Weirdos, Freaks, and Kooks: Is this Foreclosure or Match.com?

A repost from www.kellidudley.com

A few years ago, I was divorced and dating. While I ultimately got back together with my husband, the experience made a lasting impression on me. Finding myself suddenly single in my late 30s was a big life transition. I had the challenge of setting out to find “the one” long after I thought dating was part of my past. Reaching out, I was overwhelmed with advice. Some of it was very good and helped me become a more confident person. Most of it was negative and even the faint memory of it is enough to send me running for the nearest liposuction clinic/eyebrow wax/exercise tape/skin conditioner/make-over counter.

The people with the negative products to sell are not, for the most part, well-meaning bumblers. They are an industry that invests lots of money in teaching us to feel badly about ourselves so we will buy products we do not really need. Even though I have had compliments on my skin all my life, I found myself standing in a lotion aisle and feeling utterly confused. Within the same brand and price-point, I could work on my pasty complexion, even out my red spots, quit looking so shiny and greasy, fight my obnoxious body odor, work on my cellulite, reduce my corns, protect against winter’s drying effects, and so on. If I chose just the right combination, the labels implied, there was a slight chance I might avoid dying old, broke, and alone.

Just as cosmetics companies stand to make money from newly-single, nervous daters, there are lots of people out there waiting for people to make poor decisions based on the fear they feel when they fall behind on their mortgages. Just like a cosmetics manufacturer, a loan “auditor” knows someone who is feeling at the top of his or her game is not the best customer. They wait for weak times in the economy to take hold, forcing people out of their comfort zone to shop for solutions to a new problem. These people feel just as ill-equipped to handle financial and legal decisions as I felt to know whether to answer a Match.com message.

You have potential matches!

1. Hi! I am free-legal-site Amy Attorney. I give glib legal advice on a site that invites me to do so without learning all the facts of your case. There is a disclaimer warning you about this, but you won’t pay attention to that any more than you will pay attention to a first date’s being ten minutes late. The real motivation of the site is to advertise attorneys. It lets anonymous users rank the attorneys, so I had my mom log in ten times and give me kudos. Of course, she SAID I saved her home from foreclosure. (Well, I would if I had to—I live with her, a little perk that helps finance my fancy office and extravagant lifestyle!) But the great part is, you’ll just read the little inaccurate snippet of advice, decide I’m an expert, and call me Monday. You’ll be so eager to hire me,  you won’t question why I need a $3,000 retainer or ask how much my fee is per hour. By the time you do, your house will be gone and you’ll have other things to worry about. Since you trust what you read about me on the website, you’ll never check with the state’s real disciplinary authorities to read about how I have been disciplined for taking advantage of people just like you.

2. Greetings! As an experienced Auditor, I, Armand, am eager for our first date. You should bring at least $1,500. I’ll prepare a report for you that sets forth violations your lender may have made based on a review of your loan papers. Then, I’ll refer you to Attorney Amy (you may have seen her on freecrappyadvice.com). By the time Amy soaks you for more money and does nothing, you’ll be out of cash and out of your home. Maybe you will never be able to afford a real attorney who would tell you most of the “problems” I pointed out don’t have a private cause of action, have a statute of limitations that expired months ago, and are certainly no excuse to quit paying your mortgage as Attorney Amy is going to advise. But by the time you figure all this out, if you do, you’ll be broke and homeless. So what do you really think you are going to do to get even with us? (Oh, that $3,000 Amy took from you for attending a single court date? Yeah, just so you know, you aren’t getting that back.)

3. Let’s get together . . . I’m class-action Carl. I file class actions with unfounded allegations. I recently filed a lawsuit stating a loan violated the Anti-Slavery Act and the Homestead Act. By the time you find out those laws don’t apply and don’t grant the relief I’ve requested, you’ll have waived all your legitimate rights to defend your foreclosure. You’ll feel good about having met me because I have a fancy downtown office, spent more on my suit than somebody should spend on a car, and sure do look successful! Happy homelessness . . . . Hey, thanks for the retainer fee!

4. Man, forget those guys up there. I’m Angela Davis. Well, not really, but we have pretty much the same bio—except I never went to prison for something I believed, wrote any books, or took any action designed to do more than line my pockets. I am a disbarred attorney, but that doesn’t matter because I am a community activist. I talk the talk, and that’s what counts. Now, quit all that fuss about your mortgage and vote for me!

5. I’m mortgage-modifying Marty. That’s right, for the low, low price of $1,500, I will negotiate with your bank. I won’t tell you I learned my best business tactics from dating: never call again! That’s right, I’ll take your money and disappear! At best, I won’t tell you that you can talk to your bank for free (I have no special qualifications) or that you can get help from the best experts for FREE through HUD-Certified Housing Counseling agencies at www.HUD.gov  Maybe I’m a lawyer, making it seem even worse that I’m not looking out for your best interests, or maybe I’m just a guy off the street. Either way, thanks for the cash!

Just as Match.com offers unlimited losers, there are more variations on the above than I can set forth here. However, it is important to only work with legitimate attorneys. Those who engage in the kinds of tactics set forth above are responsible for the loss of more money and homes than are the banks who caused the foreclosure crisis in the first place.

If you are in foreclosure, that is a fact of life, and you have to deal with it rationally. The freaks and weirdos know you are not at your best right now. Take time to find reliable attorneys and consult with HUD-Certified Housing Counseling agencies (www.hud.gov).

And consider doing something about that dry skin . . . .

Should I hire someone to help modify my mortgage?

This is a repost from www.kellidudley.com.

Generally, you should not hire someone to assist with a loan modification. Free help is available through HUD-Certified Housing Counseling agencies listed at www.HUD.gov.

The Illinois Department of Financial and Professional Regulation, one of the state agencies helping protect Illinois consumers, mandates those providing modification services be properly licensed. More information is available here:

http://www.idfpr.com/Banks/RESFIN/mortloanmodscams.asp

Attorneys may also prey on homeowners in foreclosure or seeking a loan modification. Attorneys should not provide these services unless they have the proper license from IDFPR or are providing the service as part of legal representation. For example, an attorney might file a lawsuit against a lender for violating a law when the mortgage was made and include a modification as part of the settlement. However, an attorney should not generally accept money for doing nothing more than working on a loan modification.

I refer my clients to www.HUD.gov to choose a HUD-Certified Housing Counseling agency. It seems unprofessional and unfair to take money to do a service that someone else can do better and cheaper. I am no more a counselor than I am a cook or a housekeeper, and I certainly do not charge legal fees to cook and clean for my clients.
Attorneys who aggressively seek clients for loan modification seem to be missing the obvious: there are plenty of people who need the help of an attorney in court.

Those who have paid for a loan modification service should contact an attorney to ensure it was done in compliance with Illinois law. This includes a written contract and no payment until the service is complete. Homeowners who have paid for loan modification services may be able to bring a lawsuit and collect damanges.

A fresh start . . .

No, I didn't hire a scammer to file a cover-page bankruptcy for me (they always advertise, "a fresh start"). I started a new webpage I hope will be a good place to post accurate information related to foreclosure, predatory lending, and related topics.Take a peek . . .  at www.kellidudley.com

Foreclosure. The bank alleges a default on a mortgage. A lawsuit is begun, but due process is not followed. All assumptions are in favor of the bank.

Many years of legal theory are destroyed with each foreclosure judgment. Burden of proof--gone. Due process--gone. Equity--gone.

Where the legal system once recognized allegations in a lawsuit as allegations--matters subject to proof, allegations of default in foreclosure actions are taken as immutable truths. Where service of process--the right to notice of a lawsuit and the right to be heard--once was considered sacrosanct, judgments are entered where "special process servers" lie to rush lawsuits through the system. Where equity once abhorred a forfeiture and rewrote contracts to honor the intentions of the parties rather than punish an allegedly-defaulting party, homeowners accused of mortgage default are stripped of all the equity in their home even though they are no more at fault for the downturn in the housing market than the lender.

Macchiavelli pointed out that taking the offensive is a way to keep ahead of the enemy, to control the course of history. Homeowners have, on the average, not read enough Machiavelli. We have let the foreclosure crisis come to us.

Now it is time to take the crisis to those who would foreclose.

Homeowners have two powerful weapons: the Fair Housing Act and the Equal Credit Opportunity Act.

The Fair Housing Act applies to almost any transaction related to housing. Many may believe this has to do with refusing to sell or rent a home, but courts have allowed suits based on the Fair Housing Act to proceed where the alleged wrong was refusing to sell insurance or other services needed to obtain housing. Standing under the Fair Housing Act is broad. Communities and housing organizations can, in some cases, have standing.

The Equal Credit Opportunity Act applies to lending transactions. The Seventh Circuit Court of Appeals has specifically held it applies to loan modification applications.

Both laws prohibit discrimination based on "protected class." Though there is a slight variation in the classes protected--and state and local law may add classes--the classes include race, national origin, disability, religion, gender, and familial status.

The use of the Fair Housing Act--a broadly-construed civil rights statute that has withstood attempts to weaken its reach--is homeowners' best hope for turning the tide of the foreclosure crisis.

Modification decisions can be attacked under the Fair Housing Act and Equal Credit Opportunity Act. Was a denial based on race? Did the lender refuse to consider income because someone had been on maternity leave? Did the lender ask a woman what she was doing about birth control? Did the lender refuse to alter its modification procedures so they could be accessed by a person with a disability? Is the lender assuming homes in majority-minority communities are worth less than those in other neighborhood and denying modifications accordingly?

Foreclosures can be attacked under the Fair Housing Act. Is the lender foreclosing more rapidly on homes in a minority-majority neighborhood? Is the lender taking more shortcuts, such as filing false affidavits, if the homeowner has a "foreign sounding" name (under the assumption the person does not speak English and will not appear in Court to clarify misrepresentations)?

Post-foreclosure servicing may also provide room for litigation under the Fair Housing Act. Is the lender maintaining homes in white neighborhoods and letting those in majority-minority neighborhoods crumble to the ground? Are people from one racial group offered the chance to rent the home back while others are hustled out on a speedy eviction?

Many of the practices above could also give rise to claims under the Fair Debt Collection Practices Act.

By evaluating foreclosure files to see if claims like the ones above are viable, attorneys and homeowners can turn the tables on lenders. We can serve the summons. We can set the court dates. We can rule the negotiating table.

Oh, yes, we will stay in our homes.

The Romans never allowed a trouble spot to remain simply to avoid going to war over it, because they knew that wars don't just go away, they are only postponed to someone else's advantage. Therefore, they made war with Philip and Antiochus in Greece, in order not to have to fight them in Italy... They never went by that saying which you constantly hear from the wiseacres of our day, that time heals all things. They trusted rather their own character and prudence— knowing perfectly well that time contains the seeds of all things, good as well as bad.  -- Machiavelli, The Prince, Ch.3

Fraudsters Never Rest

I took a break from this blog and intended to be absent during a career transition.

However, fraudsters do not rest. Fighting fraudsters appears to mean no rest for me.

The latest reason for my frustration: the Illinois Appellate Court issued an an opinion on December 23, 2012. During the course of the holidays, fraudsters have taken the opinion and used it to stir up discontent and confusion among homeowners facing foreclosure. For a fraudster, whether an attorney in the business of charging a lot of money for sub-standard legal work or a real estate agent intent on sleazy deed scams, confusion is currency. A confused homeowner will storm out of the law office or community meeting of an attorney offering solid legal advice and come back only after learning the person who "guaranteed" to save their home and took $3000 never attended a single court date.

This being said, I am not against looking carefully at the facts of each case, every document involved in the case, and the law that applies. However, in litigation as in life, "no" often means "no."

Using a legitimate and final "no" to create confusion is the tactic currently in use by a fraudster circulating materials in Illinois that indicate summonses issued in Cook County are illegitimate because they are not signed by the Clerk.

Cook County is full of people, most of them lawyers. It is the home of largest unified court system in the United States. In the foreclosure area alone, upward of 100,000 cases are filed per year. Each case is, ideally, begun with a summons and complaint. The summons needs to be "signed" by the Clerk of Court. The problem is that the Clerk is an energetic woman, but hasn't yet mastered signing every summons in every case filed in each of Cook County's several courthouses. I mean, she's good--but she's no Linda Green.

A lawyer decided to make a big deal out of this and file some last-minute litigation to try to save the homes of people who admittedly were served with the summons and complaint but did not effectively respond to the lawsuit. The argument was that since the Clerk does not sign each summons individually but allows deputy clerks to affix a stamp and seal, she rendered each summons defective.

It is hard to imagine the scenario where the lawyer advancing this argument believed it was legally valid. Any lawyer who has ever filed a lawsuit in Cook County has seen the very same stamp and seal affixed to the summons he or she prepared. Although I think of myself as fighting on the side of right, I have filed many lawsuits with which someone out there (at least the defendant) disagreed. Time and again, I have walked my stamped-and-sealed summons to the Sheriff's office to be served.

The utter insincerity of challenging such a practice is hard to comprehend. However, the lawyer did not stop at the trial stage, where one of the most thorough judges to ever sit on the bench held the stamp and seal of the Clerk were valid. Instead, the case was appealed. Predictably, the appellate court sided with the plaintiff.

My own tastes aside, the courts exist for litigation, and asking the trial and appellate courts to decide issues is the role of the attorney. It seems the issue in the case was purely imaginary, but lawyers can disagree about these things and it is the role of judges to decide.

However, now, the party is doing the inexcusable: sending out mass email messages and maintaining a website encouraging people to contact the judges through a petition and to order their very own "Clerk Brown" stamp. The implication is that people should forge the Clerk's name.

This is an illegal action. Adding confusion the law and the process with these materials is inexcusable. People in foreclosure need real information, not utter stupidity aimed at causing them to fall prey to fraudsters.

Anyone receiving solicitations about this matter should report it to the Illinois Attorney General.

And, think twice before writing that check to the attorney with the great and novel legal theory. Good legal work is understandable, terms are defined in writing, and the sums charged are set forth clearly. If someone guarantees to save your home, I guarantee you are about to become the victim of fraud.

Sumpin' Smells Funny; Must be the Money!

Why on earth would the New York Police Department's union threaten to sue Occupy Wallstreet protesters? Does the average officer really believe she or he is aligned with the 1 percent? Or does the average officer remember the hard battle fought because, in recent history, starting wages could be as low as $21,000?

The answer, it turns out, is that attorney James Lysaght knows who butters his bread. And the wielder of all forms of fatty deliciousness to be spread across Lysaght's toast is: the financial industry.

It is a story as old as time. Lawyer meets corrupt official. Corrupt official is removed. Corrupt official transfers business to lawyer's wife (also a lawyer).

Firm gets in legal trouble. Firm closes. Lawyer begins new firm. New firm serves two masters: the union (Patrolmen's Benevolent Association) and corporate America.

Or, to be blunt, firm represents corporate America. Firm lashes out against working people who funded (voluntarily or not, through the misuse of their union dues) lawyer's rise to power.

Former cop, James Lysaght, is a loyal type. He has kept close ties to his former roommate, Richard Hartman. Hartman used union funds for gambling binges. Lysaghts firm was hired to replace Hartman, but then hired him as a "consultant" to sell life insurance policies to the Patrolmen's Benevelent Association.

Then, Lysaght was, in 1997, indicted on racketeering charges for taking kickbacks for $3 million in legal business. (So that's how you get those big clients--I slept through class that day in law school!)

Not one to be kept down, Lysaght, with his wife, started a new firm. And who would hire a lawyer after such an indictment? Why, the financial services industry!

Mr. Lysaght serves a master. And that master is not the average police officer patroling New York City's streets. Mr. Lysaght's sole interest is to protect and defend those who destroy the economy.

A Modest Proposal

It has come to my attention that there is concern for judicial economy in the foreclosure process. Particularly, some feel that making lenders who wish to foreclose prove that they own the right to foreclose is unduly burdensome. It imposes too much paperwork upon lenders, and it causes court dockets to be crowded as cases are not concluded due to the inability of lenders to prove they own the right to foreclose.

There is also concern that the lenders will not lend if they are not given an unfettered right to take any home they choose away from the homeowner without regard to due process. Since governmental gifts did not inspire the banks to lend to working people, many conclude that nothing short of waiving ages-old due process requirements will do so.

Upon reflection, these are just and proper concerns. After all, the lenders are victims. They did not choose loan terms, borrowers, and which properties would secure the loans. Clearly, borrowers forced the banks to unwillingly lend money, collect high fees, impose usurious interest, and retain the right to take away the borrowers' homes at the slightest allegation of default.

Indeed, Illinois and other judicial foreclosure states are imposing an undue burden by making the banks go to court at all. They have to serve a summons, file a form complaint, and, in a few cases, they are even made to ensure they are foreclosing on the right property, for the right sum, and against the right person. In other cases, the banks even have to prove the homeowner failed to make payments.

All of this goes far beyond the scope of anything a reasonable lender would expect to do in civil society. Therefore, I propose the Kelli Dudley Equity-Stripping Simplification Act of 2011. The key points follow:

1.  As soon as the bill becomes law, all homeowners, tenants, and other structure-dwellers are required to vacate the home, apartment, or other structure within 30 days.

2.  Homeowners, tenants, and other structure-dwellers are forbidden to take up residence in any new home, apartment, or structure.

3.  Homeowners, tenants, and other structure-dwellers who purport to have a possessory or ownership interest in any home, apartment, or structure shall be required to bring an affirmative case proving the possessory or ownership interest. The standard of proof shall be "beyond a reasonable doubt."

4.  Any lender may destroy or fail to maintain any property after it is vacated by the homeowner, tenant, or structure dweller and shall forever be immune to suit by any homeowner, tenant, or structure dweller for such damage. Any homeowner, tenant, or structure dweller taking any action to prevent destruction or waste of property shall be subject to a criminal sentence of not less than 50 years and a fine of not less than $500,000.00.