Everything You Need To Know About Foreclosure.


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If you are interested in how to stop a foreclosure the best way, please visit my website at: www.realestatesolutions2012.com
We offer a solution that will immediately stop the foreclosure; and insure that your credit is not adversely effected.

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Everything You Need To Know About Foreclosure.

  1. 1. ==== ====For A Fast, Easy Way To Stop A Foreclosure, Check This Out.www.realestatesolutions2012.com==== ====Documentary Clearing House and Associates ("DCH") has pioneered a new strategy for attorneyswho defend foreclosure cases. To date, DCH has produced three motions to assist attorneysimplement the new strategy.Viewed from afar, the short, unpleasant history of foreclosure during the last three years presentsa sorry spectacle. Far too many judges in foreclosure proceedings have stopped behaving likejudges and instead become advocates for the foreclosure mills. The parties that foreclose continueto ignore and avoid alternate dispute resolutions.The governments efforts to stem the tide of foreclosure and encourage alternate disputeresolutions have been feckless and dissipated. Most people being foreclosed have not dischargedtheir legal obligation to defend themselves. Instead, many if not most foreclosure cases go tosummary judgment uncontested. The resulting assault upon American homeownership has beensystemic and overwhelming.Many homeowners in foreclosure believe that legal representation is unaffordable. Unable to makemonthly mortgage payments, they conclude that they have no means to hire a lawyer. The publicsector which defends people who cannot afford a lawyer has been unable to mount an effectivecounter- response to foreclosure.Too much time has been spent on tactics; too little time has been spent on strategy. Foreclosuredefense is preoccupied with finding omissions, defects and deficiencies. The tactics tend to showthat a rule has been violated.Too many courts are inclined to forgive and forget. The courts dream up notions such as findingthe non-compliance merely "technical" or that the foreclosure is within the "four corners of the loanagreement".DCH is calling for a change in strategy. What is needed is a new strategy which is effective andaffordable. DCHs new motion addresses both these requirements.1.Employ generic defenses to make defense against foreclosure affordable to most of those facingforeclosure.Instead of a case specific defense custom designed to meet the unique questions of fact and lawunique to each case, a defense which most clients confronted by foreclosure can ill afford, DCH isproviding pleadings and discovery where one size fits all. DCH is creating generic defenses. Theforeclosure mills have declared war on defaulting mortgagors. The cost effective response tolitigation filed by the foreclosure mills is counter-measures from a defense mill. DCH provides the
  2. 2. bullets for attorneys to fire. By putting foreclosure one the assembly line, every client can afford toretain his or her own hired gun in a foreclosure battle..There is a conundrum caused by the litigation protocol used in defense litigation to representclients in foreclosure: It is effective and counterproductive at the same time. Lawyers are taught toapproach each case as unique and upon its own merits. We are also taught to employ tactics tocomplicate the other sides case and discover damaging information. Lawyers also try to usediscovery to find errors and omissions in the other sides case. A proficient litigator wages warupon the other side with motions, depositions, production of documents, interrogatories andrequests for admissions and stipulations. Attorneys are taught that litigation cases are won andlost in pretrial preparation. Many believe that a successful outcome is predicated upon pre-trialstrategy. Such tactics are p[art of the litigation protocol and have over time proven themselves tobe effective and productive.The problem lies neither with the tactics nor the strategy. Lawyers approach a litigation case like atailor making a custom suit. Each case is entitled to receive its unique defense to custom fit thefacts and law applicable to the case. The problem when it comes to foreclosure cases is the client.A client who cannot make mortgage payment can ill afford a custom suit. One reason so manycases go to uncontested adjudication is that the client has no way to pay for a custom tailoreddefense. Three of the four major areas for defense- a defective or fraudulent note, the provenanceof the note and consumer protection and consumer fraud statutes and regulations- require anextensive proof of facts. No matter how meritorious the defense, it is not serviceable if a clientcannot financially afford it.Too many foreclosure defendants find themselves between a rock and a hard place. They lack themoney required for a custom tailored defense; they cannot obtain legal services pro bono publico;and there are no neighborhood services available for which the defendants qualify financially.Many of these defendants wind up having to appear pro se and lack the ability to do so. A trainedattorney litigating against a lay person is an unfair contest for which the lay person is ill equippedto succeed. For every individual who can manage competently to defend against foreclosure,there are countless scores who cannot. Compelled by foreclosure to defend themselves andunable to do so, these homeowners are buried by the judicial system without having a day in courtbefore they lose their homes.Under these circumstances, lawyers must begin to consider a different strategy. Maybe if a clientcannot afford a custom suit, it behooves counsel to take a suit off the rack. To accommodate awider base of foreclosure defense cases, it is necessary to develop and implement genericstrategies where one size fits all. Such strategies would not be dependent upon the facts,circumstances and laws unique to each case. Instead, such a strategy would be dependent uponfacts, circumstances and laws which a large number of foreclosure cases have in common.In this connection, DCH has concluded that the fourth area of defense, securitization, provides auniquely fruitful field for generic defenses. Factors common to and endemic in all securitizations ofmortgages are vulnerable to attack in cases after case where a mortgage has been securitized. Aone size fits all defense tactic which is replicable in case after case becomes exponentially morecost effective than a client specific, one time use defense.The foreclosure mills have stolen a march on the mortgage defense bar. The client base of the
  3. 3. foreclosure mill is determined to foreclose at the lowest possible expense. Accordingly they haveprovided a large number of cases at a fixed rate of compensation per case. This has caused theforeclosure mills to put foreclosure on the assembly line. The tendency to file the same pleadingsin case after case irrespective of the facts of the case has led to untold abuses of foreclosure.Nonetheless, by treating foreclosure pleadings as scalable, the foreclosure mills achieve theeconomies of scale. This serves to reduce the average cost per case.Defense counsel can succeed by following the example of the foreclosure mills. Instead of customdesigned defense, counsel must substitute off the rack, scalable defenses. Such a change instrategy opens up a new and different set of tactics. To date, DCH has produced two motionsattacking securitization. One argues that the mortgage is unenforceable. The second argue thatthe mortgage note is unenforceable. Both apply to any mortgage which has been securitized. DCHhas developed a third motion to use in Florida which asserts that the trust is unregistered andtherefore unenforceable. All three motions are generic and are not unique to a specific case.2.Proactively anticipate and address the concern of most judges regarding unjust enrichment if thedebtor prevails in a foreclosure defense.What the courts are saying is that foreclosure defenses as presented defend the indefensible.That a creditor should forfeit the loan because of a technical defect is an inequitable outcome. Thedebtor is not entitled to an unearned windfall which is precisely the result for which the defenseconsistently argues. So long as nullification of the debt is the outcome if defendant wins,defendants will continue to lose. Defendants will not succeed in overturning foreclosures unlessand until defendants explicitly seek a remedy other than cancellation of the debt.To succeed, a defense against foreclosure cannot be a one way ticket to a free lunch for thedebtor. Most judges will not render a judgment they deem to have an inequitable outcome. Unjustenrichment of the debtor from an undeserved windfall often is used as a rationale which justifiesdisregarding defects in the foreclosure proceedings. Most judges believe that the debtor borrowedand received the money and should be obligated to repay the loan.DCHs most recent motion explicitly states that if the motion is granted, the court should use itsequitable authority to declare a constructive trust or constructive mortgage and afford defendant aviable opportunity to effect an alternate dispute resolution. In short, instead of leaving the decisionconcerning modification at the sole discretion of the parties controlling the securitization, the courtwould now makes its own determination and more equitably protect the rights of all partiesconcerned. This affords the defense the proactive opportunity to address the issue of unjustenrichment. It also allows the court order an alternate dispute resolution where the outcome wouldreduce the loss inflicted upon the creditor.The judicial choice is not limited to either conferring a windfall upon a defaulted "deadbeat" orallowing large financial institutions to flout existing laws. There is no reason that the note does notproperly evidence a debt which has not been paid-even if the note holder is not evident.Even if the note is legally unenforceable, the court may declare a constructive trust. The court candeclare a constructive trust or constructive mortgage and assure payment of the trust andcertificate holders. As a constructive trust or mortgage, the court may impose conditions. Forexample:
  4. 4. (a)Review foreclosure fees and charges.(b)Consider compliance with consumer protection laws and avoidance of consumer fraud. Wheredamages have been suffered by the debtor, the court may allow a set-off.(c)The Court may order mandatory mediation or arbitration.(d)The Court may modify in any way deemed equitable and appropriate, the mortgage to enablethe debtor to make timely payments and the creditor to recover payment of the debt.The court may consider a wide range of modifications to the note to allow an alternate disputeresolution. This would go a long way to mitigating financial loss to the creditor and movingforeclosure from a first resort to a last recourse.3.In an adversarial system the person sued is under a legal obligation to defend against the causeof action. Every person in foreclosure requires a competent legal defense; and an affordable legaldefense is available.Our adversarial system of justice legally obligates a person who is sued to appear and defend. Adefendant who fails to appear and defend loses the case by default. In civil proceedings, the lawprovides each defendant only with the opportunity to defend, not a defense. Judges preside tohear a case and make judgment. The judge does not represent or defend the rights of the partyfiling suit or the defendant. It is shocking and saddening to realize how many Adult Americans donot realize and understand their legal obligation to defend when they are sued. Such ignorance isa function of an inadequate educational system and an indifferent media.The avalanche of foreclosures resulting by adjudication in uncontested cases demonstrates howmany homeowners fail to realize that they have an opportunity, duty and obligation to appear anddefend against foreclosure. The message is lot that effective, affordable and realistic defense offoreclosure has the highest likelihood of achieving an alternate dispute resolution whoseconsequences to the debtor are significantly preferable to foreclosure.The members of the bar who want to defend clients against foreclosure need to get out amessage. Every person in foreclosure requires a competent legal defense; and an affordable legaldefense is available. Most families in foreclosure believe they are helpless victims, overwhelmedby forces beyond their control. The foreclosure mills are posed to exploit this state of mind.A different message needs to be published and widely disseminated. Most people today havelearned that with the advances in modern medicine it is far better to treat a disease than succumbto it. The same principal applies to defense against foreclosure. Most people, however, areunaware that affordable "treatments" for foreclosure ailments are available.There are many public spirited people, including members of the bar, who have selflessly giventheir times and work product to enable individuals to act pro se and represent themselves. In manyplaces, people in foreclosure are invited to participate in symposia which are aimed at educatingdefaulting debtors regarding their rights and remedies. To the extent these programs educate thepublic about the choices and expectations relating to foreclosure of a home, they perform avaluable public service. The non-profit mortgage counseling conducted by HUD affiliatedcounselors is an excellent example of public education about debtors options and choices inforeclosure.
  5. 5. To the extent, these symposia try to empower a debtor to defend pro se against counsel from aforeclosure mill, the undertaking is an exercise in futility. The average homeowner is unable toeffectively defend against a foreclosure in a judicial proceeding. Busy, overworked judges have nopatience with quixotic tyros tilting against windmills.4.Use asymmetric defense tactics to thwart foreclosure mills.The profitability of foreclosure mill operations is a function of the number of cases resulting inuncontested foreclosure. For these operations, time is money. The less time allocated tosuccessful adjudication of a case, given the fact that compensation is capped, the more profitable.Conversely, the more time required to prosecute a case, the less profitable it becomes. DCHsmotions to dismiss require opposing counsel to do extensive, time consuming legal research. Aresponse will consume substantial legal resources and billable hours which are not billable.In defending a foreclosure, every attorney should have an off the shelf, standardized discoverypackage. Where a mortgage is securitized, DCH is working on a discovery package of requests forproduction of documents, requests for admissions and interrogatories, motions to compel answersand production if required, document checklists and annotations and notes explaining why aspecific document is required or question needs to be answered.The ultimate goal is to bring down the cost of legal care, just like health care, to make it affordableto one and all.ConclusionDCH is respectfully calling for a change in foreclosure defense strategy by implementing thefollowing tactics:1.Employ generic defenses to make defense against foreclosure affordable to most of those facingforeclosure.2.Proactively anticipate and address the concern of most judges regarding unjust enrichment if thedebtor prevails in a foreclosure defense.3.In an adversarial system the person sued is under a legal obligation to defend against the causeof action. Every person in foreclosure requires a competent legal defense; and an affordable legaldefense is available.4.Use asymmetric defense tactics to thwart foreclosure mills.For more information contact:Richard F. KesslerDocumentary Clearing House and Associates, LLC.941-924-5608,richardfkessler@verizon.net http://www.documentaryclearinghouse.comDCH OPENS NEW FRONTIER FOR DEFENSE OF FORECLOSURE
  6. 6. "The Stop Foreclosure Package."The Stop Foreclosure Package contains legal forms, explanations and instructions to enable theuser to argue the unenforceability of the mortgage and find the evidence which supports eachlegal defense asserted. When a mortgage is converted into a security, fatal legal errors occur. TheStop Foreclosure Package identifies the errors and provides the tools needed to find the proofrequired.The Stop Foreclosure Package enables each customer to purchase as an individual and defendlike an army. The Stop Foreclosure Package is priced as follows:$349.00 plus tax................pro se for an individual for a one time use.$599.00............................for a single attorney with unlimited right to reuse.$799.00............................for a law firm of attorneys with unlimited right to reuse. DCH may not represent you legally or provide legal advice. Please give us the opportunity to helpyou save your home and delay foreclosure by using our Stop Foreclosure Package for the price ofone half months rent. You cannot afford to miss this opportunity to try to save your home.Article Source:http://EzineArticles.com/?expert=Richard_Kessler==== ====For A Fast, Easy Way To Stop A Foreclosure, Check This Out.www.realestatesolutions2012.com==== ====