Q&A Mortgage Foreclosure Defense & Attack strategies and related homeowner topics- Q&A Mortgage Foreclosure Defense & Attack strategies and related homeowner topics - Tonight we are fortunate to have with us Consumer Advocate and Lawyer James R. Ackley. To simply call Randy a just another Florida attorney would be like calling the sun just another star... His knowledge and 29 years of experience has taken him around the world dealing with legal and humanitarian disasters and crisis giving him insights and problem solving skills which are second to none. This evening Randy will be taking us on a trip through the nature and construction of Unconscionable Contracts those David & Goliath types of deals where one side is so large and intimidating; the other side simply must agree or be out in the cold. Almost every deal a consumer is offered today by banks and other large corporations has adhesion clauses - or what you might call take-it-or-leave-it terms. In any other form of business, these terms would be ruled unenforceable in a court of equity and stricken or modified... but when it comes to banks, it seems the courts are reluctant to do anything to allow a remedy... Randy has some ideas you might find useful and thought provoking, and maybe even a solution or two. -You mentioned that most people in America still dont understand that homeowners defending foreclosures are the victims of a syndicated criminal enterprise, right? Well what about homeowners who are still keeping up their payments and not in foreclosure... are they victims too? What is an unconscionable contract, by definition? Can you hit on some of the most common terms of adhesion which bind a party without the ability to negotiate? Do you have any ideas why courts support these terms in a bank contract when they would most likely strike or modify them if it were between you and me? Are there any examples of courts going the other direction and acknowledging the fact that the homeowner was unable to create a fair, negotiated contract? If you find terms, which in any other case are unconscionable, how do you get the judge to sit up and pay attention instead of denying the defense? How hard is it to demonstrate and prove unclean hands on the part of the banking system in a particular case? How does MERS it into the scheme and what consequences has it brought upon the homeowner? What about non-MERS deals, are they similarly affected? Is it possible to get a judge in equity to listen to arguments of law or statute in a foreclosure case? Do you see the concept of trying to get a free house being the act of the homeowner or the bank? If a bank or servicer cant prove they or the originator funded a loan, how can they have standing? Have you looked into the possibility that because of the way things are crafted in the UCC, that a bank loses its ability to enforce the note with its security, after 9 months... and they may be foreclosing on a persons estate instead? If a bank has no money of its own to lend and the franchise rules found in Title 12 forbid it from using depositors money or its credit, where is the money coming from and how can they enforce a contract they never funded? What about the Security First rule (as in California), where if the so-called lender is made whole, even by way of insurance or derivatives, that they lose their claim on the collateral and the house returns to the grantor/homeowner by reversionary right? Have you looked into that? Why do some courts make it difficult for homeowners or their lawyers to get evidence admitted? Can you give some examples of effective pleadings or affirmative defenses/counterclaims? What are some of the hardest bank allegations to overcome? What is your definition of a successful challenge to a foreclosure? Can a homeowner really win against a bank and make them go away? What are some of the most frequent procedural mistakes committed by homeowners? What are some of the more important laws you might cite in a foreclosure defense? Is it possible to get a judge in equity to listen to arguments of law or statute in a foreclosure case? What are some of the most effective strategies in defense of foreclosure? What is your opinion about homeowners using TILA rescission as a way to change the nature of a case from a secured foreclosure to an unsecured debt collection attempt? In general, what things would you recommend for improvement in the area of evidence & procedure to make homeowners' foreclosure defenses more effective? Why are judges biased against homeowners even when presented with strong supporting facts? Some originators, banks and servicers are not licensed to do business in every state, so how do they do what they do? Can you address some of the magical Mortgage Assignments under Powers of Attorney to Servicers?