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john gault's Blog

Preservation of Rights and Interests Post-Foreclosure
by john gault | 2011/05/18 |

This material deals with an almost certain wave of new challenges to foreclosure and its subsequent impact on re-sales of foreclosed properties.

john gault's Blog ::

It's no secret homeowners are engaged in an uphill battle with wrongful foreclosure actions.
One fairly new suit, Depauw etal v MERS in MI,  has some new and interesting allegations regarding those foreclosures. Even so, the fat lady isn't singing just yet. Only time will tell. 
But wait! Until that time, there’s another matter on the horizon.  Instead of filing a lis pendens after f/c which might p.o. a judge, there is something called a “Notice of Intent to File Suit”.  It’s a document one may record in contemplation of filing a lawsuit and also has something to do with the statute of limitations on an action, I believe, in this case the wrongful foreclosure by whatever name. These suits will ultimately include claims for conversion, theft, etc. and whatever else the leaders of the charge have gotten sustained.  
 
 If I remember correctly, one may record a notice of intent to file a lawsuit at some point in the future. Then one doesn't actually have to file the lawsuit just then, but it will probably cloud the title all the same by noticing the intent (and thus interest) to defend that interest in the future. Any purchaser thus has notice and takes the property with notice, defeating one of the three tenets of bonafide purchaser:  1) in good faith,  2) for value and 3) without notice of a claim or interest).
 
 I’m hard pressed to believe any title company would not "except" the notice of intent from its commitment/ policy;  thus it is not insured / covered.   Even if a title company chose to write a special rider (my apologies - can't think of the word),  to cover the event of the actual suit, which I think is hugely unlikely, it would not change the fact of the buyer's notice.
 
Then when proper avenues to sustain wrongful foreclosure actions, by any other name,  are identified as they will be -it's just a matter of time -homeowners will actually file the suit within the statute of limitations. It seems to me that the notice of intent tolls the SOL, but I can’t remember. 
 
And by the way, everyone is being named in the Notice, anyone remotely connected to the foreclosure, includng John Does 1 – 10,000.
.
I am wondering if one could now record a lis pendens in conjunction with the Notice of Intent to File Suit to further stem alienation of the property by the bankster? I don't know if this is a gray area or not. The distinction is that a law suit is not actually pending, but notice has been given of the intent to bring an action. Would a lis pendens under these circumstances be appropriate? Because if one can record a lis pendens, I don’t think the lis pendens could be expunged until the suit, the subject of the intent notice,  has been resolved. Regardless, the Notices of Intent should preserve and protect the homeowner's interest and rights, if any, and provide requisite notice because recordation is statutory notice. (As to notice, at least one court has even ruled that a property offered for significantly  less than its value is notice, as I recall.)    
   
Homeowners can and will fight back and thwart the alienability, the sale, of the property by the banksters. Maybe every American who has been forced out of his or her home wrongfully will file these Notices of Intent where there is a sincere belief things were done 'inappropriately'. 
 
In the fwiw dept - my decison to join the use of the word 'bankster' is my reaction to the sham of HAMP,  another story for another day, but one which begs to be told. 
But may I say in a nutshell that I believe I can demonstrate that these billions of dollars were accepted under false pretenses and that they will never be used by the IGMXU group (think TARP fund recipients) for their stated purpose,  the retention of homes by the American family. 
 
 



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1003 words | 7663 views | 2 comments | log in or register to post a comment


Recordable Documents

This speaks to the principle that "Nobody will exercise your rights for you, so you've got to do it yourself".  California has similar documents to the Notice of Intent to Preserve Interest. 

A copy of the State manual for Recorders is a great item to own and not too expensive.  It lists each recordable instrument, a brief description of it's intent and effect, all the requirements for recording, and which state codes it is made in pursuance thereof,

I would consider recording it prior to the foreclosure auction and another thereafter.  The prior recording can have the effect of chasing away the "40 Thieves" from bidding on it as they'll want clear title and such matter can cloud things enough for them to be disinterested in bidding on something that might be overturned (they don't want their  money returned to them with no interest after being tied up for weeks or months while things are adjudicated).  This means that the bank will probably get such property for their ever-growing "shadow inventory", even if there is equity present.  It can also scare those interested in REO properties from the bank inventory.  Ultimately, the bank might even delay the auction until they can get a handle on what the notice means. 

The longer it shows of record without being settled, the longer the foreclosed homeowner might have to remain in the house before the bank evicts.  Given the state of the economy in this area of Northern California (the Bay Area), it might take over a year.

All in all, this is one amongst many documents that people should consider placing on their home.  I've asked this before, but not gotten an answer:  does anyone have an idea what effect CC&R's with Reverter Rights would have on foreclosure situations?  Sounds like an interesting line of thought for people to explore...

 
by William Pattison | 2011/05/23 | log in or register to post a reply

CC & R's and Reverter Rights

I'd like to give some thought to that if you can provide a basic primer.  I've got the CC &R;s, but not the reverter rights.  Revert back to.....the HOA? 

 
by john gault | 2011/06/13 | log in or register to post a reply
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