THE BLOG
05/04/2009 05:12 am ET Updated May 25, 2011

Homeowner, Don't Let the Wolf in Your Door!

Your lender is threatening to foreclose? Not! If your loan has been securitized, your lender is not the current note holder and has no legal right to do so.

Millions of Americans today are in financial and psychological distress because their toxic adjustable rate mortgages have reset, forcing them into delinquency, default and foreclosure. These homeowners have been victimized by a conspiracy of predators that has fraudulently induced them into toxic loans in order to generate fees and profit. However, the lenders who originated these loans and sold them have no legal right to foreclose, per their own 8K SEC filings. They just have to be reminded in court that, when they were paid in full for the loans, plus a premium, they relinquished their legal right to foreclose as they are no longer current holders of the notes. Or as Florida attorney April Charney, known as the "Foreclosure Killer," puts it, "it seems a no brainer that a judge would make sure every foreclosure has a legal claim."

Sounds too good to be true? Not! In fact, it is simple contract law. While many players in the securitization business want to convince you that the "lost note defense" is a "legal gimmick" that will merely slow down foreclosure, recent judicial orders upholding the rights of homeowners are the current reality:

Judge Boyko dismissed 14 foreclosures attempted by Deutsche Bank, stating that "the federal court system will not be forgiving in this regard."

Judge O'Malley dismissed 32 foreclosures, stating that the lender "has not filed adequate documentation demonstrating that it was the owner and holder at the time it filed suit."

Judge Bufford found in favor of the pro se homeowner against IndyMac Bank, stating "IndyMac Bank is not the real party of interest."

Judge Rose dismissed 20 foreclosures, stating "while the plaintiffs have pled that they have standing, they may not have had standing at the time when the foreclosure was filed."

Judge Crawford dismissed a foreclosure, concluding that "MERS failed to establish that it held either the mortgage or the note at the time it filed the lawsuit."

Andrew Pizor, Counsel for Connecticut Fair Housing Association, wryly says, "Foreclosure firms are so used to actions just going through unopposed. Now people are paying attention and pointing out the gaps. When I raise these defenses in foreclosure proceedings, the shocked response from lenders is that 'it is a technicality.' Well, not paying your mortgage is a technicality, too."

And more such orders are coming every day as energized homeowners fight their mortgage wars. In fact, these judicial opinions are so thoughtfully written and so adamantly supportive of homeowners' rights, that I have included them in my new book, Mortgage Wars: How to Find Fraud and Reverse Foreclosure. These judges were also surgically critical of the mortgage giants who breezed through the securitization process, as in this quote by Judge Boyko: "The institutions worry less about jurisdictional requirements and more about maximizing returns." But despite the law, and in the spirit of protecting the conspiracy, our government wants to lend them even more money and further empower them!

No one, including the President, seems to care about the psychological carnage created as Americans are tossed on the street, forced into homelessness or residing in their cars. In his address to the nation, Obama said "if you got yourself into more house than you can afford, we can't help you." In reality, the Administration knows that it cannot convince owners of mortgage backed securities to modify their pooling and servicing agreements, if for no other reason than that no one can find them. It is one big multi-trillion dollar (and growing) mess being dumped on the very homeowners and taxpayers who have been defrauded.

Further, this lunacy fueled by the media -- that the foreclosure crisis was caused by a sudden epidemic of deadbeat liars -- isn't helping. Most borrowers were not first time homeowners and trusted the professionals to play it straight, as in "fiduciary responsibility." Consider this: what idiot would commit to a loan, knowing that in a few short months he would be out on the street, saddled with bankruptcy, bad credit, and bail out taxpayer debt to boot?

And don't think for a second that this financial blood bath hasn't contributed to our nation's post traumatic stress disorder, starting with the rigged 2000 election. Thrust into a ten year cycle of fraud, most Americans have come to accept that, if they couldn't elect a President without being overruled, and they can't stop a fraudulent war devoid of weapons of mass destruction, then how could they stop the financial wolves from beating down their doors? The irony is that the predators, so obsessed with selling derivatives, attacked the one front we just couldn't resist: our homes. Fast money for homeownership? Cheap equity lines? How about a one percent loan?

They had us at "hello."

American homeowners need to come together and scream out loud, "We're not gonna take it!" through filing predatory lawsuits alleging fraud and demanding quiet title actions. While there is quite a self-serving underground movement aimed at suppression, (think Deep, Deep Throat, the sequel), we still have, on our side, a little document called the United States Constitution which assures us that "Citizens of the United States shall not be deprived of life, liberty or property without due process of law."

So how do you find your own due process? If you are a victim of the conspiracy, follow my ten step war plan of engagement:

1. Get out those dusty closing documents and peruse them; they actually make for fascinating reading. You will learn all sorts of facts that your mortgage broker and lender did not want you to know, as in how they committed mortgage fraud.

2. Check your credit rating. If you have fallen to the bottom of the class and your loan is fraudulent, there is hell to pay. Your lender has violated the Fair Credit Reporting Act.

3. Compare the current value of your home to the stated appraised value at your closing. If your value has dropped significantly, it may have been fraudulently inflated to increase the loan amount, so your broker and lender could reap higher fees. Again, a major no no.

4. Is your debt to income ratio over 35%? Oops, they did it again. It is against the law to put borrowers into loans that they cannot pay back.

5. Does your income reported to the IRS match the income on your loan application? If not, check to see if your data was fudged and your signature was forged. A common enough practice which also happens to be a crime.

6. Go online and google your lender's 10K and 8K filings for the year that you signed your loan documents. See how your lender has gleefully bragged to its investors about how efficiently it securitized loans such as your own. Most lenders even go as far as to claim that no loans sold into pools were predatory in any way! (Think investor fraud.) And don't get me started on the accounting firms who certified these blatant lies. Or the credit rating agencies who stepped up to the plate with inflated ratings and outstretched palms.

7. Get your loan audited. It is the first step in building a winning lawsuit. If you can't find an auditor, go to my website www.yourmortgagewar.com and we will refer one.

8. Get a qualified attorney to file your "Qualified Written Requests" and your legal complaint. We know some of the best ones in the country who will not rip you off. No point in jumping from predatory lending to predatory lawyer.

9. Demand your loan be extinguished. After you have been defrauded, it is your legal right to demand that the predators be held accountable. Toward that end, don't waste time attempting to modify a securitized loan. Go right for the jugular, just as your lender has.

10. Break out the champagne. You have tamed the wolf. Maybe in time, you can transform him into a lovable canine companion, maybe a Wall Street born-again Marley.

And stand up for yourself. Don't fall for the media's pre-emptive attacks on your character. An examination of recent history paints an entirely different picture of a conspiracy of politicians, regulators, investment bankers, mortgage brokers and nominal lenders that would do anything -- including bankrupting the country and the globe -- to profit from the derivatives explosion.

It's time for this karmic cycle to reverse and for homeowners to take back their American dream, one lawsuit at a time.