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Friday, January 27, 2012
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Massachusetts Foreclosure Defense
" If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around them will deprive the people of all property until their children wake up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs."
– Thomas Jefferson, Letter to Treasury Secretary Albert
As I represented one of the parties in the Land Court cases (the LaRace family), it is very interesting to listen to the so called "experts" opine on Judge Long's ruling, saying that "at best" this will delay foreclosures, but that is about it." These are uninformed,and usually self serving statements made by real estate professionals, such as Mr. Valvo Left unsaid is the fact that under G.L. c. 244 Section 14,in order to foreclose, the foreclosing entity must also prove that it is the holder of the borrowers mortgage note as well. The complexity of the securitization process can present difficult issues for lender to overcome.
Generally the parties involved in the securitization process of your mortgage did not following the mandates under the prospectus governing the securitized trust that the your note and mortgage are in. Additionally problematic for foreclosing entities, is the situation whereby the lender has already sold a property to an innocent third party (that it didn't really own,according to Judge Long's
decision)..
Looking into the not so distant future, I predict Judge Long's ruling will be hailed as one of the great
Judicial opinions of all time, with regards to its impact. ---- Glenn F. Russell, Jr.
Thoughts on the Government "bailout" of the "banks".
Due to intentional manipulation of information, or extreme incompetence (I opt for the former), the media has portrayed that the "bailout" money in the TARP was earmarked for "banks" that suffered extreme losses due to having "risky mortgages" on their books.
Left unsaid however is the fact that the "banks" actually did not own any of these mortgages as they were sold into a process known as "securitization", whereby the "lender-bank" was paid immediately after inducing a borrower to sign up for a loan that they could not afford" After this sale of mortgage loans to another entity (known as a "seller / sponsor") the "bank" NO LONGER "OWNED" ANY OF THESE MORTGAGES, and only retained the sevicing rights for these mortgage loans.
Therefore, America needs to ask the obvious question:
IF THE BANKS DID NOT ACTUALLY OWN ANY OF THESE SO CALLED "TOXIC ASSETS" (DUE TO THE FACT THAT MORTGAGES THAT WERE SECURITIZED ARE THEORETICALLY OWNED BY INVESTORS), WHAT WAS THE TARP MONEY ACTUALLY USED FOR?
My theory is that credit default swap bets were paid off, with the implicit approval of the US Government.
Foreclosure In The News
Rising FHA default rate foreshadows a crush of foreclosures (Washington Post) 02/02/2010
"The share of borrowers who are falling seriously behind on loans backed by the Federal Housing Administration jumped
by more than a third in the past year, foreshadowing a crush of foreclosures that could further buffet an agency vital to the housing
market's recovery."
Massachusetts Land Court Ruling Favors The LaRace's Attorney, Glenn F. Russell, Jr. (Reuters)
"This morning, the Massachusetts Land Court agreed with Attorney Glenn Russell by ruling that mortgage lenders must prove
that they are indeed the mortgage holders of record in order to foreclose. The ruling was part of two court cases, U.S. Bank
National Association v. Ibanez (08 MISC 384283 (KCL)) and Wells Fargo v. Larace (08 MISC 386755 (KCL)). "
Judge Affirms Crucial Foreclosure Sale Ruling (Boston Globe) 10.15.2009
"A Massachusetts Land Court justice's ruling today puts into question the ownership of hundreds -- and possibly thousands --
of foreclosed properties in the state."
Massachusetts Land Court Affirms Controversial Ruling (Motley Fool) 10/14/2009
Team 5 Investigates Loan Modification Companies (Boston WCVB-TV 5)
Susan Wornick, from Boston News Channel TV-5 aired this report on "shady" mortgage loan modification companies in March
of 2009. As part of this report Ms. Wornick had me come into the studio to provide advice to consumers on what to watch out for.
All Hope Is Not Lost When Facing Foreclosure (Fall River Herald) 03/04/2009
The Fall River Herald profiled foreclosures, me, and my practice in this front page story.
While I will agree that this website will not win any "style points", or be considered for a "webbie award", my goal is to provide information for borrowers who are trying to figure out this extremely complex subject matter.
You really don't have to look very hard in the news lately, to see that the foreclosure situation in Massachusetts and Connecticut is reaching frightening proportions. In fact Goldman Sachs Global ECS Research released a research paper on January 13, 2009 that predicted 13 Million mortgage defaults by the year 2014. See the report here at page 18 of the PDF.
It is hoped that the information on this website may provide benefical advice, guidance, and be used as a resource of information for foreclosure prevention help by those who were victims of coercive tactics in the procurment of their loan, members of the bar, as well as others seeking information about foreclosures in general.
When faced with a foreclosure, most people figure they have no way out and do not challenge the foreclosure of their home. There may be several defenses you as the homeowner have, but fail to use by not challenging a threatened foreclsoure. Over 80% of foreclosure actions go unchallenged by the homeowner, DON'T LET THIS HAPPEN TO YOU !!
When a homeowner is confronted with a potential foreclosure situation, you need to consult an experienced attorney who specializes in this area of the law, due to its highly complex nature. Experienced means much more than offering "loan modification services" or bankruptcy only. If these are the only services that are being offered to you, please take the time to research foreclosure defense on the internet. There are many good sources of places to start your research, Neil Garfield's Living Lies website is a good place to begin.
I am admitted to the Massachusetts and Connecticut bar, and I have decided to concentrate a great deal of my practice in the areas of foreclosure defense, and also in related areas of the law; such as bankruptcy..
There are many options a homeowner may have to possibly defend against foreclosure, including (but not limited to) challenging the mortgage servicer and lender on the defects, irregularities, and illegality of your home mortgage, and bankruptcy, just to name a few. Please refer to the links on the left side of this page for more detailed information information about some of these topics.
My view is that services and attorneys that say that they will "modify your loan" are wasting your time and money. As an example of the proof of this statement, I would point to the percentage of loans that have received final approval for the Obama "HAMP" program. At last count approximately only 4 percent of the people who applied for HAMP were actually granted final approval. I predicted that this would be the outcome, as mortgage servicers make far more money in the fees associated with keeping you in foreclosure than that would ever receive under the President's HAMP program.You the homeowner are "negotiating" with an entity (a mortgage servicer) who does not own your mortgage, and even worse has an incentive to keep you exactly where you are at, under the threat of foreclosure.
Anyone that has tried to negotiate a loan modificstion over the past year will tell you the same thing, you get the run around until the mortgage servicer makes you give up any attempt at working out a modification. Therefore, in most cases, pursuing a loan modification is a waste of time, and a home owner's recipe for disaster.
One of the key concepts to understand in foreclosure defense, is that your mortgage most likely is "securitized." Gone are the days of driving down to your local bank, taking out a loan, and having that lender retain your mortgage note (although these days may be returning after the bloodbath America is now taking). Today your original lender has now "sercuritized" you loan, and ends up selling your mortgage note to the secondary market.. Your loan can be transferred again and again (if itis in a "mezzanine trnche as part of a CDO), even possibly selling it simultaneously to different investors (which I have actually seen).
Worse yet, there is Mortgage Guarantee Insurance (pool insurance), and credit default swaps (private contractual agreements to pay in the event of borrowers default) available which may have already extinguished your obligation. Yet the mortgage servicer presses on to foreclose on your home to collect yet again. Therefore many times when challenged, the entity foreclosing cannot produce your original note, or has great difficulty proving that they followed the mandates of the prospectus governing the securitization offering that included your mortgage) and tries to bluff its way through the foreclosure (if challenged), by saying they are presenting a "certified copy of the original note." , and/or that they are the "record holder" of the mortgage. Qualifying as a record holder of a mortgage has a specific meaning in Massachusetts, and an assignment of mortgage must strictly adhere to G.L. c. 183 s, 6C. If MERS is involved, the lender did not comply with this statute
This is fairly new ground in Massachusetts and only recent Massachusetts Land Court decision that I was involved in (Ibanez) and recent Bankruptcy decisions have recognized this problem. Massachusetts State courts have not really dealt with the issue in detail to date.
I have dedicated a page of this website to the Mortgage Securitization process, and to the Mortgage Electronic Registration System (MERS) These pages have sets of videos explaining the securitization process of mortgage backed securities, and also things such as crredit default swaps, and the requirments of the securitized trust prospectus in order for the foreclosing entity to be able to foreclose. The MERS page will chronicle this emerging area of foreclosure defense, and chronicle recent news and court decisions.
Tenants can be affected by foreclosure as well, and have rights under the law.
If you have questions about saving your home through foreclosure prevention, or specifically have a question about Massachusetts or Connecticut foreclosure defense, please contact me for a free, no obligation discussion about your situation.
I will look at your situation, and If I can help you I'll let you know. If I can't help you, I'll tell you know that too, and if possible refer you to someone that can help you.
If it turns out that you have a defense to your foreclosure I will work out a payment plan that you can afford.
I would like to say that the mortgage industry as a whole, while under siege at this time, had (and still has) many dedicated professionals who are working in their clients best interests. Unfortunately, there were (and still are) a few bad apples in the bunch, and those individuals have inflicted a devastating blow to our communities, our economy, and quite possibly have contributed greatly to put this country well on the road to recession, if not depression.
It is unfortunate that these bad apples" did not follow the words and advice of the late great Napolean Hill below, in fact this quote should provide a lesson to us all :
"Before us lie two paths -- honesty and dishonesty. The shortsighted embark on the dishonest path; the wise on the honest. For the wise know the truth; in helping others we help ourselves; and in hurting others we hurt ourselves. Character overshadows money, and trust rises above fame. Honesty is still the best policy". ---Napolean Hill
Respectfully submitted,
Glenn F. Russell, Jr.
Law Office of Glenn F. Russell, Jr.,
38 Rock Street
Suite #12
Fall River, MA. 02720
eMail: russ45esq@gmail.com
Telephone: (508) 324-4545
Fax: (508) 938-0244
Please visit my Contact Information Page
For my Office:
Facebook, LinkedIn, AVVO, and
Meebo details.
MFI-Miami
Fraud Investigatations
Neil Garfield's Foreclosure Defense Group
I am Listed On Neil Garfield's Living Lies Website,
As A Lawyer "Who Gets It." in Massachusetts and
Connecticut, as part of his Foreclosure
Defense Group
Truth In Lending Audit & Recovery Services, LLC
Marie McDonnell
Mortgage Fraud and Forensic Analysts
P.O Box 2760, Orleans, MA 02653
(508) 255-8829
info@truthinlending.net
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