuing the court battle.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: https://fightforeclosure.net/foreclosure-defense-package/

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What Homeowners Should Know About Appeals at the 9th Circuit

28 Monday Nov 2016

Posted by in Appeal, Bankruptcy, Fed, Federal Court, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Landlord and Tenant, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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The Ninth Circuit uses a limited en banc system for en banc matters because of its size, with 11 judges comprising an en banc panel;

The Chief Judge is always one of the 11 en banc judges;

The Ninth Circuit currently has 29 active judges and 15 judges on senior status;

Active judges are expected to hear 32 days of oral arguments per year;

Judges are assigned to hear cases by rotation, and no preference is given for judges from those jurisdictions;

Oral argument are scheduled on certain dates;

Filings for are currently down 3% compared to last year;

Pro Se filings account for 51% of the documents filed with the court;

The largest category of pro se litigants are prisoners;

48% of all immigration appeals in the US are filed in the Ninth Circuit;

From the entry of the final order of the lower court or agency to final Ninth Circuit disposition: 32.6 months
From the filing of the law brief to oral argument or submission on briefs: 8.7 months in the Ninth Circuit (4.1 months nationally);

The court is permitted to move cases up in priority;

Priority is set by a staff attorney who assigns a number to each case based on a point system: 1, 2, 3, 5, 7, 10, and 24. Cases assigned 1 or 2 go to the screening panel for disposition. Cases assigned 24 always get oral argument, and involve matters like the death penalty. Cases assigned 3, 5, 7, or 10, will depend on the number of parties, the types of issues, etc. These cases may get oral argument, or be submitted on briefs;

The assignment of the panel of judges is separate from assignment of cases;

Panels are set 1 year in advance;

The clerk’s office assigns cases based on a formula that includes priority 99% of petitions for rehearing en banc are rejected – a judge on the court must initiate the process for en banc rehearing, and a judge may do so even if there is no petition for rehearing en banc filed;

If there is a second appeal to the court in the same case, the case is first presented to the original panel to see if they want to decide the second appeal – usually the panel will take back the case in approximately 1/4 to 1/3 of cases – if you want the same panel, file a motion to ask to have the case assigned to the same panel, but give good reasons why;

Generally, most general civil appeals where the parties are represented by attorneys will get set for oral argument – but about 20-25% that are assigned to oral argument will ultimately be submitted on briefs instead.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

How Homeowners Can Effectively Handle Subpoenas Duces Tecum

30 Thursday Oct 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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When homeowners fighting foreclosure are challenged with Foreclosure Mill Attorneys to produce him/herself for deposition or for production of documents via subpoenas, there are few things the homeowner should bear in mind concerning subpoenas.

Responding to Subpoenas

You’ve received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it’s best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena’s request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this post should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer’s office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

  • the judge presiding over the legal proceedings
  • the clerk of the court where the lawsuit has been filed
  • a private lawyer representing one of the parties in the lawsuit
  • a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You’ll first want to determine precisely what you’ve received. Review the documents to see whether it is a subpoena duces tecum, to access material in your possession.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you’ve received, if you are not quite familiar with legal documents. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

  • the full name of a court in the document’s title, or letterhead
  • the word “Subpoena” in bold in the top third of the document
  • the words “you are commanded to report,” or a similar variation
  • your name
  • a specific date, time and location for you to appear or for you to provide the requested materials
  • in some cases, the penalty for non-compliance will be included

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you’ve received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.)

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you’ve determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

  • Improper service

The law requires that you receive (were “served”) with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

  • Scope of Request

If you believe the subpoena you’ve received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn’t even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

  • Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit.

For example:

* Certain states have enacted “shield” laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources.

* Both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.

* Both state and federal law grant close relatives immunity from testifying in certain situations.

* Certain provisions are designed to protect homeowners in foreclosure as well.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

In matters involving criminal offenses you’ll need to be aware of:

  • Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven’t already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you’re comfortable with supplying the requested information, you may not need a lawyer’s services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath.

For homeowners without legal knowledge, before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

  • record events you may later forget
  • evaluate your position and figure out your next steps
  • focus your conversation with a lawyer (should you wish to consult with one)
  • launch your own legal research
  • potentially determine the subpoena’s validity

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

 

 

How Homeowners in ‘Pro Se” Litigation Can Effectively Prepare Their Discovery Requests

02 Monday Jun 2014

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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There are certain rules of Discovery every litigant must follow when in a lawsuit.

After a lawsuit is filed, each side is permitted to obtain information and documents from the other side. This process is referred to as discovery.

There are several methods of obtaining information – tools in the discovery tool belt. The methods covered in this book are those that are the least costly and easiest to employ: Interrogatories, Requests for Admissions, and Requests for the Production of Documents. Discovery enables you to get damaging information directly from the bank! Serving the lender with discovery. A defendant may usually commence discovery as soon as he or she has been served the complaint (the written document containing information about the lawsuit).

Sometimes, as is the case in federal court, there are mandatory disclosures that must be provided by each side without being asked. See Federal Civil Rule 26 for more information about mandatory disclosures if your foreclosure is in federal court.

Interrogatories are simply questions asked of the other party. For example, an interrogatory might say, “State the date and amount of each and every payment received by the plaintiff in payment of the mortgage or note since May 1, 2005.” They can be questions, or directed statements, such as this one is, telling the other side to provide specific written information you seek.

Usually, interrogatories are preceded by a list of definitions so the other side is clear on what you mean when you use a particular term. For example, in the suggested definitions following this chapter, “identify” has a very specific (and extensive) definition. These are usually used so the other side’s attorney can’t avoid answering the question based on a limited definition.

One of the most important things to remember about interrogatories is that they are generally limited in how many can be asked. In the Federal Rules of Civil Procedure, each party is limited to asking just 25 interrogatories, and they can only be directed to parties.

A party is someone or some organization who is suing or being sued in a lawsuit.

This means interrogatories can’t be served on the mortgage broker who took the borrower’s loan application unless he or she is first brought into the lawsuit as a party (accomplished by filing a third party complaint). Federal Rule 33 governs interrogatories in federal court. Look at your state’s rules for a heading called “Interrogatories.”

Many chapters will have a section that suggests some interrogatories based on that particular defense. This assumes you will be using the model interrogatory form, and adding in the suggested interrogatories as paragraphs where indicated.

Here are some general rules to follow with respect to interrogatories:

· Leave several spaces below each interrogatory for an answer.
· Some courts require the interrogatory form be provided on diskette or CD to the other party, so the other party can type in the answers and return it to you.
· You must mail a copy of your interrogatories to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank.
· You will usually need to mail a copy of the interrogatories to the court, to be filed with the case. (Read your state’s rule on interrogatories.)

Requests for Admissions.

Requests for admissions are simple statements that requires the other party to either admit or deny the true of the statement.

A request for admission to the lender might be, “Admit on May 5, 2006, plaintiff purchased the mortgage from ABC Corporation.”

The lender would then respond in writing with a simple “Admit” or “Deny.” If the lender objects to the request, it may state something similar to, “Plaintiff objects to this request for admission because….”

It may state it doesn’t have sufficient information to form a belief, or refuse to answer on other grounds.

The purpose of requests for admissions is that they narrow the scope of what is contested for trial. If the parties can admit that certain facts are true, then these facts do not generally need to be litigated later. These must be presented in a manner where the other side can either admit or deny each.

If you seek to ask questions with open ended responses, then using interrogatories or depositions might be more useful.

Depositions are beyond the scope of this book, but well-crafted interrogatories might get you the information you seek. In federal court,
like interrogatories, they can only be served on parties.

One of the most important facts to remember about requests for admissions is that in many states, failing to respond to requests within the time limit (30 days in federal court) is equivalent to admitting the statement’s truthfulness.

Be very careful if you are served with requests for admissions so your failure to respond doesn’t equate to admitting each!
Do not be late filing your responses, or you may find them deemed admitted.

Many chapters will have a section that suggests some requests based on that particular chapter. This assumes you will be using the model request for admission form, and adding in the suggested requests as paragraphs where indicated.

Here are some general rules to follow with respect to requests for admissions:

· Leave a couple of spaces below each for an answer.
· Some courts require the requests be provided on diskette or CD to the other party.
· You must mail a copy of your requests to every other party in the lawsuit (everyone suing or being sued), even if the questions are only directed to the bank. · You usually must mail a copy of the requests to the court, to be filed with the case.

Requests for the Production of Documents.

Requests for the production of documents or other tangibles (like records) are a right afforded to litigants during a lawsuit. You may ask the lender in a formal document to produce the original mortgage and note, as well as any other physical thing that relates to the lawsuit. Federal Rule 34 governs these requests.
It would be wise to get copy of the closing documents from the title company, lender, broker, real estate agent, and whoever else is involved in the transaction that may have copies.
You may also want obtain copy of the invoice and appraisal via subpoena to ensure the amount showing on the settlement statement is correct. If the party you want information from is not a party to the lawsuit, you may have to subpoena them for the information.

When you have been served with this type of discovery by the lender, you will not mail a packet of documents court (again, do not mail documents in response to this type of discovery request to the court), although the court may want you to file a Notice that you did, in fact, respond. You will only send the packet of documents to the party requesting that you produce documents.

Getting served with discovery.

Be very mindful that failing to respond to discovery within the time period prescribed by the rules can get you into deep trouble. Answering untruthfully can also get a party into trouble, opening up them to sanctions or attorneys fees and costs for trying to avoid a bona fide question.

Discovery Cut-Off.

In some areas, the court may set a date as the cut-off for discovery. That means you must complete your discovery requests to other parties by this deadline. If the court sets a deadline, it will be included within the cover page of the lawsuit, or a notice will be mailed to you directly.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

10 Banks Agree to Pay $8.5B for Foreclosure Abuse

10 Friday Jan 2014

Posted by in Banks and Lenders, Fed, Foreclosure Crisis, Fraud

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Ten major banks agreed Monday to pay $8.5 billion to settle federal complaints that they wrongfully foreclosed on homeowners who should have been allowed to stay in their homes.

The banks, which include JPMorgan Chase (JPM), Bank of America (BAC) and Wells Fargo (WFC), will pay billions to homeowners to end a review process of foreclosure files that was required under a 2011 enforcement action. The review was ordered because banks mishandled people’s paperwork and skipped required steps in the foreclosure process.

The settlement was announced jointly by the Office of the Comptroller of the Currency and the Federal Reserve.

Separately, Bank of America agreed Monday to pay $11.6 billion to government-backed mortgage financier Fannie Mae to settle claims related to mortgages that soured during the housing crash.

The agreements are the banks’ latest step toward eliminating hundreds of billions of dollars in potential liabilities related to the housing crisis that crested in 2008. When they release fourth-quarter earnings later this month, the banks hope to reassure investors that they are making progress toward addressing those so-called legacy claims.

But advocates say the foreclosure deal allows banks to escape responsibility for damages that might have cost them much more. Regulators are settling at too low a price and possibly at the expense of the consumer, they say.

“This was supposed to be about compensating homeowners for the harm they suffered,” said Diane Thompson, a lawyer with the National Consumer Law Center. The payout guidelines already allowed wronged homeowners less compensation than the actual damages to them, she said.

Under the settlement, people who were wrongfully foreclosed on could receive from $1,000 up to $125,000. Failing to offer someone a loan modification would be considered a lighter offense; unfairly seizing and selling a person’s home would entitle that person to the biggest payment, according to guidelines released last summer by the OCC.

The agreement covers up to 3.8 million people who were in foreclosure in 2009 and 2010. All will receive some amount of compensation. That’s an average of $2,237 per homeowner, although the payouts are expected to vary widely.

About $3.3 billion would be direct payments to borrowers, regulators said. Another $5.2 billion would pay for other assistance including loan modifications.

The companies involved in the settlement also include Citigroup (C), MetLife Bank (MET), PNC Financial Services (PNC), Sovereign, SunTrust (STI), U.S. Bank (USB) and Aurora. The 2011 action also included GMAC Mortgage, HSBC (HBC) and EMC (EMC).

The deal “represents a significant change in direction” from the original, 2011 agreements, Comptroller of the Currency Thomas Curry said in a statement.

Banks and consumer advocates had complained that the loan-by-loan reviews required under the 2011 order were time consuming and costly without reaching many homeowners. Banks were paying large sums to consultants who were reviewing the files. Some questioned the independence of those consultants, who often ruled against homeowners.

Curry said the new deal meets the original objectives “by ensuring that consumers are the ones who will benefit, and that they will benefit more quickly and in a more direct manner.”

“It has become clear that carrying the process through to its conclusion would divert money away from the impacted homeowners and also needlessly delay the dispensation of compensation to affected borrowers,” Curry said.

Thompson agreed that the earlier review process was deeply flawed and said the move toward direct payments is a positive development. But she said the deal will only work if it includes strong oversight and transparency provisions.

“It’s another get out of jail free card for the banks,” said Thompson. “It caps their liability at a total number that’s less than they thought they were going to pay going in.”

Citigroup said in a statement that the bank is “pleased to have the matter resolved” and believes the agreement “will provide benefits for homeowners.” Citi expects to record a charge of $305 million in the fourth quarter of 2012 to cover its cash payment under the settlement. The bank expects that existing reserves will cover its $500 million share of the non-cash foreclosure aid.

Bank of America CEO Brian Moynihan said the agreements were “a significant step” in resolving the bank’s remaining legacy mortgage issues while streamlining the company and reducing future expenses.

Leaders of a House oversight panel asked regulators for a briefing on the proposed settlement on Friday. Regulators refused to brief Congress before announcing the deal publicly.

Maryland Congressman Elijah Cummings, the top Democrat on the House Committee on Oversight and Government Reform, said in a statement that he was “deeply disappointed” in the regulators’ actions.

“I have serious concerns that this settlement may allow banks to skirt what they owe and sweep past abuses under the rug without determining the full harm borrowers have suffered,” Cummings said. He said regulators have failed to answer key questions about how the settlement was reached, who will get the money and what will happen to others who were harmed by these banks but were not included in the settlement.

The settlement is separate from a $25 billion settlement between 49 state attorneys general, federal regulators and five banks: Ally, formerly known as GMAC; Bank of America; Citigroup; JPMorgan Chase and Wells Fargo.

© 2013 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
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JPMorgan Faces Criminal and Civil Probes Over Mortgages

08 Thursday Aug 2013

Posted by in Banks and Lenders, Fed, Fraud

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(Reuters) – JPMorgan Chase & Co, the biggest U.S. bank by assets, said on Wednesday it is being investigated by criminal and civil divisions of the U.S. Department of Justice over offerings of mortgage-backed securities.

The civil division gave the company a notice in May that it had preliminarily concluded that the firm violated federal securities laws in offerings of subprime and Alt-A residential mortgage securities during 2005 to 2007, JPMorgan said.

JPMorgan said in the filing that it is responding to parallel investigations being conducted by the civil and criminal divisions of the United States Attorney’s Office for the Eastern District of California relating to mortgage-backed securities.

The company made the disclosures in a quarterly filing with the Securities and Exchange Commission.

On Tuesday, federal prosecutors filed a $850 million civil lawsuit against Bank of America Corp over the sale of bonds backed by jumbo mortgages. The lawsuit followed a disclosure by Bank of America on August 1 that it expected to be sued by the Department of Justice and SEC over mortgage bonds.

News of the investigations comes after President Barack Obama vowed to hold companies responsible for breaking the law in financing the housing bubble that caused the 2007-2008 financial crisis and the Great Recession.

U.S. Attorney General Eric Holder said in a statement on Tuesday that Obama’s Financial Fraud Enforcement Task Force, which brought the latest lawsuit against Bank of America, “will continue to take an aggressive approach to combating financial fraud and uncovering abuses in the residential mortgage-backed securities market,” and is pursuing “a range of additional investigations.”

The parallel civil and criminal investigations that JPMorgan disclosed are being conducted from the U.S. Attorney’s Office for the Eastern District of California, according to the company’s filing.

JPMorgan also raised its estimate of possible legal losses in excess of reserves to $6.8 billion at the end of June from $6 billion three months earlier.

(Reporting by David Henry and Peter Rudegeair in New York; Editing by Leslie Gevirtz)

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How Pro Se Litigants Can Effectively Conduct Discovery for Their Court Cases

16 Tuesday Jul 2013

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies

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Discovery is the pre-trial phase in a court case during which each party can use certain methods to obtain information and facts and gather evidence about the case in preparation for trial. It is the principal fact-finding method in the litigation process.

Almost all trial courts allow a wide scope for discovery, the theory being that all parties should go to trial with as much knowledge as possible, and that the parties should not be able to keep secrets from each other. This broad right can involve the discovery of any material relevant to the case excepting privileged information that is privileged or information that is the work product of the lawyers for the other side.

This is different from what you’ve seen on television and in the movies where there is a surprise witness or a missing document is found. The goal of discovery is to avoid surprises and for all parties to go to trial with as much information as possible. Not surprisingly, many cases will settle during the discovery phase as a result of what is discovered and what would be unwise to disclose in discovery.

In practice, the majority of civil cases settle after or during discovery. After discovery, both sides usually are in agreement about the strength and weaknesses of their cases, which may lead to a settlement that eliminates the expense and risks of a trial. The use of discovery is sometimes criticized as favoring the wealthier side as one tactic is to make requests of information that are expensive and time-consuming for the other side to fulfill.

Types of Discovery
The most common types of discovery include:

  • Required Disclosures. Parties are required to disclose certain information regarding four kinds of core information without a discovery request that concerns witnesses, documents, damages, and insurance. Parties must also disclose information about any expert witnesses who may be used at trial to present evidence. Any report written by an expert retained to give testimony must also be disclosed. Before trial, the parties must disclose witnesses who will be called at trial and those who may be called at trial including those witnesses who will be presented through depositions. In addition, the parties must disclose a list of exhibits that will be presented at trial and exhibits that may be presented at trial.

  • Depositions. A device by which one party asks oral questions of the other party or of a witness for the other party. The deposition is taken under oath outside of the courtroom, usually in one of the attorney’s offices. The deposition is transcribed by a court reporter and a copy of the transcript is provided to both parties. The transcript of a deposition may be used as evidence at trial.
  • Written interrogatories. A set of written questions about the case submitted by one party to the other party, witness, or other person having information of interest which must be answered under oath, and the answers to which must be provided to the requesting party within a set period of time.
  • Production of documents and tangible things. A written request asking the other party to produce specified documents or things relevant to the case. An early request to view documents and other evidence allow for a viewing of evidence that might deteriorate over time. It will also prevent many instances of the disposing of such evidence.
  • Physical and mental examinations. A written request submitted to the other party requesting that a physical and/or mental examination be made of a party.
  • Requests for admission. Written statements of facts concerning the case that are submitted to the other party that the party is required to admit or deny. Statements that are admitted will be treated by the court as having been established and need not be proven at trial.

All discovery requests must be reasonably complied with, answered, or objected to in the proper amount of time. If discovery requests are not answered or objected to, and sometimes if they are improperly answered or an improper objection is made, the side requesting the discovery may ask the court to compel proper responses, including the production of the requested discovery. The court may assess sanctions against a party not responding properly to discovery requests.

Conducting Discovery Once an answer to a lawsuit is filed, the time for conducting discovery begins. The timing and methods for conducting discovery will vary from state to state and from court to court. There are substantial and numerous rules governing discovery in each case. You should check your state rules and court rules for conducting discovery. Although there is a broad scope of what may be requested in discovery, there are strict deadlines for requesting discovery and responding to discovery requests. It is very important to be aware of and follow the deadlines because of the potentially serious consequences for non-compliance.

Discovery is conducted by sending written requests in a proscribed form to the opposing party specifically listing the type of discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.

Each state’s rules will include versions of the following rules:

    1. Written Interrogatories
    2. Demands for Inspection
    3. Requests for Admission
    4. Propounding Party (party making the discovery request)
      • Format of the discovery request;
      • On whom the request should be served;
      • Which party retains custody of the original discovery request; and
      • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).
  1. Responding Party
    • Format of written response;
    • Effect of failure to respond in timely fashion;
    • Objections to the discovery request;
    • Verification (responding party must sign the responses under oath);
    • On whom the responses should be served; and
    • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).

    Each state will have its own rules as to when a plaintiff and when a defendant may serve notice of taking a deposition that is initiated by serving notice on the other party in the required format. The notice will indicate whose deposition will be taken, when it will be taken, and where it will be taken. There will also be rules concerning compelling a person or party to be deposed and steps to take to compel attendance at a deposition.

    Each state will have its own rules as to the production of documents and tangible things. The party requesting the production must serve notice of the request in the required format. The notice will indicate which documents and things are to be produced, and when and where they are to be produced. There will also be rules for steps to take to compel production.

    It is a general rule that all parties involved in civil litigation, whether represented by an attorney or not, should be civil to each other. One of the things encompassed within this requirement for civility is the accommodation of each other’s schedules within reason and is particularly important with discovery because of the tremendous amount of information being obtained and exchanged. If either party reasonably requests to change a time for a deposition or the time for exchange of documents, the other party should be accommodating. If the other party seems to make a practice of requesting changes, not complying with discovery requests, or only partially complying, it might be time to go to court and request sanctions.

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