Hi Everyone,
This is courtesy of Holly and John in our office, this is fun especially when dealing with an attorney for the bank who just graduated law school:
The key to this strategy is objecting to anything said. When the bank/servicer attorney starts talking in court, your response is simple "I object; relevance."
Ask on the record - "Does the Plaintiff stipulate now on the record whether or not they are the creditor/party in interest in this matter."
If the attorney is silent, then they have a problem because they are not defending their standing.
Add on the record "On and for the record and for my appeal is necessary, I believe in fact that by their refusal to stipulate on the record to being the Creditor in this matter, the alleged "lender" is showing prior knowledge of not being the creditor in this controversy, demonstrating prima facie evidence they are here in court today without "clean hands" since they are perpetrating a fraud upon the court."
Also reinforce the fact that if they commenced a foreclosure, served you with a verified complaint and are now silent - then they have damaged you further and are lying to the court.
When the judge then asks what he can do for you, or what you want, "I move this court grant me a reconveyance of the deed of trust to me immediately and return all property acquired by fraud from me." If the judge won't do that, at a mimimum you should ask for the foreclosure action to be dismissed with prejudice.
If the attorney for the bank/servicer says they do represent the creditor, then you get to have fun with them by reminding the court they have to "prove" where the alleged money came from. If they pull out a copy of an contract with your signature, deny its your signature and force them to produce the original.
As always, this is not intended as legal advice. Always consult a local attorney before proceeding with any legal strategy
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My friend with the notary issue, contact us - we have some info to help your friend
ReplyDeleteI've just filed a Chapter 13 to stall a pending foreclosure and use as an opportunity to compel the alleged creditors to prove their claim. I am going to study the Jurisdictionary course ASAP so I have a clue about filing motions and moving the court etc.I like Harold's idea about the alleged creditors being compelled to fill out the proof of claim (B10).Not sure EXACTLY how to get started?? Would I file a motion in the federal BK court asking the alleged creditors to provide ORIGINAL documents? The B10 form itself states for the alleged creditors to NOT send originals to the court??Chomping at the bit! ANY tips or suggestions would be GREATLY appreciated regarding a best process and best stalling tactics.
ReplyDeleteSituation: Completed PHase 1 and 2. Sent A4v. Lender and Trustee still foreclosed- house went back to beneficary. I am a SPC. I will file NA. Am Considering doing the FBI packet as well. Any thoughts on pros or cons of doing this? Thanks LJ
ReplyDeleteProperty Foreclosed on 8th April after Administrative process completed, just recieved a letter from the title company dated 6th April stating that they are investigating my claim. How should I respond? Property is in Riverside county, CA. THanks in advance. LJ
ReplyDeleteI received a summons and complaint in Nov. I spoke to the mortgage company after and was working on putting the home on a market for a short sale. I did not respond to that notice as I did not know then what I know now. I did not realize but the foreclosure process was continuing. Two days ago I received a notice of hearing and request for final judgement set for May 6th due to lack of response. I am in NJ and will be recording my SPC docs tomorrow. Does my right to counterclaim expire though i did not respond to the first notice?
ReplyDeleteIn the juresdictionary education, I learned that Affidavits entered into evidence are hearsay, if the person who produced the affidavit, in the case the Notary Presenter's Commercial Oath Affidavit, is NOT present at the hearing to be crossed examined. They may be referring to a random person who produced an affidavit as evidence but who is not available to testify or be cross examined under oath.
ReplyDeleteHow does this apply to the Commercial Oath Affidavit and the Notary presentor that produced it? Can it be considered hearsay and thrown out if they are not at the hearing and or trial?
Ed
ReplyDeleteis it possible that we can search the "chain" of the investors on our note? if so, where & how? I was sent to sec site but it is huge and a FOREIGN language - (some of these auditors want $2500 per loan!!)
thank you
I have received a Notice of Hearing on a property that I completed Phase one and Phase two - but did not reocrd on public record. How should I respond to the notice?
ReplyDeleteThe court date is May 13th - I am unable to attend because of my schedule - can I get this rescheduled so I can attend? How?
When I show up in court to attend a Notice of Hearing - what am I supposed to do?
ReplyDeleteThe Orange County recorder refused to record my maritime lien - they said debtor and secured party cannot be the same person. Even with written explanation they are two seperate entities, they refused to record. The foreclosure sale date is 5/6/10. What can I do? Can I sell the lien to my LLC and have the LLC file the lien in the county? Will that work?
ReplyDeleteOn Jan 21 I received a complaint and summons to respond within 30 days. My attorney responded with a request for extension for mediation. That was granted. I am now acting Pro Se. During the time waiting for mediation I presented phase1 docs to the plaintiffs etc.(with no response). In a pre-mediation conference the plaintiffs attorney stated that she had the original note and would present it at mediation.
ReplyDeleteBy e-mail, thru the mediator I asked for any accounting documents showing that BofA was the actual and only party to satisfy as I did not want someone else claiming ownership later. The plaintiffs attorney claimed that was too much burden, the mediator agreed, and asked that I make specific demands. I asked for any and all 1099 forms relating to the note from it's origin. Plaintiffs attorney denied their existence. Plaintiffs attorney demanded I present loss mitigation forms reporting all my income and assets. I did not comply. The mediator has sent a non-compliance report to end the mediation to the court at close of business yesterday, Friday. I have recorded my SPC papers. I have created a Neg Aver to record Monday at the court. Are there any other administration processes I should perform for the court so that the plaintiffs attorney won't claim default?
Answers to questions
ReplyDelete1) Inform title company of all documents sent previously. Inform them that fraud has been committed and that you may seek a judicial response. Remind them that now that they are on notice of a possible fraud, that they have a duty to ensure title is clear.
2) As a remind, a negative averment will not stop a foreclosure sale. In NJ you can still file a motion/lawsuit to stop the sale before the final judgment takes place.
3) First, check the rules of evidence in your specific state. Also A notary can still be contacted via the phone or video by the court and can authenticate the evidence if necessary. In addition you can also change your documents the consequences if a notary’s presentment is ignored. In any state under Federal, Title 18, a notary is a Federal witness. Keep in mind also that when an attorney presents evidence in court on behalf of the servicer/bank, you can object that the attorney is self-authenticating evidence for his client which most states do not allow.
4) There is a way to search the chain cheaper. I will investigate to get more info for you.
5) Respond to all court notices. Chances are you will have to appear in person unless you hire an attorney to appear for you.
6) Have an attorney write up an abstract of judgment regarding the maritime liens. That should allow the N&D document with your abstract of judgment to be recorded. You can also have that LLC file it with a notice of maritime lien.
7) Firstly, did your attorney dispute/deny the assertions in the summons and complaint? I would request from them an affidavit that is notarized that they are the creditor/party in interest and requesting they provide an affidavit to this effect. Request in this affidavit they also verify/validate the debt. Give them 72 hours. When do not respond, send an affidavit that is notarized – coming from you in which you state your position and demand they answer your questions about being the creditor/party in interest. When do not respond, now you have the option of using their failure to respond as prima facie evidence they are not the creditor. You will have to attack their standing and jurisdiction if you want to win this case. You can send an A4V via notary acceptor and produce a letter to them stating payment was made to the IRS via your UCC Contract Trust Account. That can help as well.
Regarding the B10 proof of claim form. I've downloaded it and it does say that the alleged creditor does not have to have original documents. How exactly is this used to defend our position rather than strengthen the banks' position?
ReplyDeleteWhen asking for a proper chain of assignment of the note and mortgage in discovery. What is the legal assignment process? Is it at the land recorders level, or is the assignment considered legal if only recorded with MERS? My particular case is with BofA who wrote in correspondence that Fannie Mae owns my note but MERS website doesn't have any such assignment. I'm not sure what type of assignment is legal?
ReplyDeleteI filed the neg aver with the court on May 3rd. It the counterclaim, count 1 ; among other claims it states that "I believe that the third party defendants have not been injured and have no right of claim". also "I believe the third party defendants have do not have lawful proof of claim and there is no evidence to the contrary".
ReplyDeleteMy question Ed, should I also file a separate counter-claim denying their status as creditor?
Further:
On my complaint the plaintiff is listed as "BANK OF AMERICA NATIONAL ASSOCIATION, AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET BACKED CERTIFICATES SERIES 2007-xxx". Does this mean BofA is contending to be a trustee to a certificate and this way claiming to be a trustee for the injured "the certificate".
Is there any approach in this to attack standing? (which what we are doing right?)
Wow I am impressed between this site and showmetheloan.net will Bill Macafferty I can't at least how you can force the lender to give you a principal reduction.
ReplyDelete