3 Responses

  1. This is to ‘Alert’ others to pitfalls in Chapter 7 BK . You need to understand the importance of addressing the request by Servicer/Pretender Lender to lift ‘Stay’ on your property. We did not understand & did not contest.

    URGENT

    Read the following and in DEFENSE. I need input regarding the challenging of the ‘Motion for Stay’ that was granted by BK Trustee in “Discharged” BK…. under the ‘Fraudulent’ use of a Servicer/Pretender Lender stating the ‘Authority in Standing’ issue.

    Need to file in US District Court, this week, under material violations of TILA…..how to include or….address the ‘Fraudulent’ Motion for Refief of Stay that occured in BK.

    The following from ‘Legal advice on Internet’: helps make our issue more clear. Please read.

    DO WE STILL HAVE LEGAL STANDING TO PROCEED?”

    Follow is response from ‘ an Internet Lawyer’

    “Please understand that receiving a discharge from the note’s debt does NOT dissolve the lender’s lien against the property. All rights of the lender to foreclose and seek the financial remedy of the possession of the property survive the BK filing. The lender just has to get permission before foreclosing.”

    “No, you do not have standing to proceed because you no longer have any personal liability on the note secured by the lien.”

    “PLUS, any potential TILA claim, and monetary recovery under it, is an asset of the BK estate which the trustee is obligated to investigate and either pursue FOR THE BENEFIT OF THE CREDITORS and the debtor, or to “abandon” back to the debtor if it appears either worthless or not likely to yield enough money to be worth the bother.”

    “If the claim is worth anything, it almost always gets pursued by the trustee. They’re good at that.”

    One of my questions:
    Servicer did send letter indicating we cannot rescind a ‘Note’ that has been discharged…and…

    Within same letter Servicer has offered Payment Plan….How can this be if ‘Note’ ‘Obligation’ has been ‘DISCHARGED’ ????”

    “It can’t. What you are proposing is, in effect, saying “oh, nevermind” on the BK discharge of the note’s debt secured by the property, then attempting to re-negotiate the debt under different terms because of the TILA violation(s) instead of the usual re-affirmation of the debt required to keep the property through a BK.”

    “Once relief from the stay is granted, the BK estate’s only interest in the home is any foreclosure sale proceeds which exceed the security interest dollar value, plus costs and fees of foreclosure. Any “extra” money after the secured creditor is fully paid off is the property of the BK estate”.

    ” Plus, failure to disclose the asset of that potential claim, then attempting to pursue it after receiving a discharge, can be considered “abuse” of the bankruptcy code. Pursuing a TILA claim at this time without getting the BK trustee involved could even result in the entire BK cases being dismissed and discharge revoked.”

    “You MUST coordinate this with both an attorney who has mastery of the remedies available for your type of TILA violation, AND the attorney and trustee who handled your BK cases.”

    As to above,we have no choice but Pro Se.

    So…… my thought is to INCLUDE in the TILA Federal Complaint a motion or in some form, possibly before the TILA Complaint… (please advise here, as best you can.).. addressing the alledged fraudulent action in the BK Court in both Bankruptcies by servicer/Pretender Lender having no ‘STANDING’ (basis ‘Holder of Note in Due course)

    URGENT MUST FILE THIS WEEK…Foreclosure Sale May 26th
    Please tell me the way in which to file the TILA and Injuctive Relief (if that is what it is called) regarding the Fraudulent ‘Authority in Standing’ issue with the ‘Motion for Relief’ stuff in the BKs by the Servicer.

    Grateful, both TILA and already discharged BKs are in the Federal Domain. That helps, RIGHT???

  2. Patrician Bradley: If you’ll check today’s post on the Morgenson article in the NY Times you will see that on title grounds alone there are multiple reasons why you should never give up. We have had reported more than 2 dozen cases in the last week alone where the foreclosure sale had occurred, the certificate of title had been issued, eviction or writ of possession was issued and the property was “sold” to a third party affiliate of the “lender.” In each of those cases without exception the homeowner is back in their home, safe and sound, with clear title to the property and no mortgage, note or obligation. This isn’t some sort of trick. This is basic law, The mortgage originators, servicers and administrators broke the laws and are now in the process of being granted immunity in Washington — but that does NOT mean that State law on interests in real property within the state can be negated. The prevailing opinion of attorneys looking at this problem and dozens of federal and state judges across the United States is that YOU own the property and THEY own nothing, can enforce nothing, can foreclose nothing and can evict nobody.

  3. MTG. put in Chapter 7 Bankruptcy is ‘Note’ Discharged? TILA still Enforceable? URGENT

    Neil, Thanks for your letter of Support – P. Bradley Idaho

    Mtg.listed, AS SECURED, in 2 consecutive discharged Chp.7 Bankruptcies (BORROWERS ARE UNMARRIED). Lawyers for Servicer/ Assignee entered Stays to allow Foreclosure. We did not contest. We discovered after BKs discharged, we qualified under (TILA audit) to Rescind the MTG. under TILA (Material Disclosure Violations). Servicer now states: due to Chp 7 BKs our obligation to pay according to ‘Note’ terms, was DISCHARGED & due to ‘Note’ no longer being in effect, RESCINDING it’s terms is impossible.

    IS THE PROPERTY STILL OURS TO FIGHT FOR?

    Servicer states now they have a ‘LIEN’ on the property….. FORECLOSURE IS EMMINENT….Is the above correct?
    We have sent, (25 days ago), certified letters of Rescission to all parties of interest & are proceeding with ‘Federal Litigation’ under TILA. filing APRIL 29, 2009.

    DO WE STILL HAVE LEGAL STANDING TO PROCEED ?

    Under TILA (15USC § 1635 (b); Reg.Z §§ 226,15(d)(1), 226.23(d)(1) (am I correct here with annotation? Doing all Pro Se) “the SECURITY INTEREST, PROMISSORY NOTE, OR LEIN arising by operation of law on the property becomes automatically VOID.

    Within same letter Servicer has offered Payment Plan….How can this be if ‘Note’ ‘Obligation’ has been ‘DISCHARGED’ ????

    Please respond ASAP if you are ABOLUTELY KNOWLEDGEABLE ON THIS ISSUE…Thank you

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