MERS Foreclosure Help

Need help on final step of this journey!
Have just been served by deputy, some kind of notice, from MERS attorney, concerning a deed of trust foreclosure by MERS INC. I must respond to the Land Court by December 26 to counterclaim or lose redemption rights and the property.

Previously:
July 2004, notified Citimortgage (Noteholder by Refi and Sale of Note) of gross violations of servicing my account, including not posting payment, illegally adding a homeowner insurance policy to the account, non-disclosure, and a few other items, and sent an affidavit for them to sign and return to me, which they did not do. This was my first attempt and it was just a letter, not registered, etc.

However they sent me a copy of the note, to remind me of my obligation. But with the allonge endorsements attached (can you believe that?), payable to original noteholder, then to Citimortgage, twice endorsed and cashed by them. So far the note has been cashed 3 times. So I decided to further educate myself on money and banking. I have already been studying this for about 4 years, but now I had a cause to stand for!

August 2005 - I sent a notarized affidavit of truth, (registered mail) which is also recorded in the public record of deeds, stating that they violated the terms of the note, are in breach and the note is void. They have never rebutted this affidavit. After this point, I stopped paying the mortgage note.
They credit the payment I made in July of 2004, and credit the late fees for one year to the account. I start sending back all mail from them, marked Returned for Fraud – undeliverable as addressed.

September 2005 – I sent non-statutory plea in abatement, with copy to the local sheriff.
Citimortgage never rebuts this plea.

October 2005 – Received a notice of default from Citimortgage that loan has accelerated.

November 2005 – Receive notice that foreclosure will take place by the following:
By entry and possession and exercise of power of sale.

And it says “MERS, INC. is claiming to be the holder of a mortgage covering real property, given by us to them…..

Now I know that MERS is not the noteholder. Is that all I have to establish, given the prior evidence that I have pursued to get CITIMORTGAGE to disclose all the facts, and they haven’t?

I prefer this wouldn’t require a trip to court, so I am going to issue this document to the attorney for MERS and then I need a second document to invalidate the MERS claim in land court.
See attachments for files referred to.

Any help greatly appreciated.

http://forum.suijuris.net/showthread.php?t=3834

That should help

[weishaupt1776]

http://forum.suijuris.net/showthread...8962#post38962

[MortgageFree]

I have a special report I can pass along for a fee, but here is the just of it:

Contact your lender ASAP to seek a "Special Forbearance" or a "Hardship Loan Modification..."

Solutions for Temporary Problems

Reinstatement: When you are behind in your payments but can promise a lump sum to bring payments current by a specific date.

Forbearance: You are allowed to delay payments for a short period, with the understanding that another option will be used afterwards to bring the account current. Lenders sometimes combine Forbearance with Reinstatement if you know you'll have the funds to bring your account current by a specific date.

A Repayment Plan: If your account is past due, but you can now make payments, the lender may agree to let you catch up by adding a portion of the past due amount to each current monthly payment until your account is current.

Solutions for Longer-Term Problems

Mortgage Modification: If you can make your regular payment now, but cannot catch-up the past due amount, the lender might agree to modify your mortgage. One solution is to add the past due amount into your existing loan, financing it over a long term.

Modification might also be possible if you no longer have the ability to make payments at the former level. The lender can modify your mortgage to extend the length of your loan (or take other steps to reduce your payments).

Good Luck!

TeamAvalos.com

[Judge Roy Bean]

Originally Posted by SonofGod

Need help on final step of this journey!
Have just been served by deputy, some kind of notice, from MERS attorney, concerning a deed of trust foreclosure by MERS INC. I must respond to the Land Court by December 26 to counterclaim or lose redemption rights and the property.

In many states, MERS operates as a kind of "proxy" for the holders of mortgage notes so they don't have to pay a local registration fee every time they sell it off. They will have an attorney act on behalf of the actual noteholder in a foreclosure.

Originally Posted by SonofGod

Previously:
July 2004, notified Citimortgage (Noteholder by Refi and Sale of Note) of gross violations of servicing my account, including not posting payment, illegally adding a homeowner insurance policy to the account, non-disclosure, and a few other items, and sent an affidavit for them to sign and return to me, which they did not do. This was my first attempt and it was just a letter, not registered, etc.

If they weren't servicing the note, they would simply ignore any such affidavit. What you have to do is file a RESPA "Qualified Written Request" letter via CRR to get the servicer to respond. Untiil they get one of those, some of the predatory servicers will simply ignore you and when they put you in default, they will send payments back and then move to foreclose.

Originally Posted by SonofGod

However they sent me a copy of the note, to remind me of my obligation. But with the allonge endorsements attached (can you believe that?), payable to original noteholder, then to Citimortgage, twice endorsed and cashed by them. So far the note has been cashed 3 times. So I decided to further educate myself on money and banking. I have already been studying this for about 4 years, but now I had a cause to stand for!

Nothing unusual about selling and reselling notes and the servicing to them. There are trillions of dollars of mortgages in the system, most of which can be sold.

Originally Posted by SonofGod

August 2005 - I sent a notarized affidavit of truth, (registered mail) which is also recorded in the public record of deeds, stating that they violated the terms of the note, are in breach and the note is void. They have never rebutted this affidavit. After this point, I stopped paying the mortgage note.

The affidavit of truth is a waste of your time and paper. It has no legal bearing and there is no legitimate reason they would do anything but toss it in the round file or save it to show any future court that you were trying to run a mortgage-elmination scam on them.

Originally Posted by SonofGod

They credit the payment I made in July of 2004, and credit the late fees for one year to the account. I start sending back all mail from them, marked Returned for Fraud – undeliverable as addressed.

September 2005 – I sent non-statutory plea in abatement, with copy to the local sheriff.
Citimortgage never rebuts this plea.

And they wouldn't. They don't need to. The only thing they would have to respond to is a summons if you sue them.

Originally Posted by SonofGod

October 2005 – Received a notice of default from Citimortgage that loan has accelerated.

November 2005 – Receive notice that foreclosure will take place by the following:
By entry and possession and exercise of power of sale.

Apparently in your state, they allow mortgages with "power of sale" clauses. Those are particularly ugly to defend and can be done non-judicially, again, depending on state law.

Originally Posted by SonofGod

And it says “MERS, INC. is claiming to be the holder of a mortgage covering real property, given by us to them…..

Now I know that MERS is not the noteholder. Is that all I have to establish, given the prior evidence that I have pursued to get CITIMORTGAGE to disclose all the facts, and they haven’t?

You haven't submitted any evidence of anything because you've never taken the required legal steps to defend yourself or formally require discovery. In many states (FL is in question right now because of several pending cases under appeal) they operate on behalf of the trustees in foreclosures.

Originally Posted by SonofGod

I prefer this wouldn’t require a trip to court, so I am going to issue this document to the attorney for MERS and then I need a second document to invalidate the MERS claim in land court.
See attachments for files referred to.

Any help greatly appreciated.

None of that will stop the Sheriff from evicting you. There is no "document" you can submit to the attorney or anyone else that will invalidate the MERS claim unless you file suit under the various statutes against the servicer for allegedly manufacturing the default (which some of them are known to do).

The real problem is, and they will use this argument, by peppering them with this specious paperwork, you will appear to have unclean hands, and they will almost immediately motion for summary judgment based on your use of legally-disproven (and even sanctioned) actions.

In short, if you want to continue living there, you're going to have to either pay them what they demand (and keep paying), or you're going to have to sue them to get them to back off.

If you have significant equity in the property, they will be very agressive because they can profit from the foreclosure sale, and in fact, may already have a prospective buyer waiting for the auction and know pretty much where they stand in terms of profit.

If you don't have a lot of equity, they may we willing to entertain an offer to keep you in the house under a forebearance agreement, but I must warn you, depending on the servicer, these can be just another trap to make you pay more than you would have ever had to pay. They wil "pyramid" fees into these agreements if they can get a way with it and you'll be charged for things they never did - again, depending on the servicer. Some are worse than others.

MortgageFree-Why would I want to do such a stupid thing as that?
I am calling their loan a fraud, and I am supposed to ask them now to renogotiate? I expect to win here, not be a loser.
And you want to charge a fee for this?
Sorry, but I smell a rat.

Judge Roy - why do I need to file another suit? Why can't I rebut and prove their fraudulent statements in court on the pending foreclosure? Or is this just a waste of time, as they will win anyway?

Isn't my counterclaim the same thing?
Thanks.

[Judge Roy Bean]

Originally Posted by SonofGod

MortgageFree-Why would I want to do such a stupid thing as that?
I am calling their loan a fraud, and I am supposed to ask them now to renogotiate? I expect to win here, not be a loser.
And you want to charge a fee for this?
Sorry, but I smell a rat.

Judge Roy - why do I need to file another suit? Why can't I rebut and prove their fraudulent statements in court on the pending foreclosure? Or is this just a waste of time, as they will win anyway?

Isn't my counterclaim the same thing?
Thanks.

It depends on the state your in and the underlying mortgage documents. You indicated they have a "power of sale" clause, which can shorten the foreclosure process in some states. All the attorney has to do is show the chain of custody of the note and that you stopped making payments.

You'll have to bring evidence of the servicer's failure to post payments and your insurance coverage to show they force-placed it without cause. Copies of letters you sent (CRR), a contemporaneous "log" or your notes of telephone conversations, etc., can also help the judge understand how far off the reservation they got. There are literally cases where when finally under oath, the servicer's personnel have admitted they made an error; many times they never let a case get that far - they settle out of court to avoid having incriminating evidence on the record.

If the original loan had TILA or RESPA violations associated with it, you can raise those issues but I gather from what you originally posted that this is more than four years old which takes those beyond the SOL.

Again, this is never legal advice, but challenging the validity of the loan based on theories about how money is created or how the Federal Reserve works will get you nowhere in the real-world courts. You'll be the only player on the field without pads and a helmet.

Are there any sovereign members in the forum with suggestions on abating the issue? Should the abatement be sent to the justice who didn't sign the notice of foreclosure? Her name is on the form, but no signature. How about the DA, should he be served also?
Are all the answers going to be related to using their codes, ie UCC? I have decided that is not the way I intend to go, you can't win if you use their rules can you?
Thanks for all your help and suggestions.