I realize that that's 20 biz days but they don't seem to concerned in answering it and I have a sale date of 1/3/12
I apologize; I had to reboot.
Your redress if they do not respond and thereby cause you damages is to sue in court.
When I call the banks lawyers all I get is a clerk or sect. - when I ask who IS the Trustee and can I speak with the they tell me they can't tell me that and that I can't talk to them???
If found liable, the lender must pay actual damages (probably minimal or non-existent in most cases), attorneys fees, and possible $1,000 (if it can be shown that there is a pattern and practice of the violation).
In your case, if they delay and the sale causes you further damages and legal fees, then they will be responsible for that too.
You can call the clerk of court or go down to the court and ask to see the case file to find out who the trustee is.
My most immediate concern is being evicted -
I understand. You can seek a stay based on the pending letter you have written. You can also seek an appeal to buy more time.
my home was supposed to be sold last month (12/6) they got my QWR in there office on 12/5 and postponed it but I'm not really sure if it was because of the qwr or some other reason?
You will at least need to seek the stay because I am sure the lender's attorneys do not plan to answer you before the sale.
I wouldn't know that without speaking to them, but it is not unusual for them to postpone.
how do you seek a stay without filing BK?
You would do so based on the QWR letter. The court can issue a stay for many other reasons besides BK.
If the attorneys have not answered you within the 60 days, you would file a motion to compel response and seek damages and sanctions.
Interesting thing is that I sent a copy of the qwr letter to HUD and got a complaint case #XXXXX they said they were going to follow up on it and the case # XXXXX!?
Did I already say that TEXAS is a non-judicial state? How can I get in front of judge in the next few days?
That probably has more to do with HUD and their organizational skills than anything else. Did they tell you they would open another case?
Yes, I know that TX is this way, but you can still get in front of a judge if you are disputing the foreclosure.
I have to call hud tomorrow w/the case number, they say they can find the "dept it was transferred to"? and reactivate it
You will have to file an emergency petition for a stay.
do I do that in the clerks office?
is it a letter I will have to prepare or just a form they have on file?
I can show them a notorized coopy of the qwr and cert reciept for it as well, will that help get the stay
Every jurisdiction is different so you should probably call them first. If they don't have it, you will have to prepare the motion/petition yourself. You can probably find some examples on the web just to see what they look like.
Yes, you need to attach all relevant documents as exhibits.
Ok, the fog is lifting a little here :)
I was planning on filing bk on friday but I don't really want to do that
but I felt it was the only sure way of getting stay
You should still have time if the court refuses your emergency motion. The good news about bk is that you can always withdraw it but in the meantime, it will buy you more time.
the problem I am having here in TX is that all of the lawyers I have contacted about this are just want to handle it with cookie cutter chp 13 filings and don't want to fight the fraud. And long story short, I am positive there is fraud in my note.
Are you contacting BK attorneys only? Have you tried mortgage defense attorneys?
Also known as foreclosure defense.
I can't seem to find any here?
Fraud is an affirmative defense so this is really important and is another good way to get in front of the judge.
they all claim "foreclosure defense" but when you start talking with them they soon jump to ch13
You can use www.martindale.com. Search one, two and even three counties away.
is that link a law office
It is an attorney search service.
btw, I am going to accept your ans here once we're done
Oh, no worries!
It is my pleasure to help you.
ok so I am off tomorrow and plan on going to the county records office and find out how to get an emergency stay
I really want to be confident it is granted, will the judge sign off on it or how will i KNOW?
Good, getting this in front of the judge will be your first step. You should plead the fraud in your emergency petition and say that is was just recently discovered and that you are seeking counsel. This is besides the QWR argument.
The clerk will send you an order granting the hearing.
You have to have a hearing in front of the judge before he grants the stay.
The lenders attorneys will have an opportunity to be there as well.
And they will argue against the stay.
do you think they will do that tomorrow, what's it called an "ex par te" (sp?)
You can file the petition tomorrow and the judge should see it tomorrow or the next day.
If you are granted a hearing, it should be this week.
I don't think the lawyers will show up but I'm sure they will send a letter to deny stay but that'll take another 30 days at least?
They cannot just send a letter, they can file a response but if they are not there at the hearing, the judge will probably grant it.
It should be granted anyway based on what you have told me here.
ok, if I do get a hearing, I don't really want to go thru point by point why there is fraud in my note. I really just want the judge to be aware that I have sent them a qwr with about 30 questions that is a federal law that they are req'd to respond to before they proceed with the forclz
You shouldn't have to. You are not trying to prove the fraud; only saying that it exists.
I didn't say this before, and I thought it was obvious, but it may not be...you ar going to have to file an actual lawsuit against the lender in order to be able to file the petition for the ER hearing. You have to initiate litigation in order to proceed in court.
ok, i think I can handle that, I've just got to find out what it takes in my county (denton tx) what it takes to get an emer stay - basically on the grounds of they are req'd by law to answer the letter...if for some reason I can't get it - I'll have to file bk by friday
Each complaint is different and is going to allege different facts and allegations so there are no premade forms for this.
That is why the foreclosure defense attorney would be appropriate here.
I don't know how to file a lawsuit. lol
You just have to tell them that you are NOT interested in filing BK at this time and that you want to get a lawsuit filed for the fraud and an emergency stay.
I guess I can just go in and play dumb, that should be easy for me? ha
It depends on how helpful the clerks are.
some of them are, some aren't, been in there a few times. they defer to the "supervisor" really fast and she is very guarded.
You are definitely at the end of the time period to be able to do much more here so you will need to act fast. Once the sale has happened you will have to file a motion to set it aside based on the fraud and this will cost more money and get more complicated.
what is a motion to vacate
Yeah, they aren't attorneys and are not supposed to give legal advice.
It means the judge bascially sets aside the sale like it did not happen.
would that be something to file or just request the er stay
That is not something that would need to be done unless the sale goes through.
thanks, XXXXX XXXXX see what happens
You are most welcome!
if it doesn't work i'll have to bk
That would be the smartest thing, yes.
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