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- trustee-lacks-power-to-act-without-express-written-permission-from-certificate-holders
- flat-fee-foreclosure-assembly-lines-law-firms-taking-hits-with-increasing-frequency
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- DEED AND CLOSING REQUIREMENTS ROUTINELY IGNORED From Az and CA but true for all states
- Don’t forget usury. It applies more often than you may think: usury1
- good-question-on-who-do-you-owe-money-to
- fed-action-on-student-loans-auto-loans-consumer-loans-and-small-business-loans
I would like some advise on what I should do. I filed a complaint against my lender and broker Pro-Per back in October 2007. The basis of my complaint is that my loan documents were forged and was the victim of predatory lending. I filed Pro-Per because I was unable to afford a lawyer. I have been able to survive two different Demurs and Motions to Strike and Motion for Judgement on the Pleadings and have a trial date in March 2010. Over the past two years I was always careful to follow the court’s procedures and comply with all deadlines. In May 2009, I hired a lawyer that read my story that I posted on this website. When I met with her, she was confident that she could help me and was very convincing. I felt she had the same passion that I did to fight against predatory lenders and win my case. I informed her up-front that I did not have much money. I paid her a retainer and she said I could work on her home and also file court papers as she needed me. At the time that I hired her, I was about to attend a deposition by defendant. She attended the depo with me, but she stated that she was unaware of the details of my case, so she was not objecting to anything, so I left the deposition feeling that it did not go well. When I first met with her, I informed her that I needed her to send out discovery and set up depos, She stated that she wanted to Amend the Complaint to add additional defendants and Causes of Actions. None of this has been done as of today. Seven days after I paid her the money, she was threatening to withdraw from my case because she said that I was not complying with her requests for my documents, which was not true. I gave her all the documents that I had. She also said that she was unable to get in touch with me, which was also not true because I had been to her house numerous times to do work. Defendants served a Request for Production of 22 different documents, and the day before they were due, she called and informed us that she was not able to prepare the documents and that we needed to do retrieve the files from her home, which is at least 25 minutes from where we live, put the documents in order and make copies and bring them back to her. She was very verbally abusive toward us and after a confrontation occurred between my girlfriend and her she informed me that I was not to discuss my case with her or she would resign. This made it very hard for me because my girlfriend has helped me from the beginning. She never should have had us doing her job to begin with. We are not attorneys’ and that is why I hired her. She became very negative and said that I was going to lose my case and the judge was going to dismiss it.
After her first CMC (which she filed the statement late), the judge required a status letter to be filed by a certain date with she did not do. Over the next several months, I was at her home at least every other weekend and during the week, filing documents, all over the bay area, never missing any of her deadlines for her other clients, always available when she needed me. I had requested more than once that we discuss the details of my case and our strategy’s and she refused stating that there was no time for that and she was not going to waste time listening to me. As the next court date approached, she did not file a timely CMC statement or a status letter. I sent her a lenghly e-mail with my concerns that she was not properly representing me and did not treat me with respect. After several attempts to contact her, she finally telephoned me and informed me that she wanted to withdraw from my case, and that I needed to sign a Substitution of Attorney and that the judge would most likely be dismissing my case and trying to intimidate me by saying that I was going to lose my home. I refused to sign anything and told her that I would see her in court. This was the third time she had threatened to withdraw and it had only been three months since I hired her. By the day we appeared in court, she had not filed a substitution of attorney or had she filed the CMC statement. She arrived late to court and immediately informed the judge that she would be resigning. The judge wanted us to try to work it out. As soon as I requested to speak, my attorney said that she would be willing to step outside and talk to me. We worked out our differences and informed the court that she no longer was resigning and the judge assigned my case to mediation. Again my attorney stated that she wanted to amend the complaint to add additional defendants. The judge said that she should do this immediately. The judge ordered that we choose a mediator and inform the court within 30 days and set a Compliance hearing. My attorney again did not comply with this request even though I worked for her again and sent her a reminder email to notify the court. She not only didn’t send a status letter, she also failed to appear at the compliance hearing and now is subject to sanctions. The judge has ordered both attorneys to appear to show cause why she should not sanction them further or dismissal of the actions/striking of the pleadings pursuant to CCP 177.5 and 575.2.
This is where I stand now. I sent her an e-mail asking her why she had not complied with the court and that I was very concerned because she had not done anything she said she was going to do. I also asked her what the judge meant by that. She said that she had chosen a mediator and did not know why the court did not receive any documents from the mediator. It is not the mediator’s responsibility to notify the court. It was hers. She then informed me verbally of the mediation date. The OSC hearing is set for 11/05/09 and she is to file a declaration by 10/29/09. She has not filed anything in my case since June 8, 2009 which was one week after she was retained. She has not provided me with the legal representation that I am entitled to, nor has she conducted any discovery or responded to any of my requests. I don’t know what my legal rights are. What happens to my case, if she continues to be noncompliant. Would the judge actually dismiss, and if so, what is my recourse?
I have worked so hard fighting lenders, brokers, and their attorneys. I have gone to the Department of Real Estate, Department of Corporations, District Attorney’s office, Department of Justice, and even appeared on Channel 7 on your side with my story. I have stopped the illegal sale of my home five times, with the last time on the court steps at 12:05 p.m. on the day of the sale. I have never given up and am still in my home and intend to remain here for a long time.
I believe in what I am fighting for and intend to try to help innocent homeowners who are victims of Predatory Lending Practices and against crooked lawyers who are misleading and taking their monies.
This is why I am asking you for your advise as to what I should do. I am posting this on your site because this is where she found me and I don’t want this to happen to anyone else.
I want you especially to become aware that this is happening on your website. I was told that I should not make a complaint with the State Bar while she was still representing me. I do not have money to hire a different lawyer, but can I proceed with a lawyer that I do not trust.
Neil, thank you for taking the time to read my story. I anxiously await your reply and the comments and advise of your readers.
I have a TIL question.
I believe I read something to the effect where the disclsoures needed to be made to all borrows and those who are/were to be on the title of the property. I can’t seem to find that statment anywhere. My position comes from the fact the loan for my property was in my ex-wife’s name only and title to the property was in both our names. Not all disclosures had all signatures.
Thanks!
Questions on previous post or for no obligation consultation – Please email us at floridadefenseteam@comcast.net or call (772) 403-3897.
TACTICAL CONSIDERATIONS IN FIGHTING FORECLOSURE:
A) Send FDCPA Dispute and Debt Validation within 30 days of Summons and Complaint.
* Failure of plaintiff to properly validate will give you both an affirmative defense (to prevent Summary Judgment) and present you with set off against judgment, and perhaps injunction relief. Google Case law for appellate rulings to support your position. This can be used in addition to your states Credit Collections act with more teeth.
B) Send Qualified Written Response during litigation to opposing counsel.
*Failure to respond within 60 days creates TILA affirmative defense (to prevent Summary Judgment), set off against possible judgment, in addition to the TILA/RESPA violations.
C) Initial Response to Summons and Complaint can be held off with a Motion for Extension of Time, Motion to Quash or Motion to Dismiss within the 20/30 response period. Set hearing with Motion for Extension as some appellate courts rules that it doesn’t toll (extend) response periods when motion is moved within the response period.
D) Request initial production of note. Standing requires servicing agent (bank acting as collection agency) to have mortgage assigned to them -or- via equitable assignment (note is a bearer instrument with blank endorsement). Check endorsement/allonge on note to see if its stamped pay to the order w/endorsements.
E) Compel production of note for “D” if plaintiff balks at request, or, if they claim lost note, have them prove they are entitled to re-establish by your states laws.
F) Hearing on Motion to Dismiss – Circuit courts usually will deny initial Motion even with strong evidence. However, use this as a “teaching moment” to the court. State case law where appellate courts found reversible error when this has occurred. This will tell judge your serious as they fear being overruled by appellate.
G) Answer/Affirmative Defenses/Counterclaims will be required 20 days from denial of motion to dismiss. Continue to build case of material issues of fact that will prevent summary judgment short circuiting your case. If the issue shows the bank has a dozen bishops to testify, and you can produce 1 liar, then the issue is still at question.
H) Appellate courts can be used to overturn circuit court rulings. Use them, and ask the circuit court to issue an injunction while appellate reviews the issues.
I) If your judge is pro lender use Federal Courts for damages for FDCPA/TILA issues. They have a narrower focus of the law.
J) Bankruptcy courts (Ch 13) using an adversary proceeding can be used wisely to avoid (Declare mortgage security invalid and become an unsecured claim). They also have a narrower focus of the law.
Generally: Prepare to win or at least educate the courts on each of your motions, one small battle at a time. Don’t expect courts to give you a piece of real estate free and clear, but if you play chess know you can check/checkmate there moves without initially winning – e.g. if they can’t prosecute the case in (10 months Florida) the court can and will dismiss the case with prejudice, then you can obtain quiet title.
I have a question regarding foreclosure defense as it relates to payment of property taxes. If a homeowner has chosen to fight foreclosure and stopped paying the mortgage payments to the servicer, how would failure to pay property taxes affect the process and what recommendations regarding paying or not paying the taxes should be considered?
If notice from the servicer has come to pay or essentially “suffer the consequences”, is there any reason to go ahead and pay the taxes as opposed to not?
How can said “notice” contain statements with regard to “protecting its interest” in a property when a servicer has no interest in the property?
Neil,
I have been reading your site and following the advise to the best of my circumstances, like not representing myself in court) but I can’t find an attorney so I continue to have to to fight the wrongs I’ve suffered alone.
I’ve gone as far as contacting every attorney who “get’s it” (outside of those in FL) for consulting and/or representation and I’ve not gotten help there either.
I contacted every MO attorney in the naca.com website, I’ve called the MO bar, KC bar, Springfield MO Bar, and sent some 500 emails, still getting no where. The average attorney says my case is too complex for them or the attorneys who specialize in consumer law say they’re too busy.
Just to let you know I’ve lost my home in an illegal foreclosure Aug 13th, but I refuse to vacate. I tried to dispute the foreclosure for months, sent the letter of cancellation, demanded verification of the debt, etc. I was forced to file bk13 pro se as I had no attorney located for timely filing only to have the bk dismissed 4 days later on a technicality saying “no creditor matrix was filed”. It was though as the BK clerk wouldn’t accept the filing without it being completed. But the trustee said it wasn’t so it was immediately it was dismissed July 8th.
I filed BK because my attorney refused to help me, he told me to stop the foreclosure to try a petition for injunctive relief and a TRO. I did and both were denied by a judge who first said he didn’t have authority to sign them, then dismissed them 45 minutes later.
The filing was only in County Court though but it established a timeline. It also allowed for the foreclosure sale. I announced at the sale there was no clear title and we were in dispute waiting for the orders to be signed ( I didn’t know they would be denied) so the bottom line is, I really need help!! My case has FDCPA, TILA, RESPA, HOEPA, violations and more.
I’ve filed complaints with the attorney generals office, the MO gov., MO state representative, MO congressman, MO senator, President Obama, FDIC, Federal Reserve, FTC, Office of the Treasury, FBI white collar crimes unit, etc.
I know people like me are everywhere and are fighting a monster too, but I am begging for help from someone. I’m not asking just you Neil, I’m asking anyone out there including attorneys to help not someone who has done everything possible to help themself.
Yesterday I received an email from one of the “attorney’s who gets it” who said, “lawyers are removing cases to fed court and stripping the lien from the property based on multiple theories”
I’m trying to find out who such attorney are because there is not only a lien to be stripped but a case where damages could be substantial for all that I’ve been subjected to: Breach of contract, Civil Rights violations, Usury, RICO, Fraud, Concealing of Material Facts, Bank Fraud from inception, violation of Regulation Z, etc.
PLEASE-PLEASE-PLEASE HELP ME!!!!!
Thank you
Kari
417.451.7618
Need some clarification on loan qualification. I applied for and received a loan on a new home costing $312,500 in the state of washington. My total income was from my SS income of about $1200/month. This was hardly sufficient to pay for the $1700/month mortgage payment. I knew that and the bank (Bof A) knew that. My wife at the time had a thriving export business out of China but her income was not allowed because she was not a US citizen. So we “fixed up my loan application by adding $5,000/month in bogas wages which qualify me for the loan. No documentation was asked for and if it had been I could not have provided it. I did sign the loan application which states that all information provided is true. I knew I could make the payments with help from my wife’s business and I did so for over three years. Long story short, my wfe got fed up with US life, moved back to China and we got a divorce and I was left with a mortgage I couldn’t afford. I drew money out of my savings for over two years to make the payments and had put the home up forsdale. Finally I could see the hand writing on the wall , went to Bof A and told them as of October 2008 I was no longer able to make payments. My last letter from them suggested that I short sell the house or else foreclosure was immenent. I would do that if it wasn’t for the #100,000 equity I would lose. I put up 25% downpayment (80K) to lower my interst rate. My question is: Shouldn’t the lender accept responsibility in the fact that they authorized the loan knowing I wasn’t qualified and accepted false income figures. Had they not approved of the loan I would have had to stay in my old house or get them to OK my wifes income as collateral. I have talked to alot of loan modifiers who know they can’t help me so if you would be so kind to point me in the right direction. Thanks Ken