August 20, 2010 by Barry Nilson:
Sometimes when trying to understand an issue, I make a chart of comparing different angles, or in this case, I’ve captured/summarized the essence of what I think are 3 litigation methods, and 1 administrative method. I don’t know if April Charney or Matt Weidner’s method can be summarized succinctly or not. I’m sure there are more methods. If either of you come across one, please add it to this list. I love comparing and contrasting views from all sides. I’m sure they could probably be further broken down into Judicial and Non-judicial states. Barne’s method below for example is specifically for non-judicial states.
The common thread I find always is that the Servicers/Trusts can not, or more importantly, will not comply with discovery and accounting. Given that all of these things are indeed moving targets and confusing, I kind of like Krieger’s or the UCC aggressive and offense method focusing on the claim to the house and putting the servicer/trustee on the defensive.
I’ve ordered the full securitization work up on one of my houses from Neil Garfield, but I wonder if chasing all the PSA and location of note is a goose chase. In the end, the enemy’s behavior is always the same. I suppose if you can catch them red-handed that may be effective and I suppose knowing the enemy’s rule book is always good. Maybe the strength here is their willingness to let the house go out of fear of exposure to a felony, or huge taxable event on the mortgage pool by clever discovery of their accounting fraud. I can’t stand Maher Soliman’s cryptic explanations, but his warnings about violations of FASB 140 and accounting threats have been confirmed by UsedKarGuy and I think are part of what you (Alina) are getting at.
But most of all I really like Krieger’s pragmatic posts and focus on simplicity. ANONYMOUS has always been my favorite but now Krieger is with ANONYMOUS in second place, as far as Livinglies.
Methods:
1) The Jeff Barnes, TRO — Preliminary Injunction — litigation method:
From Jeff’s Post on FDN:
As those of you who follow this website are aware, the “nonjudicial” foreclosure states require the borrower to institute litigation in court to challenge a Trustee’s (foreclosure) sale and request both a temporary restraining order cancelling a pending sale, and for a preliminary injunction prohibiting any further attempts at foreclosure pending the duration of the borrower’s litigation challenging the foreclosure attempt.
2) The Dave Krieger, — begin with Quiet Title Method:
from a post of Krieger’s on Livinglies:
“to file suit for quiet title and get the action to the point where you get to have discovery utilized through an evidentiary hearing [as Neil has suggested]. It would be at that point (if BOA won’t give you this stuff via a QWR and DVL) then an attorney that knows this stuff can advise you of your options. I don’t recommend doing this stuff pro se/pro per. I’m working a case now against them that is purposefully becoming convoluted in an attempt to thwart discovery. They DO NOT want you finding this stuff out. Quiet title action in this case is in state court. Don’t let them remove it to federal; and they will try under diversity jurisdiction using all the same arguments as they do with everyone else and then motion for a 12(b)(6) dismissal. “
3) The Max Gardner Bankruptcy Litigation Model (BLM):
from Max’s BLM model website:
“Every bankruptcy client has, literally, hundreds of claims that a he can pursue via the FDCPA, state UDAP and TILA statutes, before the case is even filed. After filing, many servicers violate the automatic stay, file improper proof of claims and are outside the statute of limitations, among many other problems. After the bankruptcy is discharged, serious violations occur when servicers start sending bills to the debtor for thousands of dollars of fees they secretly accrued during the bankruptcy case that weren’t ever noticed out or approved by the bankruptcy court …”
“Max’s base filing fees represent less than 10% of his firm’s revenue. The other 90% is earned through litigating claims for his clients. They are so shocked by their great bankruptcy results, they enthusiastically become Max’s best marketing tool and his main source for new clients”
4) The administrative, non-judicial method with perfecting a UCC claim:
Start with “Notice of Conditional Acceptance upon proof of claim” when served with the notice of default or foreclosure sale. This notice binds, or accepts the servicers ”offer” into a private contract without changing the terms or creating a counter proposal. This is now a private contract outside the court room. The single condition, “proof of claim” can be expanded into a long laundry list demand for discovery, in affidavit form, under penalty of perjury. The debtor has a right to a legal accounting of his/her bill. Demanding that accounting is his/her right under UCC. Send out QWRs and other such stuff (all will be tossed by servicer) builds more ammunition for the potential future litigation
Then file UCC-1 Financing Statement, with 3 follups according to the timeline allowed by UCC to “Perfect the Claim”. All of this is done with certified mail and notaries to everyone and everybody.
As further ammunition, file a Mechanics Lien, and a Lis Pendens on the property.
Some rogue Trustees will attempt to foreclose over a Lis Pendens. I guess that is a big no-no, and when the owner or tenant gets served with an eviction notice, that’s pretty good ammunition to go after the trustee. (I don’t understand this part yet).
Eventually this goes to quiet title, or in one case I’ve seen, the full Reconveyance was given. This part is what I don’t know. I do know it delays the thing for a very very long time.
Filed under: foreclosure 
