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Comment: I don't know the civil procedures in your state

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I don't know the civil procedures in your state

I can only tell you how things worked in my case, in Texas. Also consider that my case was a little bit different than yours in that my mortgage servicer defaulted, foreclosed and sold my house without my knowledge until almost 3 months after it all happened. Texas is a non-judicial foreclosure state. Also, the reason I did not know is because of a problem with the post office where my mail was being stopped at the post office and being returned as undeliverable before making it to my house. This means that when notices were sent to me certified mail, return receipt requested, as required by Texas Code of Civil Procedure, the sender had proof that I never got their notices. Still, they made no alternative effort to contact me (by phone, other delivery carriers/couriers, personal contact, e-mail or et cetera).

On December 1, when I found out about all of this, I began researching and found out that MERS had filed itself in my county's records as the Substitute Trustee in the Notice of Substitute Trustee Sale. They listed themselves as the Original Mortgagee, which is a lie. I never contracted with MERS and have tons of paperwork so show that the company I signed with, and the company that originated my mortgage, is NOT MERS. So I began looking through all my paperwork and found that MERS was listed as the beneficiary on my note. During the closing on my house at purchase, I was sitting at the title company with a group of people around me, flipping/scanning through a pile of papers, saying, “This just means [blah]. Initial here.” for each page. The page citing MERS was one of those pages. MERS was never mentioned to me. So I began researching MERS and found many cases and rulings against them for shady practices. I called the originator of my mortgage to ask how MERS came into the picture. The way it was explained to me is that my mortgage was originated, then put up for sale as a security through MERS, which is an electronic clearing house, much like one would find relating to stocks. Another company purchased my mortgage through MERS, and MERS took it upon itself to list itself in legal paperwork as Original Mortgagee. It was MERS that actually performed the sale of my home. In reality, MERS had nothing to do with my mortgage – only with the Deed of Trust, where MERS was listed as a beneficiary. MERS still needs the go-ahead from the holder of your note to perform the sale. I ended up not having to pursue the MERS issue because I had other grounds to fight the eviction process. MERS will be brought up in my suit, though.

In Texas, the court handling the eviction has no authority to rule on whether or not any transactions leading to the eviction demand were valid. That has to be done in a higher court. It's an issue of ownership versus possession. The JP court, where the eviction demand was filed, can only rule on possession. Nevertheless, with some very good advice I was able to raise the issue of whether or not the transaction was valid to the jury, despite objections from opposing counsel, and despite reprimands from the judge. Convincing the jury and planting certain seeds with them is what matters – not what the judge has to say. It's the jury that makes the decisions. When the judge tells you to stop pursuing a certain path or issue, there are ways you can respond to the judge, politely, to still get your words/points conveyed to the jury. And you DO want to demand a jury. In Texas JP court, where the eviction hearing took place, the judge cannot instruct the jury. I had to tell the jury what I wanted them to consider and decide on (that I did not commit Forcible Entry and Detainer as alleged; that the Plaintiff had not acted in good faith because it knew I did not receive its notices, yet it proceeded anyway, making no extra feasible effort to notify me; that the suit could have been avoided, so it is the Plaintiff, not me, who should be liable for court charges and fees; that the Plaintiff had no standing to evict me; and that eviction should not be granted).

Since you're saying Oregon is a non-judicial foreclosure state, and since you have a heads-up that I did not get, you have more leeway than I did. Once foreclosure is commenced, you have the opportunity to file your law suit in your District or County court to challenge the mortgage servicer's authority to foreclose (by demanding the original, genuine promissory note, and by putting MERS under the microscope – among other things) before things escalate to an eviction suit as in my case. Also, check into a Letter of Conditional Acceptance. If your lender cannot produce the genuine promissory note, which is likely the case, the LCA is a very powerful tool. Even if your lender can produce the note, they must implicate themselves in other fraudulent areas if they want to pursue taking your home under a LCA. Thanks to JuliusBragg for introducing me to this aspect.

You cannot bid on your home, but you can have a friend or family member present to bid, who can turn around and sell the house back to you (or lease/rent it to you). This is perfectly legal. If someone else buys your home at the auction, it is also legal for you to approach the buyer on the spot and try to work something out. As I understand it, often times these auction buyers plan to flip the house anyway, having just bought it for pennies on the dollar, so you're saving them a lot of work and still providing them with a quick profit by offering to buy back the house on the spot. However, having just been subject to foreclosure, attaining the credit for financing might be a problem. The Notice of Substitute Trustee Sale filed in your county's records will show the date, time and place of the auction to be held. In my case, the mortgage servicer sold the house back to itself. I don't know if this was because no one showed up for the auction or if they just faked an auction. I'm told that mortgage companies selling foreclosed houses back to themselves is common practice, but this was still a suspect sore spot with my jury. If you show up at the date, time and place shown on the notice filed in your county to find that there's really no auction, then you just have more ammo for your suit (for your mortgage company faking an auction).

Since you live in a non-judicial foreclosure state, yes, you have to initiate the suit. The second your mortgage company confirms that it has begun the foreclosure process, you need to file suit to challenge the company's authority/standing to proceed, seeking an injunction against the foreclosure until outcome of your case. You may or may not win your case. But these cases are prone to dragging out in the courts for many months or even years, during which time you do not have to pay mortgage. Be cautioned, however. Most mortgage companies are so buried in foreclosures that they are usually seeking just to take your house (not sue you for money owed). If you lose your case the lender can decide to also sue you for money, in addition to your house.

If you do file suit to fight your foreclosure, you will need to stand on points including, but not limited to:

  • In light of the rampant mortgage, lending and securities fraud that has taken place in this country involving mortgages originated after 2005, you have no idea how many hand your note has passed through, how many illegal ways it has been used or who, at this point, actually has authority to foreclose, which will be the entity holding the genuine note. If the court allows the foreclosure to proceed without properly demanding the genuine note, then it creates a liability for you because you can lose your home, then, at a later time, whoever does hold the real note can come back demanding more money and taking further action against you.

  • MERS has knowingly and willfully falsified legal paperwork, which it filed with your county under affidavit (claiming itself as the Original Mortgagee).

  • The lender must prove that it will be damage, and demonstrate exactly how it will be damaged, if you do not pay them and they do not recover the house. If your note says it is to be used as a security, it is likely that your lender has already been paid in full for the house, and even likely that they have been paid 2x to 3x over, by the money your signature created.

  • The lender never lent you any money, which is the only thing it is allowed to lend (it may not lend credit). I have seen some debate and argument on this forum in other threads about this issue. I can tell you from first-hand experience that when the Plaintiff was questioned as to whether they lent me actual money or credit, they began to squirm like crazy and angrily object to the questions, so there is something behind it that lenders don't want brought out into the light.

  • There are other grounds you can/will use as well, but after the battle I just went through in my case, I'm temporarily burnt out in a legal capacity and am about to enjoy some long-overdue sleep. :-)

    If you decide to move forward without an attorney (recommended, because most attorneys will sell you out and have much less latitude in a court room than an individual), do so Sui Juris (NOT Pro Se, Pro Per, In Propria Persona or PRO-ANYTHING!). In fairness, this is not always true, but you have no way of knowing. You can file your suit, injunction and jury demand under a Pauper's Affidavit. Total cost to get your case in court this way, depending on your state, should be well under $100 (which is mostly paper, printer ink, gas to drive over and file your papers with the court and et cetera). If you hire a lawyer the lender might raise an issue in court of, “If he can shell out all this money for an attorney, why can't he pay his mortgage?!” You might get a lawyer Pro Bono where Pro Bono is Latin for “free officer of the court seeking to bend you over and sell you out while making it appear that he/she is acting in your best interest.” :-) Agains, this is not always the case, but most of the time, it is, and trustworthy lawyers who will act in your interests and give you their undivided loyalty are nearly impossible to find. Good luck!