Collect Your Documents* (See more in-depth lesson at www.operationrest.org/cbsatlanta. )
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This is part of the Self-Help portion of Foreclosure Defense. See Foreclosure Defense for more tools and tips you can do in preparation for legal action.
For Foreclosure Defense based on Securitization, Chain of Title, Standing
(see Defense based on Loan Origination below)
Note: Deeds to Secure Debt differ state to state. For example, Georgia uses a "Security Deed" while other states like California, use a "Deed of Trust".
1. Promissory Note endorsed (should be endorsed in blank or by officers of entities when the ownership is transferred). If you do not have one from the Servicer, we recommend that you send a simple letter to the CEO of the Servicer and the Correspondence area and follow up (see Letter to Servicer template in Word format or in PDF format). Always send correspondence traceable, with delivery confirmation or signature verification (best). See Executive Contacts for most entities.
Note: This is different from a Qualified Written Request which also asks for the Promissory note. Sometimes just asking for the promissory note and deed to secure debt (like this does) expedites the response.
2. Certified copy of Security Deed or Deed of Trust (from land and deed records at the office of the Clerk of the Court or Recorder of Deeds). In Georgia, documents are compiled by, and can be accessed through, the Georgia Superior Court's Cooperative Authority website www.GSCCCA.org. All documents, for legal purposes, should be certified (meaning that they are true copies from the land records).
3. Certified copy of Assignment(s) of Security Deed or Deed of Trust (from land and deed records at the office of the Clerk of the Court or Recorder of Deeds). In Georgia, documents are compiled by, and can be accessed through, the Georgia Superior Court's Cooperative Authority website www.GSCCCA.org. All documents, for legal purposes, should be certified (meaning that they are true copies from the land records).
4. Checking authenticity of Notary signature: Look on Assignment of Security Deed or Deed of Trust for Notary Seal. Find the location where the notary is registered.
Contact the Secretary of State's Notary Office or Clerk's office where Notary is registered (in Georgia, for instance, each county's Office of the Clerk of the Court has a Notary area).
Ask for a Certified Certificate of Appointment and Notary Application. Check the true signature of the notary against the signature on the Assignment of Security Deed or Deed of Trust.
Note: If the notary is in Georgia, take an Open Records Request letter (see example with Georgia statutes in Word format or in PDF format) to the Notary area. Otherwise, call the state in which the notary resides and request the Notary's Certificate of Appointment and Application.
5. Look at notary index to check the dates of the notary commission. If in Georgia, here is the link: http://www.gsccca.org/search/Notary/ . Take a screen shot of the commission dates. Was the notary in commission when the Assignment of Security Deed or Deed of Trust was allegedly signed? Note: On the GSCCCA website, if the notary is highlighted in yellow, the commission has been revoked and a revocation letter can be requested from the Notary office. Also note, in Georgia, a notary's commission is 4 years, after which time a commission has to be renewed.
6. Google-research the rest of the signatures on the Assignment of Security Deed or Deed of Trust. Print out screen shots of evidence of where these people work.
See additional examples on the page Wrongful Foreclosure.
7. Get the Notice of Sale letter from the foreclosure attorney. Look at the entity that the attorney is representing. What party is foreclosing? Many times this is the servicer and does not have the legal authority or standing to foreclose.
From OCGA § 44-14-162.2 - Notice of Initiation of foreclosure proceedings is to be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. It requires delivery of this Notice by registered or certified mail or statutory overnight delivery to the property address or another address designated by debtor to secured creditor. Read Know Your Laws.
8. Get the Notice of Sale under Power advertisement (from the county legal organ/newspaper where legal notices are advertised). If you are in Georgia, you can search on www.GeorgiaPublicNotice.com. Put the name in the top box. See Sample Notice of Sale Under Power.
If you are in Georgia, remember the advertisement has to be 4 consecutive weeks prior to foreclosure date. Check to see if you were advertised 4 times. Also a Notice of Sale under Power (advertisement in the legal organ/newspaper) has to be delivered to the debtor.
See Know Your Laws.
Also check the legal description against the Security Deed or Deed of Trust.
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For Foreclosure Defense based on Loan Origination
The following documents are necessary for a forensic audit on which a foreclosure defense can be based. See Legal Cases and Education for a video taught by a forensic auditor based on this sample audit.
1. Loan Application (Form 1003)
2. Truth in Lending Disclosure Statement
3. HUD-1 (or HUD-1A) Settlement Statement
4. Promissory Note (with riders or attachments)
5. Mortgage or Security Deed or Deed of Trust
Other documents which can be useful to a forensic auditor and strengthen the audit:
Loan Commitment Letter
Good Faith Estimate
(3-Day) Notice of Right to Cancel (may not find with purchase money loans)
Underwriting and Transmittal Summary (Form 1008)
RESPA Servicing Disclosure
Hazard Insurance Disclosure
Credit Score Disclosure
Lender's Closing Instructions
Affiliated Business Arrangement Disclosure
I/O (interest only) and/or Neg-Am Disclosure
This information is provided free of charge by Operation Restoration. Thank you in advance for your generous donations which allow us to educate people on a personal level.
- Anne Batte, Executive Director