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The constable was to be here at 10 a.m. this past Monday morning to enforce our eviction but, our lawyer & I were able to get an injunction & restraining order filed & signed by the district judge @ 9 a.m. we have a hearing on the 25th of this month. My lawyer had a retired banking expert to pick threw my closing documents & he was blown away by the numerous Constitutional laws that the mortgage co. violated. Deutsche Bank National Trust is who forclosed on our home but Ameriquest is who prepared all the paperwork & got the loan pushed threw to start with. The servicer i’ve been dealing with for the last 2 yrs. is American Home Mortgage Servicing & they to have violated a few of our Constitutional rights. I am listing just a couple of the things that we included as reason for our injunction.
1. They never gave my husband a notice of 3 day right to recind.
2.They charged almost 10 % in closing fees when the Constitution says you can charge no more than 3%.
3. They loaned more than 80% of the home value because of their inflated apprasial they obtained.
Those are the only 3 we used for now. We have several more violations they comitted but we will bring the other violations up at our hearing. In the constitution it says that the penalty for violating these laws is forfiting any principal or intrest for any lein that was obtained. In other words it says they have to give up any lein they thought they had on our home. Its plainly written in the United States Constitution, my lawyer made copies of the constitution & highlighted where these laws are written for me. My lawyer feels very confident about our case & he is just a Family Law Attorney but he says they can not just disregar my constitutional rights & they must pay the consiquences for their actions. Just in case you want to know I live in Texas. My lawyer said if I had known what or how to file the right documents I could have ppresented this case myself, I have been reading & researching this since 2007 when they first started trying to file for foreclsure. I am including my email address if I can be of assistance to anyone, i’m not a lawyer but a self educated homeowner who is fighting to keep my home & I am more than happy to help educate other homeowners do the ssame.
andersjl@peoplescom.net
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.
MA-RI-CT HOMEOWNERS! FIND OUT ABOUT GEORGE BABCOCK RECLAIMING AMERICA ONE YARD AT A TIME. MA.& RI & CT.IF YOUR HOME HAS BEEN FORECLOSED ON CALL US WE WILL MAKE IT RIGHT FOR YOU. WE CAN HELP YOU RIGHT AWAY! NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C. CALL KIM THOMAS OR GEORGE BABCOCK AT 401-724-1904 FOR A FREE CONSULTATION.OVER 500 CASES WITH EVERYONE IN THEIR HOME.
I am post foreclosure, post eviction. I was suckered into a loan in 2006. With a fraudulant appraisal, I did file a suit with a lis pendens but the action was dismissed without predjiduce. Its time that I take action. if anyone can help please contact me at witchs_heart74@yahoo.com. I have become a volunteer and would like to know more about the preditory lending. please contact me asap. ( no I am not witch! lol)
Ken: Go here – http://www.wsba.org and on the front page there is a link for the volunteer project assisting homeowners in foreclosure.
Powell
I have a legal (non-attorney background) and I sympathize with and would like to exchange ideas with people who would like to save their homes from foreclosure. Many of their stories are heartbreaking and it’s sad to see so many less than caring financial institutions willing to use the foreclosure process without even proper documentation. I’d like to see more class actions on behalf of homeowners caught up in this foreclosure mess.
NO FAMILY LEFT BEHIND! BUDGET PLANS FOR EVERYONE.WE CAN HELP YOU STAY IN YOUR HOME. POSSIBLY GET PRINCIPAL REDUCTION AND IN SOME CASES INTEREST RATE DEDUCTIONS. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK ………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGE BABCOCK AT 401-274-1905 AND GET RELIEVE FROM YOUR PROBLEM!
IN THE CIRCUIT COURT OF THE xxxx JUDICIAL CIRCUIT, IN
AND FOR ORANGE COUNTY, FLORIDA
ONEWEST BANK, FSB
Plaintiff,
v.
,
Defendant(s).
_______________________________/
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
COMES NOW the Defendant, , by and through undersigned
counsel, and pursuant to Rules 1.130(a) and 1.420 of the Florida Rules of Civil
Procedure, hereby request this Honorable Court for an Order dismissing the Complaint
filed by the Plaintiff, ONEWEST BANK, FSB. The Plaintiff’s Complaint must be
dismissed for the following reasons: first, the Plaintiff has failed to attach
documents alleging that it is the owner and holder of the note and mortgage as
alleged in Count I of its Complaint; and second, the Plaintiff is not entitled to
reestablish the lost note in Count II of the Complaint because it has failed to
produce or attach documents demonstrating that it is the owner and holder of the
note and mortgage and entitled to enforce the provisions of each. Therefore, the
Plaintiff’s Complaint must be dismissed. In support of thereof, the Defendant states
the following:
A. PROCEDURAL HISTORY
1. On or about October 23, 2009, the Plaintiff filed a Mortgage Foreclosure
Complaint in the above styled cause.
2. On or about October 31, 2009, the Defendant was served copies of the Complaint,
Notice of Lis Pendens and a summons.
B. RELEVANT FACTS
3. In the Complaint, the Plaintiff alleged that it was seeking to foreclose on property
located and situated in Orange County, Florida.
4. On or about December 4, 2006, the Plaintiff alleged that the Defendant executed
and delivered a promissory note and mortgage.
1
5. The mortgage was allegedly recorded in the public records of Orange County,
Florida on or about January 5, 2007.
6. According to the mortgage attached to the Plaintiff’s Complaint, Mortgage
Electronic Registration Systems, Incorporated, (hereinafter referred as “MERS”),
is the nominee for the lender and the mortgagee.
7. In its Complaint, the Plaintiff alleges that it holds the mortgage by virtue of an
assignment. However, the Plaintiff failed to attach a copy of the assignment
to its Complaint.
8. The Plaintiff alleges that it is the owner and holder of the note and mortgage. The
Plaintiff’s Complaint fails to identify the alleged owner and holder of the
note and mortgage. If there is such an owner, the Plaintiff’s Complaint fails
to attach documents thereby identifying the owner and holder of the note
and mortgage. As such, the Plaintiff does not have any establishing said
standing to enforce the provisions of the mortgage and the note.
9. The Plaintiff alleges in its Complaint that the Defendant defaulted under the
promissory note and mortgage by failing to make payments under the promissory
note and mortgage.
10. The Plaintiff declares that the full amount under the note and mortgage is payable
to it. The Plaintiff alleges that the Defendant owes the Plaintiff $176,000.00, in
principal, interest from July 1, 2009.
11. The Plaintiff alleges in its Complaint that it has complied with the Fair Debt
Collection Practices Act. However, the Plaintiff has failed to establish that it
advised the Defendants that they were in default of the mortgage and note,
and as such, all amounts due were payable.
12. The Plaintiff failed to establish that the Defendants received the notice letter
as required by the Fair Debt Collection Practices Act. As such, the
Defendants were denied an opportunity to dispute the alleged debt.
13. In its Complaint, the Plaintiff failed to identify the owner and holder of the
note and mortgage and failed to produce any documents demonstrating that
it is the owner and holder of the note and mortgage.
C. LEGAL STANDARD
14. When considering a motion to dismiss, the trial court must look only to the four
corners of the complaint, assume the allegations therein to be true and draw all
reasonable inferences in favor of the pleader. See Bolz v. State Farm Mut. Ins.
Co., (Fla. 2nd DCA 1996); Provence v. Palm Beach Tavern, Inc., 676 So.2d 1022
2
(Fla. 4th DCA 1996); Shahid v. Campbell, 552 So.2d 321 (Fla. 1st DCA 1989).
However, the complaint must allege all facts necessary for a cause of action and
comply with the applicable rules and laws. See Loveland v. Lazzara, 219 So.2d
74, 76 (Fla. 2nd DCA 1969).
D. ANALYSIS
Count I of the Complaint must be dismissed because the Plaintiff failed to
attach documents alleging or demonstrating that it is the owner and holder
of the note and mortgage.
15. Florida Rules of Civil Procedure, Rule 1.130(a), provides that “[a]ll bonds, notes,
bills of exchange, contracts, accounts or documents upon which action may be
brought or defense made, or a copy thereof or a copy of the portions thereof
material to the pleadings shall be incorporated in or attached to the pleading.”
16. Rule 1.420(b) provides that “[a]ny party may move for dismissal of action or of
any claim against that party for failure of an adverse party to comply with these
rules . . . “
17. A failure to comply with Rule 1.130(a) is grounds for dismissal of the action. See
Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990) citing Safeco
Insurance Co. v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981).
18. As discussed earlier in this motion, the Plaintiff alleges that it is the owner and
holder of the note and the mortgage. The Plaintiff alleges that it is the holder of
the mortgage by virtue of an assignment.
19. The Plaintiff failed to attach the assignment to its Complaint despite alleging it is
the holder of the mortgage.
20. The Plaintiff failed to attach any documents alleging or demonstrating that it is
the owner and holder of the note and mortgage.
21. These allegations serve as the basis for the Plaintiff’s claim. As such, said
documents must be attached to its Complaint.
22. As such, for the foregoing reasons, the Count I of the Plaintiff’s Complaint must
be dismissed.
WHEREFORE, the Defendant respectfully requests this Honorable Court to
enter an Order dismissing Count I of the Plaintiff’s Complaint, award him his
attorney’s fees and costs and such further relief deemed appropriate under the
circumstances.
3
Count II of the Plaintiff’s Complaint must be dismissed because the Plaintiff
is not entitled to reestablish the lost note because it has failed to produce or
attach documents demonstrating that it is the owner and holder of the note
and mortgage and entitled to enforce the provisions of each.
23. In a mortgage foreclosure action, a lender is required to either present the original
promissory note or give a satisfactory explanation for the lender’s failure to
present it prior to it being enforced. See National Loan Investors, L.P., v. Joymar
Associates, et al., 767 So.2d 549, 551 (Fla. 3rd DCA 2000).
24. A limited exception applies for lost, destroyed or stolen instruments, where it is
shown that the person was in possession of the instrument and entitled to enforce
it when loss of possession occurred. See id, citing Florida Statutes Section
673.3091.
25. As discussed in this motion, the Plaintiff has failed to provide documents alleging
or demonstrating that it is the owner and holder of the note and the mortgage. As
such, the Plaintiff is not entitled to enforce the provisions of the note and the
mortgage. See id.
26. The Plaintiff failed to provide documents demonstrating that it was in possession
of the note and entitled to enforce the note when loss of possession occurred.
27. The Plaintiff alleges in its Complaint that the State of Florida and/or the Clerk of
the Circuit Court of Orange County may have a judgment recorded on or about
March 8, 2006 with said judgment being attached to the subject property. The
Plaintiff alleges that it attached a copy of the judgment to its Complaint.
However, the Plaintiff’s Complaint does not have the judgment attached to its
Complaint.
28. Count II should be dismissed for three reasons: first, the Plaintiff has failed to
demonstrate that it is the owner and holder of the note and mortgage; second, the
Plaintiff has failed to demonstrate that it is entitled to enforce the provisions of the
note and the mortgage; and third, the Plaintiff failed to demonstrate that it was
possession of the note and entitled to enforce its provisions when loss of
possession occurred. As such, the Plaintiff should be barred from seeking to
reestablish the lost note in its Complaint pursuant to Florida Statutes Section
673.3091.
29. As such, for the foregoing reasons, Count II of the Plaintiff’s Complaint must be
dismissed.
WHEREFORE, the Defendant respectfully requests this Honorable Court enter
an Order dismissing Count II of the Plaintiff’s Complaint, award him attorney’s
fees and costs and such further relief as deemed appropriate under the
circumstances.
4
WHEREFORE, the Defendant respectfully requests this Honorable Court enter an
Order dismissing the Plaintiff’s Complaint, award him attorney’s fees and costs and any
such further relief as deemed appropriate under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the forgoing was furnished via mail or
facsimile to Lindsay R. Dunn, Esquire, Law Offices of Daniel C. Consuegra, 9204 King
Palm Drive, Tampa, Florida 33619-1328, on this __13th____ day of
___November____________, 2009.
P.A.
I’d like to know, if a past mortgage company has gone out of business years ago and sold the mortgage and never issued a release to the recorder’s office, how can I go about getting that release issued? I talked to the recorder’s office and they said a release should have been issued.
Thanks
SMACKDOWN~ FLORIDA -TWO EXCELLENT NEW DISMISSAL ORDERS!
June 2nd, 2010 · · Foreclosure
Any week when we get judges applying the law and dismissing the foreclosure garbage is a good one, but when we get TWO ORDERS in one week
FROM TWO SEPARATE CIRCUITS…HELL THAT’S DAMN NEAR EXTRAORDINARY!
It seems crazy that we should make such a big deal when judges actually apply the existing laws to foreclosure cases, but given the widespread abuses of the foreclosure mills and, with all due respect, either the failure of judges to understand the particularities of real estate law or worse, knowing the law and ignoring it as applied to foreclosure cases, but this is the case.
Anyway, Greg Clark is among the best Foreclosure Defense attorneys in the state, a true statesman in the fight and a vocal and brilliant opponent of the whole MERS scheme. Contact Greg here for more information about these complex arguments.
More importantly, read his clear and brilliant Orders that dismissed foreclosure cases and which were GRANTED, just last week:
Mayher
Nuckols
Judges across this state need to be educated on the issue of “Dropping the Lost Note Count”. This is yet another widespread practice that has infected our court systems, but the process IS NOT SUPPORTED BY CASE LAW. More importantly, Final Judgments granted based on cases where the Lost Note Count was dropped are subject to title challenges for decades to come….stay tuned on this one! (Search this blog for “Lost Note” for a detailed explanation of the problem)
CONGRATULATIONS GREG- THE GOOD FIGHT CONTINUES
RALLY IN TALLY ON 21 APRIL 2010UPDATE
————————————————————
Thank to the effort of Homeowners, Consumer Activists and Foreclosure Defense Lawyers, the Legislators did not vote for HB 1523 and SB 2270 this year.
Click on link below to See the Rally
http://www.weartv.com/newsroom/top_stories/videos/wear_vid_7949.shtml
I am very dissappointed. If the folks challenging the correctness of foreclosures are going to talk the talk, then they must walk the walk.
FLORIDIANS CALL TO ACTION! RALLY IN TALLAHASSE April 21, 2010
http://www.foreclosurehamlet.org/profiles/blogs/freedom-ride-circa-2010-a
There comes a point of saturation after which the lethargy of the the legislative branch, having been been repeatedly informed and shown clear, undeniable evidence of the massive criminal fraud behind the foreclosure crisis, can only be viewed as tacit approval and complicit aiding and abetting of the criminal fraud itself.
It is very concerning that elected officials may be incriminating themselves as accessories after the fact should they vote in favor of FL HB1523 and FL SB2270.
Unlawful and false affidavits of indebtedness, parties filing foreclosure who are not parties to the transaction, false endorsements and/or allonges that merely contain a stamp on a blank piece of paper with no identifying features of the property it claims to attach itself to, and mere copies of purported documents being passed off as original documents.
Is it possible to walk into a bank with a copy of a check and expect the teller to cash it- of course not. A copy of a check is no more negotiable than a copy of a promissory note. I have seen assignments of mortgage that have so much white sticky strips all over the face of the document where there is writing on top and underneath the white strips, assignments of mortgage that state BOGUS as the grantor, and assignments of mortgage that have witnesses signing as a completely different name than the typed name under the signature line.
In addition, if, between 2001 and 2007, you or anyone in your family signed a mortgage backed promissory note, I urge you to hire any of the top fraud examiners in your state to review what may be an eye opening experience. Sometimes, personal experience is the best educator.
All of the above mentioned items are fraudulent. From this point going forward, legislators are hereby noticed that that there is enormous fraud occurring on practically each and every foreclosure filed against homeowners each and every day.
By ignoring the rampant fraud perpetrated by illegal parties, legislators automatically become accessories after the fact which is a crime. By voting in favor of HB1523 and SB2270 legislators are a party to the fraud which is a prosecutable offense.
Furthermore, legislators eagerness to sign their names to a bill that will literally result in extraordinary harm to their constituents is causing red flags to go up that they personally may have an undisclosed relationship with the parties pushing so hard to get these bills passed so quickly.
To rob a country, own a bank:
video interview: Prof. William Black
http://www.creditwritedowns.com/2010/03/bill-black-to-rob-a-country-own-a-bank.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+creditwritedowns+(Credit+Writedowns)&utm_content=Google+Feedfetcher
Steven K. Kop
Attorney at Law
bluejaylaw@gmail.com
Mr. Young,
Is there any sucessful case using this tactic yet ? Can I have the case number so I can take a look at ? Is this tactic useful for judicial foreclosure where the judge decides to grant/not to grant the bank the Final Judgment ? Can Secretary of State stops the Judge’s Order to sell the house ?
Thanks for answer my inquiry
I have to agree with Barry of Tacoma as to the Claims of the site at http://www.no4cloz.org. this seems the only tactical method to stop foreclosure in its tracks. I’ve heard that they have several cases under their belts and its only a matter of time that we see the end results. I myself have researched this tactic extensively and have contacted the website to find that indeed it is a viable plan for defense in foreclosure.
Hi webmaster – This is by far the best looking site I’ve seen. It was completely easy to navigate and it was easy to look for the information I needed. Fantastic layout and great content! Every site should have that. Awesome job
milesius,
I keep running across the method (NCA – COD) you so succinctly outline, and it appears to be working here in Washington State, though I haven’t seen any evidence of free titles yet, just stopped foreclosures.
This seems like the only way to me for tens of millions of people to win against the banks, since there aren’t enough judges/courts/lawyers-that-get-it to litigate every one. If there ever was a simple cookie-cutter method, I think this is it, but I just don’t know. Can anybody out there refute this particular method? it’s outlined at no4cloz.org
Since it appears the banks favorite game right now is to ignore us, would “The Conditional Acceptance (CA) for Value for Proof of Claim and a Notary Certificate of Dishonor (COD)” method work in settling the matter?
A Conditional Acceptance is used when a demand for payment or performance (a ‘presentment’) is made upon you to which you do not agree. You accept the adversary’s presentment and agree to perform as they demand but only upon receipt of their proof of claim that you have any liability to them, such as a lawful contract.
The COD is a 3-step process which is performed by a notary after you have made a good faith effort to settle the matter with your opponent but they have ignored you. You then bring the matter to the notary and request s/he re-present your documents to the opposing party as a third party witness to their dishonor. The notary invites them to respond to him/her within a specific time frame, offering a follow-up Notice if there is no response. If no answer is forthcoming, then a Certificate of Dishonor is issued.
http://seekingalpha.com/article/188955-bad-mortgages-are-biting-banks-back-again?source=yahoo
Bad Mortgages Are Biting Banks Back Again
Sometimes when a man bites a dog it is fun to watch. The Federal Home Loan Bank of Seattle – a federally “created” bank owned by thousands of banks in its region – is suing firms on Wall Street, specifically JPMorgan (JPM), asking the courts to order JPM to take back $719 million in mortgages that are not as good as promised when sold.
The promises were made by sales people of the now defunct Bear Stearns, bought by JPM during the crisis. The Home Loan Bank Board claims many mortgages had improper documentation, or no documentation at all, and their quality was overstated by the banks as evidenced by the current foreclosure rate of 25%. The bank is also suing Morgan Stanley (MS) and Goldman Sachs (GS) for the same problems, the default rate on the junk (excuse me, mortgages) they sold nearing 20%.
This suit is going to take a while – perhaps forever, a modern Jaryndyce versus Jaryndyce (look it up, part of the purpose here is to educate you) – and odds are against the good guys, i.e. the Federal Home Loan Bank Board, based on history. They have to prove fraud to win the case and historically sophisticated investors, even companies behaving like morons and who only appear to be sophisticated investors, lose out because they are supposed to be able to spot fraud in the sales process. That being said, if the case progresses every headline will out a shiver through the spine of the banks and their friends on Wall Street as the potential liabilities are very large, and would also set precedents for other entities to do the same.
For example, Freddie Mac (FRE) and Fannie Mae (FNM) are pushing banks hard to buy back defaulting or defaulted mortgages – and are getting the banks to do so with some success, wit Bank of America (BAC), among others, buying back a whole bunch, billions worth, last quarter. As they are directly owned by the government, and are large customers of the Wall Street guys, the combination of the two gives them a lot of clout. In the first nine months of last year, the big banks bought back $14 billion in busted mortgages. With Freddie and Fannie holding $300 billion in these mortgages on their books, this is likely to increase. The potential biggest losers are Bank of America, who bought Countrywide, Wells Fargo (WFC), who bought Wachovia and Golden West. Be prepared for all sorts of fun and games are ahead as the victims of the bubble turn on Wall Street.
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