Mortgage-Related Laws, Regs, Rules, Cases

Whether or not a person can afford an attorney, it makes good sense to know the law, rules, regulations related to the case, and to know how and where to find case law.  OBVIOUSLY, you should go to a law library or consult an attorney if you can find a competent one willing to fight for you and with some kind of proven track record.

It also makes sense to have a subscription to prepaid legal service like Legal Shield so you can talk to a lawyer inexpensively about your rights and options.

Unfortunately I have learned better than to trust an attorney to develop a sound strategy or to manage a case efficiently  or to advocate my cause aggressively.  In the end YOU are responsible for winning or losing your case, and YOU suffer (the lawyer doesn’t) if you lose your case.   So, you need to keep your “thumb on the pulse” of the case at all times, to keep the lawyer “honest” so to speak, particularly if you have had the sad misfortune of hiring a foreclosure pretender defender (don’t make me name names).

In order to remain aware and capable, you need to learn the law and become disposed to using it.  And you should learn about litigation practice   – rules of procedure and evidence.  I have collected some links to federal and Florida laws, and legal research sites.  Enjoy.

Federal mortgage related Law/Regulations

ConsumerFinancialProtectionBureau Chapter X

  • Equity skimming on HUD property or VA loan property a Federal Crime – 12 USC 1709-2
12 USC 1709-2
Whoever, with intent to defraud, willfully engages in a pattern or practice of—
(1) purchasing one- to four-family dwellings (including condominiums and cooperatives) which are subject to a loan in default at time of purchase or in default within one year subsequent to the purchase and the loan is secured by a mortgage or deed of trust insured or held by the Secretary of Housing and Urban Development or guaranteed by the Department of Veterans Affairs, or the loan is made by the Department of Veterans Affairs,
(2) failing to make payments under the mortgage or deed of trust as the payments become due, regardless of whether the purchaser is obligated on the loan, and
(3) applying or authorizing the application of rents from such dwellings for his own use,
shall be fined not more than $250,000 or imprisoned not more than 5 years, or both. This section shall apply to a purchaser of such a dwelling, or a beneficial owner under any business organization or trust purchasing such dwelling, or to an officer, director, or agent of any such purchaser. Nothing in this section shall apply to the purchaser of only one such dwelling.

Florida Mortgage Related Civil Litigation

Florida Evidence code Chapter 90
Witnesses, Records, Documents Code Chapter 92
Civil Practice
Rules of Civil procedure and Judicial Admin – http://floridabar.org
Go to Florida Judicial Circuit web site to find local court rules and administrative orders
Florida Code of judicial conduct
Oath of Admission to the Florida Bar
Rules regulating Florida Bar

Florida Consumer Collection Practices Act
Article III Chapter 673 and IX Chapter 679 UCC
marketable titles Chapter 712
Foreclosure Chapter 702
Florida Equity Skimming Chapter 697,

Books:

Trawick’s Florida Practice and Procedure
Florida Causes of Action
Florida Evidence Code with Objections
https://pushlegal.com/ online/phone law, rules, etc $1 per book per month rent.

Cheap legal research

http://www.stetson.edu/law/library/ –  Sometimes one can call with a question and get it answered

LII / Legal Information Institute

http://www.law.cornell.edu/wex legal dictionary/encyclopedia
http://law.lexisnexis.com/infopro/zimmermans/  Zimmerman research guide

http://constitution.org – founding documents, scholarly articles, searchable Statutes at Large
Google Scholar
http://Archive.org
Federal Digital System (laws etc)
Florida Appellate court web sites
  Florida appellate Opinions

http://www.findlaw.com/casecode/
http://www.justia.com/
http://www.plol.org/Pages/Search.aspx
http://www.lawguru.com/ilawlib/
http://thelawengine.com/
ABA Free Full-text Online Law Review/Law Journal Search Engine
Law Journals: Submissions and Rankings
http://www.fastcase.com/
http://www.versuslaw.com/
http://estore.loislaw.com/
http://www.lexisweb.com/ – Expensive
http://westlaw.com – Expensive
http://www.lexisone.com/freecaselaw/formulatingsearches.html
http://www.law.gmu.edu/library/research
http://www.law.duke.edu/lib/researchguides/intresearch
Federal case dockets and documents:  http://pacer.gov (you’ll need a credit card)

 

Developing a Mortgage Attack Mentality

I’m Mort Gezzam, the Main Maven here at MortgageAttack.Com.  I want to say a few words about the importance of developing a Mortgage Attack mentality.  Back in 2008 I put on a foreclosure defense seminar and invited 5 self-appointed “whizbangs” to impart their wisdom to a room of 60 mortgage investors  whom the financial crisis had virtually destroyed.  Lenders had attacked them, and they had started losing their properties to foreclosure.  Their fiscal worlds had ground to a halt and time seemed to stand still as banks ground their money and real estate dreams into dust.  All of them yearned for some way to DEFEND against that inexorable foreclosure.  And all knew intuitively that their efforts would fail.

It should go without my saying, but I’ll say it anyway, that the 5 gurus didn’t know diddly squat about defending against foreclosure effectively.  They were clueless.  None of them seemed to realize then that a mortgagor cannot defend against foreclosure of a valid mortgage note which the mortgagor breached by non-payment.  God help us, they STILL DON’T realize it.  They are still clueless.  They still try to defend against foreclosures, and those they “help” continue to lose their houses.

All of them, and most lawyers who try to help foreclosure victims, mount defenses with failing arguments.  They do that mainly because it takes less work than the alternative, AND because they never developed a MORTGAGE ATTACK MENTALITY.

Along the way I met an inter-planetary-class litigation consultant who explained it to me against all my protestations:  you never defend against foreclosure of a valid mortgage when you can attack the mortgage for its lack of validity.

This strategy has a simple basis in the two principles of the typical state constitution (Florida’s for example):

  1. No law impairing the obligation of [valid] contracts shall be passed;
  2. All persons shall have access to the courts for redress of injury, and justice shall be administered without sale, denial, and delay.

Naturally, the foreclosure authorities, whether trustees or judges, assume the plaintiffs have submitted valid mortgage contracts to them for adjudication or settlement.  So they want to know only two things:

  1. Did the borrower breach the note;
  2. Did the servicer properly give notice of acceleration and demand for payment according to state and federal law.

The judges and trustees don’t much care whether the note is an original because the proceedings lie in equity, and the judge must do what he deems fair.  You cannot imagine that the judges believe it fair to give unjust enrichment to a recalcitrant mortgagor, regardless of the reason the mortgagor could not pay the debt timely.  So naturally the authorities want to grant the foreclosure forthwith so that the creditor can collect his money or the house and go on about his life.

But if the mortgagor can scramble around and find where the lender or mortgage broker or appraiser or title company made a serious legal error, breached the contract, or defrauded him, presenting that issue to the trier of fact and artfully demanding redress for that injury can net the cheated mortgagor a whole pile of concessions from the lender, from minor setoffs to the house free and clear, a favorable loan modification deal, or millions in compensatory and punitive damages.  And in point of fact, lenders and their agents have injured 90% of all single family home mortgagors who have obtained loans over the past 15 years.

The mortgagor who sees this clearly, he will dig a tunnel to Hades itself in order to find those injuries and present them to the court for redress.  And such a mortgagor might even feel willing to sue an attorney for legal malpractice  who fails to do exactly that out of greed or laziness.  In other words, understanding what works and what doesn’t can transform a mortgagor or attorney from a foreclosure defense “Kool-Aid drinker” into a steely-eyed, fire-belching Mortgage Attack monster.

America does not have a Mortgage Attack culture among attorneys.  But I and other Mortgage Attack mavens hope to instill a new verve into the foreclosure pretender defenders, so they can enjoy living up to their law school dreams and ambitions of helping others.

If you are a mortgage victim, go to your lawyer’s office today and yell MORTGAGE ATTACK in his face 5 times, then demand to know why he doesn’t ATTACK.

Send him to this Mortgage Attack web site.  It explains everything the mortgagor or attorney needs to know in order to mount a successful attack against injurious lenders and their agents.  Then he might start winning for a change.

Mort Gezzam photo
Mort Gezzam