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Brent Blanchard
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
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Experience:  Twelve years experience in all aspects of debtor & creditor BK.
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I did not receive a certified copy of the N.O.D. DATED NOV

Customer Question

I did not receive a certified copy of the N.O.D. DATED NOV 7TH, 2008 NEVADA. CAN I GO TO COURT AND STOP THE FORECLOSURE. I AM ALSO IN NEED OF FILING CHAPTER 7 B.K. AND NOW I KNOW I HAVE A PREDATORY LENDING. WHAT SHOULD I DO FIRST, HOW MUCH TIME DO I HAVE?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 5 years ago.
Hello.

There are a host of considerations to review to decide what to do next. For example, when a person files Chapter 7, he or she gives up his or her right to pursue lawsuits, including predatory lending lawsuits, and the Bankruptcy Court may pursue that lawsuit on the debtor in bankruptcy's behalf, and if money is collected, the money goes to the debtor's creditors instead of the debtor. So, some persons choose to complete their lawsuits prior to filing Chapter 7.

However, if one is being pursued by creditors aggressively, they may opt to file Chapter 7 to get them off their back and let the Court have the claim.

If one expects their lawsuit to net more than they owe, they may opt to pursue the lawsuit first since, if the lawsuit is successful, they may not need to file bankruptcy at all. Converesly, if one thinks that even on their best day the lawsuit won't net enough to keep them from having to file bankruptcy, they may just go ahead and file bankruptcy and let the Court have the claim.

I suggest you contact a bankruptcy attorney to determine your strategy as to what to do first, and you can find some by clicking here. You may have limited time in which to file a counter-claim and/or file a motion to dismiss the foreclosure if appropriate, so I suggest you meet with an attorney as soon as possible!

Plus, the attorney may determine that another Chapter of bankruptcy is more beneficial for you.

I hope this helps and a positive feedback is always appreciated if this was useful to you.

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.





Customer: replied 5 years ago.
MY FIRST QUESTION WAS: CAN I MYSELF GO TO COURT AND FILE TO STOP THE FORCLOSURE BASED UPON NOT RECEIVING THE N.O.D.
Expert:  Brent Blanchard replied 5 years ago.
The rest of the content of Joseph Ross's answer is correct,Customer

You could file a case in District Court asking for a temporary restraining order to stop the foreclosure process based on the "inequitable conduct" of the lender, but it would most likely only delay the foreclosure for a month or three. Here's why.

The entire process from Notice of Default to accomplishment of the foreclosure sale in Nevada takes about four months. During that time, interest, publication costs, and attorney's fees (all payable by the debtor) pile up. It's better to get the house OUT of foreclosure sooner rather than later. So, you have some time to fix this but it's better to fix it sooner rather than later.

Nevada foreclosure law is fairly strict regarding the debtor's obligation of payment to stop a foreclosure. That's what the Notice of Default is for.

Even though the NOD is supposed to be sent by certified mail, sending it, alone, satisfies the requirement. If someone at your house threw away the little note left in the mailbox and the certified letter was returned unclaimed, that's not a reason-by itself- to invalidate the Notice of Default.

However, if you can PROVE that you could have cured the default within 35 days of the recording of the Notice of Default with the Clark County Recorder's Office (that's allowed under NRS 107.080), then a defect in notice of the NOD *could* result in a stay of the foreclosure proceedings now (late), so you could pay off the arrears and stop the foreclosure process. An acceptable defect in service would be sending the NOD to you at something OTHER than your "last known address" (NRS 107.080 (3)), which must be correctly stated on the envelope. Wrong address, wrong zip code, or other problems that delay or defeat delivery, would usually do.

The next problem is that many Deeds of Trust allow the creditor to declare the entire amount of the loan due. That puts the debtor in the position of needing to get a quick re-finance to come up with the funds to pay the whole thing off, plus all those costs accrued.

There is some more in-depth information available from Governor Gibbons' office at http://foreclosurehelp.nv.gov/.

There is also some half-biased information on bankruptcy vs. foreclosure at http://www.realtytrac.com/foreclosure/stop-avoid/truth-about-bankruptcy-foreclosure.html. The cautions there and pessimistic outlook are based primarily on the fact that most people facing foreclosure cannot bring themselves CURRENT on the payment obligations for the house in foreclosure, even after getting relief from the credit card and other dischargeable debts.

Thank you.

BAB.
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
Satisfied Customers: 1916
Experience: Twelve years experience in all aspects of debtor & creditor BK.
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