What is Standing Defense?

Of all the weapons to fight foreclosure, that you have in your arsenal, by far the most important and effective is the legal defense of standing. Standing is the necessary element of proof requiring a foreclosing party to show that he or she is the true owner and holder of the promissory note on upon which he or she is foreclosing.

Why is Standing So Important As a Foreclosure Defense? Standing is critical in foreclosure defense involving securitized loans because of the way the securitization process works. Securitization is the process, devised and participated in by a small number of huge financial institutions, of converting a loan into a stock certificate, thereby creating profits many times more than which could otherwise be realized by simply receiving interest alone.

Because the securitization process involves transferring the mortgage obligation to a number of different entities before it ends up in the trust from which securities are sold, often times the documentation falls short of that normally required to evidence transfer of such obligations. The problem then that parties seeking to foreclose on securitized loans have is that, when pressed, it is difficult for them to prove that they are the proper party to be bringing the action; in other words, that they have standing.

In our next article, we will address how one facing foreclosure uses the standing defense.

For a disucssion, how loan securitization provides an excellent opportunity to use the standing defense, please continue to the next article.

THE STANDING DEFENSE

If you are fortunate enough to know the identity of the trust into which your loan was allegedly placed, you can go online and check the trust prospectus to find out who all the entities are who claimed ownership of your loan.  This then allows you to compare the documents produced by the party seeking foreclosure with the chain of title of owners set forth in the trust prospectus.

If the identity of the trust is not readily apparent, then you must find that out either by way of a Qualified Written Request ("QWR"), if you are not in foreclosure, or by discovery if you are.  Either way, once you know the identity of the trust, you are then able to compare the representations in the prospectus with the documents which the foreclosing party produces to attempt to show standing.  Chances are, that you will then be able to punch holes in that party's claim, successfully fight foreclosure, and stay in your home.

Courts across the country have dismissed cases because the foreclosing party did not prove it was the holder of the mortgage obligation!

Recent amendments to the Truth In Lending Act allow the homeowner to demand to know the identity of the owner of his or her loan and if the request is refused to recover damages!

Why lose your home when you can save it?  McGookey Law Offices will customize a plan which will work for you and meet your budget.

What is Loan Securitization?

In our last article, we discussed how loan securitization presented an opening to defend against foreclosure on the basis of standing.  In order to understand why this is so, you must understand the securitization process itself.  The term "securitization" derives from the fact that essentially, it is the process by which a loan in converted into a security, similar to a stock certificate.  Of course, this is not a process involving a single loan, or even dozens.  To the contrary, a typical "trust", or loan pool into which a single loan is bundled with others and poured into, consists of a thousand loans, with a total face value of a billion dollars.

Why Securitize?

After funding a trust with loans, the trustee sells "mortgage-backed certificates" (i.e. stock) in that trust to Wall Street investors for considerably more than the face value of the loans placed in it.  And therefore the reason for securitization--to allow the bank to strip away the profit from the loan, normally realied only over a period of years as interest is received, upfront upon the sale of the certificates to the investors. 

For a discussion of other weapons you have in fighting foreclosure, please continue reading.