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  1. #1

    Default RESPA and TILA Violations

    This is regarding a property in California.

    I'm looking for leverage to stall a foreclosure and possibly modify a mortgage. An attorney to whom I've been speaking to is suggesting a "forensic audit" of the loan documents, basically looking for RESPA and TILA violations (I think).

    Has anyone had success with this? Did it work as leverage to stall a foreclosure or help in a Loan Mod? Did you have to file a lawsuit alleging the violations, or was pointing out the violations enough to make the lender listen?

    And finally, is this something that someone can do on their own, or do you really need an attorney for this?

    Many thanks!

  2. #2
    Join Date
    Apr 2008
    Location
    Texas (Dallas area)
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    1,404

    Default Re: RESPA and TILA Violations

    Quote Quoting ballmich
    View Post
    This is regarding a property in California.

    I'm looking for leverage to stall a foreclosure and possibly modify a mortgage. An attorney to whom I've been speaking to is suggesting a "forensic audit" of the loan documents, basically looking for RESPA and TILA violations (I think).

    Has anyone had success with this? Did it work as leverage to stall a foreclosure or help in a Loan Mod? Did you have to file a lawsuit alleging the violations, or was pointing out the violations enough to make the lender listen?

    And finally, is this something that someone can do on their own, or do you really need an attorney for this?

    Many thanks!
    I would suggest that you do not spend the money for this with your attorney. CA is a NON JUDICIAL foreclosure state. Who would you plead your case to ? the trustee? I think not.

    I suggest you read the MERS forclosure process for CA and you will see that you have very little rights in CA

    http://www.mersinc.org/Foreclosures/index.aspx

    And the foreclosure law for CA. Please note that first mortgage loans that originated in CA after 1993 are all done as NON JUDICIAL

    http://stopforeclosure.com/Californi...losure_Law.htm

  3. #3

    Default Re: RESPA and TILA Violations

    Quote Quoting OhMy
    View Post
    I would suggest that you do not spend the money for this with your attorney. CA is a NON JUDICIAL foreclosure state. Who would you plead your case to ? the trustee? I think not.

    I suggest you read the MERS forclosure process for CA and you will see that you have very little rights in CA

    http://www.mersinc.org/Foreclosures/index.aspx

    And the foreclosure law for CA. Please note that first mortgage loans that originated in CA after 1993 are all done as NON JUDICIAL

    http://stopforeclosure.com/Californi...losure_Law.htm
    Well, I'm not sure what the protocol is as far as RESPA or TILA violations. But I've recently read that roughly 70% of mortgages have RESPA or TILA violations, so obviously there has to be some way to enforce these laws and find damages for these violations? Perhaps by filing suit?

    As far as MERS, I don't think it's that straightforward. Here is a link to a recent California bankruptcy court ruling:

    http://msnbcmedia.msn.com/i/msnbc/se...ordsRuling.pdf

    ii. Right to Enforce the Note

    In addition to authenticating the note, MERS must show that it is entitled to enforce the note. Only the holder of the negotiable promissory note (with minor exceptions not relevant in this case) is entitled to enforce the note. See CAL. COM. Code 3301. The holder enforces the note by makeing a demand for payment. See id. 3501(a). The person making a demand shows its right to enforcement by showing the original of the promissory note. See id. 3501(b)(2).

    MERS has not brought to court the note here at issue, and makes no pretense that it holds the note. Indeed, MERS is not in the business of holding promissory notes.10 Its business is only to hold deeds of trust as an agent for the holder of the note. This status ofr MERS is disclosed in the deed of trust here at issue, which states that MERS is "acting solely as a nominee (a type of agent) for lender and lender's successors and assigns."

    In addition, there is no evidence before the courst as to who is the holder of the promissory note and it entitled to enforce it. MERS contends that Countrywides acts as agent for MERS. However, MERS does not purport to be the holder of the promissory note. Under California law, only the holder of a note is entitled to enforce it (with minor exceptions not relevant herein). See CAL. COMM. CODE 3301.
    Obviously being a non-judicial state, the borrower needs to file a lawsuit to get in front of a judge, otherwise this is all moot and they will foreclose under the deed of trust.

    But it appears that MERS in and of itself, as a national electronic registry of mortgage loans, is not able proof enough that demonstrates ownership of the mortgage note or assignment of the note.

    Not saying any of this to be argumentative. I'm just hoping for some beneficial discussion that will help me "work" through my foreclosure process and figure out if or how I want to fight/defend against it.

  4. #4
    Join Date
    May 2009
    Posts
    1

    Default Re: RESPA and TILA Violations

    Please seek legal counsel (a litigation attorney would be best) and not listen to a majority of the posts here.

    I felt compelled to create an account just to set you straight.

    TILA and RESPA violations are FEDERAL issues and have nothing to do with the non-judicial foreclosure process.

    TILA and RESPA are statutes that protect consumer credit transactions.
    TILA and RESPA require certain disclosures. These disclosures are very specific as to what they must contain, when they are/were given to you, how many copies you recieve, if they were signed (in some cases)...etc.

    Many sub-prime loans were shoddy and put together with limited oversight. The benefit to you is that your loan MAY contain issues that render it unenforceable.

    If you do not have the required disclosures, you may be entitled to rescind the loan, seek damages, file suit for fraud, etc. etc.

    An audit may help if it is done by a qualified auditor. For your own sake, be sure that the auditor is a human and not a software program.

    Can this be done on your own?
    Yes. However, it is a very complex process.
    In order to stop the foreclosure you would need to file a lawsuit.
    If it is prepared wrong, the suit will most likely be thrown out of court.

    MERS has some control over your rights. If MERS did not disclose their relaqtionship properly (and your attorney is crafty), you may have claims for damages.

    Once again, this is not simple stuff.

    One final piece of advice. If you are unable to find the TILA and RESPA laws, and understand how they effect you, you probably will not be capable of filling your own lawsuit properly. This is not meant to offend you. You can expect the lenders to have top notch counsel who will tear a poorly constructed lawsuit to shreds. This does not mean that it can't be done.
    In theory, you can perform open heart surgery. Just because you can, does not mean that there wont be consequences for the slightest mistake.

    Good luck, dont let the "bastads" take your home without a fight.

    http://www.hud.gov/offices/hsg/sfh/res/respa_hm.cfm
    http://www.fdic.gov/regulations/laws...6500-1400.html
    http://dockets.justia.com/search?q=M.E.R.S.+Inc.

  5. #5

    Default Re: RESPA and TILA Violations

    Quote Quoting Philthy
    View Post
    Please seek legal counsel (a litigation attorney would be best) and not listen to a majority of the posts here.

    I felt compelled to create an account just to set you straight.

    TILA and RESPA violations are FEDERAL issues and have nothing to do with the non-judicial foreclosure process.

    TILA and RESPA are statutes that protect consumer credit transactions.
    TILA and RESPA require certain disclosures. These disclosures are very specific as to what they must contain, when they are/were given to you, how many copies you recieve, if they were signed (in some cases)...etc.

    Many sub-prime loans were shoddy and put together with limited oversight. The benefit to you is that your loan MAY contain issues that render it unenforceable.

    If you do not have the required disclosures, you may be entitled to rescind the loan, seek damages, file suit for fraud, etc. etc.

    An audit may help if it is done by a qualified auditor. For your own sake, be sure that the auditor is a human and not a software program.

    Can this be done on your own?
    Yes. However, it is a very complex process.
    In order to stop the foreclosure you would need to file a lawsuit.
    If it is prepared wrong, the suit will most likely be thrown out of court.

    MERS has some control over your rights. If MERS did not disclose their relaqtionship properly (and your attorney is crafty), you may have claims for damages.

    Once again, this is not simple stuff.

    One final piece of advice. If you are unable to find the TILA and RESPA laws, and understand how they effect you, you probably will not be capable of filling your own lawsuit properly. This is not meant to offend you. You can expect the lenders to have top notch counsel who will tear a poorly constructed lawsuit to shreds. This does not mean that it can't be done.
    In theory, you can perform open heart surgery. Just because you can, does not mean that there wont be consequences for the slightest mistake.

    Good luck, dont let the "bastads" take your home without a fight.

    http://www.hud.gov/offices/hsg/sfh/res/respa_hm.cfm
    http://www.fdic.gov/regulations/laws...6500-1400.html
    http://dockets.justia.com/search?q=M.E.R.S.+Inc.
    Finding a "like-minded" lawyer is not easy to do. I've been looking. Most are one or two trick ponies... they want you to file BK or to pursue a loan modification. Other than that, to find a lawyer who will file suit against the lender/MERS etc who claims to be able to foreclose under the deed of trust, has not been easy to find. And I've talked to about six lawyers and emailed a handful of others.

  6. #6
    Join Date
    Jul 2009
    Posts
    18

    Default Re: RESPA and TILA Violations

    google 'living lies'
    its a website in which someone is documenting the disaster that is upon us.

    MERS itself may be against the law.
    The problem is that MERS is electronic. Every title has to be filed in the county in which the property resides, MERS did not do this.

    At least that is what the article I read stated. Decision was made by the Kansas supreme court?

    http://livinglies.wordpress.com/2009...n-annotated-1/

    Also, splitting the mortgages may be against the law.
    This entire pyramid of CDO's and exotic products may have been against the law.

    The point is, anyone who cannot make their mortgages payments due to this disaster and is facing foreclosure, it may be a good idea to do some research, and hire an attorney rather than pay your mortgage.

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