THE STANDING DEFENSE

FIGHT FORECLOSURE - - AND WIN!

THE STANDING DEFENSE

What is Standing?
Of all the weapons to fight foreclosure that you have in your arsenal, by far the most important and effective is the legal defense of standing. Standing is the necessary element of proof requiring a foreclosing party to show that he or she is the true owner and holder of the promissory note on upon which he or she is foreclosing.

Why is Standing So Important As a Foreclosure Defense?
Standing is critical in foreclosure defense involving securitized loans because of the way the securitization process works. Securitization is the process, devised and participated in by a small number of huge financial institutions, of converting a loan into a stock certificate, thereby creating profits many times more than which could otherwise be realized by simply receiving interest alone.
Because the securitization process involves transferring the mortgage obligation to a number of different entities before it ends up in the trust from which securities are sold, oftentimes the documentation falls short of that normally required to evidence transfer of such obligations. The problem then that parties seeking to foreclose on securitized loans have is that, when pressed, it is difficult for them to prove that they are the proper party to be bringing the action; in other words, that they have standing.

How Does One Facing Foreclosure Use the Standing Defense?
If you are fortunate enough to know the identity of the trust into which your loan was allegedly placed, you can go online and check the trust prospectus to find out who all the entities are who allegedly claimed ownership of your loan. This then allows you to compare the documents produced by the party seeking foreclosure with the chain of title of owners set forth in the trust prospectus.
If the identity of the trust is not readily apparent, then you must find that out either by way of a Qualified Written Request (“QWR”), if you are not in foreclosure, or by discovery if you are. Either way, once you know the identity of the trust, you are then able to compare the representations in the prospectus with the documents which the foreclosing party produces to attempt to show standing. Chances are, that you will then be able to punch holes in that party’s claim, successfully fight foreclosure, and stay in your home.

McGookey Law Offices, LLC
Daniel L. McGookey
Trey Hardy