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Harold Marion Hewell

Harold Hewell’s Answers

2 total

  • Forensic audit a solution for a loma?

    yA forensic audit shows serious errors in the origination of my 6 years old loan. Could not get any solution or useful contact with BoA over 3 years. They only recommended to stopp monthly payments to get a loan modification! I did so about 1 year...

    Harold’s Answer

    • Selected as best answer

    You've raised several very good issues. Forensic audits were all the rage two or three years ago, with attorneys filing cases based solely on audit findings in state and federal courts across California. However, a few bad apples (attorneys) started flooding the courts with template-based (or "cookie cutter" complaints) that  were virtually identical except for the name of the client(s) and the property involved.
    Problems arose when these cases were dismissed and the lawyer(s) continued filing identical complaints. Rule 11 of the Federal Rules of Civil Procedure and its California equivalent state that by signing a pleading and filing it with the court, the attorney is representing that the filing is meritorious and not filed for any improper purpose, and that the facts alleged either have evidentiary support, or will have it after engaging in discovery and further investigation.
    By repeatedly re-filing previously dismissed template-based complaints, the attorneys ran afoul of these rules, as the dismissal of the previous, identical complaint put those attorneys on notice that subsequent filings based on the sane template lacked merit.
    Naturally, the courts took a dim veiw of this, and as an unfortunate result began applying more stringent requirents on all audit-based complaints, most notably invoking the "tender rule" in all cases that failed to clearly establish a basis for the inapplicability of that rule, which requires a plaintiff seeking rescission of the deed of trust to not only have offered to repay the entire outstanding loan balance owed, but to demonstrate the capacity to do so. As few plaintiffs fighting foreclosure could show the ability to repay the entire loan balance (otherwise, why would they be facing foreclosure?), this and other issues led to widespread dismissals of audit-based complaints (cookie cutter or not). I conducted an admittedly unscientific review of audit-based lawsuits filed in the four federal District Courts in California and found that most such cases were being dismissed within about four months of their filing date. Courts also began dismissing audit-based cases on the ground that the statutes of limitation had expired on most statutory and common law claims, allowing equitable tolling under only the most egregious circumstances (provided those had been adequately pled).
    Fortunately, at about this same time, the Ibanez case issued out of Massachusetts, and soon was followed by decisions in other jurisdictions that provided homeowners grounds to attack foreclosure on the basis of the lender's lack of standing and chain of title problems (usually resulting from loan securitization, faulty instruments in the chain of title, "robo-signing," back-dated instruments etc.).
    I have found this approach to be far more effective than a purely audit-based complaint, but you should be aware other related decisions followed, often imposing rigorous requirements that must be met to obtain relief based on standing and/or title issues, such as the requirement that the plaintiff demonstrate actual prejudice or harm as the result).
    However you did not waste money obtaining the audit; it can still be useful, as a well-pled case asserting lack of standing to foreclose or enforce the deed of trust can be supplemented by predatory lending claims (assuming the liable party or a liable successor in interest is still around to name as a defendant). Predatory lending can establish a basis for seeking additional damages, and can provide additional leverage in any settlement negotiations. 
    Also, if the facts are there, you might have a promissory estoppel claim based on the trustee's sale conducted while modification negotiations remained active.
    Find an attorney capable of researching standing/title issues (and willing to do so - it can be tedious and time consuming) who knows the current case law, and you might find yourself with a very strong case.

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  • My home is in foreclosure and the sale dale is in four days,what steps do i have to take to stop the sale of my home

    ive already done the three month loan modification and the mortgage company hasnt contacted me about it since. i have a hardship letter and im on social security disability. im unable to work as a result of a disability that occurred while on the ...

    Harold’s Answer

    At this stage, the surest way to stop the sale is to file bankruptcy, which will impose an automation stay against all collection, reposession and foreclosure actions (assuming you have not started and then dismissed other bankruptcy cases in the recent past). The foreclosing lender will likely request from the Cout relief from the automatic stay, but the bankruptcy will give you time to review the chain of title and foreclosure process to determine if mistakes were made that can be used to sue the foreclosing lender and any other parties involved and seek an injunction against the trustree's sale. Depending on the type of bankrupty filed and the strength of your case against the lender, the bankrupty Trustee might allow you to file your case in the bankruptcy court, which has several benefits. These include the fact that the bankruptcy court will see the foreclosing lender as a possible source of funds for your bankruptcy estate. That's much more advantageous than the "level playing field" you'll face in state or federal court.

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