Foreclosure Defense

  • 07/09/2013
  • News

by: Joseph Gonzales 

A growing number of homeowners in the foreclosure process have begun to fight back against abusive and unfair practices that lenders have engaged in over the years.  Foreclosure is a legal proceeding and people facing foreclosure have legal rights in the proceeding they are frequently unaware of.  Asserting these legal rights can stall foreclosure proceedings or halt them altogether. Banks make an incredible numbers of errors in processing loans, foreclosures, loan modifications and loss mitigation. These mistakes can create lender liability and frequently lead to either favorable settlements or extended time in the home. Eric Ortiz Law can review loan documents and the bank’s case to take advantage of these bank errors and keep you in your home.

In order for a mortgage, deed of trust or promissory note to be valid, it must have what is known as chain of title. This simply means that there must be a clear, unambiguous record of ownership from the time you signed your papers at closing, to the present moment. Any lapse in the chain of title causes a “defect” in the instrument, making it invalid. This is where we at Eric Ortiz law can help a foreclosure defense, by questioning the chain of title. Mortgages and deeds are routinely bought and sold, and in order to have some method of record-keeping, the banks created the Mortgage Electronic Registration System (MERS), a privately held company that tracks the servicing rights and ownership of the nation’s mortgages. Some courts have rejected that MERS has any legal authority to assign title to a particular party in the first place, making some MERS mortgages unenforceable.

Like the mortgage, a promissory note must also have a clear chain of title.  Eric Ortiz Law can help demonstrate that subsequent assignments of promissory notes have gone unendorsed. It is often standard practice for banks to leave the assignment blank when loans are sold and some courts have ruled that blank assignments are not sufficient to claim perfection. One of the many major issues created by the mortgage backed security craze of the past decade was that these mortgages were sold many times over. This means the note was transferred several times and during this process, many lenders, in an effort to quickly process the transfer, failed to turn over all the proper paperwork. As a result, these notes may have been lost, misplaced, or filed improperly, creating a problem for the lender as without the original note, they cannot prove they have a right to foreclose.

Eric Ortiz Law takes a proactive approach to foreclosure defense and requires lenders to produce every piece of evidence necessary to support and prove the merits of their claim. Additionally Eric Ortiz Law vigorously and diligently requests proof that the lenders, in all steps of the loan origination and foreclosure proceeds, have consistently followed federal and state laws. Upon meeting with new clients, Eric Ortiz Law often finds viable counterclaims and suits against lenders for violations of federal and state laws, predatory lending, predatory servicing, fraud, and numerous other violations.