Timothy McCandless Esq.
Offices in Southern California
(909) 890-9192 Northern Cal (925)957-9797
FAX (909) 382-9956
email: tim@prodefenders.com
web site: www.timothymccandless.com
Our team of dedicated legal professionals is well-versed in defense of the foreclosure process and Loan Modification we have a unique approach to many consumer law areas. We will not advocate for you in an area we are not experienced in. Our team brings a diverse background to the table, allowing us to advocate for you in many areas of law. This gives Timothy McCandless Esq. and Associates an edge when dealing with complex legal matters as it applies to Foreclosure Bankruptcy and defense of eviction after sale. Often, more than one area of expertise is required. No need to hire a multitude of attorneys. We can provide you with comprehensive legal support in many areas.
First of all you have non-judicial and judicial foreclosure states. Non-judicial basically means that instead of signing a conventional mortgage and note, you signed a document that says you give up your right to a judicial proceeding. So the pretender lender or lender simply instructs the Trustee to sell the property, giving you some notice. Of course the question of who is the lender, what is a beneficiary under a deed of trust, what is a creditor and who owns the loan NOW (if anyone) are all issues that come into play in litigation.
In a non-judicial state you generally are required to bring the matter to court by filing a lawsuit. In states like California, the foreclosers usually do an end run around you by filing an unlawful detainer as soon as they can in a court of lower jurisdiction which by law cannot hear your claims regarding the illegality of the mortgage or foreclosure.
In a judicial state the foreclosure must be the one who files suit and you have considerably more power to resist the attempt to foreclose.
Timothy McCandless Esq.
Offices in Southern California
(909) 890-9192 Northern Cal (925)957-9797
FAX (909) 382-9956
email: tim@prodefenders.com
web site: www.timothymccandless.com
Then you have stages:
STAGE 1: No notice of default has been sent.
In this case you want to get a forensic analysis that is as complete as humanly possible — TILA, RESPA, securitization, title, chain of custody, predatory loan practices, fraud, fabricated documents, forged documents etc. I call this the FOUR WALL ANALYSIS, meaning they have no way to get out of the mess they created. Then you want a QWR (Qualified Written Request) and DVL (Debt Validation Letter along with complaints to various Federal and State agencies. If they fail to respond or fail to answer your questions you file a suit against the party who received the QWR, the party who originated the loan (even if they are out of business), and John Does 1-1000 being the owners of mortgage backed bonds that are evidence of the investors ownership in the pool of mortgages, of which yours is one. The suit is simple — it seeks to stop the servicer from receiving any payments, install a receiver over the servicer’s accounts, order them to answer the simple question “Who is my creditor and how do I get a full accounting FROM THE CREDITOR? Alternative counts would be quiet title and damages under TILA, RESPA, SEC, etc.
Tactically you want to present the forensic declaration and simply say that you have retained an expert witness who states in his declaration that the creditor does not include any of the parties disclosed to you thus far. This [prevents you from satisfying the Federal mandate to attempt modification or settlement of the loan. You’ve asked (QWR and DVL) and they won’t tell. DON’T GET INTO INTRICATE ARGUMENTS CONCERNING SECURITIZATION UNTIL IT IS NECESSARY TO DO SO WHICH SHOULD BE AFTER A FEW HEARINGS ON MOTIONS TO COMPEL THEM TO ANSWER.
IN OTHER WORDS YOU ARE SIMPLY TELLING THE JUDGE THAT YOUR EXPERT HAS PRESENTED FACTS AND OPINION THAT CONTRADICT AND VARY FROM THE REPRESENTATIONS OF COUNSEL AND THE PARTIES WHO HAVE BEEN DISCLOSED TO YOU THUS FAR.
YOU WANT TO KNOW WHO THE OTHER PARTIES ARE, IF ANY, AND WHAT MONEY EXCHANGED HANDS WITH RESPECT TO YOUR LOAN. YOU WANT EVIDENCE, NOT REPRESENTATIONS OF COUNSEL. YOU WANT DISCOVERY OR AN ORDER TO ANSWER THE QWR OR DVL. YOU WANT AN EVIDENTIARY HEARING IF IT IS NECESSARY.
Avoid legal argument and go straight for discovery saying that you want to be able to approach the creditor, whoever it is, and in order to do that you have a Federal Statutory right (RESPA) to the name of a person, a telephone number and an address of the creditor — i.e., the one who is now minus money as a result of the funding of the loan. You’ve asked, they won’t answer.
Contemporaneously you want to get a temporary restraining order preventing them from taking any further action with respect to transferring, executing documents, transferring money, or collecting money until they have satisfied your demand for information and you have certified compliance with the court. Depending upon your circumstances you can offer to tender the monthly payment into the court registry or simply leave that out.
You can also file a bankruptcy petition especially if you are delinquent in payments or are about to become delinquent.
STAGE 2: Notice of Default Received
Believe it or not this is where the errors begin by the pretender lenders. You want to challenge authority, authenticity, the amount claimed due, the signatory, the notary, the loan number and anything else that is appropriate. Then go back to stage 1 and follow that track. In order to effectively do this you need to have that forensic analysis and I don’t mean the TILA Audit that is offered by so many companies using off the shelf software. You could probably buy the software yourself for less money than you pay those companies. I emphasize again that you need a FOUR WALL ANALYSIS.
Stage 3 Non-Judicial State, Notice of Sale received:
State statutes usually give you a tiny window of opportunity to contest the sale and the statute usually contains exact provisions on how you can do that or else your objection doesn’t count. At this point you need to secure the services of competent, knowledgeable, experienced legal counsel — professionals who have been fighting with these pretender lenders for a while. Anything less and you are likely to be sorely disappointed unless you landed, by luck of the draw, one of the increasing number of judges you are demonstrating their understanding and anger at this fraud.
Stage 4: Judicial State: Served with Process:
You must answer usually within 20 days. Failure to do so, along with your affirmative defenses and counterclaims, could result in a default followed by a default judgment followed by a Final Judgment of Foreclosure. See above steps.
Stage 5: Sale already occurred
You obviously need to reverse that situation. Usually the allegation is that the sale should be vacated because of fraud on the court (judicial) or fraudulent abuse of non-judicial process. This is a motion or Petitioner but it must be accompanied by a lawsuit, properly served and noticed to the other side. You probably need to name the purchaser at sale, and ask for a TRO (Temporary Restraining Order) that stops them from moving the property or the money around any further until your questions are answered (see above). At the risk of sounding like a broken record, you need a good forensic analyst and a good lawyer.
Timothy McCandless Esq.
Offices in Southern California
(909) 890-9192 Northern Cal (925)957-9797
FAX (909) 382-9956
email: tim@prodefenders.com
web site: www.timothymccandless.com
Stage 6: Eviction (Unlawful Detainer Filed or Judgment entered:
Same as Stage 5.
- Speaker Pérez and Assemblymember Fuentes: Helping Homeowners Critical to Recovery
- Assembly Passes Legislation to Help Taxpayers
- Governor Schwarzenegger Signs Mortgage Protection Legislation
- Foreclosure-mediation laws not much help
- Foreclosure Mediation Programs Aren’t Working Because of Net Present Value (NPV) Calculations
- US home foreclosure mediation in jeopardy - report
- State Foreclosure Prevention Ineffective, Study Shows (Update2)
- Report Finds US Foreclosure-Mediation Programs Falter
- More Loan Mod Problems Reported
- Report: BOA Among Worst For Loan Mods
- New head of State Bar of California assails mortgage modification scammers
- Why the foreclosure crisis isn’t improving
- more...
MEDIA CENTER
VIDEO
Home Front: California agency looks at ways to stem defaults ShareThis
Upstairs in Sacramento's fashionable Senator Office Building, three full-time staffers and a steering committee of 12 are hurriedly crafting solutions to the raging mortgage crisis that neither banks nor the federal government has been able to stop. Read more...
Fighting for Mortgage Reform
http://www.youtube.com/v/PNU6WCSMPV0&hl=en&fs=1&
(Sacramento) One California state lawmaker is fighting to reverse the mortgage meltdown. State Assemblymember Ted Lieu (D-Torrance) says its time for financial institutions that have been bailed out by taxpayer dollars to do more to keep struggling homeowners in their homes. A new law authored by Assemblymember Lieu will force lenders to run a comprehensive loan modification program or face a 90 day foreclosure moratorium. And, Lieu says, his California Foreclosure Prevention Act is just the first step so hes introduced new legislation that will end some of the worst practices of the subprime loan industry. Heres more in this Assembly Web Report.
Foreclosure Relief Bill Headed to Governor’s Desk
http://www.youtube.com/v/XExe0-jcnGA&hl=en&fs=1&rel=0
(Sacramento) - Legislation by Assembly Speaker Karen Bass (D-Los Angeles) and Senate President pro Tem Don Perata (D-Oakland) providing immediate relief to homeowners caught in the mortgage crisis is on its way to the Governor’s desk. As we learn in this Assembly Web Report, SB 1137 would require lenders to contact property owners to attempt to avoid foreclosure, provide tenants additional time to move from a foreclosed property and mandate maintenance of foreclosed properties to diminish the impact on the value of neighboring homes. The legislation is an urgency measure, meaning it will become law once the Governor signs it.
Fixing the Foreclosure Crisis
http://www.youtube.com/v/rF8VKe_vK3g&hl=en&rel=0
(Sacramento) – As the mortgage meltdown in America continues to cause stress and strain for thousands of families, Assembly Democrats in the California State Legislature are working to reform the mortgage industry, hoping the proposed regulations will mitigate the financial pain. Led by Assembly Speaker Karen Bass (D-Los Angeles) and Assemblymember Ted Lieu (D-Torrance), Assembly Democrats have crafted a package of legislation designed to change the way home loans are prepared and implemented. Here’s more on the Assembly Democrat’s mortgage crisis relief and reform package in this Assembly Web Report.
Assemblymember Caballero Helping Constituents With Mortgage Crisis Issues
http://www.youtube.com/v/R5pLho83XKw&rel=1
(Sacramento) – The sub-prime mortgage crisis continues to ravage families throughout California and the nation. Assemblymember Anna Caballero (D-Salinas) says in 2007 home foreclosures skyrocketed in her 28th Assembly District that includes portions of Monterey, San Benito , Santa Clara and Santa Cruz counties. A package of Democratic measures to relieve some of the problems in the mortgage industry continues to move forward in the Assembly. As we learn in this Assembly Web Report, Assemblywoman Caballero is bringing helpful information directly to her constituents by hosting mortgage crisis forums throughout her district.
Assembly Democrats Take Action to Relieve Sub-prime Mortgage Crisis
http://www.youtube.com/v/QaooIYl2hd4&rel=1
(Sacramento) – As the sub-prime mortgage crisis continues to ravage families throughout the state and the nation Assembly Democrats are moving forward with legislation to help consumers who are in danger of losing their homes. Yesterday afternoon the Assembly Committee on Banking and Finance approved legislation from Assemblymembers Ted Lieu, Karen Bass and Alberto Torrico that will require lenders to report how they're helping consumers who face possible foreclosure, that will keep “foreclosure consultants” from using predatory methods to take advantage of homeowners and that will require lenders to provide more and better notifications to homeowners of expected mortgage payment hikes.
Assembly Democrats on Mortgage Crisis
http://www.youtube.com/v/xHol_uxp1LQ&rel=0
(Sacramento) -- Assembly Democrats, led by Speaker of the Assembly Fabian Núñez, are calling for a special legislative session to address the growing foreclosure crisis. The Speaker and the Assembly Democrats have introduced a package of bills designed to stem the rising tide of foreclosures and keep the problem from happening again in the future. As we learn in this Assembly Web Report the Center for Responsible Lending says nearly 180,000 California homes will be lost to foreclosure from the 826,900 sub-prime loans made in 2005-2006 alone. Thousands of families are suffering and California could lose nearly $3 billion in property tax revenue.
Stockton Foreclosure Rates Worst in Nation
http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/1115/14600265.200k.asx
Stockton has the worst foreclosure rates in the nation for the third quarter of this year and Sacramento is not far behind.
Lawmakers Look for Foreclosure Fixes
http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/1102/14498802.200k.asx
Part of the government's new program encourages people to get help before they're too deep in debt....Nov 02, 2007
Modesto Leads in Foreclosures Nationwide
http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/0919/14145823.200k.asx
The sub prime lending mess created a housing bubble in the Sacramento Valley. In August, Modesto had more foreclosures than any other city in the nation....Sep 18, 2007
Bush Announces Initiatives for Mortgage Crisis
http://mfile.akamai.com/14081/wmv/vod.ibsys.com/2007/0831/14024625.200k.asx
President Bush announces several initiatives to address the escalating mortgage crisis and help homeowners who are facing foreclosure....Aug 31, 2007
All Stories on KCRA.com with Foreclosure in the heading
http://www.youtube.com/v/ge5mx3cyNLM&rel=0
Speaker Fabian Núñez on the Home Mortgage Crisis - part 1
http://www.youtube.com/v/t9kRZZxFkzI&rel=0
Speaker Fabian Núñez on the Home Mortgage Crisis - part 2
http://www.youtube.com/v/n1nQgiqHy44&rel=0
Speaker Fabian Núñez on the Home Mortgage Crisis - part 3
http://video.google.com/googleplayer.swf?docId=-6796823761430488459&hl=en
Assembly Banking and Finance Committee Chair Ted Lieu on the Home Mortgage Crisis
http://video.google.com/googleplayer.swf?docId=4566431094117868557&hl=en
Assembly Banking and Finance Committee Chair Ted Lieu on the Home Mortgage Crisis (part 2)
http://video.google.com/googleplayer.swf?docId=6265790924257265530&hl=en
Assemblymember Kevin de León on the Home Mortgage Crisis
http://video.google.com/googleplayer.swf?docId=-5026681319705120773&hl=en
Assembly Labor and Employment Committee Chair Sandré Swanson on the Home Mortgage Crisis
http://video.google.com/googleplayer.swf?docId=6654387921883820208&hl=en
Assembly Judiciary Committee Chair Dave Jones on the Home Mortgage Crisis
http://video.google.com/googleplayer.swf?docId=-9170833597049132957&hl=en
Assemblymember Kevin de León on the Home Mortgage Crisis (In Spanish)
http://video.google.com/googleplayer.swf?docId=7005864128976048040&hl=en
Assemblymember Kevin de León on the Home Mortgage Crisis - (part 2) (In Spanish)
AUDIO
- Assemblymember Ted Lieu, Chair of the Banking and Finance Committee says President's Bush proposal falls far short of what is needed in California.
- Assemblymember Ted Lieu, Chair of the Banking and Finance Committee says that what we need to do is take all those borrowers who have sub-prime loans that could have qualified initially and convert them to fixed rate loans. This is about 55% to 61% of all sub-prime loans
- Assemblymember Ted Lieu, Chair of the Banking and Finance Committee says that in California 12,000 homeowners per week receive foreclosure notices.
- Assemblymember Ted Lieu, Chair of the Banking and Finance Committee says that we need to address the mortage crisis right away on a special session of the legislature.
- Speaker Fabian Núñez says California is being hit extremely hard by the foreclosure crisis.
- Speaker Fabian Núñez says thousands of California families are being hurt by the problem.
- Speaker Fabian Núñez says the foreclosure crisis is hurting the state budget as well.
- Speaker Fabian Núñez says the Governor should call a special session to deal with legislation on the issue.
- Assembly Banking and Finance Committee Chair Ted Lieu (D-Torrance) says the foreclosure crisis will get worse unless action is taken.
- Assembly Judiciary Committee Chair Dave Jones (D-Sacramento) says the foreclosure crisis is turning the American dream of home ownership into a nightmare.
- Assembly Labor and Employment Committee Chair Sandré Swanson (D-Oakland) says the middle class and the economy are being drag down by the foreclosure crisis.
NEWS
- Foreclosure-mediation laws not much help
- Foreclosure Mediation Programs Aren't Working Because of Net Present Value (NPV) Calculations
- US home foreclosure mediation in jeopardy - report
- State Foreclosure Prevention Ineffective, Study Shows (Update2)
- Report Finds US Foreclosure-Mediation Programs Falter
- More Loan Mod Problems Reported
- Report: BOA Among Worst For Loan Mods
- New head of State Bar of California assails mortgage modification scammers
- Why the foreclosure crisis isn't improving
- Major Banks Still Grappling With Foreclosures
- EDITORIAL: Try foreclosure solution
- Backlash against banks growing over mortgage modifications
- How One City May Punish Banks for Foreclosures
- Fla. Supreme Court's foreclosure task force recommends mandatory mediation for primary homes
- Homeowners Avoiding Foreclosure Through State Mediation
- Record Number of Foreclosures Scheduled for Sale
- Bill would make new loan caps permanent
- Number of foreclosures surging in South Bay, throughout state
- Vallejo bankruptcy reveals need for transparent union contracts
- Report: Central Valley foreclosures make California more affordable
- Homeowner association fees, budgets dwindle
- Foreclosure statistics tell different stories to different interpreters
- Home Front: Sacramento-area renters suffer from foreclosures
- Home sales in San Francisco Bay area jump 29 percent
- Home sales hit 8-month high
- Senators reach deal on foreclosure legislation
- Home sales rise in Riverside County
- House, condo renters latest victims of foreclosure crisis
- Home Foreclosure Prevention Workshops – Merced & Los Banos
- Home Foreclosure Prevention Workshop – Tracy
- Torrico Bill Aiding Renters Caught In Foreclosure Squeeze Passes Assembly Committee
- Lieu, Assembly Democrats Introduce Comprehensive Subprime Lending Reform Legislation
- Lieu: Dataquick's Release of New Foreclosure Data Shows Schwarzenegger and Bush Plans Failing
- Banking Committee Passes Lieu Bill To Force Data Disclosures By Mortgage Lenders
- Lieu Introduces Legislation Forcing Mortgage Lenders To Disclose Data About Efforts To Help Homeowners
- Assembly Banking and Finance Chair Lieu and Assembly Labor and Employment Chair Swanson Issue Statement in Response to Governor Schwarzenegger's Latest Proposal to Tackle Subprime Mortgage Crisis
- California Assembly Banking and Finance Chair Ted Lieu's Statement in Response to President Bush's Most Recent Subprime Mortgage Plan
- California Assembly Banking and Finance Chair Ted Lieu on President Bush's Proposal to Address the Subprime Mortgage Crisis
- Falling rates raise interest in home sales
- Faces of foreclosure
- Lawmakers plan to tackle housing crisis
- Assemblyman Solorio Calls Upon Countrywide To Freeze Interest Rates And Forclosures
- Assembly Democrats Take the Lead on the Subprime Mortage Crisis, While the GOP "Yacht Caucus" Sees Nothing but Calm Seas Ahead
- Calif. Democrats seek special legislative session on foreclosures
- Success fails to keep 'yacht tax' afloat
- Subprime measures proposed in California Assembly
- Democrats seek action on lending issues
- Plea for foreclosure help
- Help urged on foreclosures
- Officials act to forestall foreclosures, Nuñez urges legislative session, Schwarzenegger touts homeowner services and Paulson seeks breaks on rates.
- Núñez calls on governor to declare special session on subprime lending
- Foreclosures to have 'profound' impact, report warns
- Help urged on foreclosures
- State Democrats draft bills on subprime crisis
- Núñez calls on governor to declare special session on subprime lending
- Officials act to forestall foreclosures
- Calif. Democrats seek special legislative session on foreclosures
- Plea for foreclosure help
- Newsom asks lenders to offer more help to those facing foreclosure
- A Sea Change in California on the Sub Prime Mortgage Crisis
- Subprime measures proposed in California Assembly
- State Democratic lawmakers pitch new subprime lending laws
- Democrats unveil bills to slow foreclosure rate
- State lawmakers wade into sub-prime crisis
- Assembly Democrats to One Up Schwarzenegger on Sub-Prime Loan Crisis
- Countrywide Public Foreclosure Protests Held in Santa Ana ... More to Follow
- Assembly Democrats Call for Special Session, Introduce Broadbased Legislative Package to Help Address Subprime Mortgage Foreclosures
- Sacramento Bee: A plan to avoid foreclosures and aid borrowers
- Governor touts loan relief role
- Homeowners' big question
- $1.5 billion could be lost in county
- Markets drop on recession concerns
- Home sales at lowest level in 20 years
- Mortgage crisis expected to cost Bay Area $5.4 billion next
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Timothy McCandless Esq.
Offices in Southern California
(909) 890-9192 Northern Cal (925)957-9797
FAX (909) 382-9956
email: tim@prodefenders.com
web site: www.timothymccandless.com
