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Find a Foreclosure
Defense Attorney or Law Firm
Foreclosure defense
involves a proactive fight against both judicial and
non-judicial foreclosures of property wherein
borrowers and their attorneys deny the legal claims
or authority of the lender to foreclose. Common
strategies include produce the note; prudential and
legal standing to foreclose; Truth in Lending Act (TILA)
violations; TILA rescission; predatory lending and
predatory servicing; fraud; breaks in chain of
title; and other tactics.
Truth in Lending Act
(TILA)
The Truth in Lending Act
(TILA) of 1968 is a United States federal law and
designed to protect Consumers in credit by requiring
clear key terms of the lending arrangement and all
costs.[1] is legal in Title I of the Consumer Credit
Protection Act, as amended (15 U.S.C. § 1601 et
seq.). The regulations implementing the statute,
which are known as "Regulation Z", are codified at
12 CFR Part 226. Most of the specific requirements
imposed by TILA are found in Regulation Z, so a
reference to the requirements of TILA usually refers
to the requirements contained in Regulation Z, as
well as the statute itself.
The sole purpose of TILA is to promote the informed
use of consumer credit, by requiring disclosures
about its terms, cost to standardize the manner in
which costs associated with borrowing are calculated
and disclosed. TILA also gives consumers the right
to cancel certain credit transactions that involve a
lien on a consumer's principal dwelling, regulates
certain credit card practices, and provides a means
for fair and timely resolution of credit billing
disputes. With the exception of certain high-cost
mortgage loans, TILA does not regulate the charges
that may be imposed for consumer credit. Rather, it
requires uniform or standardized disclosure of costs
and charges so that consumers can shop. It also
imposes limitations on home equity plans that are
subject to the requirements of Sec. 226.5b and
certain higher-cost mortgages that are subject to
the requirements of Sec. 226.32. The regulation
prohibits certain acts or practices in connection
with credit secured by a consumer's principal
dwelling. |
Produce the Note Defense
The chain of title of a
promissory note is very important to every homeowner in
America. The inability to show a complete chain of title and
ownership of a promissory note from Lender A to Lender B to
Lender C etc. has become a major impediment in mortgage
servicers ability to foreclose on properties in judicial
foreclosure states and in relief of stays in Federal
Bankruptcy Court. The issue of standing, who has the legal
right to sue, is the foundation of the produce the note
strategy making a lender prove that it has a legal right to
sue.
The strategy was first promulgated by a consumer advocate in
the mid-nineties and in white papers presented at the 2000
National Consumer Law Center conference in Broomfield,
Colorado which has gained increasing acceptance in the
national foreclosure crisis of 2008-2009.
Attorneys estimate that the documents belonging to as many
as 50% of the mortgages made between 2001-2008 have been
lost or destroyed, leading to demands by borrowers that the
foreclosing party produce the note as evidence of the debt.
Consumer Advocates claim that almost all entities attempting
to foreclose on homeowners are not the Real Lender, but
rather a Servicer collecting monthly payments for a mortgage
backed security(MBS) Trust. Therefore, courts have
determined that Servicers are not the Real Party in Interest
and in no legal Standing to seek relief from the Judicial
Courts.
Predatory Lending
Predatory lending describes
unfair, deceptive, or fraudulent practices of some lenders
during the loan origination process. While there are no
legal definitions in the United States for predatory
lending, an audit report on predatory lending from the
office of inspector general of the FDIC broadly defines
predatory lending as "imposing unfair and abusive loan terms
on borrowers." Though there are laws against many of the
specific practices commonly identified as predatory, various
federal agencies use the term as a catch-all term for many
specific illegal activities in the loan industry. Predatory
lending should not to be confused with predatory mortgage
servicing which is used to describe the unfair, deceptive,
or fraudulent practices of lenders and servicing agents
during the loan or mortgage servicing process, post loan
origination.
One less contentious definition of the term is "the practice
of a lender deceptively convincing borrowers to agree to
unfair and abusive loan terms, or systematically violating
those terms in ways that make it difficult for the borrower
to defend against." Other types of lending sometimes also
referred to as predatory include payday loans, credit cards
or other forms of consumer debt, and overdraft loans, when
the interest rates are considered unreasonably high.
Although predatory lenders are most likely to target the
less educated, racial minorities and the elderly, victims of
predatory lending are represented across all demographics.
Predatory lending typically occurs on loans backed by some
kind of collateral, such as a car or house, so that if the
borrower defaults on the loan, the lender can repossess or
foreclose and profit by selling the repossessed or
foreclosed property. Lenders may be accused of tricking a
borrower into believing that an interest rate is lower than
it actually is, or that the borrower's ability to pay is
greater than it actually is. The lender, or others as agents
of the lender, may well profit from repossession or
foreclosure upon the collateral.
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