Week of 3/18/2024

or How My Blood Pressure Went Through The Roof

Hello

I hope that this finds all of you well, and thank you for reading this Substack.

What I do can in no way compare to the stress that an emergency room doctor experiences, however, that does not lessen the fact that I deal with a very different kind of stress on a daily basis.

Part of the reason for this is that I take each foreclosure case that I defend PERSONALLY, that is as if it were my own residence.

Many law firms sought to take on these cases back circa 2008-2016, and did little more than shuffle the chairs around on the deck of the titanic, with the ship ultimately sinking to the bottom of the ocean.

Indeed, it is true, that the odds of successfully defending these cases is not very high, but this also depends upon the specific objective of the client, and/or their individual definition of the term “success” under their specific circumstances and objectives.

I have had the unfortunate experience of a client taking his own life and threatening to blow up his house over a pending foreclosure auction.

Because of the amount of time necessary to prepare a defense to these cases, and the related time spent with the homeowner client, its quite easy to become immersed in their experience, and like a southern drawl, its rather easy to assimilate these fears, worries, anxiety about their living situation, and anger toward the financial industry.

Many attorneys who took these cases on during the great recession have acquired medical conditions, and or passed away from medical events that may have been related to this highly stressful area of the law.

In addition to the heartbreaking stories relayed by those facing the loss of their home, a foreclosure defense attorney is frequently faced with critisim (and sometimes threats) from the financial industry, and the judiciary, merely for defending these cases.

The propaganda, and/or misinformation, related to foreclosure defense usually takes the form of congnitive dissonance from the judiciary, in that they focus on the fact that money was “lent” by a “bank” and is not being paid back, and “what does your client expect? to get a free house?” No, actually my client expects that a critical review of the facts to determine whether the current foreclosing entity seeking to kick her and her family to the curb, to be taken out like someone’s weekly garbage, actually has the legal right to do so. Is that too much to ask??

Of course in the majority of transactions (unless in some cases of very local credit unions/banks), there is no longer any “bank” involved with the money ultimately “lent” to the borrower anymore, thanks to mortgage “securitization”.

Mortgage loans now represent a 30 year payment stream that is converted (many times) into a “Mortgage Backed Security”, (usually in the form of a Bond) sold to institutional investors. Although Mr. Frank J. Fabozzi describes many other “exotic products” devised to monetize this “payment stream” in his 7th Edition of Handbook of Mortgage Backed Securities.

The “free house” argument (respectfullly submitted) represents a lack of knowledge on the part of the judiciary as to how mortgage loans are made circa 2024.

Indeed, even though my arguments never request a “free house”, I am frequently confronted with this (again respectfully submitted) ridiculous statement from Judges.

I have presented this argument to Judges in reponse to this “free house” claim. “Your honor I never stated that my client did not owe money on the loan, but rather Identified that she took a loan out from “X Bank”, and today we have “Y Bank as Trustee for some 3 sentence trust claiming that they can step into the shoes of the original lender”.

Further

“Your honor, this is the roof over my client and her families head, and which represents much more than concrete wood, plumbing and a kitchen, as it actually represents the entirety of her family experieinces good (like it was her first home, place she brought her newborn children home to, house that children grew up in, first birthday party for her daughters/sons, graduation from high school, college, and/or leaving to get first job), bad, (like where she lost her father, dog, or other family tragedy). “So your honor, you are stating that my client has no right to question, challenge, or assail the foreclosing claimant’s claim that they are currently legally possessed of rights that my client only granted to the original lender X Bank"?”

In fact, I have presented hypotheticals to the judiciary, such as:

Judge: “Attorney Russell, you client owes money to somebody”, “Well your Honor, I never stated that they didnt. But may I propose a hypothetical?. Say you borrowed $1 Million from Bob, and you have made payments on this loan to Bob for 10 years, then suddenly Fred states hey stop paying Bob, pay me now, see look at this napkin that Bob signed, he says its okay. So, your Honor are you going to just pay Fred (because you know because you owe someone money), or are you going to ask and grill Fred as to the basis of his claim???” Judge “Move on Attorney Russell”.

The argument is not that you don’t owe anyone money, but rather that the entity currently claiming that right has not proved that it has any legal interest in the loan.

The next absurd argument I hear is , “well no one else is claiming the right to payment”. Whether or not that is true, a foreclosing claimant cant prove ITS right by a a failure of any other party to make claims. Maybe no one is entiled to payment, heck you could go in and say pay me, because no one else is making any claim. Complete absuridty. This plays out daily, where 90% of borrowers do not have legal representation in foreclosure matters, so the pro se homeowner is steamrolled and ground into dust.

Its very frustrating that the judiciary takes the position that cannot seem to get beyond the financial industry talking points, and fails to examine the specific fact pattern before them.

In states like Massachusetts, (which is a “non-judicial” foreclosure state), there is no legal action to take the house, and foreclosure operates as a “creature” of the mortgage contract, and G.L. c. 183, sec. 21, and G.L. c. 244, sec. 14.

Many times there is an assignment(s) that purports to transfer the borrowers’ mortgage from the Original “lender” down the line to purported later purchasers. The financial industry counsel has advanced the absurd idea that “a borrower lacks standing to challenge the assignment as they are not a party to the assignment contract”.

Well, wait a minute, I thought that the only “contract” at issue in this foreclosure matter was MY CLIENT’S MORTGAGE CONTRACT OF WHICH SHE WAS VERY CLEARLY A PARTY TO. Actually its you [financial entity] that has no standing to enforce MY CLIENT’S mortgage, because you are not named in the document, and have not proven that the current assignment [napkin] you have is legally valid.

One thing that must exist for a currently party to enforce the contract (if claiming by assignment) is to establish that it is is in current “contractual privity” with you the borrower. As an example, when you take a loan out from the original “lender” think of it as a line connecting you to the original “lender”.

Now, if there is a purported sale(s) and/or transfer of the mortgage (in Massachusetts as a title theory state), that line purporedly “moves” to the new assignee. Now, you the borrower very clearly have “standing” to argue that the new assignee is not in current contractual privity with you (cannot establish the line between you and them) to enforce the mortgage. Now, they may try to rely on the fact that the mortgage assignment is “recorded”, but recording itself cannot establish the legal validity of the document itself, see Bevilacqua v Rodriguez, 460 Mass. 762, 771 (2011):

“…..there is nothing magical in the act of recording an instrument with the registry that invests an otherwise meaningless document with legal effect. See S & H Petroleum Corp. v. Register of Deeds for the County of Bristol, 46 Mass. App. Ct. 535, 537 (1999) ("The function of a registry of deeds is to record documents. It is essentially a ministerial function . . ."). Recording may be necessary to place the world on notice of certain transactions. See, e.g., G. L. c. 183, § 4 (leases and deed); G. L. c. 203, §§ 2-3 (trust documents). Recording is not sufficient in and of itself, however, to render an invalid document legally significant. See Arnold v. Reed, 162 Mass. 438, 440 (1894); Nickerson v. Loud, 115 Mass. 94, 97-98 (1874) ("mere assertions . . . whether recorded or unrecorded, do not constitute a cloud upon title, against which equity will grant relief"). As a result, it is the effectiveness of a document that is controlling rather than its mere existence. See Bongaards v. Millen, 440 Mass. 10, 15 (2003) (where grantor lacks title "a mutual intent to convey and receive title to the property is beside the point").”

That is how you get around their absurd standing arument.

However, Judges are so firmly entrenched in their own [cognitive dissonant] view of these cases that they apply case law under Motion to Dismiss rulings (which only examine the validitiy of a particular borrower’s theory of relief) and apply these findings to other cases, which never made those same exact arguments. If true, that would represents failure of the borrower to have received a fair hearing

Frequently I am chastised, and or openly ridiculed by name in Court Orders, in which the Judge threatens me merely for making cogent legal arguments, where the Court may even admit that it fails to even grasp the foundational basis for these arguments.

These “are just a few of my very favorite things”

I wear these individual borrrower tragedies like the many tattered threads of a very old sweater. Every waking day I sit hoping and praying that the master tailor will finally appear to mend and fix these tattered and broken individual strands to reveal the once stunning garment known as true justice.

My website can be found at www.foreclosuresinmass.com

Have a safe week

Glenn