In reference to the last posting, consider the following. The way the servicers/lenders attack is contract law and using self-executing contracts. You have to use this type of language in your documents if you want to win in a judicial matter. They key in your documentations is to use language where you put time frames for responses and make it clear that when they do not respond or if they simply provide a “non-response” letter that there are consequences.
What are those consequences? How about that if they don’t respond to you with an affidavit, that they are contractually agreeing to an ex-parte hearing, waiving all legal remedies or rights or litigation, and agree to the terms you set forth in your documentation. The idea is to not only box them in but to block their attorneys. Then take them to court and follow up with your case. If you do this correctly, then you can get a quick judgment in your favor. You can prove your case that by their silence or non-response that there is no controversy, no outstanding debt and that they are not the creditor/real party in interest.
As always this is not legal advice. Such an approach requires the appropriate documents. Speak to a local attorney who can assist you in these matters.
Wednesday, May 19, 2010
Monday, May 3, 2010
Fighting Creditor Status with an Attorney
One of the strongest things you can do to have the Servicer/Bank be in dishonor is to do the following.
1) Send a correspondence to Servicer/Lender noting you are not refusing to pay but you have placed the last 2-3 months of payment (of which you are behind on your mortgage) with your attorney who is holding it in escrow to release funds upon their proof they are the creditor and the validation of debt.
2) Have your attorney send a letter (with a photocopy of the certified funds/bank check) of the funds they are holding on your behalf. Your attorney can let them know that he/she is only authorized to release funds upon them forwarding an affidivit that they are the creditor/party in interest on the mortgage account. Only when they send an affidivit stating this information will your attorney release funds. Have your attorney give them 3-4 days to fax something over or send something via overnight mail. Guess what, they won't respond.
3) When they do not respond, have your attorney draft for you an affidivit of truth stating what you have requested and their failure to respond. Also note they failed to respond even to your attorney with an affidivit.
4) If required in your mortgage docs, have your attorney give them notice of judicial action coming down the pipeline.
5) Take them to Court; you now have prima facie evidence they are not the creditor, therefore no standing to collect on a debt or commence/carry out a foreclosure. If they were the true creditor, under Federal law they would have had to responded.
This is not legal advice but some food for thought. As always, speak to an attorney before proceeding with any legal strategy or foreclosure defense
1) Send a correspondence to Servicer/Lender noting you are not refusing to pay but you have placed the last 2-3 months of payment (of which you are behind on your mortgage) with your attorney who is holding it in escrow to release funds upon their proof they are the creditor and the validation of debt.
2) Have your attorney send a letter (with a photocopy of the certified funds/bank check) of the funds they are holding on your behalf. Your attorney can let them know that he/she is only authorized to release funds upon them forwarding an affidivit that they are the creditor/party in interest on the mortgage account. Only when they send an affidivit stating this information will your attorney release funds. Have your attorney give them 3-4 days to fax something over or send something via overnight mail. Guess what, they won't respond.
3) When they do not respond, have your attorney draft for you an affidivit of truth stating what you have requested and their failure to respond. Also note they failed to respond even to your attorney with an affidivit.
4) If required in your mortgage docs, have your attorney give them notice of judicial action coming down the pipeline.
5) Take them to Court; you now have prima facie evidence they are not the creditor, therefore no standing to collect on a debt or commence/carry out a foreclosure. If they were the true creditor, under Federal law they would have had to responded.
This is not legal advice but some food for thought. As always, speak to an attorney before proceeding with any legal strategy or foreclosure defense
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