Beating Foreclosure legally
November 27, 2008
Southern California (909)890-9192 in Northern California(925)957-9797
Facing Foreclosure in California?
The number of Foreclosures in California and across the Nation are on the rise. If you are facing foreclosure in California we can help. The foreclosure relief department at McCandless Firm, is comprised of a dedicated team of highly trained professionals, attorneys, underwriters, and brokers in the mortgage and loan industry. Our team will work diligently with your lender and/or invoke Federal Court Remedies to facilitate a solution that fits your budget and goals. The following are the most common ways we assist homeowners facing foreclosure.
The Mortgage Modification program allows most homeowners who can make payments keep their homes. Often, personal circumstances or an upward payment adjustment or “reset” will cause the homeowner to fall behind n their monthly payments. By actively counseling our clients and aggressively negotiating with their lenders we are capable of modifying the original loan to give our clients a fresh start in managing their home finances. Depending upon the individual needs of each client, modifications can range from a simple interest rate reduction resulting in a lower monthly payment to what is known as a “recapitalization agreement.” A recapitalization agreement takes all the “arrears” or monthly amounts that should have been paid but wasn’t paid, interest, fees, and missed payments and adds it to the principal of the mortgage loan. In many instances, we will negotiate the complete removal of principal above the current fair market value and “arrears”. Finally, we may be able to extend the life of your loan so that your payments are more easily manageable. This is a unique department of McCandless Law Firm that can be reach directly at
The lien stripping program is available for individuals desiring to reorganize their debt using Federal Laws under Title 11 of the United States Code. The mortgage removal program can only be used in the context of a reorganization, often referred to as Chapter 13(see below). If you own a home with more than one mortgage, you may be able to completely remove or “avoid” the second and subsequent junior mortgages from your home and county records, thus leaving only the first original mortgage! If you qualify, all mortgages except the first would no longer be secured by your home, and you would stop all payments except the first immediately. There is nothing the creditor can do, provided you qualify for a simpe three part test: 1) The First Mortgage is equal to or higher than the fair market value of the home, 2) You have income, and 3) Your total unsecured debt is under 336,900 and your secured debt is under 1,010,650.
As of 2002, the Ninth Circuit Court of Appeals ruled in In Re: Sieglinde E Zimmer, that these mortgages on residential properties can removed if you qualify. In today’s declining real estate market, this ruling pretty much allows junior lien removal on most properties bought or refinanced since 2004. For instance, suppose you have a first mortgage of $500,000 and second mortgage of $150,000, and the house is worth $490,000.00. Under this program, the $150,000 gets removed and you only need to make monthly payments on the $500,000.
Wouldnt it be much easier to save your home if you only had a first mortgage and no other payments? Moreover, if the market turns around, think of all the equity you could build back up years from now.
Chapter 13 Reorganization:
The Chapter 13 “Reorganization,” allows you to consolidate all your debts into one low monthly payment. The payment amount is tailored to your budget. Chapter 13 is technically a Bankruptcy, but viewed at differently since it is not a “straight bankruptcy” which simply eliminates all debt without any payment whatsoever. Instead, it consolidates all missed mortgage payments or “arrears” and then spreads the repayment out over 3-5 years. The net result is that your mortgage is legally reinstated by Federal Court Order and you continue to make your normal mortgage payments. The lender is also under strict scrutiny to account to the Federal Court any fees they attempt to assert over your normal mortgage payments. For example, if you are $9,000 in arrears on your mortgage and your monthly mortgage payment is currently $3,000, your Chapter 13 payment would be approximately $150 per month. (60 months x $150 =$9,000) The new total monthly house payment would be $3,150. The Chapter 13 program results in a more realistic repayment plan than the short term plans currently offered by most lender outside of the laws under Title 11, and you maintain all your rights under TILA, RESPA, HOEPA, FDCPA, FCRA, etc.
With our short sale program we are able to market and sell your property for at or below market value even though you may owe substantially more than that on the mortgage(s). A short sale will not only stop the foreclosure but will prevent the adverse credit implications associated with a foreclosure. If the short sale is done in conjunction with a bankruptcy filing the results are even more beneficial to the homeowner. Not only will the tax consequences be completely eliminated, but any shortage or “deficiency” will be discharged in the bankruptcy. The sale is generally easier to do since the lender knows there is no longer any personal recourse against the homeowner. Finally, with the filing of the bankruptcy, you are generally able to extend the length of time remaining in the property. Its not uncommon to remain a year of longer in your property without paying using a short sale combined with a bankruptcy.
The Equity Recoupment program allows our clients to recoup what they may have lost as a result of predatory lending and the current mortgage crisis. Strategically, by using a combination of the above programs and state consumer protection laws, McCandless Law Firm developed and pioneered a program that allows homeowners to legally remain in their home for 8-12 months or even years without making a single payment! Though it may sound to good to be true, the program is rooted in both California and Federal consumer protection statutes and the civil code, and the illegal shortcuts lenders have been taking over the past decade. Many homeowners are not aware of the vast state and federal laws that have been created over the last 20 years to address the very issues we are facing today with widespread foreclosures and predatory lending. For example if your monthly payment is $3,000 per month, in 8 months you will recoup $24,000, in 16 months that is nearly $50,000. Your recoupment will continue to grow the longer we are able to keep you in your home.
Deed In Lieu of Foreclosure:
If you are behind on your monthly mortgager payments and are unable to sell your home at the current market value, a deed in lieu of foreclosure may be an option to prevent a foreclosure from tarnishing your credit. The process involves giving the property directly back to the lender, or “deeding it back in lieu of foreclosure.” The lender benefits as they are able to mitigate the additional losses they would incur from having to proceed with a lengthy foreclosure. Often times the lender will offer this option at the onset of a foreclosure proceeding, however in our experiences lenders will seldom follow through and effectuate the transfer without Attorney intervention. By stepping in and advocating for our clients we are able to 1) Get the homeowner released from most or all of the personal indebtedness associated with the defaulted loan 2) Prevent the homeowner from experiencing the public notoriety of a foreclosure and subsequent credit implications, and 3) Put money in our client’s pocket via “Cash for Keys”. Though it may appear to be a viable means of walking from your home unscathed, it is a complicated process requiring competent legal and tax advice.
As I continue through this journey through the maze created by lenders, investment bankers, title agents and closing/escrow agents I keep discovering things that end up being quite interesting.
For example: In California the requirements for posting Notice of sale are very clear and yet, I am told that they are routinely ignored. This would invalidate the notice of sale on the most basic of concepts “notice,” by definition and therefore could be attacked at any time as a defect of service and jurisdiction while at the same time bring your claims under TILA, usury, identity theft, fraud, etc. California requires public and private posting as do most other states. The public part is what they ordinarily ignore. see notice-of-the-sale-thereof-shall-be-given-by-posting-a-written-notice
With the new law changes Civil code 2923.5 that became effective Sept 6, 2008 it adds more procedures that are routinely not followed ie. a Declaration must be attached and recorded that recites that the lender has met and assessed the borrowers financial condition and made alternatives to forclosure ie. modification. First they don’t do it and second the declaration is not even under penalty of pujury. So on its face the sale could be set aside.
After the notice of default the lender routinely switches trustee’s and records a Substitution of trustee with an affidavit that is not under penalty of perjury. Again the sale could be set aside for this.
For example. MERS, whose legal status is dubious at best anyway inasmuch as it plainly violates the recording requirements of every state and which supposedly has not one but multiple corporate entities, one of which has been suspended from operation in California, is subject to specific instructions as to what to do with the “master Deed of Trust and what to do with the individual deed of trust, the procedures, language to be inserted etc. These too I am told are routinely ignored especially when it comes to (a) showing that you have provided a copy of the Master Deed of Trust and (b) having the proof as specifically required in the FNMA/Freddie instruction sheet.
As stated in my other posts, the entire MERS concept causes, in my opinion, a separation between the alleged security instrument and provisions, the Trustee’s authority and the note, all of which end up being different people who were all “real parties in interest” receiving fees and value not disclosed in the GFE or settlement statement. In all these closings the borrower is subjected to a series of documents that hide the true nature of the transaction, the true source of funds, the true lender, and the application of funds contrary to the terms of the note.
All of these new requirements create questions of fact, that if not correct, create a method to set aside the sale by way of court action. I guess that’s the point the lenders trustees and servicers are banking on the victims not fighting it.
Many a client call me when its toooooo late however sometimes something can be done it would envolve an appeal and this application for a stay. Most likely you will have to pay the reasonable rental value till the case is decided. And … Yes we have had this motion granted. ex-parte-application-for-stay-of-judgment-or-unlawful-detainer3
When title to the property is still in dispute ie. the foreclosure was bad. They (the lender)did not comply with California civil code 2923.5 or 2923.6 or 2924. Or the didn’t possess the documents to foreclose ie. the original note. Or they did not possess a proper assignment 2932.5. at trial you will be ignored by the learned judge but if you file a Motion for Summary Judgmentevans sum ud
template notice of Motion for SJ
TEMPLATE Points and A for SJ Motion
templateDeclaration for SJ
TEMPLATEProposed Order on Motion for SJ
TEMPLATEStatement of Undisputed Facts
you can force the issue and if there is a case filed in the Unlimited jurisdiction Court the judge may be forced to consider title and or consolidate the case with the Unlimited Jurisdiction Case
2nd amended complaint (e) manuel
BAKER original complaint (b)
Countrywide Complaint Form
FRAUDULENT OMISSIONS FORM FINAL
California stop foreclosure and get your own shortsale COMPLAINT
And in some cases an injunction is in order
Foreclosure injunction TRO
and a Lis Pendence
Southern California (909)890-9192 in Northern California(925)957-9797
10 thoughts on “Fight Foreclosure Today”
I have a friend that got foreclosed and was not even aware of the sale date. The lenders said that there was a certified mail regarding the sale date but she only received a letter of acceleration. She was just surprised to see a letter from the realtor offering her $500 to vacate the premises. We live in Virginia and it seems like this is an illegal scheme, she wants to stay in the house. Here are my questions
1) Can you help in Virginia State, Secondly Is there a chance for this kind of deal? Can we sue the Servicer and lender for doing this kind o f eviction letter right away?
This attorney is looking to be for real . The right stuff. I ran the web site by two attorneys after I pulled and gave some pleadings I read my own seal of approval.
Hey Neil…two thumbs for McCandliss; its Good stuff. This guy is no doubt in the know! Check him out folks . . .msoliman
In California, the judges are saying that you can’t question the foreclosure sale procedure — no matter how much was wrong with it — unless you first “tender” the entire payment of the loan balance.
see post on tender issue if fraud is evolved tender not necessary
Your site and articles are extremely well designed and informative. I am in the foreclosure process with Thornburg. They are now in bankruputcy. I am looking for time to stay in my home as long as possible. Can you help ?
because of family deads my mothr my fathr &brothrin law Ihad the hose empty for5 months Ilike keep the house Inould like to modification the loan
I have some questions on foreclosure regarding a house I have in Texas, I am looking for any and all advice because at this point I am totally lost and do not know where to go or what to do. I have a second house bought for my mother in Texas. I’m late on payments and have been working with a company that is suppose to be helping me out with some kind of negotiations for a modification, so far I am not sure how they define help out. She travels alot and is hardly ever in it. We use it as a vacation home when visiting the relatives. This July, I drove up to the house and found a lock box at the front door and the house empty! No beds, no furniture, no appliances. I thought that the house had been burglarized; the sheriffs told me that they see it all the time. They told me that I must have misplaced my eviction notice! I have not received an eviction notice. I ran around the city checking records in the recorders office and found nothing. I called the mortgage company, EMC, and they claimed that they did not work that way. I was put on hold four times and was told the same thing every time. The customer service person did not know what to tell me except to call the police and make a report. After talking with everybody that I thought I should contact I went back to the police and the rewrote the report, the sheriff even made calls while I sat at in his office to verify that the house had not been sold or foreclosed.
I received a called from the mortgage company a few days later telling me that they understood that I needed access to my house and that they could help me get in. I explained how I got in already and that my concern was the property that I use to have in the house. She wanted to know how I had got in the house and I explained that I had gone through the garage; she giggled and said that she would do the same. Again I asked for my furniture and appliances and she said that everything was there. She also said that sometimes they will have moving and storage bids done and this time the bids came out too high so that they left everything there, she claimed that nothing was removed from the house. I told her again just the opposite, and then was told to report it to the police.
Since then I have had a report written up with the sheriff, spoken with EMC about my belongings and with the insurance company. The insurance company is now coming to me saying that I knew about the procedures that EMC takes when one is behind in payments and that I knew that they had my stuff. They claimed that I received paper work on all of this and should not be surprised. EMC has never contacted me on any of this, I want my house, I want my furniture and I want them to tell the truth. I want to know if any one can help me with this please, again this house is in Texas
Please tell me anything that you can.
we also had cw .and about 6 others .we tried to remod with kucsan and mccrea that told us to stop making payments while it was still cw..after about a year boa proposes that we make 1400.00 a mos good faithpayments with about 7000.00 dow ..after 7 mos of these 3 mos good faith payments we found out they want to up the payments to 1900.00 a mos .and they were still forclosing . now I find that we were robo signed .and we dont know which way to turn . we live in susanville ca’ if you know of any attorney or help in this area
Tucson Mayoral Candidate Claims Dozens of Foreclosed Homes, Changing Locks, Kicking Out Real-Estate Agents and Posting “Do Not Trespass” Signs
Submitted by 4closureFraud on 06/19/2011 20:31 -0400
Fannie Mae Florida Freddie Mac Las Vegas
Now this is how you get it done…
Tucson Mayoral Candidate on Odd Spree of House Claiming
Some excerpts from the report…
A Tucson mayoral candidate from a fringe political party has seized dozens of foreclosed homes in metro Phoenix, changing the locks, kicking out real-estate agents and posting “Do Not Trespass” signs.
Marshall Home, who claims many foreclosures are illegal, has filed documents in the past two weeks with the Maricopa County Recorder’s Office showing he has supposedly taken ownership of at least 21 homes belonging to government-owned mortgage giant Fannie Mae. But none of the documents shows any money has changed hands, and Fannie Mae says it has not sold the houses.
Why would he do such a thing?
“Lenders are gangsters, and they can’t prove they own these homes. So they have no right to foreclose,” said the 80-year-old self-professed billionaire from his real-estate and political office in Tucson on Tuesday. “I plan to continue to take homes from Fannie Mae and Freddie Mac. I would buy them, but those groups can’t produce the notes showing they are the rightful owners to sell or foreclose on them.”
I think I like this guys style…
Actually, he isn’t doing anything different than Fannie’s and Freddie’s Foreclosure Mills do…
“He knows how to file a real-estate document that looks legitimate,” Ruff said, “even if it may not be.”
So how does he do it?
Last week, Phoenix HomeSmart real-estate agents Brett Barry and Roland Cleveland got a call from their brokerage telling them Independent Rights Political Party Trust had sent a letter saying it “acquired all rights” to the house at 6032 E. Skinner Drive in Cave Creek. The agents were hired by Fannie Mae to maintain and market the property and had heard nothing about a sale of the home.
The notice told the real-estate agents they had 72 hours to remove their signs and lockboxes, so they rushed to the house wondering what was happening and why hadn’t they been informed. But they were too late. Home’s group had taken their lockboxes, installed new locks and posted signs saying the house was under video surveillance and any trespassers would be “dealt with to the fullest extent of the law.”
A special-warranty deed, stamped by the Maricopa County Recorder’s Office, also was posted on the window of the home. The deed said the Federal National Mortgage Association, Fannie Mae, had conveyed the property to the Independent Rights Party. It was signed by Home and his notary, but there were no signatures from Fannie Mae on it.
Ah, so he is assigning the properties to himself. Just like the servicers do…
LINDA “MARSHALL HOME” GREEN!!!
So, what did the Realtors think?
“We called the people who hired us and work with Fannie Mae, and they didn’t know anything about a sale,” he said. “It appeared right away the document was fraudulent.”
“It’s crazy,” he said. “How does someone just declare they own a home without paying for it or obtaining a clear title?”
So how does he get away wit it you ask?
All types of documents can be filed with the Recorder’s Office as long as they are notarized. Not all documents are scrutinized before the county agency accepts them because that’s not its job.
Home said his group also has claimed control over foreclosure houses in Tucson and other parts of the country, including Florida and Las Vegas.
Home said he took control of a 145-unit condominium project for a man in Florida.
So what does Marshall Home have to say about all this?
“We’ve seized hundreds of homes from Fannie Mae and Freddie Mac,” Home said. “Those groups have no legal right to them.”
“I haven’t been contacted by either entity nor has either one done anything to stop me,” Home said. “I look forward to a call from one of them so I can explain why I am legally in the right to take over taxpayer-owned homes.”
You can check out the article in its entirety here…
And the dude is 80 years old!
Mr. Home “MARSHALL HOME” is my new favorite Linda Green…
this is a great point: “As I continue through this journey through the maze created by lenders, investment bankers, title agents and closing/escrow agents I keep discovering things that end up being quite interesting.” a maze indeed – i’m happy to see some litigation groups making headway in bringing plaintiffs together against the big banks for their deceptive loan practices..