Home Foreclosure means losing one’s home and it usually follows the loss of employment, a disabling illness or a divorce. Likewise, if one loses one’s home, it becomes all the more difficult to hold onto a job. To be homeless and jobless, to lose one’s lines of connection with the world, is to find one’s self in troubled times.
One of the best ways of avoiding homelessness is to hold on to your home for as long as legally possible while you are seeking new employment. One way you might be able to stop the impending home foreclosure process is to demand the lender legally prove ownership of the property before a court of law.
Here is how it works. The owner of the property normally must prove ownership by means of producing the grant deed to the property that serves as legal evidence of the indebtedness. If this document cannot be produced, the homeowner cannot be dispossessed because under these circumstances no one has superior title to the one actually in possession of the property.
Demand The Lender Produce the Original Deed of Trust
The only legal entity that can eject you from your home is a legal entity that actually holds lawful and superior title to the home. Proving legal title requires producing the original deed of trust.
The holder of the original deed of trust carries with it a presumption of legal ownership of the property that the deed describes. Without the deed, the lender must find some other way to establish ownership. In cases where there is a dispute as to legal ownership of real property, the best evidence of that ownership is the original deed of trust.
How did things get so convoluted?
In the not-so-distant past, once a deed was executed it was put into a vault. If the homeowner fell on hard times and was behind in payments, the owner of the deed was able to locate the document that proved ownership of the debt and submit it to the court as conclusive evidence of ownership of the property. But the practice was modified for the sake of expediency and profit over the past decade – shortcutting the need to document the chain of ownership.
Instead of keeping the original deed/note securely in place, they instead were packaged with hundreds or perhaps thousands of other notes as mortgage-backed investments. They were divided, repackaged and sold, and passed on again to unsuspecting buyers. These were the infamous mortgage backed derivatives that has been responsible for putting the US economy into the deepest recession it has ever known.
In the process, if you fell behind on your mortgage payments, no one would be able to produce the original deed-note and so no one would be able to prove to the court that they were for sure the legal owner of the property. True, there will be a record of payments, but this is usually not sufficient to establish actual legal ownership of real property. Fortunately for the debtor-homeowner in possession, many courts have been sympathetic to such a challenge, and have put the alleged owner of the note to the task of proving they are indeed the holder of the note and deed on the property.
Creative Banking -Mortgage Based Derivatives – Unclean Hands
Most legal scholars believe that ownership of real property is not a technicality that a bank or anyone else should be allowed to ignore. Wall Street and the major banks and lenders have already profited by the dishonest acts associated with the marketing and selling of these mortgage-backed derivatives. Under these circumstances the lender is said to have acted with unclean hands.
The doctrine of “unclean hands” is an established common law legal maxim that says that if you are party to a lawsuit and you seek equitable relief from the court, you must show that you have been fair and equitable in your dealings, and most importantly, your hands must be clean from any fraud or wrongdoing. In essence, the homeowner now has the chance to even the playing field. But there is a difference between the lender who through false dealings profited by his wrong doings and the debtor-homeowner that is facing ejection from his or her home.
Staying Strong – Putting Food On The Table For Your Family
The homeowner must put food on the table, must bring up the children, must take responsibility for all of the incidents of life. If it is possible to stay in one’s home, duly purchased and duly paid for, even though one is now in financial trouble, then stand firm on the law that says no one has a better right unless they can actually prove it.
If you succeed at court, you may have many more months to stay in your home before being ejected from the property. If you prevail at court, be sure make the best use of your time. Work on finding alternative employment. You might also want to focus on being retrained for a more marketable career.
Prepare For The Worst – Hope For The Best
For those who must seek alternative shelter quickly, if you are unable receive a helping hand from your own network of family and close friends, you should know that there are public resources that can assist you get through these troubling times. For information on low-income housing, food banks, emergency shelters, information on applying for food stamps visit the GotTrouble Financial Hardship Food and Shelter Resource and Directory.