April 15, 2009

It's Getting Stranger by the Day

Like the TILA rescission trend we wrote of some months ago, there is another strategy gaining traction in this foreclosure tsunami, the produce-the-note defense.

It can work sometimes. It's VERY dependent on the judge and how he or she feels about the rules for standing of parties to bring an action to their court. But it's almost always a temporary delay because any case dismissal under these circumstances is done "without prejudice," which means the plaintiff can sue again as soon as they produce the required evidence of standing or sue on behalf of the correct party.

From what we've seen, the creditor's bar is working to educate their side of the legal profession as fast and as furiously as the consumer defense community is educating counsel on how to use it to defend against a foreclosure.

We don't believe this is territory for a borrower to head into on their own. It isn't a matter of the loan terms and conditions or TILA or RESPA violations. It's a matter of court rules, and those areas of the law vary from state to state and district to district.

One size does not fit all!

Craig and Dave