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FORECLOSURE DENIED! THE DEFENDANT DIDN’T RECEIVE THE MIRANDA WARNING!

October 16, 2010

Lenn Harley writes a fantastic post, food for thought about the current foreclosure debaucle. I don’t know the answer myself, and I am sure our government won’t come up with the right one. I am positive the lenders won’t find a plan that is fair, equitable and correct either. History tells me it just won’t happen.

I am imagining a world where the money that was given as bail-outs to the lenders was used instead to assist homeowners underwater. WHAT A CONCEPT! I am not suggesting that I would have just passed out money to those whose homes were now worth less that what they currently owe. How about… if that money had been used to…. subsidize the short sale deficits? Rather than line the pockets of those who helped to create the current problem.

I’m just sayin…. I would love to live in MY world all the time….

Great job, as always Lenn.

Via Lenn Harley, Real Estate Broker, Virginia & Maryland (Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate):

I’VE HEARD ENOUGH! 

PERHAPS THE COUNTRY NEEDS AN OFFICE OF PUBLIC DEFENDER FOR HOME OWNERS IN FORECLOSURE!

Over the past 2-3 years since the beginning of the era of wholesale short sales and foreclosures, the real estate industry has been turned on it’s head due to the effect of negative equity caused by the perfidy of the Wall Street Gangs and the Congress persons responsible for oversight of the housing industry who DIDN’T.  Hence, the mortgage mess. 

If you’re thinking “they bought homes they couldn’t afford”, just leave the building.  Clearly, by giving a pass in the form of about $870,000,000,000 to the perps who created the mortgage mess didn’t work.   The government made a choice, help the investment community that was bleeding Billions or help the American home owner who was losing their home, their credit and their dignity.  The government made the wrong choice.  Without the American consumer, there is no economic recovery. 

BY GIVING THE BANKS ABOUT A $TRILLION DOLLARS, THE GOVERNMENT EMPOWERED THE INVESTMENT AND BANKING INDUSTRY TO IGNORE THE LAW AND CREATE A WHOLESALE FORECLOSURE FACTORY.  To expedite nasty inconveniences written in the foreclosure laws of the states, they invented ROBO SIGNING??  I don’t believe that robo-signing is an adequate description.  It would appear that the banking industry engaged in a conspiracy to deny due process to millions of home owners by expediting the documentation required by the various state statutes involved in the foreclosure process. 

FORECLOSURE IS A LEGAL PROCESS.  When our entire system of jurisprudence is based on protecting the innocent, it is hard to accept that the foreclosure system in this country has turned that concept on it’s head.  For months, since the disclosure of the robo-signing scandal, I’ve believed that the government, i.e., Congress, HUD, Fannie/Freddie, etc., would create a band aid to legalize the millions of defective foreclosures processed through defective or fraudulent documentation.  Why not??  Surely they, Congress, HUD, FAnnie/Freddie, etc., would cover the butts of the banks they empowered and encouraged to make bad loans that, in many ways, conceived and contributed to the mortgage mess.  Many of these banks received Billions (with a “B”) of tax payer money in an overnight transfer of public wealth to the pockets of the many banks which benefited from the TARP handouts.

GUILTY WITHOUT OPPORTUNITY FOR A DEFENSE.  If our criminal justice system were designed in the image of the foreclosure system as it has evolved in the past 3-4 years, we could do away with defense lawyers and juries and the mere accusation of guilt would be sufficient to convict.  In the case of a suit for damages for any contractual disagreement, the filing of a lawsuit would be sufficient to gain a money judgment.  Summary judgment would prevail by the mere filing. 

IF ONE HOME OWNER IS WRONGLY FORECLOSED. . . . . . .  That is the besis on which the public defender is founded.  That even if a person cannot afford legal representation, the legal system will provide one.  Isn’t it time that this service should be extended to home owners who are insolvent and in foreclosure. 

A SOLUTION?  PUBLIC DEFENDERS FOR HOME OWNERS.  The foreclosure matter has reached a point where defendants in a Complaint for Foreclosure should be entitled to legal representation.  In fact, the notice of foreclosure should probably contain a Miranda warning whereby the Sherrif serving the home owner with a notice of foreclosure would be required to face the home owner and advise, “You have the right to an attorney.  If you cannot afford one, one will ba appointed for you”.

MITIGATING CIRCUMSTANCESappears to have no place in the present day short sale or foreclosure processes.  Oh sure, the mortgage company requires that ffamous“Hardship Letter” from a home owner as a part of the short sale application package.  Yet, the basis of the hardship appears to have no bearing in whether or not the mortgage company has agreed to consider a short sale IN GOOD FAITH.  

DO LENDERS PROCESS SHORT SALES IN “GOOD FAITH”?   How often does the bank continue to process the foreclosure while the home owner and the real estate agents involved on the buyer and seller side believe that they are processing a viable short sale???  It happens more often than is reported because we see only the few that are written about.  I suspect that concurrent short sale and foreclosure actions occur far more than is understood. 

MODIFICATION, FOREBEARANCE, ETC. are generally a myth.  The government failed miserably with their various WINDOW DRESSING modification programs.  One can only believe, when reading the fine print of the various programs portrayed to help home owners in trouble, is that they were designed to fail

PUBLIC DEFENDERS FOR HOME OWNERS.  IS IT TIME?

                                                      WHO IS LOOKING OUT FOR THESE FOLKS?

                       Home Owners

Courtesy, Lenn Harley, Broker, Homefinders.com, 800-711-7988.

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