Fatal Flaws in Foreclosure Defense Strategies

1. Competent Evidence.

Evidence is key to winning your case and “competency” is key to getting your evidence on the record of the court. 42 states in the union have licensing requirements (Private Investigations) for individuals and/or companies that; (A) gathers data from a database or program that is not accessible to the general public, that is (B) placed into a report, that is; (C) intended to go before a court of law. If the individual who performed an investigation who is not in compliance with a state’s licensing requirements, the evidence, if challenged will never make it to the record regardless how accurate, the homeowner, or homeowner’s attorney, and the individual who provided the alleged evidence can be sanctioned and sentenced to jail for noncompliance.

Are your own findings competent?

In short, no, and here’s why. You have a vested interest in the outcome of the evidence and your case; therefore your own findings are considered bias and prejudice. Omissions can play a key role in the presentment of your evidence in that opposing counsel is likely to object and his objection will be sustained if counsel puts forth the premise that you have omitted certain key points thus making your so-called evidence appear stronger than it really is. Solution – Get a licensed uninterested 3rd party to provide your evidence (I can help you with that) who can be called upon to testify on your behalf. This is competent evidence.

2. Use of popular layperson terms.

“Robosigner” The term, ‘robosigner’, refers to individuals who are signing foreclosure documents without authority, or under false pretences. Many of these so-called robosigners have been found to not exist at all. For example, in one case I worked on, a background check was performed by a Licensed Private Investigator on an affiant claiming to be an “Assistant Secretary” to Mortgage Electronic Registration Services (MERS). This individual’s name turned out to be the name of a woman who had died in one state and was resurrected to sign foreclosure documentation in California. In another well known case covered by CBS’ 60 Minutes in where the name “Linda Green” was being signed by people who were clearly not Linda Green. The determent in using this term in your pleadings is that there is NO LEGAL DEFINITION for “robosigner, but there is a legal definition for what a robosigner does, and that definition is found under “forgery”.

“Audit” The term, ‘audit’ is an accounting term often misused in the foreclosure defense industry to describe a written work product outlining violations of federal and/or state statutes. The term audit does not apply in such circumstances. If you have had an ‘accounting’ of your mortgage and it has been determined by the auditor that there are in fact accounting errors in the mortgage loan instrument a Qualified Written Request (QWR) can be drafted and sent to the lender pursuant to 12 U.S.C. § 2605 requesting that the errors be corrected. Subsequently the “request” that these accounting errors be corrected is the sole purpose for the QWR. If the QWR is sent within the 3 year statute of limitations, and the respondent fails to make the corrections requested then you can rescind your signature from the mortgage loan instrument but you will be forfeiting the property as a consequence to the rescission.

If you are facing foreclosure and you are in need of Competent Evidence or if you would like to discuss these or other issues please contact me privately for more information.

I will post comment on how to get your evidence offered and entered in a later post.

Steve Skidmore

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