Foreclosure Defense: Module 6

Building Your Case

In the last module, we talked about how you gathered evidence in support of your case.  It was pretty heavy lifting but I hope you fully understand what we are trying to do.

In this module, we will be building your case.


Customizing Your Quiet Title Action

Please go to Documents and refer to: 004-Quiet Title Action.doc

Watch the following video about how you would fill out the complaint.  Be warned.  You are filling out this complaint at your own risk.  We make no assurances whatsoever as to the validity, legal sufficiency nor the completeness of this document.  You are to seek competent legal counsel before submitting these documents to court.

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Now customize and fill out the Quiet Title Action.  Be sure to include/enclose all the exhibits as suggested as part of your evidence packet.  Remember, without sufficient evidence, your case is subject to dismissal.

Be sure to check the Documents under “/Vince’s Pleadings”.  Here you will see what I personally did with my case.  I’ve incorporate a lot of new claims into this document.  Copy these into yours as it applies to you.

After you are done, contact your study buddy and submit the document for their review.  See if they have any suggestions, and ideas to help you.  If you haven’t done so, please fill out your contact information at:

If you are not willing to put your name on this list, then don’t bother asking for help.  Before you can receive help, you must be willing to give help.  We’re all here to help each other.

After you are fully satisfied with the pleading, you should consult an attorney to get their advice.  You can find an attorney here.  If one is not listed, it means we don’t have anyone we can recommend in your state.  Please don’t email us to ask.  Try to find a lawyer locally.

Are You or Were You in a Loan Modification Program?

If you are in a loan modification program but were denied, then you have another powerful argument (claim) against your lender.

1) You were induced to go into default because they will not listen to you unless you are 60 days in default.

Once you are 60 days behind, they are now holding this over your head and can foreclose at any time…despite the fact that you were induced into this situation and made it hard for you to catch up.

2) You can not be foreclosed upon while you are in a loan modification program.

Even if you were denied a loan modification program, the lender was required to notify you in writing within 30 days giving you specific reasons why your loan modification was denied and what you can do to fix it.  If they have not done this…then you can make the claim that you are still in the loan modification program.

Take a look at this law:

” § 202.9  Notifications.


(a)  Notification of action taken, ECOA notice, and statement of specific reasons– (1)  When notification is required. A creditor shall notify an applicant of action taken within:


(i)  30 days after receiving a completed application concerning the creditor’s approval of, counteroffer to, or adverse action on the application;


(ii)  30 days after taking adverse action on an incomplete application, unless notice is provided in accordance with paragraph (c) of this section;


(iii)  30 days after taking adverse action on an existing account; or


(iv)  90 days after notifying the applicant of a counteroffer if the applicant does not expressly accept or use the credit offered.


(2)  Content of notification when adverse action is taken. A notification given to an applicant when adverse action is taken shall be in writing and shall contain a statement of the action taken; the name and address of the creditor; a statement of the provisions of § 701(a) of the Act; the name and address of the federal agency that administers compliance with respect to the creditor; and either:


(i)  A statement of specific reasons for the action taken; or


(ii)  A disclosure of the applicant’s right to a statement of specific reasons within 30 days, if the statement is requested within 60 days of the creditor’s notification. The disclosure shall include the name, address, and telephone number of the person or office from which the statement of reasons can be obtained. If the creditor chooses to provide the reasons orally, the creditor shall also disclose the applicant’s right to have them confirmed in writing within 30 days of receiving the applicant’s written request for confirmation.


(3)  Notification to business credit applicants. For business credit, a creditor shall comply with the notification requirements of this section in the following manner:


(i)  With regard to a business that had gross revenues of $1 million or less in its preceding fiscal year (other than an extension of trade credit, credit incident to a factoring agreement, or other similar types of business credit), a creditor shall comply with paragraphs (a)(1) and (2) of this section, except that:


(A)  The statement of the action taken may be given orally or in writing, when adverse action is taken;


(B)  Disclosure of an applicant’s right to a statement of reasons may be given at the time of application, instead of when adverse action is taken, provided the disclosure contains the information required by paragraph (a)(2)(ii) of this section; and the ECOA notice specified in paragraph (b)(1) of this section;


(C)  For an application made entirely by telephone, a creditor satisfies the requirements of paragraph (a)(3)(i) of this section by an oral statement of the action taken and of the applicant’s right to a statement of reasons for adverse action.


(ii)  With regard to a business that had gross revenues in excess of $1 million in its preceding fiscal year or an extension of trade credit, credit incident to a factoring agreement, or other similar types of business credit, a creditor shall:


(A)  Notify the applicant, within a reasonable time, orally or in writing, of the action taken; and


(B)  Provide a written statement of the reasons for adverse action and the ECOA notice specified in paragraph (b)(1) of this section if the applicant makes a written request for the reasons within 60 days of the creditor’s notification.


(b)  Form of ECOA notice and statement of specific reasons–(1)  ECOA notice. To satisfy the disclosure requirements of paragraph (a)(2) of this section regarding section 701(a) of the Act, the creditor shall provide a notice that is substantially similar to the following:

The federal Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant’s income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning this creditor is [name and address as specified by the appropriate agency listed in appendix A of this regulation].


(2)  Statement of specific reasons. The statement of reasons for adverse action required by paragraph (a)(2)(i) of this section must be specific and indicate the principal reason(s) for the adverse action. Statements that the adverse action was based on the creditor’s internal standards or policies or that the applicant, joint applicant, or similar party failed to achieve the qualifying score on the creditor’s credit scoring system are insufficient.


(c)  Incomplete applications–(1) Notice alternatives. Within 30 days after receiving an application that is incomplete regarding matters that an applicant can complete, the creditor shall notify the applicant either:


(i)  Of action taken, in accordance with paragraph (a) of this section; or


(ii)  Of the incompleteness, in accordance with paragraph (c)(2) of this section.


(2)  Notice of incompleteness. If additional information is needed from an applicant, the creditor shall send a written notice to the applicant specifying the information needed, designating a reasonable period of time for the applicant to provide the information, and informing the applicant that failure to provide the information requested will result in no further consideration being given to the application. The creditor shall have no further obligation under this section if the applicant fails to respond within the designated time period. If the applicant supplies the requested information within the designated time period, the creditor shall take action on the application and notify the applicant in accordance with paragraph (a) of this section.


(3)  Oral request for information. At its option, a creditor may inform the applicant orally of the need for additional information. If the application remains incomplete the creditor shall send a notice in accordance with paragraph (c)(1) of this section.


(d)  Oral notifications by small-volume creditors. In the case of a creditor that did not receive more than 150 applications during the preceding calendar year, the requirements of this section (including statements of specific reasons) are satisfied by oral notifications.

(e)  Withdrawal of approved application. When an applicant submits an application and the parties contemplate that the applicant will inquire about its status, if the creditor approves the application and the applicant has not inquired within 30 days after applying, the creditor may treat the application as withdrawn and need not comply with paragraph (a)(1) of this section.


(f)  Multiple applicants. When an application involves more than one applicant, notification need only be given to one of them, but must be given to the primary applicant where one is readily apparent.


(g)  Applications submitted through a third party. When an application is made on behalf of an applicant to more than one creditor and the applicant expressly accepts or uses credit offered by one of the creditors, notification of action taken by any of the other creditors is not required. If no credit is offered or if the applicant does not expressly accept or use any credit offered, each creditor taking adverse action must comply with this section, directly or through a third party. A notice given by a third party shall disclose the identity of each creditor on whose behalf the notice is given.

[Codified to 12 C.F.R. § 202.9]


[Section 202.9 amended at 68 Fed. Reg. 13161, March 18, 2003; 72 Fed. Reg. 63451, November 9, 2007, effective January 1, 2008, the mandatory compliance date is November 1, 2008] “

So if this applies to you, then add this claim in your Quiet Title Action.

Neat Trick You can Use in Your Pleadings

Request for Admissions

Please find the Request for Admissions document and customize that to fit your needs. 004c-Request for Admissions.doc

Check with your Rules of Civil Procedures to see if you can submit it with your complaint (ie. file your complaint and include this at the same time).  You should be able to.  Otherwise, check with Prepaid Legal.

This is a powerful document.  Your Lender needs to respond to these admissions within 30 days or the fully admit to all the accusations.  Take a look at the allegations within the Request for Admissions.  It will make a whole lot more sense.

Request for Production of Documents

004d-Request for Production.doc is where you are asking the other side to produce evidence that they have standing to enforce the promissory note through production of the original wet ink signature.  If they do not produce these within 30 days, you can then Motion the Court to Compel them to do so.  They are required to produce the documents if it is material to your case and allegations.

In a civil action, the burden of proof is with the plaintiff.   It is your job to provide as much concrete evidence as possible to support your civil action.  Remember, the court is not moved by theories, conjectures and allegations.  The courts are moved by

a) the law

b) evidence.

It is your job to bring these to the judge’s attention.  Anything else is useless chatter and will be dismissed.  That said, you should be prepared to stand by everything you present to the court.  If required, you should be willing to defend your points.  So, you better know what you are doing before submitting your civil action.  Once you proceed, the clock starts ticking.  My advice to you is to do your homework first.  Be prepared.  Don’t sign/write/submit anything you don’t believe, understand or otherwise.  My template is there to guide you, but ultimately, you need to own it.

One of the points of our civil action is the bifurcation clause.  To illustrate bifurcation, you have to prove that it took place.  Here’s how we prove it.  Let’s say you closed your loan with CountryWide.  And then at a foreclosure, the Substitution of Trustee is done by ABC Trust, there is an assignment that took place here.

Country Wide -> ?? -> ABC Trust

Therefore, if we go to the county record and look up the assignment, we should see the assignment of the deed of Trust to reflect this movement.  If not, we have a separation (bifurcation).

Most likely, what you will see is that there was no assignment.

Therefore, what I need you to do is to go to the county recorders office, and ask for a print out of the CERTIFIED county record for your property.  We will then enter this as evidence in your civil action.  This will be entered as Exhibit F in the petition.

Alternatively, you could contact a local title company and pay a small fee to have them do this for you.  Ask for a “preliminary title report” from the date of closing of your loan to today.  Have them certify it.

Memorandum of Law

You will also want to customize the header and the end of 004e-Memorandum of Law.  This is the Massachusetts Supreme Court Ruling as of March 2011.  It specifically rules that before a “lender” may foreclose, they must have title to the promissory note.  Note: BLANK ASSIGNMENTS ARE UNACCEPTABLE.  Yet Blank assignments are STANDARD BANK PRACTICE.

Here is a legal analysis of surviving a Motion to Dismiss

“To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule8(a)(2).”  Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003).  Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”  FED. R. CIV.P. 8(a)(2).  For a complaint to sufficiently state a claim, its “[f]actual allegations must be enough to raise a right to relief above the speculative level.”  Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555 (2007).  Mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.”  Id.  Rather, to overcome a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”  Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation and citation omitted).  “The plausibility standard is not akin to a probability requirement, but it asks for more than a  sheer possibility that a defendant has acted unlawfully.  Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement of relief.”  Id. (internal quotation and citation omitted).When considering a 12(b)(6) motion, a court is generally limited to considering materials within the pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff].” See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Washington Energy Co., 83 F.3d
1136, 1140 (9th Cir. 1996)).  A court is not, however, “required to accept as true allegationsthat are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)

Who is the Investor?

There is a good chance Fannie Mae or Freddie Mac owns your loan.  If you can find your properties here, then you can present this as evidence that your servicer (so called “lender”) is not a real party of interest.  This is critical evidence to bring forth in your civil action.  You must include this as a claim in your suit.


To find out whether Fannie Mae owns your note, please come here:

Freddie Mac’s database is here:

IMPORTANT: DO THIS NOW.  Research whether these guys own your note.  If so, then you have a crucial piece of evidence to bring to court.

Good News About MERS

If you have MERS, in your loan, you have cause to celebrate (to find out, look at your Deed of Trust (DoT) or Mortgage document.  It should say “Mortgage Electronic Registration Systems is the nominee”  somewhere on the first or second page. MERS should appear on your Deed of Trust/Mortgage on the first couple of pages.

MERS is an electronic registration system that tracks which of the THOUSANDS of shareholders are the parties of interest for your loan.  Not only is this expensive to track on County record (it costs $50+ per record), it’s also almost impossible because people buy and sell shares every day on Wall St.

Let us use an analogy.  There’s two “things” involved in a loan.  A Deed of Trust (or Mortgage) and the promissory Note. The critical “thing” is the Note.  The DoT protects the note.  He who controls the note controls the DoT.  He who controls the DoT controls nothing.  The analogy is the Note is the dog and the DoT is the tail.  He who controls the dog controls the tail.  He who controls the tail does not control the dog.  Read the following case law:

” In CARPTENTER V. LONGAN, 83 U.S. 271 (1872), it was ruled that:

The note and mortgage are inseparable; the former as essential, the latter as an incident.  An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.

All the authorities agree that the debt is the principal [Note] thing and the mortgage [Deed of Trust] an accessory.  Much more. “

This is why we want to make the argument to the court to illustrate the point of “who owns the note?”  He who owns the note is the real party of interest and only that person has the power to enforce the note.  A servicer only has the presumption of the law.  The servicer is who you would call the “pretender lender”.  He did not put any of his money at risk and the money did not come from him…yet he wants to foreclose on the property so he can do it again to someone else.

If you have received a Notice of Default and a Substitution of Trustee, then you will likely see that “Mortgage Electronic Registration Systems assigns ABC Bank as the Beneficiary.”  This is totally invalid as per our previous point.

a) MERS is not a real party of interest, and therefore can not assign anything.

b) Even if MERS can assign the Deed of Trust….it still does not answer “who owns the note”.

We have lot’s of cases in the “Reference” file in Module 1 (please download and read these if you haven’t already done so.).  I have read literally thousands of documents and saved the very best for you in this Reference file.  Within Reference, you will also see a number of cases regarding MERS.  Pay particular attention to: mers-citibank-not-real-parties-CA.pdf.

Take a look at this post:  It has a lot of good notations about who MERS is and what they can and can not do.  This is very important for you to understand if you are going to defend your points in court.

To See if your loan is being serviced by MERS, come here:

To make the analogy perfectly clear, imagine if you will, your County Recorder going about creating an assignment for your house and assign it to his brother.

a) This is completely illegal.

b) Your County Recorder is only responsible for recording info…he is not a real party of interest an does not have the authority to assign anything.  ONLY the real party of interest (ie. you) can assign anything to do with your house to anyone else.

c) MERS is not a Lender.  They are not a Beneficial party of interest.

d) If you look on your Deed of Trust, there is language specifically that says something like “Assignment of Trustee: From time to time the Lender may appoint a substitution of Trustee”.  No where does it say “MERS may appoint a substitution of Trustee”.  MERS is not a Lender.

But MERS does this EVERY SINGLE DAY.  This is completely illegal.  They are relying on your ignorance.  This is why you should bring this up in your Quiet Title Action if you see MERS on your Deed of Trust/Mortgage.

If you have MERS on your loan, please be sure to download the Reference file in Module 1.  Then look in the folder under /MERS.  We have assembled many relevant case laws, and legal opinions from judges regarding MERS and that it has no authority to assign Deeds of Trust/Mortgages.

Latest Ruling on MERS Feb 18, 2011.

In an Appellate Court ruling, it was declared that MERS assignments are legal.  If you have MERS, you MUST read this case and article:

Action Items

1) Customize the Pleading for the Quiet Title Action

2) Customize the Request for Admissions and Request for Production of Documents

3) Connect with your study Buddy and have it reviewed.

4) Consult your Rules of Civil Procedures so you understand how it all pulls together.  Specifically, look under Jurisdiction, Request for admissions, and Servicing.

5) SERIOUSLY consider joining Prepaid Legal.  Don’t be an idiot.

Getting Legal Help

We have asked you to join Prepaid Legal but from experience, we know that many of you have chosen not to join…thinking you’d just save yourself a few dollars.  We know.  Money is tight, and you don’t need yet another bill every month.  Here’s the deal, you are about to engage in a heavy period of litigation.  It’s like jumping out of a plane without a parachute.

“But I am just going to wing it.  I can just rely on my study buddy”


You don’t think you will have any questions?  And if you don’t know the answer, you will just wing in?

Are you willing to bet your house and your family’s well fair over $16/m?

Seriously, we are here to help you and to save you money wherever possible.  When we recommend something, we do it because we truly believe it will benefit you.  Trust us when we tell you that you will need legal assistance and you will need someone to call to ask for advice.  Someone who is legally competent.

With Prepaid Legal, you can pick up the phone and call your Prepaid Legal attorney any time you want and speak for as long as you need…for free.  That’s very comforting for only $16/m.  Remember, you have no rights unless you know what your rights are.  That’s why having a competent attorney on your back can be hugely beneficial.

To sign up for Prepaid, click on the Button below.

Don’t be penny wise and pound foolish.

Sometimes, you will need to talk to someone on the phone.  In which case, you can pick up the phone and talk to prepaid legal.  Sometimes you want a second opinion, just call prepaid legal.  Sometimes, you want Prepaid Legal do some letter writing for you or review your documents.  For all the other situations, having a lawyer working for you, preparing your pleadings for you is a God send.

You might have missed it, so let me point this out for you again.

When you file a lawsuit, your lender will ALWAYS file a motion to dismiss.  They will do anything they can to get your case thrown out before it sees the light of day.  Hiring this law firm prepare your documents means your documents are less likely to be dismissed.

They will also have another attorney from another office do a legal challenge on the pleading against you!

This means, you will have already been challenged and there is very little chance your pleading will be dismissed.  You will need to survive the Demurrer (Motion to Dismiss) before you can enter discovery.


This is purely for educational purpose. Nothing on this site can be construed as giving legal advice. You are using this information at your own risk. You are to seek legal counsel in these matters.