News & Comments


 
News and Comments involving communications from our visitors and FTFM supporters or anything else deemed worthy of mention appear under this tab.

We cannot post all communications received, but we will do our best to respond to each and to share with others through this web site as time, resources and space permit. That said, we encourage constructive criticism and suggestions about anything FTFM might do or should consider doing in order to better accomplish its Mission.

Please contact us. Your thoughts, observations, and support are important.
 

 
[ 121220 ] Valuable And Inexpensive Federal Court Search Tool
PACER is a good and affordable tool when you need to see the complaints, answers, motions, briefs or decisions of a federal court case. It is a public court file access tool that lets us see what was filed and the current status of cases in the federal court system. See www.pacer.psc.uscourts.gov. You can easily set up an account on line and only need to pay for the pages you view or download. $. 10/page is the basic charge but there is a $3.00 maximum charge for any single document. If for example, you want a copy of a brief that is 100 pages long, you only get charged for the 1st 30 pages of it. If your charges don’t exceed $15 in a quarter, there is no charge at all. Some (maybe all?) final rulings are free. Like all legal search engines, you need to learn how this one works, but it is not difficult to navigate. PACER is a great resource for the money so try it out. Some of the site’s text is pasted below for your convenience.
Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the PACER Case Locator via the Internet. Links to all courts are provided from this web site.

Electronic access is available by
registering with the PACER Service Center, the judiciary's centralized registration, billing, and technical support center.

Each court maintains its own databases with case information. Because PACER database systems are maintained within each court, each jurisdiction will have a different URL. Each court service is comparable to the others; however, the format and content of the information may differ slightly.

PACER is a service of the United States Judiciary. The PACER Service Center is operated by the Administrative Office of the United States Courts.
 

 
[ 120805 ] Arizonans Being Foreclosed Get Long Awaited Support From Arizona’s Supreme Court  |  Read Article
Another so-called “Show Me The Note” case went badly for the borrower who had not clearly stated his case years earlier when he first tried to stop the foreclosure of two houses. The case is important because it is the first statement from Arizona’s highest court regarding the relationship of debt to Arizona’s non-judicial foreclosure process. See, Hogan v. Washington Mutual Bank, CV-11-0115-PR (Arizona 5-18-2012). Arizona’s Supreme Court affirmed the trial court and court of appeals decisions that ruled in favor of foreclosure. The Supreme Court understood the essence of Mr. Hogan’s appeal to be little more than a claim that Arizona’s non-judicial foreclosure statutes say those doing the foreclosure must first prove ownership of the related mortgage Note. Those statutes say no such thing and so Mr. Hogan lost that part of his fight. You may recall that I argue in Chapter 12 of Fighting the Foreclosure Machine that no foreclosure is legal unless conducted by the person entitled to enforce the obligation of the Note, and, accordingly, borrowers under attack should clearly deny any debt being owed to their attacker. Arizona Supreme Court, in its Discussion, clarified for the record “that a deed of trust, like a mortgage, ‘may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation the mortgage secures.” That is, foreclosure in Arizona is proper only when used by the person entitled to enforce the obligation of the Note. What does ‘enforce the obligation” mean? If the Note is a “negotiable instrument” as defined by the UCC, Arizona’s UCC gives the answer. Yes, the Arizona Supreme Court has just affirmed the inextricable connection of Arizona’s UCC to proper foreclosure practice when a negotiable instrument is involved: and most residential Notes are negotiable instruments. Arizona’s non-judicial foreclosure statutes make no effort to define how a person knows whether a debt is owed or in breach as regards the company trying to foreclose, but Arizona’s UCC does. Arizona’s highest court effectively said that if you want to challenge the basic right to foreclose, you had better state quite clearly that you don’t owe a debt to your opponent, and that you demand application of your rights under the UCC. I write more about Hogan v. Washington Mutual Bank in Issue No. 3 of The FTFM Bulletin, but this brief “heads up” message is made because some of you may already be involved in a foreclosure fight in Arizona. If so, and you have not unequivocally denied having an obligation to your opponent and have not made UCC compliance a serious part of your case, you should consider trying to amend your complaint or try to reopen a case if already lost or even think about starting a suit if your home ha already been foreclosed. The court’s ruling has made the “right to enforce” a jurisdictional issue, because if the company wanting to foreclose doesn’t satisfy that right to enforce test (which only Arizona’s UCC supplies for “negotiable instruments”), it has no right to be foreclosing or arguing the foreclosure questions. Your options will depend on your specific circumstances, but you should think about speaking with your attorney, now that Arizona’ high court has given such a clear message. That message, while anticipate, was not there over the past decade as so many lost their homes to companies that never proved the homeowner owed them anything. The fact that Hogan is from your state’s highest court and that it is a relatively new decision may be enough to help you achieve what you want in a court of law. If you think the mere fact of missing mortgage payments means you are in default and that you owe money to the company threatening to take your home, you need to read Fighting the Foreclosure Machine, or at least read it more closely, so you don’t fool yourself into giving up because of that monumental and incorrect assumption.

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[ 120525 ] Thank You For Sharing  |  Read Article
Friends of FTFM recently shared information that may help others facing foreclosure. The detail of the information is reserved for a later time. For now, FTFM wants to comment about the importance of sharing.

One person sent an alert about the foreclosure machine’s practice of using a certain string of California court decisions in its effort to deprive borrowers of their rights. The decisions cited by the machine had no application to cases where the fundamental issues stressed in Fighting The Foreclosure Machine were raised, or made the focal point of the borrowers’ cases. That machine ploy is being used against the unwary. The alert from this friend of FTFM will lead to educational information that can help borrowers and their attorneys more easily and effectively rebut such tactics by helping their judges look past the façade to genuine legal and factual merit.

Another person sent a copy of a recent order issued by the Supreme Court of Nevada. That order involved a foreclosure dispute that was being resolved by mediation rather than a court action. The order sent to FTFM is not currently published or easily accessible by most people. That decision, however, shows that Nevada views a foreclosure not as a foreclosure of the deed of trust, but rather as the enforcement of the mortgage note that is secured by the deed of trust. This is another example illustrating that a Nevada non-judicial foreclosure necessarily invokes application of Nevada’s Uniform Commercial Code, because that law defines who has the right to enforce a mortgage note – the crucial starting point for a foreclosure fight.

Litigation can span years. Often, only the final decision, issued at the end of the case, gets published for all to see. A lot of people can lose their homes over the next year or two. Sharing information can help others. The information shared by others may help you. Knowledge is power: let’s build a good litigation information exchange for the benefit of borrowers under attack.

Please share. If you confront confusing or misleading claims or arguments of the machine, please share. Maybe FTFM readers can help direct you to some good law or counter-tactics. If your issue is of interest to a broad enough segment of borrowers, your sharing may lead to the issuance of a generic paper to help you and others similarly situated. If you receive rulings which show the success or failure of particular legal theories or practices, but your case is not yet over, please share the rulings. Otherwise, the information contained in the information may never become widely known or it may only be accessible to others much later when your case is totally over. Share your experience, whether in a foreclosure lawsuit, mediation or arbitration. If you know of an attorney you respect who helps people facing foreclosure, please contact us with his or her contact information so others in your area will know who to contact for good legal representation. Thank You.

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[ 120426 ] Caution - Pre-Litigation Forensic Studies or Audits  |  Read Article
Various people and companies sell services regarding pre-lawsuit investigations of the ownership and chain of ownership regarding your Note and mortgage. The services being offered have different labels but each claims to provide forensic or audit information about the ownership or control of your mortgage loan as it became involved in the mortgage securitization process that involves sales and trades of mortgage loans within the secondary mortgage markets used by the mortgage finance industry. The costs of those services range from the hundreds to thousands of dollars. Probably best to save your money!

As discussed at length in Fighting the Foreclosure Machine, the machine, not the borrower under attack, has the burden of proof regarding its alleged rights to enforce your Note or to conduct a foreclosure. Informal and formal fact-finding discovery can produce what you need. Those selling the pre-suit forensic and audit services do not have access to the information in the private files of your opponents, but you do through the formal discovery process available per the Uniform Commercial Code (the UCC) and your court’s rules. If your opponent refuses to comply with your discovery demands, the judge can rule against the machine. If your opponent complies, its lack of necessary information will surface. The strength of your foreclosure fight will be what your opponent cannot prove. You have no need or legal burden to prove who actually may have the right to enforce your Note. Your opponent, however, does have a strict burden to prove that it holds all of the necessary rights when demanding your money under threat of foreclosure. If it can’t meet its burden, it should lose.

FTFM thinks your money is best spent carrying the fight to the machine. Your rights against the machine mean little unless you formally assert them in a court of law.

Learn what documents and information your opponent has. Then do a negative information audit based on that information to determine the missing links in the necessary chain of rights your opponent must prove. You may want to engage forensic or audit services to help, but until you have your opponent’s information and documents, paying for such services seems premature.

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