does the statute of limitations to rescind a loan due to fraud and TILA expire 3 years from signing or 3 years from when they recorded it or 3 years from when discovered? and if it is rescinded successfully but is not listed as exempt property in ch 7 will the Trustee just take it, or if trustee finds he can take it (which i told him months ago but was not listed on st of finan affairs) can i not rescind it anymore or point out all the fraud with it?
State/Country relating to question: California
It would be 3 years from when the fraud was or should reasonably have been discovered. If it is in bankruptcy, it will end up in the bankruptcy anyhow as an asset no matter which way it goes. In bankruptcy with the mortgage it will go to the mortgage company, if you prove the fraud in the mortgage then either the mortgage company gets it back anyhow or the trustee takes it for sale to satisfy the debts of the bankruptcy.
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so once my bk case is discharged, can i bring suit against them? or aren't I required to tell the trustee about any suit or money coming to me the year after my case is discharged? but i think i have to bring up the fraudulant conveyance to stop their lifting the stay, unless pointing out their wrong facts in their summary sheet ( saying "none published for nod and nos) will stop it and sanction them. ive been up all night, reading westlaw ch 8 part II on the auto stay and I have all their letters in response to my 12 qwr's saying they are the servicer and per respa they arent required to tell me where my note is, who the lender is, and where it is securitized, if they even know. So I have to have them prove standing, and I think my letters from them stating they are the servicer, maybe that will show the judge they dont have standing. but because of their assignment deed of trust, (which i can prove is signed by mickey mouse, but dont want to do cuz the trustee will want to take disneyland)...their assign of dot as beneficiary holds in ca, but the funny thing is the lender they said they got it from sent me a year before that they sold and transferred it to someone else. and now they changed all they put on my credit report and now my cr. report says they have owned it from day one and the mtg co that it ws sold to used to be on my credit report and now has somehow vanished. well i have til monday to object to the 362 motion so a diff attny said to write them a letter to withdraw cuz they used the wrong schedules and then i'll wriite and file the objection, but i would love it if i could somehow have them prove they are secured besides their dot, instead of me bringing in all the fraud and how they are not secured. in the motion to dismiss their claim you suggested and attaching proof that i disputed their claim from day one, well i have 11 letters, and they never responded to the one i wrote over 2 mos ago until last week and they backdated it and their response to me was a QWR wanting a copy of front and back of all checks i wrote on mtg since the day they say I defaulted. and in response to my qwr was that them being the servicer, they are not required to tell me jack s
You have to disclose any suit or potential suit to the trustee as that is an asset of your bankruptcy estate. It is then up to the trustee as to whether or not they will pursue the suit or whether you may pursue it later.You do have to bring up their fraudulent conveyance to fight their request to lift the automatic stay. You have to disclose the fraud if you have discovered such fraud.
ok, well i disclosed the potential suits when i filed bk in january. but then i put next to this alleged sec creditors name, when i amended them from sch d to sch f, "TILA violations, lender liability fraud" Its right there next to their name on Sch F. but their attny submitted to the court my original filings of when they were on sch a and d, even though their client, the movant, was Noticed of the amended filings and given a copy. However because of circumstances, i wasn't able to Notice them legally and do a proof of service until a week after the latest change which was taking their loan amount off of sch A. it was then that they obviously retained this attny to do this motion. However, i called and recorded the call to the main person at the servicers and told them to look at pacer because i had amended sch A but i wouldn't be able to get them Notice for a week. at that time too I had asked if they had an attorney I could speak to and the lady appointed to my loan said, "no we dont have an attorney appointed to your case." I asked why not and she said, because you are Pro Se. yet after the call obviously they got an attorney. they were already moved to sch F a month prior, but during me trying to organize all, I had noticed their $ was still on sch A, so that is what I had then amended, but since i knew i wouldnt be able to send Notice, I called and told them. Like i say, i have it recorded on my laptop (states date and time and them on the phone, but I don't know if the judge would listen to that or not...it shouldnt matter that i recorded it because they always say the call will be monitored and recorded. so if the judge wont listen to my recording, can i subpoena theirs for proof that they were told the same day I amended the schedule?) And with the fraudulant conveyance, are there any sanctions or damages to me under any law? and btw, there is no mtg company for my loan to go back to, they filed bk and are out of the mtg business. these guys just wrote their own assignment. I have overwhelming evidence including the title company that helped them create it. (one of their cust. service reps accidentally faxed it to me with a diff document and I've been in shock ever since. This company is big but not exposed like docx or LPS. I'm sure its only a matter of time before they are exposed, but i wish i could expose them, just like i knew and had evidence of what Lynn Syzmoniak proved and paid thousands to lawyers over it in 2009 and they didn't do anything and I lost that house. I'm thinkin it might be time for an attny. you said months ago one would take it on contingency. but you tell them you have proof and they say the judge always rules in favor of the bank and noone wants to touch it. I have all the proof, stacks of it, (well i havent spoken to an attny in months, and lots has surfaced since then). I want to do a quiet title suit, conspiracy and then some, but if i do it in bk, i will just be wasting my time, even if i expose that title company and way more, because any sanctions or damages go to the Trustee and his family and my family is left with the likings of Katrina. I tell ya, when i heard about that joker guy, all i could think of was that he was a picture of the folks i'm dealing with. It's not a matter of proving they did what they did, but the question is why...they aren't going in to a movie theatre, they are massacring neighborhoods and they dont need to plead insanity because evidently it is ok...even my AG never got back to me and i wrote her, facebooked her, and told her i would like to show her or someone all the evidence I have...no reply...the FDIC, the OCC, the SEC, the FHA...everyone but my local officials and Obama and oh, the CFPB...when i call to see what they are doing, they say, they have the report and once they get a certain amount of same complaints, they will look in to it, but they have to reach a certain number of the same type of complaints to look in to it. I just dont understand why Madoff is in jail when he is like gerber and these guys are like meat and potatoes. ok, so here is my forum (sorry for venting), in bk court? show the judge or put as exhibits in my objection to the stay the fraudulant conveyance along with the 30 pieces of paper i have to prove it? (I think motions cant be more than 35 pages, so I will have to somehow indicate I have more exhibits but they couldn't be included because I would go over the LBR of 35 pages)
You need to disclose it again with the evidence supporting your claims now, which you did not have at the time you initially disclosed it. You also need to turn this evidence over to your state attorney general's consumer protection unit and ask them to investigate the fraudulent conduct of this company.
i made a complaint in february to CFPB, and it took the servicer 5 months to respond and they included a letter, addressed to me, which they never sent me, at that date, which was 7 months after they state in their letter my loan was sold to that creditor bank, not them, and that they are servicing it and have rights to foreclose and they even submitted the robosigned fraudulant assignment to the CFPB. I disputed it, and have called the cfpb twice. the first time they said they dont regulate this servicer and i went bolistic. because the occ and fdic said they dont either, which means no one regulates them, not even the FHA. then my 2nd call to CFPB, the lady said, after you called last time, they looked in to it and found out they do regulate them, and some guy was assigned to my case but they are very busy and working on a lot of cases, so they will get back to me but it could take a few months. well by then, i'll be homeless. someone told me to take my evidence to the fbi or my local police and I thought i was in some sort of sit com. i facebooked my AG, wrote them back in november before the AG settlement, etc. God bless our AG Harris, but she's in her prime, so I'm sure even though she has given good lip service regarding california homeowners, i think she is busy giving lip service elsewhere. Forgive my comments, just a little upset here. Its like, i'm being raped and i keep telling them but they are too busy. I have had no life this year, living on ice cream and sour cream and hering, weekly showers, barely any sleep. trying to educate myself living at the law library and trying with my disability to tote all my boxes and bags of docs and books and laptop because I don't have working a/c right now and the house gets 93 degrees. I got really sick twice, need hip and back surgery and soon will lose my teeth because i dont have time to brush them. I havent spent time with my children on their birthdays, christmas or any day this year and they have lost their mommy, but they know I have poured all of our inheritance and money in to this house and that i am only fighting for Justice. if they didn't string me along with false hope for 2 years, writing a total of 9 loan modifications because they kept losing them or they were outdated, I would have let the house foreclose. but they caused me alot of pain and suffering and false hope and because after 2 of my surgeries they needed another loan mod packet right then, I screwed up my recovery and now can not walk up stairs or write or use my right arm. My doctor told me what i had to do to recover and when i told him i had to find all these documents again, go out and get stuff notarized, and all he said...what's more important, your health and body or your house? you can always get a new house but not a new body. He said because of my activity after that surgery, I messed it up and now I will never be able to use my right arm or work again, and I can not go up stairs without paying for it dearly and rendered unable to walk without major pain. So i need this house i didnt exempt for me, and my kids dont want to lose their home. but at this point they are so worried about me, they said they dont care about losing both houses, they just want their mommy back. After all i've done here I cant just let them get away with this. Why didn't they tell me in the beginning they were just going to foreclose? and then when they went to foreclose, i tried to get ahold of them because i had sent the 9th loan mod and they said they sold my loan. they said they didn't know who to yet, and here i was with a NOD and noone to call. i wrote the default people 2 QWRs per the code you sent me and no response, all they said was they sent it to the lender. I told them their letter had them listed as the lender and person to contact and they should answer my letter (it was written per respa), and they said they dont have any information on my loan so they forward it to the lender. I asked who the lender was because there was no loan # XXXXX FINALLY after talking to a supervisor, he said, "we are given strict directions from the lender not to tell the loan number." and then they couldnt tell me anything else because they said they dont know anything about my loan i need to call this lender. well they were new and i had no idea, and a week later i got a welcome letter from them (that lists them as servicer and that bank as creditor), and they gave me a name and number to call. I called everyday and left messages for that person for 2 months straight and wrote them letters and finally they responded to my 3rd letter when i said if they dont i'll take legal action. but they never returned my calls. then i jjust hit redial forever until that contact person answered, and it was actually someone else. he said to send them a loan mod packet. i said my house is going to foreclose in 2 weeks, i had just sent one to previous lender and they said they forwarded it to you, and he said, well we dont have it and you have to fill out our paperwork. I said there is no physical way possible i can do that unless he can guarantee he will look at it and postpone the sale date, because they never called me or answered any of my calls. i even had their cust. service send that contact emails to contact me and he still didn't contact me. anyway, it's been a frickin nightmare and if it weren't for God and my kids pretending i dont exist while i seek justice, i'd be dead by now. but now my kids are saying its time i quit because they are afraid for my health. I couldn't walk at all for days because of the stairs here, but now my firend, a total angel, is going to let me borrow $1,400 to fix the a/c at that house. I just didn't want to put the money in to it incase i lose it, but all the bedrooms are upstairs here and I can not be in my homesteaded home. And I was so excited to do foster care in the other house...wouldn't that work for "reorganization?" even though i'm a chapter 7? I have always wanted to do foster care...and pay it forward (as I was in foster care for years). That house is right across the street from a middle school and it would be perfect. this is robbing our community by me spending my life with this. I have so much love to give and to offer our community while these "servicers" are destroying our communities. well, i have sent many letters per respa, the last one they just responded to was 2 months (not 30 days) after written and they sent it a week after their attorney motioned to lift the stay, stating per 12 usc 2601 (2) that they are not required to provide information or documentation regarding issues unrelated to its servicing of the loan for example teh document custodian, original copies of my security instument and they are under no legal obligation to provide any information to tell me where my Note is and who has it because it is not "readily available to us." Well if nothign else, i can get them for their many violations of respa by not responding or responding late and TILA, but what i would really like to know is, they keep saying they are only the servicer of the loan. So is that synonomous in california with "secured creditor, lender" as their attny labels them? Also even though my loan is many years old, they state they only have loan documentation since the time they have received my loan, yet the previous lenders have swore up and down they transferred all my loan history and docs when they transferred the loan. but this servicer keeps telling me to call prior lenders for the loan history from them. So i've also spent hours and hours and hours...well, actually since they all put you on hold, i actually have a 2 TB backup full of recorded calls since last October. And its full of recorded calls or recording the dozens of guys that came by to tell me my house was going to be auctioned and they drilled me about being the owner, etc, waking me up at all hours. Because the lender kept listing the house at auction every month and finally these investors showed me the paper they got where it was listed, so the last 2 times, i made sure not to stay there days before because that stress was off the charts. i kept telling them i filed bk they cant foreclose and they said well its right here, public information and it doesn't say postponed due to bk. I called and told them not to and they told me to fill out the mod paperwork, and i told them to prove they really have my loan because i cant do that again, it was just too abusive. I told them to answer my letters and i'll fill it out, and I told them not to send me another loan mod packet because i thought they were doing it to antagonize me, and then just 4 days later, i got one in the mail. I tell ya, I never used to cuss and this is where my kids are super worried about me too. Well, I've been up all night and i need to get some sort of letter out there and make sure all is well. I mean, i should be able to stop them just for submitting the wrong schedules and not the current ones, right? they were noticed by phone, then they were noticed and pos and that night I got the 362 motion. but still they were on sch F, jsut i forgot to take them off of A and I did that a week before their motion, but only legally noticed and filed pos a week later. Should I just give up? I'm worried about my kids being worried about me and not being there for an amazing honor my daughter received, and my other daughter was part of a big deal at church and because i was up all night doing this i didn't make it. Should i just say forget it already? Or would that be like no one doing anything to the "joker" at the theatre? I'll pray about it and see what you have to say. and btw, i discovered the fraud before the bk and told the trustee all about it and he said, "that will take me 6 months to figure out" and i asked what he would have to do and i told him that was what i was doing the 6 months prior to filing bk but i had to file to stop them. I was pretty ignorant and i thought the trustee was my friend or on my side. He said well give it all to me, and then i didn't have it at the meeting when he asked for it and well....i've been researching and uncovering piles of stench ever since...i just can't believe what i have discovered, uncovered and retrieved
I got your message in the other post. Thank you. Get this reported to the Attorney General and get an investigation done. the more evidence you give them the better chance of finding violations and pursuing them.
The attorney General doesn't care, they have bigger fish to fry and months ago, almost a year, i thought i would write them daily letters, instead i've been in law school and have discovered notary fraud, title fraud, oooodles of lender liability fraud, and i have so much, just need to and am puttin it all together, but I just felt the walls crushin in on me, and now that I stupidly filed ch 7 (having no idea what i was doing, but filed a skeleton....), well then it seems over and over no one cares and once the real deal does surface, trustee tammy sells the house and keeps the money. I spent entirely too much time reading the book on how to convert to a ch 13, but the plan is what got me, because of this I am not currently working, but I can work, and like I said i have a plan and I had a plan and was so excited to do foster care. and keeping up with everything and the pain I have, well the pain sets me back and then finally takin pain meds set me down, and since i don't want to be down, not taking the meds puts me through withdrawals from the pain meds. or my doctor ordered me xanax, but i'm afraid to take it too much, dont want to get addicted, but 3 times now, I've had stroke symptoms and even lost my vision after double and blurry vision (they called it an optical migraine and the only cause is stress). Well, I've gotten this far with all those bumps in the road and then some (oh yeah, my son had emergency surgery). I get so mad when I read stuff online that I should have and could have done or filed or exposed by now, but I can only do what I can do and I try not to be so disappointed in myself by not having all this done by now...if I didn't have to file for bk, and here I had paid off credit cards along the way and all my debtors for the most part, having payment plans and paid off my heloc. I never agreed with or wanted to file bk, i never thought paying your debts was or should be an option. well good thing i had debts, or else they could have claimed abuse...now isn't that calling the kettle black? (is that the saying? Ok, i will thank you so much here!)
Letters to them go ignored, you need to just bring them the evidence. I am sorry they are giving you the run around, but that is your only other chance other than filing suit against them.
oh so do you think writing them is a waste of time? I mean I have been disputing this debt for almost a year now, so if I don't dispute it with their attorney, does it really mean i don't dispute it anymore? and...to boot...shouldn't they have reviewed my schedules before filing the motion and submitting the original schedules? or maybe i did something wrong with my notice or filing that makes it invalid that i am not aware of. i was reviewing them when i saw that #6 on st. of finan affairs and thought, oh i should have put their transfer. then sidetracked, and well, extremely sleep deprived. Why would they send a paper in all of their pleadings to me about whether i dispute the debt...(u know, the one from debt collectors, which is also a very interesting concept...when you call this attorney's office, they answer like they are debt collectors and this is an attempt to collect a debt...), but if they looked, even at the sch they sent me, it has "disputed" checked. Do they have to send that by law because they are a new debt collector? I want to write them a letter, or if not, can I go straight for discovery? and motion for discovery and ask them to furnish everything there? I am beyond tired but I thought in the bk forum/court, if I ask them to prove "standing" can i ask them to bring it all? i really want to see their agreement with the Sub Trustee, cuz they weren't the ones to substitute them. but one day i got lucky and some new innocent guy answered...oh i think it's cuz i called their number for foreclosures from the listing that a realtor showed me, and I asked when did this "lender" get the loan, and he said to hold on and he would look and it turned out that they notified this sub trustee that they are now the lender just 4 days after the sub trustee was recorded and well, substituted, but in the name of a prior lender. all he said was the date, i was shocked because it was months before they supposedly were transferred my loan for servicing. now does that make any sense? before when i got through (to yell at them for listing my house when i'm in bk and i dont want people coming to the door all day long for 3 days straight, well they wouldn't tell me a date, but this guy was so nice and soft spoken and obviously not broken in). Does that prove anything to anyone but me? how could they tell the sub trust that they now are the new ones to talk to months before all their letters say they started servicing? Would that be a contract law question. I mean it's obvious that cant or shouldnt be, but i think i'm screwed without exact codes and statutes to back it up and case law, but all of this mass murdering of the middle class (over 8 million now, maybe 8 1/2 mil. families plucked out of their homes and the way they were....i tell ya, these servicers/lenders sure have been great for the pharmaceutical companies, lotsa prozac i bet. well let me know, and if i have any more ?'s you'll be the first to know
I think writing them is a waste unless you put all of your evidence together then write a letter and schedule an appointment to go meet with one of the attorneys or their investigators if they will meet with you and if they will not, then mail it all into them.You need to proceed to discovery and force them to produce these documents they say they have and prove their standing. Make no mistake you, like other homeowners, are fighting a steep uphill battle, but you have come this far and you have to continue the fight and object to their motion for relief from stay since most times the courts do deny these motions in bankruptcy.
I have been reading a lot, and writing nothing except my caption thus far, though my evidence and pleading information is piled wide and high. And at this point, after reading FRBP 4001-1 (&9014 where applicable):1. there are a few technicalities the attorney for movant did not follow, such as putting response time in Bold, probably no biggie2.Contents of Motion: "shall contain a short and plain statement of the alleged facts that are grounds for relief: mere statement of the statutory grounds for relief is insufficient."Well as far as I can read, they put the latter (statutory grounds for relief). Please correct me if I am wrong and if I should be asking the following questions to a bk attny (are you familiar with the frbp and title 11, etc? because obviously you are familiar with LOTS). THEIR statement is "This motion seeks an Order terminating the Auto stay of ....362....as to moving party (and the Trustee under the Deed of Trust securing moving party's claim) so that moving party (and its Trustee) may commence and continue all acts necessary to foreclosure under the DoT secured by Debtor's property.Movant seeks rlief pursuant to ...362(d)(1) for "cause" due to the failure of Debtor to make required payments and pursuant to ...362(d)(2) and alleges tht, in accordance with the information set forth in the atttached Declaration, there is no equity present in the subject real property to justify the continuance of the Auto Stay. See Stewart v. Gurley 745 F 2d...)then it goes on to say it is being heard on 28 day notice pursuant to LBR 9014-1(f)(1). Opposition to this motion, if any, shall be in writing and shall be served and filed with the Court at least 14 calendar days preceding the date of hearing."Then they go on to seek adequate protection of its secured interest pursuant to USC 361 and 362, including a requirement that debtor reinstates all past arrearages and immediately commence regular monthly payments (in the event the court continues the auto stay.).ok, bottomline, 14 days prior to hearing is the 13th, which means it needs to be mailed and filed tomorrow-not gonna happen. They state the address response must be mailed to, but I will call them and ask about faxing it, but i read awhile back in some frbp, or BK rule that the other party must consent to Motioins or Notices given to them by fax, in writing. Well, I don't have that, though I can call them tomorrow and try and get it. However, what I would much rather do and my only hope is to write a pleading for cause to extend the response time. actually, ok, they are using LBR 9014, not frbp (17 days). Even so, shoot, i dont want to talk to anyone else, because you have a background here. Ok, well, they didn't comply with the Notice requirement and I think it's a big deal, but might be a minor technicality to the court: They did not put in their notice of motion as required, the RESPONSE DEADLINE. Pursuant to FRBP and the Code, "the date to answer, object or oppose shall be clearly and succinctly stated in bold type on the notice and shall be referred to as the RESPONSE DEADLINE. oh great, then at the end of 4001-1(G), it states, "the court may for cause stated in written and filed pleadings, extend or reduce these notice, response and hearing provisions. Ok, wastin valuable time here. hearing is the 27th, so i must file the 13th. however with cause, i can ask for some time to extend my objection or opposition. And that is what I would like to do. their motion was postmarked the 24th, I received and opened it August 1st. i was totally sick with the flu that entire week, which is why I didn't get the Notice of prior amended bk filing out for a week. I had even called that day to the Trustee because there were like 4 pieces of mail from the bk court and i hadnt looked at mail for an entire week, or done anything but have diarhea and aches, pains and a migraine that nothing would take away. finally, when i began to feel human again, I thought I would try to make it to the dr. I lost an entire week and at the bottom of my stack of mail, was their motion, which got opened the night of aug 1st, and I had called the Trustee the day before asking him if there was anything in the mail I should know about because i've been sicker than a dog the entire week. and then he said my case is closed. I was shocked. I told him i was doing motions (I was unaware still of their motion, as I hadn't reached or even seen it yet)...as soon as I was alive, i went to my firends and she Noticed and signed proof of service of amended filings and I went and filed them. BotXXXXX XXXXXne is I lost not just any week but a week to respond to their motion. I was shocked the case was closed and I asked him if I should still Notice him of motions i plan on filing, and he said he still gets motioned. I had specifically asked him about the mail i received from the court and if it was from him or anything important and he never mentioned the Notice of motion to lift the stay, and believe me, when I saw it that night...well you can imagine...switching gears yet again. So of course I stopped in the middle or toward end of motions i was executing and on to this...as well as trying to remember where i was in life, and what bills had to be paid before it would be turned off. Oh yeah, that never happens, but all of a sudden that day i got a call my electricity was going to be shut off the next day, and i had it on my list to do the day I started to get really sick. Anyway, is that cause for asking for an extension to respond? Should I just ask in a motion for extended time pursuant to 4001-1(D)? I want to and do i just draft it and state what I have written here, but more concise, about being sick, and that I have proof (that week I had appointments to show a room for rent, I had an ad on craigslist. It was pretty bad. i showed one room at one house and one room at the other house. I was late for the other house and I could barely talk because of my migraine, and I know i was dehydrated pretty bad by the end of that week. Both people I showed the rooms to can testify to my migraine and barely able to stand up straight r/t flu symptoms. Also, I have never asked the roommate i do have to do anything, and I had to ask him if he could take out the garbage and do a few other things. My children were out of town that week visiting their dad and family. The ibuprofen i was taking for my head was burning a hole through my stomach because I couldn't eat and well, I even have texts cancelling showing the rooms for rent. And now, I even cancelled the one I was going to let move in because I didn't have time to check references, write lease, or even get a key made. Anyway, I need more time, it says, "Counsel for the party requesting the late filing shall promplty give timely and sufficient notice to opposing counsel of the granting of the ex parte motion and the resetting of the hearing for the originally scheduled date, and proof of such notice shall be set forth in a certificate of notice which shall be filed and entered on teh docket prior to the hearing date. If the court decides to deny the ex parte motion....Ok, i need sleep badly, i'm now getting a cold sore, geez. ok, sorry, but this is what i want to go by, frbp 4001-1(D), would that be correct? and just motion and well, do an ex parte motion? and call the attorney tomorrow and let them know as well, and today, well I lost a few hours cuz i had to go to apple store and didn't have an appointment and had to wait an hour plus for them to diagnose why power cord wasnt working, and well, it was broken, so since it was under warranty (trustee knows i got a new laptop), the guy was able to give me a new one, well half of it was broke, so i got that half. but i couldn't use my laptop because the charger wasnt working at all. so yet, another reason. I know it all seems like excuses, but it's good cause and real cause and real life. So all i wanna say is, gimme a break. and i should give you a break, however i will paste what it says here and tell me what you think and I will rate your service with more than 5 stars (oh i don't know how to leave a comment about experts, havent had time to ask how to do that). Well, i can pursuant to this, draft and execute motion (ex parte or not?) and notice it and file it tomorrow requesting extended time. and i can also make a "judge's copy," right? so that the judge will see it right away? or he probably will once its filed. But I want to request until the 20th and the hearing is the 27th. I have been in contact above and beyond with the "lender" who all along kept giving me the wrong name of an attnys office and of an attorney that didn't exist at that number. then i got the right attny finally after my point of contact with the lender gave me the right number but the wrong name 4 different times, however, that is how i know they were not the attny of record, because they told me they have not drafted a motion to lift stay or do anything for them, they only have received the file recently (a month before they dated it), but because they haven't been asked to do anything or lift the stay, they are not retained and all my communication needs to be with the "lender" per bk rules, because they are not the attorney of record (that is how i know they were not and had not yet drafted that motion the date they put because they told me, and it was actually the head (of 7 attnys at that firm), whose name is XXXXX XXXXX of their Law Corp. I was so persistent because no one at the lender would talk to me to try to do some workout if in fact they are the lender (as i want to save my house), but they said i had to call the attorney. it took a couple months to get the right attorney and phone number and names (more run around), but anyway, I had spoken to them a week prior when I called to let Lender know about changing sch A, but I was not able that day to get them Noticed about the amendment so I called. I told the main person and had them write it down, called the 4closure coordinator who submitted the Declaration with this motion, told my point of contact who told me once again to call that attorney. again i told him there is no attorney by the names he is giving me and they said they haven't even looked at my case yet and they aren't retained and to talk to you. Well, that happened about 5 times in the past couple months, or maybe 6, because the paralegal at the Attny, who finally got me to the head hancho, said, "you really like to be on the phone don't you?" and I said, "no I don't." he said, well you are calling us alot, and i said it's because no one for the lender will talk to me, and before i don't know what their excuse was but now they say to talk to their attorney. and this paralegal told me again as well as the head attorney, "we are not their attorney, don't send us anything, and all correspondence, blah blah needs to be through them "servicer/lender." Talk about due diligence. They wouldn't even give me their address because they didn't want me to send them anything because they said they were not the attorney. I had told them the "lender/servicer" said to do everything through their attny, and bk law says I need to send you my amended filings. And this attny, the head guy yelled at me asking me what i dont understand that they are not their attorney of record, as they have not asked them to do anything such as lift the stay or any filings." I have it recorded, but that doesn't matter, i guess it's just for me for the time, date and who i spoke to and i can put in quotes what they said and sign an affidavit or declaration to the facts. but well, i could have written the darn thing by now. sorry for you and reading all this. but i know you know something(s) I don't (like everything), and is there a different rule or way i should go about trying to get an extended time to oppose? I will call the attorney tomorrow but first i will check in here to see what you have to say. And oh, about the redacted, now i know why. They didn't put the first lien Note, could that be it? This lender/servicer had sent me a different Note where they got my loan (still not true though, wrong lender too...broken chain), anyway, maybe it is redacted because they submitted the original Note and DoT that they allege was assigned to them, but I have proof that original lender doesn't even know they exist because they have given me documentation that showed who they sold and transferred the whole wazoo to. So could that be why it is redacted? They submitted a note and dot from the Lender they say that assigned it to them, however long ago that lender assigned and sold it to a diff lender and then they sold it...anyway, i have the real first lien, and from the county recorder, showing the Note, etc. So heck, I guess I can go on those grounds, from...so looks like more sanctions? per FRBP 4001-1(A)(4)(a)? but first, i should ask for an extra week per (D):(is asking for a week prior to hearing too short? i know they would have 7 days to respond to my opposition, therefore they can do so at the hearing, but they have not brought or included in their motion all the notes, etc..i think i'm repeating myself:below is copied from 4001 re: extended time):
Most of these rules that have to do about how a motion is supposed to look as far as format and headings are not anything major, it is just appearance and not something the judge will use against them. The one exception is that if they did not give the response date, this is grounds for you to get permission to file late (out of time) from the court.If you are filing after the response deadline, you are going to have to get leave from the court and you would have to explain in a motion that because the other party left off the response due date you were late in filing a response as you did not realize when it was due and you submit that to the court with your response and generally the courts are fairly liberal allowing late replies for good cause.
They did not put a date per se, in their Notice of Motion or Motion, what they put in the Notice was a paragraph: "this Motion is being heard on 28-day notice, pursuant to LBR 9014-1(f)(1). Any opposition to this moiton, if any, shall be in writing and shall be served and filed with the Court at least fourteen (14) calendar days preceding the date of hearing." And that was it as far as the response time. However, are they required to put the exact date? I know the rules say it should be bold "RESPONSE DEADLINE" as i stated above, and they didn't do that, but from all I've done so far, I have heard the bk clerks say about certain rules, "oh those are just technicalities." Which seems to mean, "yeah, it's in the rules, but those rules dont necessarily need to be followed." Do you know if they were required to acutally put a mo/day/year response deadline? I don't want the judge to think, "come on lady, it says 14 days preceding the hearing, therefore, there is your response deadline." (not that he would say it like that, but I don't want to use that as my only "excuse" for that reason, but i can show good cause...being sick for a week, not discovering their package until a week after they sent it, computer problems (had to get a new charger because broken). however can u tell me if the exact date should appear on Notice, not only "14-days before..."
If they gave you the notice somewhere in what they served you, the court will call it harmless error or as you heard the clerk say "just technicalities" and the court will say as long as the notice was given to you somewhere, they would not take action. Thus, you need to figure out the 14 days before and file everything or if you are too late file it with a motion for leave to figure out of time and claim you made human error in counting the days and the court generally will grant you the leave to file late.
the date due to file is the 13th, so this monday. however, if i dont mail it today, the attny wont receive it then and it says it must be mailed and received by attny to their listed address 14 days prior to hearing. So I really need to file extended time today instead of monday when the response is due, right? I also want to ask them during the call if they can give me written consent to fax my response to them. Our LBR state you must have consent in writing to serve Notice/Motion on a party/attorney in writing. So I should ask them this too? yes? Instead of workin on my response to their motion, unless I keep it simple and leave out lots of evidence, won't be completed and mailed to them in time (it would have to be mailed today for them to recieve it monday). I can do a motion to dismiss though and state facts of the call we are about to have and about sanctions and their mistakes. However, on what "grounds" (wording), would I ask the judge to extend or dismiss their motion? I would state in the end (wording?) what "I pray for the court/judge to order." So would that be to dismiss? on the grounds of their innacuracies? and also submit a motion for leave/extended time to answer? Or just put plain and simple in my numbering, "they are unsecured creditors as evidenced by amended sch F, the date, and date they were noticed by fax/mail and phone?"
You can fax it to them as well, which would count as receipt also, thus, asking for their consent to fax is one possibility. If not, file the motion for leave or you can hand deliver it on Monday as well. Your grounds for the extension would be that you are pro se and not familiar with the law so it takes you more time to research than an attorney. As far as the motion to dismiss, you can ask for the dismissal based on all of the improper filings and that they are not secured creditors based on the schedule and give them the date they were noticed. You have to make your choice which way to proceed here, we cannot make that call I am afraid, but generally it is better to get the motion filed in time rather than ask for more time if at all possible.
ok, well I will call them now and point out their inaccuracies and then i will file on monday for sanctions and to dismiss based on the above...and pray for that relief, however, I should put in there somewhere, that they can prove standing, that they are secured in my motion (if they so disagree, which obviously they are trying to...but they can say anything, i'm sure in hopes i dont respond). But i should put in the motions the above and ask for them to prove standing if I am wrong, yes? and state the FRBP, on how they prove they are a secured creditor? however, as we know, they did submit a REDACTED, copy of their corp Assign DOT, so they probably think that is sufficient. However, as I've said, that Lender says they never assigned or sold my loan to that "lender." really they are debt collectors. anyway, i know that doesnt matter cuz debt collectors can have proper standing. but in my motion to dismiss on all these innacuracies, should i list all the dates/times the lender they say assigned it to them stated they never did nor have they ever heard of that "servicer/lender?" Originally this "movant/servicer" stated they were servicing it for that Lender, but that Lender confirmed it was false and said the transfer to the other Lender shows they no longer had my loan as of many months prior to this "lender/movants" assignment. So I suppose I can submit that as well, aside from the proof of ro bo signed assignment? That it is impossible they could have been assigned it because it was assigned long before to a different lender. It's super complicated, because of the modification refi. So they assigned the original loan to one lender and it looks like the lender that did the mod/refi that became 1st lien (per their documentation and is recorded) assigned their note to a diff lender, and that lender supposedly foreclosed on my property a few months before I had received NOD from this lender. Very complicated. Zillow and my cr report showed at that time it had already foreclosed. I can submit that evidence from then, as now, they took all of that off of my current cr. report. The name of that lender that foreclosed has never contacted me and I only know of the assignment cuz i called title company as a mod. specialist from that lender stating the file is missing docs and I was shocked when title co. said they did the assignment to that lender. They dont talk to borrowers so i did what i had to do to get the info, but posing as a loan mod person requesting the info, which they gave me could incriminate me, yes? so i cant refer to that info can I? only the proof of zillow that showed it foreclosed already and my cr. report (which like i said has all been changed and now this movant/servicer has put on my cr. report that they have had my loan from the beginning, in 2004, whereas all other documentation and past cr. reports and their decl. in their motion states they got my loan in 2011. Are cr. reports submissable evidence?
Yes, you can submit all of that as well. The credit reports are also admissible as evidence. Not to mention, you have the other evidence that they are not a servicer as they claimed.
no they are "only the servicer" is what they claim and they are not required ti tell me who the lender is or who has my note, as this documentation is not readily available to them." that is what they say and they quote respa saying they are not required to give this info, that their recorded assignment is enough proof for them to have standing to foreclose. that is what they state
Right, but they claim that they are only the servicer, but you said you found documents that show otherwise, from our previous conversations.
oh yes, like them changing the info on my cr report to being the lender since the origination of the loan,and their attnys motion that states they are the Lender and secured creditor. yet what they submitted to CFPB, they said they are the servicer, and my loan was sold to another bank they list as the creditor. (isn't the creditor and lender the same thing?) therefore that document evidences they are the servicer, and who the creditor is. but like i also keep going back to is their DOT, which does give them authority in CA to foreclose and be a secured creditor. SO really, that is the document i need to end up attacking for sure and proving with my many exhibits that is a fraudualant conveyance, yes? and at that point...well all is moot as the Trustee will catch wind and say, "thank-you very much, i'll take that...and try and sell my house." however, at that point i could go forward with the other suits. I'm jumpin in the shower, flippin hot here and a/c doesn't work (I was going to fix it, my aunt was going to pay $1,800 but I didnt want to until I find out if I'm going to lose the house or not, however, if i do get it fixed this weekend, would that be good to show that I am giving adequate protection?
The creditor and lender were the same thing and a servicer really is only someone who processes payments for the creditor. If they are the servicer they generally do not have rights to sue, it is the creditor who does unless the creditor has assigned the rights to the servicer to sue. You really have to attack their standing to sue you on this and prove they have no rights.
well I keep getting tripped up by the CA law that says a DOT assignment makes them a secured creditor, so I'm afraid to hear the judge say, "Look, they have a recorded deed of trust, so they are a secured creditor, motion granted, I'll sign the order." This is my worse fear, that another rapist will be set free to continue raping and decieving families en masse. I have witnessed my whole cul-de-sac foreclosed and the entire block adjacent, in fact in my community, over 85% of the original homebuyers have been foreclosed on. I have seen people lose their jobs, self esteem, spouses, and everything due to trying to save their homes (only because they too were given false hope and told like me way back when, "the only way we can help you is if you are behind on your payments." so there went our credit, and then "the way we were" professionals ended up on drugs and doing things they would have never done r/t the depression and craziness they were thwarted toward. My command of English isn't strong enough to describe these guys (banksters/lenders/servicers and even the alleged regulators), except until hearing about the "joker." I heard a criminal attny say, it isn't a question of whether he did it, it is a question of why. Well same applies here, yet they are still free to destroy way more families than this joker did and what do they get for it? Big Bonuses. I really appreciate you, and I haven't had time to see why I haven't recieved my checks the past couple months or I would be giving you much bigger bonuses. I have to find out what is happening with my checks, my bills, my car, my health. But no exageration, I wake up to this work and fall asleep with the laptop on my lap educating myself. I'm afraid I will miss a rule or element somewhere and be booted. i really feel like i've been in law school for almost a year and its so sad, because I could be making 4k/month working, but i took off for justice. When I saw my neighbors be evicted on Christmas eve after their home foreclose and watched them drive away in a big Uhaul with their 4 kids and really nowhere to go and certainly not the people they once were, well, I just couldnt take it. And I saw so many divorces because of the stress they went through and a very professional man lost his job and ended up on meth and lost his family and everything. I'm telling you, I have witnessed and experienced first hand the destruction these "jokers" have caused. And Schwartznegger and Obama implementing their false hope, on "contact your lender and they will work with you," well they too are/were part of the problem, because its all lies. To God be the Glory if this ever does get Justice, However I think this is all part of a one world order of just rich and poor....bye bye middle class. Back to what you said above, it's attacking their standing with their assignment DOT without proving it isn't right.
I said above in my last answer, that they have no standing unless the creditor assigned them those rights. If they have a proper and valid assignment, then they do have standing and you have to then challenge the other false documents. You have to attack the alleged DOT assignment.
Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
do I attack the alleged DOT assignment in my motion objecting to their motion?
Yes, you would attack the DOT assignment as you are claiming it was fraudulent or invalid and you would attack it in objecting to their motion.
but wouldn't the judge ask me how I know it is fraudulant? wouldn't i want to save that as an adv complaint or as you said before, a suit after the bk is done? Amongst my research, i have this doc,that looks like i could tweak it for my case, as there is a broken chain as well...no way they could have assignment from the lender they have on their assignment. not to mention, the "movant" is the only one who has created, executed and signed the assignment (attorney-in-fact), so couldn't i ask the judge to have them present the legal doc that gave this RS the rights to sign as attorney in fact for, or should i just blow the socks off the judge and in my motion submit 30 exhibits with diff sigs and proof that a RS signed this doc, not to mention its date they signed it is the 24th of the month. If that is the case, how could they possibly have said they have had the servicing since the 3rd of the month (first they said always the 1st of the month, but their response to cfpb said they have had it since the 3rd). So wouldn't their assignment reflect the 3rd and should have been signed and notarized on the 3rd?
You cannot save everything for later. You need to use some of it now to prove your case now. So use the proof of fraud now to show them up, it is not going to stop you from suing later.The dates should all match up, yes.
ok, so I can prove broken chain title, or RS assignment DOT, which one would you do? (i think WWPMJDD)or I could point out their beneficiary Corp Assign DOT doesn't even mention the Note, and they have stated in their replies to my QWR's they only have to answer per RESPA as servicer, and they do not have to tell me where my Note is, AND they say, "that information is not readily available to us as the Servicer." Now does that make any sense? (per UCC and other laws????? nope doesn't make sense to me, but whatabout you?) btw, I told my cousin about you and thx for helpin her
You need to bring up that the note is needed to enforce the loan and without the note they have no evidence of the loan. Again, if they are the servicer, then they do not have standing to pursue it the lender does.
I know and have been asking them for that for almost a year, but they say they are under no obligation or law to furnish that to me, and "that information is not readily available to us." So based on that exhibit alone, one would automatically think they don't have standing, right? (that "one" being the judge?) Their attny said they are the secured creditor, yet in their paperwork to me they name the Creditor as WF bank as trustee, in trust for the benefit of the Holders of "this servicers name here" Fund REMIC Trust "year here-4 #'s here" Beneficial Interest Certificates, Series "year here-4 #'s here." Then they go on to say,1. "We are the servicer for your mortgage loan"and under the above named Creditor, it says, 2."Your mortgage loan is serviced by a servicer we hired. The mailing address and phone number to reach our servicer is: and then it has the Servicers info. I havent had time to research the law on this, but being that their letter states they are given authority to act on behalf of the new creditor, is that prima fascia, that they are therefore secured and have standing? I know I have all the other evidence, but based on the above would one believe they are secured, or even on the same playiing field as the Creditor being that this Trust is "in trust for the benefit of the Holders of "Servicers" Beneficial Interest Certificates? Can you tell me what type of law this would be? I am thinking Securities Fraud all the way around, but I don't know where to even begin to look, as far as which U.S.C. Title or otherwise...except there has to be some kind of sec. fraud goin on here, but I don't think i need to mess with that...once I can finally get it in the hands of the A.G. or someone, they can look in to that...because that is not a crime against me, it's against the govt. I know I could eventually include it in a complaint, yet I dont have all the facts except if this bank is the "creditor" then from what I have read, the deed follows the note, so wouldn't they have been assigned together, instead of the deed coming a few months later? And if I understand correctly all I've read, the Note would have gone to the above listed "creditor" and then they would assign the Dot, as it too should have gone to the "creditor" is this right? (I know you are answering way more than one qustion here, but my account has been blocked because they said my payment didn't go through and I think it is because the cc I am using changed #'s because the cc company said almost a month ago there was fraudulant use on it (good thing they discovered it). Otherwise, i would be following the rules of the site and ask you as a "new question." Thanks so much for working with me here.
They have to prove that they have a proper written assignment of the right to collect as a secured creditor, you have not said they have that. Please fix your account with customer service because if they cancel your account, they penalize the expert and it can cost us hundreds of dollars, which has happened in the past, and that can impact you getting further questions answered on the site.
yikes, ok, will do, that happened once before, and this one expert had over 20 reversals (i think thats what he called it), I wanted to know how much and he and one other (had one reversal) are always on my mind to get paid somehow, I tried really hard with the customer service, it wasnt my fault. the customer service girl had told me (over a month or more ago) that my account was on and if it wasn't cooperating to press ok to pay but i wont be charged since i had a monthly subscription. and then the cc was full, found out i was being charged and they said they would remove them, that I shouldn't have been charged. Then I end up finding out not only did they remove the charges from me, they also removed the compensation to the experts (well only 2 had told me). Because then something went awry again, they didn't know what. I didn't use the site until I had time to find out what it was (couple or few weeks later), and then didn't know but said I had to change email, and then they put me back on original email (this one and took off other one). Ok, well then, I will be sure to call again tomorrow, but might have to wait til monday, and in that case. dang, I had a few questions, but I'll just run with what I have which is plenty. Great to what yo said above, nope they don't. Do I need to outline what they need to furnish to prove standing as a secured creditor, or will the judge tell them (because I can outline what they need to provide...as I have done many times to the litigant. They better pay you, actually, they open at 6 am, I was finally going to go to sleep, been fighting sleep and workin on it all...gonna call em now
I understand your issue, I just wanted you to make sure you understood and got it fixed with customer service. Tomorrow is Monday, but our customer service is open 24/7. They need to provide some type of assignment of rights from your actual creditor to them as merely the servicer of the account. You need to show what documents you received from them and show none of those documents prove they have standing by assignment from the creditor to collect the debt.
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