New Mexico Gears Up for Widening Foreclosure War

The State of New Mexico is seeing a sudden increase in foreclosures, indicating the widening war on homeowners and the middle class by banks who don’t know the meaning of enough. It is not merely hope we offer the homeowners in New Mexico, it is the likelihood that it will get increasingly difficult for foreclosers to win their cases if they are properly contested, utilizing the Deny and Discover

New Mexico is a “judicial state” which means that in order for a foreclosure to get started the “lender” must bring suit, serve you with a summons and give you time to respond with either a motion to dismiss or an answer, affirmative, defenses and counterclaim. Failure to respond results in a clerk’s default after which the “lender” will ask the court for a Final Default judgment setting the sale date.

The lender must still prove up their case. It is a note and mortgage and an accounting for the amounts paid and amounts received. This is done by the usual affidavit which we see failing now all over the country because the company on whose behalf the affidavit is filed has nothing to do with the loan. They are neither a creditor nor a servicer. Then they have the problem that the person signing the affidavit works for the company that has nothing to do with the loan, and cannot and does not allege personal knowledge, which makes the affidavit void.

I found one attorney (By N. Ana Garner, Esq.) on the interest who appears to have some knowledge of the process and is devoting herself to the protection of homeowners’ rights. I will be contacting her myself. Her article and contact information are on the link below.

But I wanted to repost her article on foreclosure in New Mexico because I thought it gave a good overview of the process:

 By N. Ana Garner, Esq.

Typically, you will receive telephone calls from the servicer (the company to whom you make payments) very soon after missing your first payment. These calls will continue, sometimes daily, with aggressive bill-collectors badgering you to make your full payment now. The only way to stop the phone calls is to request in writing that they not contact you by telephone, but only in writing. If the loan is FHA-insured, many lenders are required to accept partial payments. Before making any partial payment, confirm whether this applies to your loan, otherwise, your partial payment isn’t applied to the loan, nor is it returned to you.

You will probably start getting letters from the servicer stating that you can apply for one of the programs designed to keep people in their homes. I encourage my clients to participate in this process, even though the results are less than satisfying for most. Who knows, you may get lucky and get the modification you need to afford to stay in your home. If your loan was a no-doc, with no income verification, it seems odd that the bank is now asking for documentation of your current income and expenses to modify an oppressive loan that required no such documentation originally. At the very least, this process can buy you another couple of months before the inevitable foreclosure suit.

There are certain regulations a lender must follow before filing suit, and by participating in the loss mitigation process, you may have defenses available to you for the servicer’s failure to follow applicable laws.

The servicer who files a foreclosure suit while you are being considered for a HAMP modification is in violation of the servicer’s contract with the U.S. Treasury and program guidelines. Keep copies of all paperwork generated in this process for later review by your attorney.

After several months of correspondence and documentation has been submitted, you will receive a letter from an attorney for the servicer or bank. When you receive the first letter from an attorney, you’ll know you are getting close to the foreclosure suit being filed. The attorney will give you a notice of default and intent to accelerate, which means that if payments are not caught up within 30 days, the full amount will become due and owing.

This is a good time to hire an attorney if you want to live in your home for a while. You may get a second letter in 30 days stating that the note has been accelerated, or you may just get a stranger at your door who asks you if you are “Mr. X”, at which point, they hand you a fat envelope. That envelope will contain a Summons, Complaint in foreclosure, and attachments to the Complaint.

You have 30 days to file a formal answer with the court, and send a copy to the bank attorneys. DON’T IGNORE THESE PAPERS! You must file an answer to avoid a default judgment and imminent sale of your home. Banks count on most of these foreclosures being granted as a default judgment because most homeowners don’t even bother to file an answer, mistakenly believing there is nothing they can do about the situation. Why be one of these statistics when you can fight for your home?

In cases where the bank knows it lacks the proof of standing (the legal right to file suit because they are the owner of the Note), just having an attorney file an answer for you may cause some of these cases to wither away. If the plaintiff (the party who started the lawsuit) fails to take action that moves the case towards finality, the judge may dismiss the action after 6 months of inactivity, for lack of prosecution. However, the bank can have the case reinstated within 30 days, or it can refile a new lawsuit at a later date.

Aggressively defending the case may put you in a better bargaining position when the case is scheduled for settlement conference. Many foreclosure defense attorneys are getting good results at mediation, typically far better than the loan modifications that were offered before suit was filed.

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas. She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens. Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

1009 http://www.foreclosurelaw.org/New_Mexico_Foreclosure_Law.htm

13 Responses

  1. “lvent, on September 29, 2012 at 8:17 am said:….The truth is, there is no legal fix for the ORIGINATION FRAUD and there is no monetary fix for a quadrillion dollars in fraudulent sales by Wall Street allowed by the ORIGINATION FRAUD.”

    HERE!! HERE!! 🙂

  2. Remind me again. Why aren’t people rioting? Fear. Abject fear that can only go away when replaced by rightful anger. The kind of anger that leads top… action! Still fewer than 5% of homeowners fighting in court for what is right. Is it any wonder it’s taking so long?

    http://mattweidnerlaw.com/blog/

    “…The GMAC / Residential Capital Bankruptcy…What’s A Quarter Billion Dollars Between Friends?

    September 28th, 2012 | Author: Matthew D. Weidner, Esq.

    And given the extraordinary government sponsored involvement in the GMAC enterprise…an involvement supercharged with the ownership stakes that Fannie Mae, Freddie Mac and Ginnie Mae hold in the mortgages serviced by GMAC… this formal plea for a seat at the table is even more justified and relevant. The banks and investment groups and the teams of attorneys and consultants are not the only stakeholders in the banks that have wrought such havoc across this country. In fact, The People who are paying for all of this…and who will be paying for it for the rest of their lives are essential….but forgotten…stakeholders.

    Understand clearly what occurred here with the banks that were the subject of the 49 state AG sellout…read especially the HUD/Office of Inspector General Audit Summary of GMAC/Ally. GMAC/Residential Capital made billions of dollars originating mortgages from Sea to Shining Sea. But GMAC didn’t just use their own money. GMAC was a Direct Endorsement Lender which means they had ready access to a nearly unlimited source of taxpayer dollars to fund these mortgages. And for every mortgage funded, GMAC took a fee. GMAC collected the payments on those mortgages…and for that they took a fee. When a loan went into bankruptcy or foreclosure, GMAC took a fee. And when GMAC concluded a foreclosure on a government insured loan, they filed an insurance claim with the Federal government. And, according to the Feds, many of these claims were False Claims…that assertion comes directly from the GMAC/OIG Audit report. A report that not nearly enough Americans read. Perhaps the most significant aspect of the report is the entire section devoted to the assertion that the Office of Inspector General was “significantly hindered” from engaging in a full investigation because GMAC prevented employees from being interviewed. Like I said, not nearly enough people in this country have read that report and fewer have considered the implications for all of us.

    What is clear from all of this is that GMAC (along with the other bank servicers who act as debt collectors for the federal government and investors) were being paid AT EVERY SINGLE STAGE OF THE PROCESS. At origination, at servicing, in foreclosure, in bankruptcy, in REO. They were paid money in various forms from the federal government and they are paid money from the millions of homeowners who write mortgage payment checks each month. In the boom times, they all shoveled billions of dollars into their bottom lines. And even now, in post crash, the banks continue to suction billions into their corporate coffers, devoting millions here and there for teams of attorneys, consultants, experts and board members.

    And now, while GMAC is in the middle of a long…and very costly bankruptcy…(remember the bills from PriceWaterHouseCooper that are burning away at millions of dollars every month?)…the investors and the private equity firms are all lined up to take their million or hundred million dollar place in the line…a line funded by the millions of Americans who have paid…and continue to pay…GMAC mortgages. It’s a hundreds of millions of dollars line that’s additionally underwritten and paid for by each and every Amerikan taxpayer in the form of subsidies and tax breaks and bailout dollars…”

  3. This is a war on the freedom & independence of the American people. They are using fraud to slowly & strategically steal the livelihoods, wealth & property from the American people of all classes in order to get us to willingly accept totalitarianism …which is more fraud. The end game of fraud is always more fraud disguised as a “fix” for fraud. The truth is, there is no legal fix for the ORIGINATION FRAUD and there is no monetary fix for a quadrillion dollars in fraudulent sales by Wall Street allowed by the ORIGINATION FRAUD.

  4. you obviously did not deal with trusty american home—there were way too many docs to get a copy –a few came a couple weeks later in the mail–but no note

  5. DCB,

    How can you tell it is the true blue-ink note? By comparing to the copies your signed on closing. Check the doc page by page. Check where the initials are compared to the copy your have. Check everything with a fine comb.

    And contest the validity of every alleged transfer or assignment after that.

    Some big guns hire forensic experts to authenticate the ink. It’s a pretty big expense that very few can afford and that I don’t find warranted for a $150k house. What you want really is sow enough doubt on every single piece of paper that you force the bank to prove it is authentic.

  6. @ER

    On a similar note; If you take your recovered wet ink purported original and stick it away in your safe with no authentication provided —by the current servicer–just have the note come in the mail—and it absolutely must be that particular document to have any meaning—–how do you prove it against a subsequent claimant who also has a nice-looking copy or maybe the real original—????? only the new claimant has a nice affidavit –note was in this warehouse on behalf of newco—until this date and then to here and a lot of nice wallpaper—and you have no trail–no representations—-just a paper that came in the mail–who wins?

  7. @ER

    On a similar note; If you take your recovered wet ink purported original and stick it away in your safe with no authentication provided —by the current servicer–just have the note come in the mail—and it absolutely must be that particular document to have any meaning—–how do you prove it against a subsequent claimant who also has a nice-looking copy or maybe the real original—????? only the new claimant has a nice affidavit –note was in this warehouse on behalf of newco—until this date and then to here and a lot of nice wallpaper—and you have no trail–no representations—-just a paper that came in the mail–who wins?

  8. @ER: You said;
    “Why would you need an affidavit if you can present the blue-ink note?”

    How can you tell an original from an auto-pen??? Are you a QDE with electron microscope ?

    may be you have a different experience but the title agent under instructions from old American Home…made me put my own blue ink pen away at closing and made us use the american home narrow tip black ink pens——easy to reproduce–but at the time it did not dawn on me that there could be such fraudulent intent–it took me about 3 months to realze i was in a nest of thieves

  9. Good For You EULE! Everyone should take advantage of this … file a complaint with BBB and Attorney Generals Office if they call you after the Certified Cease and desist letter. $1000.00 fine paid to you.. fine goes up if they keep calling. Have Fun Kids!

  10. DCB,

    Why would you need an affidavit if you can present the blue-ink note? Affidavits started being introduced in lieu of the missing note and in the absence of any recordation. Affidavits were yet one more ways banks thought of to circumvent the law.

    Insist on the blue-ink note and most foreclosures will cease.

  11. Send a certified cease and desist letter to the call center , and take picture from your caller ID.I just got $ 1000.

  12. DC moves to the head of the Class! Good Job DC!

  13. DEMAND PRESENTMENT OF THE NOTE, with a good affidavit

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