Eleven-Million and One and Counting
As demoralizing as my strife has been, I’m saddened by the atrocities that have faced homeowners since 2008. Banks in their greed gave mortgages to millions of earnests, but misguided families yearning for the American Dream: Home Ownership.
You might read this and argue that these families knew what they could or couldn’t afford – and in part, you might be right. But dangle a golden carrot to a starving man and see if he doesn’t jump. This was the case in some of the
11-million foreclosures, but it’s not the full picture, nor does it define all the 11 million.
Jeffrey Abraham of 2ND CHANCEPROGRAMS LLC is a vociferous champion of the besieged homeowner facing foreclosure. His wrath has no bounds as he fights the system, the banks, the lawyers, and the courts. His sole devotion is for the law to be served and the homeowner facing foreclosure to be guided in their rights.
Jeffrey argues that “Bank foreclosure practices have drawn increased national scrutiny in recent years as the role of MERS', the mortgage industry's recording agent, has raised serious questions about the validity of how mortgages are sold in the global marketplace.”
He states the ten most tried defenses homeowners have used in our nation’s courts to save their homes are, one, “The Legal Standing Defense”, and he describes it thusly: “For a bank to foreclose, it must demonstrate the ‘legal standing’ to do so. In other words, the bank must show that it has the authority to enforce the terms of the mortgage.
“In most cases, the bank pursuing the foreclosure designates a third party named MERS (Mortgage Electronic Registration Systems), which assumes ownership-like rights over the mortgage, but it too must prove its rights to foreclose with a security interest.
“Too often MERS’ documentation trail is poor or otherwise compromised particularly since it was created to track transactions via an electronic database as opposed to traditional land records archived at the county level.” Jeffrey is quick to remind us that this is not a sequential order of importance, but that each of the ten defenses is equally offensive and should result in the court’s finding in favor of the mortgage holder.
Another on his list is: “The Original Note Defense”. In this, he states that in “the absence of the original mortgage Note the bank is unable to foreclose.” Jeffrey is quick to add, “that is most of the time. However, the bank may prevail depending on the specific jurisdiction. If the bank can show that the original Note was once in its possession, but later became lost or destroyed, the bank foreclosure attempts may still be effective.” The next defense is “The No Splitting Defense”, which he explains as: “During the foreclosure process, the bank cleverly attempts to parse its ownership of the mortgage from its ownership of the loan, thereby creating two separate assets in one. Most courts have held that the mortgage and the loan are one and cannot be separated.”
Then there’s the “The No Trust Defense” that Jeffrey explains simply as “In most instances, mortgages are eventually assigned by the bank or its agent MERS, to a large trust, otherwise known as a securitization pool. However, that trust’s lifespan does not always coincide with the timeline in which mortgages are reportedly assigned to it.”
He goes on to explain that this sounds simple, but it is a very important nuance in the mortgage world. He says in this new world of mortgages “It is not uncommon to see a mortgage assignment [or sale] to trust predating the formation of the trust itself.
‘If the trust was not yet borne at the time the mortgage is presumed to have been assigned to it” Jeffrey adds sardonically, “Hello, then the bank's right to foreclose is seriously undermined.”
Next, he adds, “There’s ‘The No Knowledge of the Facts Defense’ it’s really important in its simplicity. We’ve all learned that ignorance is not a defense, well in the instance of foreclosure banks must know the facts.” Jeffrey adds, “Let me explain simply: When a foreclosure action is filed, in many ways it’s just like any other lawsuit. The claims in the lawsuit must meet a requisite burden of proof to prevail. The party bringing the action should have a basic ‘knowledge of the facts contained in its court complaint.
“Foreclosure actions have long prevailed even in the absence of a bonafide bank representative with knowledge of the facts surrounding the foreclosure. However, recent challenges to the authenticity of the foreclosure bank documents have resulted in many courts applying stricter rules of evidence.” Jeffrey smiles as he suggests, “The ‘faceless’ foreclosure may have seen its final days. Let’s hope so, anyway.”
Next is “The No Attorney Affirmation Defense“ it’s important because “In recent years, not only have courts tightened evidence requirements against foreclosing banks, but they have also required attorneys representing banks to accompany their foreclosure lawsuit with an affirmation attesting to the truthfulness of the foreclosure documents. If the bank fails to produce an attorney affirmation, the foreclosure action may be dismissed.” “’ The Wrongful Assignment Defense’ has received the most notable attention in the public eye, but it’s not often understood,” Jeffrey explains. “Challenging the bank’s assignment simply disputes the validity of any one of the various mortgage transfers. Banks typically transfer ownership of mortgages numerous times as part of a highly complex mortgage securitization process.
“Although these multiple transfers are electronically recorded by MERS, the documentation trail has been criticized as weak and, in some instances, nonexistent.
“Simply put, if the bank is unable to establish the validity of the mortgage transfer, the foreclosure action may be dismissed.”
Jeffrey smiles and adds with a playful wink, “Basically, no ticket no laundry.
- sort of.”
It’s evident to this interviewer that Jeffrey Abraham is authentically passionate about the laws that have been circumvented and how it has affected millions of would-be homeowners.
Next, he explained the “MERS Conflict of Interest” Defense. “In some less frequent instances, the giant mortgagee and agent to the mortgage industry MERS are named both plaintiff and defendant in foreclosure actions. As a result, the MERS conflict of interest defense can be raised to outright dismiss the foreclosure.
“The complexities of MERS transfers cause MERS to defend their highly unconventional business model with more established and conventional legal methods. As a result, the legal community has embattled MERS. Consequently, there have been significant compromises to MERS’ infrastructure as a result.”
He waits a moment for the dichotomy to settle into my brain. Then he adds,
“It almost seems psychotic to want to sue yourself, wouldn’t you say?” “Only two left” as if he feared he was boring me. On the contrary, I was transfixed. He smiled and continued. “Now, ‘the Chain of Ownership Defense’ is pretty straightforward.
“If the foreclosing bank is unable to track with documenting proof the sale of the mortgage to the numerous institutions, commencing from the loan’s origination, and prove that it received its rights to foreclosure through those transfers, then the foreclosure action is subject to dismissal.
“Keep in mind, MERS will retain ownership rights to the mortgage as a mortgagee, but effectively transfers ownership rights of the loan to the bank buying the loan. You got that?” Devilishly he adds, “Ok now repeat that… backward!
“Proving, or disproving, the chain of ownership of the loan will involve research, but it is a critical aspect of the foreclosure defense.
“A Quiet Title action may be an applicable defense in this scenario.” I looked perplexed at the term. Jeffrey clarified it this way: “Quiet Title is a legal remedy brought by the homeowner to remove claims by the foreclosing bank or MERS when asserting an invalid interest in the property.” That was an epiphany moment for me. This was a term I had heretofore never heard. ‘A Quiet Title’ is quite simply a remarkable little remedy!
Last was The “MERS Owes Homeowners a Legal Defense” Defense Jeffrey explained this: “MERS is often a named co-defendant with the homeowner in the foreclosure lawsuit. As MERS loosely distributes ownership rights of the loan to the party that eventually pursues the foreclosure, it yet retains its ownership rights to the mortgage. Yes, I know, it does sound confusing.
“The foreclosing party, with its rights of the loan, must somehow extinguish MERS’ ownership rights of the mortgage, which it attempts to do by naming MERS a defendant.
“Although a named co-defendant, MERS is complicit with the foreclosure and shows indifference to the homeowner by remaining silent.
“As a co-defendant, MERS fails to plead in favor of the mortgagor mortgagee covenant, which MERS is, in fact, a party to. As a defendant,
MERS has the explicit duty to defend.”
I came away from our time together impressed with Mr. Abraham’s grasp and knowledge but overwhelmed at the complexity, the confusion, and the audacity of our banking industry and our court system.
No stressed, beleaguered mortgagee/homeowner could fight the monolith mendacity of the American bank. President Obama awarded the banks 28-billion dollars to assure that they helped the American homeowner modify their mortgages to save their homes. Instead, they have manipulated the system to help more effectively ensure they are victorious in foreclosing on the homeowner.
Months, and sometimes years of fighting the fight have left millions without a place to call home. Where are the conscientious fighters? I know of a small handful, but none more passionate and sincere as one Jeffrey Abraham.
Mr. Chaloupka has over 25 years of experience in real estate investing and financing. Brian’s knowledge encompasses strategies such as wholesaling, fix and flips, fix and holds, turnkey investment properties, owner financing, mortgage notes, lending, and others.
Most recently, Brian has specialized in helping distressed homeowners with real estate solutions and offering affordable housing to those that would otherwise not be able to qualify for institutional financing.
Brian resides in San Antonio, Texas but actively invests nationwide.