Anatomy of a Florida Foreclosure Defense
There was an article yesterday on MSNBC.com titled: “ ‘Angel’ of foreclosure defense bedevils lenders” highlighting highly acclaimed foreclosure defense lawyer April Charney of Jacksonville Legal Aid. First, let’s take a look at what MSNBC.com noted:
…she became an expert on lending law when her caseload of foreclosures increased and she began to notice a number of disturbing trends that have yielded her key defense strategies.
First, because of the way mortgages have been securitized, it’s often unclear who actually owns the debt, she said. “What we see is that systematically, the originating lenders only pledged these loans and didn’t actually transfer them” to the trusts that are supposed to hold them and issue the securities, she explained.
But only the true debt owner has the legal standing to be a plaintiff in a foreclosure, she continued. “That’s first-year law school stuff. If you’re Joe and the debt doesn’t belong to you, it belongs to Marjorie, then Marjorie better be in court, not Joe. Don’t come in as Joe and tell me you have the right to be there when you know full well you don’t.”
Yet, time and again, loan servicers and others have sought plaintiff status, often by using affidavits stating that the actual notes had been lost, she said. “I’ve seen paperwork filed by lawyers saying, ‘We anticipate assignment’” of the debt, she said with a scoff.
And the loan originators can’t appear in court and claim the right to foreclose because they would be in violation of securities laws for not transferring the loan to the trust when they were supposed to, she said.
Making an issue out of the actual ownership of the securitized title might strike some as a shameless stalling tactic aimed at abetting a debtor who, after all, owes the money. But Charney said that if such basic legalities aren’t adhered to, a homeowner could pay his or her way out of a foreclosure jam only to wind up in another when a new plaintiff emerges claiming to own the debt. She described cases in which homeowners have been sued for foreclosure by two different trusts, each claiming they owned their house, and cases where trusts have been sent documents on the same case by two different servicers.
Charney has a number of other defenses that focus on other sloppy and illegal practices by lenders and mortgage servicers. Some homeowners in foreclosure, such as those with FHA-insured loans like her client Vickie Lewis, were “entitled to very special default case management, and they didn’t get it,” she said. These people might not be in foreclosure if they had, she said.
Next, we’ll take a look at what the Broken Credit Blog uncovered. Now, coincidentally, the article above came out yesterday and earlier in the week I was reviewing pleadings in one of April’s cases, so now for the benefit of the education of all and without further ado, here are pleadings and orders in one of her ongoing Florida foreclosure defense cases:
Florida Foreclosure Amended Complaint
Defendant’s Motion to Enlarge Time to Respond to Amended Complaint
Defendant’s Memorandum in Opposition to Plaintiff’s Motion to Strike
Plaintiff’s Answer and Affirmative Defenses to Defendant’s Counterclaim
Plaintiff’s Request for Admissions
Defendant’s Answer for Request for Admissions
This author is not an attorney and this information should not be considered legal advice. Please consult an attorney for legal advice.
(souce=msnbc.msn.com/id/28277420/)
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