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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
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Experience:  Bankruptcy professor.
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When I file my Chapter 7 bankruptcy I intend to challenge/claim

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When I file my Chapter 7 bankruptcy I intend to challenge/claim my mortgage as being unsecured due to M.E.R.S. being listed as the beneficiary, and, the securitizating of the mortgage, and, ihe spliting the note from the deed of trust (bifurcation) that was done. Bankruptcy lawyers I've talked to are willing to file the chapter 7 on my behalf but are unwilling to defend my mortgage challenge (I don't understand why not). I believe what will be needed is called an adversary proceeding. Since I've been educating myself about "mortgage fraud" my question is this: In bankruptcy court, can I represent myself, pro se, to defend my unsecured mortgage arguments since the bankruptcy lawyers are unwilling or unable to argue that aspect of the bankruptcy? What are your thoughts about this?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 3 years ago.

Terry L. :

Hi and thank you for your question. In the future, you can request me to answer any further questions.

Terry L. :

sorry, I realized this is a texas case, and i'm not licensed in TX, so I will release so someone else may answer.

Terry L. :

sorry

Terry L. :

good luck

Expert:  cfortunato replied 3 years ago.

Hi JACustomer,

Will you be claiming that the note is unsecured, because not attached to the deed of trust?

Customer: replied 3 years ago.

Yes. My understanding is that once the note is seperated from the deed of trust (bifurcated), the deed of trust becomes unenforceable (power of foreclosure) by itself, which renders the note as just another unsecured debt - like credit card debt. This is the essence of the securitization process.

 

Also,

 

My note is payable to lender "X" ...... however ...... the beneficiary of the deed of trust is M.E.R.S., not lender "X". This seperation of the payee from the beneficiary effectively splits the note from the deed of trust.

 

In the old days before securitization the payee and the beneficiary were always one and the same.

Expert:  cfortunato replied 3 years ago.

I agree with you that your note should be discharged, since it is unsecured, leaving you with ownership of the house. At least one Federal court has taken a similar position. You can see the case here:

http://brunettelawoffice.com/blog/wp-content/uploads/2009/09/bellistri-v-ocwen-loan-servicing-llc-284-sw3d-619-mo-app-2009.pdf.

However, is your question whether you can file the motion (adversary proceeding) pro se in the midst of a Bankruptcy that is filed by an attorney, or are you planning on filing the Bankruptcy without an attorney, and want to know if it is possible to win such a motion?

 



Edited by cfortunato on 12/3/2010 at 7:21 PM EST
Customer: replied 3 years ago.

My question is:

 

1) Can I file the adversay proceeding pro se in the mist of the bankruptcy that is filed by an attorney? I've not yet found a bankruptcy lawyer willing to work the adversay proceeding.

 

2) At the moment I am researching filing the bankruptcy without the bankruptcy lawyer only because I've not found one willing to do the adversary proceeding. Would this be madness on my part?

 

3) Do you think it would be possible to win the adversay motion?

 

4) Why do you think the bankruptcy lawyers are unwilling to pursue the adversay motion?

Expert:  cfortunato replied 3 years ago.

1) If you hire an attorney to file your case for you, you will not be able to pursue the Adversary Proceeding pro se.

2) Many people file Bankruptcies pro se. It is actually not as difficult as most think. There is a 60-page petition that must be filed. Basically, it is a matter of taking your time, and filling out each page one-by-one until you are done.

3) I do think it is possible to win the Adversary Proceeding, and I do think it is worth it to try.

4) Because they do not want to think outside of the box. The securitization process is in a relatively new field, and many do not want to be bothered.



Edited by cfortunato on 12/3/2010 at 7:47 PM EST
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
cfortunato and other Bankruptcy Law Specialists are ready to help you
Customer: replied 3 years ago.
I like dealing with you.
Expert:  cfortunato replied 3 years ago.

Thank you for the complement, and thank you for accepting my answer!

The fact that you are even thinking along these lines - outside the box - is an indication that you are more intelligent than the average person, so I know you can handle this on your own.

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