Motion for Consolidation is sometimes enough

From an attorney involved in foreclosure defense.
I hope you are well.  I have been reading through your manual daily to absorb the breadth and depth and width of this mortgage meltdown…  I am so glad I was able to come to the workshop in Napa and meet you.  I’m sorry I missed your teleconference today… There will be more
Just wanted to let you know the progress that’s been made to date:
notwithstanding two failed attempts at TRO, I filed a Motion to Consolidate (Great idea) the underlying action against the lender which I filed with the subsequent lender’s UD action against me and prior to the hearing date the lender DISMISSED THE UD! Now you are cooking. This is what we are seeing repeatedly. They fight and then they disappear. Because they are committing fraud on the court and fraud on you. Once they file the UD they ARE using state action and THEN it is time for due process arguments. When they or the Judge says the case is over, the certificate of title has been issued, your answer, “Your Honor, all that was done by self help under private contract that was breached. THIS is the first time this matter has come before a court. They have made this a judicial procedure by filing the Unlawful Detainer action. Now they have to prove their case — not merely that they acted, but that they acted with proper authority and in good faith. Now I just have to respond to the mortgage broker’s demurrer to the complaint.  So we are headed down the track with discovery etc.
Thanks so much for your input.
Of course I have some questions for you:

1                How do I handle the non existence of the original lender (New Century was among the first to dissolve) and is sufficiently dissolved now that they cannot be found to be served? Ie – discovery, information as to securitization, excuse as to loss of original note… do I dismiss them as a party?  Absolutely not. Pull up your title record and if they were the only “lender” on record, you send in copies of your notice of rescission, QWR etc. with your complaint to quiet title and simply say they are the only people on record, the title is only subject to their claim and they are not around to make it.  Make sure they are properly served by publication and then take a default.

2 How do I respond to the foreclosing servicers response of “non monetary interest and appearance” instead of answering the complaint? Not sure what that means.

3 How do I capitalize on the “King County effect” where the attorney (Pite, Duncan, LLP in San Diego) is representing Saxon, MERS and Deutsche in this matter and the verification that has come back is from the same VP who has the same exact address for all three parties? Very simple: First a motion to strike because the documents are invalid on their face. Second, file a motion for the attorney to produce authority or file an affidavit proving authority to represent. That could be enough for him to exit the case. It has before.

10 Responses

  1. To the attorney who has New Century involvement with origination and did the Motion to Consolidate post…

    The New Century BKR up in Delaware is still ongoing.

    I sent the QWR to the trustee and to the attorneys representing New Century.

    Next I’ve done an AP or adversary proceeding…fairly recently.

    My late filed POC was approved.

    Go after them in their own back yard.

    There is still lots going on in their BKR case.

    I am not an attorney and not offering legal services.



  3. Discovery progress in California.
    Motion to compel

    In a motion to compel one must file a statement if the other side responded. There is a 45 day limit or one looses its rights. If there are all objections the filing of the extra documents are necessary as part of the motion to compel.
    Statements for admissions, production of documents, and interrogatories.

    We need to be agressive in our fight or they will run us over.
    brian davies

    It is a way that the new trustee that will be substituted into the record is not a necessary party to the legal proceedings.

    In regards to the same party representing all the clients on may object.

  5. Hello, great post. Can I file a suit in state court on TILA and RESPA violations? Do I file a wrongful foreclosure action against the lender in State court?

    thank you

    ps. when will you have a workshop in LA, RIV, SB, SD cournties?

  6. FYI New Century Mortgage is in Chpt 11 BKR in Delaware. Judge Kevin Carey. I was able to get a hearing with him on an emergency motion to stay eviction. He felt Calif. courts was where I should direct ‘stay of eviction’. I had based it on the fact that
    HOME123–a VP there by the name of Nagy–had signed a Corporate Assignment of Deed, after New Century BKR filing on April 2, 2007. AND there was backdating on the document to make it conform to the NOD.

    Anyways, what Judge Carey did order, per my requests, that the opposing attorney (for New Century) produce the original note for me and answers to my QWRs. I consider that a win!!

    We will see what I get back.

    Anyways, whoever is going after New Century–check with attorneys as you might be able to file an ‘adversarial action’ in their Chpt 11 case.

    I believe their Chpt 11 plan has been approved fairly recently.

    NOTE: I am not an attorney. I am just conveying my experiences.

  7. If jury trial denied one case, any idea how best to request district court move jurisdiction of it to another district court who is pending decision on demand for jury trial upon being able to ‘show cause’ or triable issues? This goes to two homes that were tied together by cross collateralization, but one of the homes had two first mortgages, one of which was tied to both homes.

  8. Unlawful Detainer:

    – An eviction lawsuit
    – The illegal possession of land by one whose original possession was legal
    – The unjustified possession of real estate without the consent of the owner or other proper person

    Dan Edstrom

  9. great great post. A) I have a loan that has been sold for times. B)Orginal lender on loan docs and recorded with county is out of business. C) Have not been served yet in over 6 months in FLorida D) Lost note on docs I have seen online QUESTIONS-how do i file recession against a company that no longer exists, do I do this certifed mail? do i do this to the current servicer? or do i sue the first lender, that is out of business?

  10. what does UD stand for or mean?

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