“A settled plan to deprive the people of the benefits, blessings, and ends of the contract, to subvert the fundamentals of the constitution, to deprive them of all share in making and executing laws, will justify a revolution.” John Adams, Novanglus Papers, 1774
AM I SUPPOSED TO JUST STEP ASIDE
AND LET THE LENDER TAKE MY HOUSE?
Originally there were twelve of us working loosely as a group researching individually and then sharing that knowledge. We operated then like members of a club all with similar interests. While we were learning much faster than any individual borrower could have, we were each making our way through court representing ourselves. Is it wrong? Are we going to lose? I have felt both confident and anxious at different times over the last seven years. But, our members have won seven cases in the last eight months, so the answer is, yes it is possible. In fact, I do it full time. In some weird but good way, I feel it is my civic duty.
I have been sitting in court and heard many judges admonish borrowers who are trying to represent themselves as Pro se parties that they “need to get an attorney”. Nearly all of my clients over seven years believed that because the judge told them to, that it was the law. It is not. But, the judge most often felt that the borrower had a better chance of having his side of the story represented with a competent attorney. It is, on a general level, good advice. But, judges today are missing some details about a new type of fraud which was virtually unknown until about 1999, and that can make paying an attorney a sure way to lose your family’s home.
The Borrower can’t afford an attorney anyway at this time. Besides, there are close to zero attorneys that even know mortgage finance law. There isn’t enough room here to go into detail, but it is easy enough to understand if you are lucky enough to meet someone who knows what has changed over the years in the relationship between attorneys and judges. I wish someone would have told me in 2011. domestic violence lawyer
Actually, if it is a fraudulent foreclosure, why should a borrower have to lose his or her home because they can’t afford to hire an attorney? They are victims of a crime. They are not criminals.
So if you are a borrower who is threatened with foreclosure the question is, if you can’t find a good attorney and even if you did you could not pay him or her, do you just give up the greatest and most expensive possession that you will ever own? Maybe. But, I say no. Every day I know more than the day before and on this one subject, I am an expert.
I have taken this whole issue of “Imposter” lenders blowing smoke up the court’s behind and stealing homes without ever “lending” a dime to the borrower very seriously. Yes, back in the days of the real world (before 1994 or so) it was all very simple.
You borrowed from a banker you knew. You signed a Promissory Note detailing the amount you owed and the payment terms you agreed to. The banker needed to know that if you became unable to make your payments that the bank would not lose the money they were loaning you, so you put up the home you were buying as collateral. The document you signed that contained the terms you and the bank agreed on is called a security instrument. In states that use judicial foreclosure rules, that collateral instrument is called a mortgage. In states that use non-judicial foreclosure rules the security instrument is called a deed of trust, in these states there is nothing even called a mortgage. Since, we all use the term mortgage to mean home loans we get mixed up. The foreclosing party is counting on confusing you and the judge. (I cover that more completely in another article).
Now those documents and the terms agreed to is your home loan. The Promissory Note is essential to the deal and it is the most important document you signed. You made these fair monthly payments. You and the banker kept track of the payments, and when your loan was paid off the Promissory Note was marked paid and returned to you. The original Promissory Note was returned to you. Every time. You could trust the finance industry to do it like this. But, to any borrower, attorney, or judge born after about 1980 this sounds like fantasy, because following the laws and statutes on banking has not been an active idea since 1995 (that’s when Microsoft first provided free email at the literal speed of light).