Hi kirk, please take your time with the following. i didn't proof read it, and i have to go right now, but will be back in a few hours. thanks for your time. any suggestions are highly appreciated.
Great reccomendation, and I did create an TRO, and I thought I had to have my complete complaint done as well. Instead, as I am appealing, and in the BAP, I did an Emergency Motion to stay order pending appeal finally! I was creating the TRO/OSC and pre. inj. for state court. i got it all done, except, the complaint, because all the elements and a very long trail of fraud. i foolishly relied on my ER Motion to BAP and 2 things failed...no declaration and something I will never judge again that I've seen...forgot to sign it. I did bring it up at the Motion for Relief, but the Judge kept telling me that all they have to do is show an Assignment Deed of Trust, its not up to him to decide at that Motion if it is valid or not. I told him i have an AP to determine validity...basically, he said he didn't have jurisdiction. Because the Appeal was on, and the "Lender" told me then they were not going to foreclose and sent me packets for mod one week and one day again before sale, I didn't think they were going to do the sale. And in fact they denied doing the sale, but the Sub Trustee alleged they were doing the sale for this Servicer. I spoke to this Servicer like I said, and I foolishly believed they were not going to foreclose. they said they never substituted trustee or did a NOD yet, and I have paperwork from them that shows principal and interest being paid monthly until the month before the sale. I guess it was them paying it to the new Creditor/Trust. It appears they don't know I was sent that accounting from Customer Service, because their response finally, after a big threat of legal action/fraud, was an accounting with nothing paid. I also have an accounting that shows the Loan they assigned themselves through the Assignment was paid off and closed two months before they brought the motion for relief. It's really convoluted. I just don't know if I should be only focusing on Appeal, which i must with the Brief due soon, or if I should try to simultaneously file in state court. esp. cuz the investor that bought it just put up a 3 day notice. I need to go after Sub Trustee which was completely invalid and based on fraud, as well as the Appeal, as their Motion contained all wrong and misstated facts. only 30 pages for Brief and so much wrong and can be proven. I am appealing the Order signed granting them auth. to foreclose, not the auto stay, because the judge dismissed their motion he told me at my motion to stay order hearing he granted, and it was there he told me to go to state or fed court and I should have, he gave me plenty of time by stopping a date one month prior, but I was at that point sideswiped by "Servicer" who said they were not going to foreclose.Then my friend saw the sale wasn't being stopped or postponed, so i did the ER Motion for BAP. The auto stay had already terminated as to me, estate was empty, judge didn't know why they did the Motion, but granted as to Trustee only cuz estate was empty r/t No Asset report 2 mos prior. Judge said if they didn't file that Motion my case would have been closed. Even so, he should not have signed their order with all the evidence i presented, which included my disputing their debt multiple times, letters from them stating they were not the creditor and did not know the whereabouts of the note, showing wrong loan amount, late charge and monthly fee (which terms of the loan do not change when loan is transferred), and also showing that the assignor already assigned the loan 4 years prior. I also provided the "real party" that transfered, sold and assigned to this "servicer" and was told that "real party" should have recorded their assignment from previous Lender, and then from them to current one. so broken chain, etc. I'm just havin a doozy on which issues to follow-up for only 30 pages. My DoR is lengthy. I not only opposed their motion, but filed motion to dismiss and motion to strike, yet those were not even heard, just civ min denying...because there was no stay in effect. My LOUD argument is that I don't care about the Stay, I care that the judge is the only one that gave these criminals the Secured Status and paperworks they would have never had and didn't have to ever show they are a party in interest to foreclose...not to mention their debt was on Sch F, disputed all along, with "tila" violations on sch F next to their name and their debt should have been discharged. they were sent by BNC my discharge order with was a week prior to their scheduled hearing for the motion. Shouldn't they have objected to Debtor's discharge? last day to object was cont. by Trustee in 727 Motion, and the last day to Object was one week before they filed their Motion for Relief.
One last detail. The trustee wrote No distribution, No Asset report more than a month before they filed their Motion for Relief, and requested to be dismissed from the case as it is fully administered and he has no more duties to perform.
Oh yes, the reason I also didnt file the inj. in state court with complaint was because of all I have read with these guys getting them dismissed due to claims not being abandoned, and my case was still open. A week later, i had hearing on my 554 motion and I had properties and a laundry list of claims abandoned back to me from estate and trustee (he didn't object). At first judge did a tentative denying the motion, and so if anyone was going to object, it was to be done at the hearing, but i obj. to his tentative with good cause showing and he reversed and granted my motion.
I don't know if any of the creditors, or the "Servicer" would have objected or not, as per their knowledge of the tentative ruling, "dismissed without prejudice."
I need to get trustees deed that was just filed, and it says the beneficiary was the Sub Trustee, a real criminal outfit that has pages of complaints by people who have done BPO's for them and say they have never been paid and this Sub Trustee does not respond to their emails, calls or letters.
Like I said above, the "Servicer" in their mfrs allege they are the Trustee, did not do a NOD, NTS, and they told me they did not Sub Trustee. However, as to my "material" evidence, I have a call that my point of contact gave me permission to record in the beginning (he must have been new), 2 weeks before the sale date, and he said they have no sale date and did not authorize any upcoming sale and that they are the Trustee and beneficiary. He also said the "loan" just went to foreclosure and they have not done a NOD and will not if I fill out and send the paperwork back. he told me to get the signed mod packet in immediately if I wish to maintain the property, they will give a mod based on the value they put in their motion for relief (over $200k then they alleged I owe).
I know my bad, after them not contacting me for months in the beginning and never sending a mtg statement, and then in their mfrs putting all wrong facts and wrong loan amounts, late charge, etc. I should have never believed there would not have been the sale.
How can I present the phone call as evidence? it is not on my DoR, as it occurred after the fact, but is related to the appeal.
I'm going to get a copy of Trustees deed.
well, good mornin, and thanks for your time. sorry i wont proof read this, and my list is long:
1. need to deal with 3 day notice from investor that bought place at sale and don't know if I should tell him about broken chain and litigation going on
2. need to concentrate on brief, and follow the directions and decide which of my mutliple statement of issues to focus on (standing, real party in interest, lying in proposed order saying trustee and debtor never objected, and their motion was granted when in fact during the motion to stay order, the judge said he ruled in my favor and dismissed their motion as to me), or prove the fraud assignment they presented that was used for their "colorable claim." I'm still trying to figure out if they should have listed the creditor, a completely diff name of bank as trustee for trust in their motion for relief. they lied and said they were creditor. i have their letters to me and cfpb saying they are servicing for a diff creditor, yet their mfrs they told the court they are the creditor and did not mention the "creditor" nor the trust. and then there's the trust...and securitization issue I could pound, because that right there makes their claim unsecured.
Lotsa info, I know, I'm pretty burnt out and lots to do with brief, not being a lawyer, but I'll follow the "recipe." I have collected tons of cases, laws, etc. to back it all up.
Oh crap, and i have what they put as 2 appeal nos. but they are related. one was for civ judgment orders not hearing and denying my motions to dismiss, strike, reverse their motion for relief and the other appeal is the actual order.
oh my gosh, does that mean i have to do a Brief for each one? if so thanks for your help, but i think I'll be having a stroke any minute if that's the case. Jk, i have bigger faith than that.
But no way i can do 2 briefs and try to do what need to do to invalidate the sale in state court. and I'm sure a UD will be lurking, though I contacted person that bought house, but we haven't spoken, he wants to meet next week, but I don't know what to tell him yet, sure would like to alert him to broken chain of title, and fraud assignment though....just don't want to create any bigger mess than I'm dealing with and would love to put him off until my briefs are done. appeals aren't moot btw cuz of fraud involved.