Not sure whether to give the banks credit for trying, or to feel sorry for their desperate attempts at trying to figure out what in the world to do on foreclosures challenged by competent attorneys.
In the past week we have had two cases come across our desk where the plaintiff in the foreclosure proceeding was actually the trust that purportedly held the note and deed on our client’s homes.
If you have been reading our blog for any amount of time, you know that our main defense against most foreclosures is that the bank who is foreclosing is actually so far removed from the actual loan and deed that they have no standing to sue. Our argument all along has been that it is actually the Trust who funded the loans is the proper party to bring the foreclosure, not simply the servicer or originator or MERS or another party that had only a tangential interest in the loan.
While I admire the spunk of these banks for suing in the name of the trust, they are still missing an essential piece of the puzzle, and that is the chain of title. Now the problem the banks have is that this trust, claiming to be an interested party, shows up nowhere in any document or on any legal description in the county recorder’s office. This lack of documentation has allowed us to obtain two more TRO’s stopping foreclosures and we feel confident temporary injunctions will be issued as well.
Until the Banks open up the true, full chain of title on these loans, homeowners can make valid arguments as to the legality of these foreclosures, whether it is the bank bringing it or the trust. And with proper legal representation, they can do it successfully.