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DrakeLAW
DrakeLAW, Attorney
Category: Bankruptcy Law
Satisfied Customers: 715
Experience:  Attorney at Drake Law Firm PLC
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Is it legal to file foreclosure under Deed of Trust and not

Customer Question

Is it legal to file foreclosure under Deed of Trust and not return the original document and institute a reconveyance?
Submitted: 8 months ago.
Category: Bankruptcy Law
Expert:  DrakeLAW replied 8 months ago.

Hi, my name is ***** ***** I look forward to helping you, please give me a moment to review and possibly research answers to your question.

Customer: replied 8 months ago.
Thank you, Rich.
Expert:  DrakeLAW replied 8 months ago.

Help me understand the facts a little better. You say you went into bk to stop foreclosure but then that you paid off the DOT. I guess, lets start with, did you file a bankruptcy and if so which chapter?

Customer: replied 8 months ago.
Filed Check 11. Paid off the balance they claimed I owed, and have received no DoT.
Expert:  DrakeLAW replied 8 months ago.

Did you confirm a chapter 11 plan? Did that creditor have representation in the chapter 11? That attorney should be able to get you a reconveyance.

Customer: replied 8 months ago.
the plan was confirmed, however I paid the bank off before confirmation. I think my BK atty is working for the bank. He has not seen the need to find out about the DoT. This is why I want to know if it is legal for the Bank to change the perfection of their claim from DoT to Mortgage now that they have been paid without producing the instrument that forced me into BK in the first place?
Expert:  DrakeLAW replied 8 months ago.

No, what you are describing about changing from DOT to a mortgage makes no sense at all. If the debt is paid off under the plan then it is paid off. Mortgage versus DOT is just the nature of the security instrument which is moot once the debt is paid off.

You should be getting a reconveyance. If you are not, you should file a motion in your BK case.

Does that answer your question?

Customer: replied 8 months ago.
but why is changing the claim from Deed of Trust to Mortgage moot if still in BK court? There is a major difference between disposition of a mortgage vs Deed of Trust.
Expert:  DrakeLAW replied 8 months ago.

What do you mean changing the claim from DOT to mortgage? Are you saying that the bank released the DOT and recorded a mortgage that was not signed by you?

Customer: replied 8 months ago.
Ch 13, sorry. Beal Bank filed foreclosure citing a Deed of Trust as their lien source. This is what forced me into bankruptcy. Now that they have been paid, they changed the basis of the claim to a mortgage. Without the original DoT instrument being returned to me, what guarantee do I have that this form of extortion will not happen again?
Expert:  DrakeLAW replied 8 months ago.

What do you mean by the changed the basis of the claim to a mortgage? Do you mean in the Proof of Claim filed wiht the court? Or did you get some other document from them? You do not get the original DOT returned to you, they are supposed to record a full release and reconveyance of property.

Customer: replied 8 months ago.
the Proof of Claim. Seems like fraud to me to cite a DoT, then change the basis of the claim. Seems to support duplicity and absolve the Bank of all the wrongdoing in which they have been involved for a decade with me.
This is allowed in court? It is not questionable? Objectionable?
Expert:  DrakeLAW replied 8 months ago.

Alright, we are close to narrowing this down. So are you saying they filed an amended proof of claim or are you saying they filed one proof of claim and that claim states the security is a mortgage as opposed to a DOT?

Customer: replied 8 months ago.
Resending PoCs.
Expert:  DrakeLAW replied 8 months ago.

Alright, thanks, ***** ***** They specifically state the lien is paid in full. Often times, the terms mortgage and Deed of Trust are used anonymously/interchangeably. I think it is a non-issue and if the lien was a deed of trust, you need to get a release and reconveyance. There will be an address on that proof of claim for who to contact directly at the creditor to get that. If they are not responsive, file a motion to compel in the bankruptcy court.

Does that answer your question?

Customer: replied 8 months ago.
The only grounds for objection is if some sort of reconveyance is not worked?The terms are used interchangably? How terribly imprecise and a detriment to consumers.Coercion and mendacity are allowed by the court? The only important matter is money, not accountability and money?
Expert:  DrakeLAW replied 8 months ago.

I don't understand, what is it you want to object to? They are stating that the lien is paid in full and they are owed nothing. I am not seeing what the problem is?

Customer: replied 8 months ago.
It is a nonissue if deed of trust and mortgage mean the same thing.Thank you.
Expert:  DrakeLAW replied 8 months ago.

Ok, yes they are just making a generic reference, perhaps different people filled out the form and used the term just to mean a loan secured by the home. Glad you paid it off and good luck.