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LADYLAWYER
LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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I need to file an order to show cause to stop a foreclosure

Customer Question

I need to file an order to show cause to stop a foreclosure I need a sample form. Supreme Court, Mineola, NY.
Submitted: 5 years ago.
Category: Legal
Expert:  LADYLAWYER replied 5 years ago.

Hi,

 

You can use this as a sample, but of course, you will have to enter your own court info, parties names, etc. But the basic case law and arguments are there. http://www.nycourts.gov/library/queens/PDF_files/mortgageelectronic-davis.pdf I really would not recommend going this on your own though. There are a lot of technicalities you will have to overcome and judges usually are not that patient.

LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience: Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
LADYLAWYER and 5 other Legal Specialists are ready to help you
Expert:  LADYLAWYER replied 5 years ago.

Hi,

 

Please come back to your original thread: http://www.justanswer.com/questions/222zw-need-file-order-show-cause-stop

Customer: replied 5 years ago.
There is a pending sale of my home on Tuesday 5 May at 11:30am, I am going to show up and after paying the filing fee hopefully get a judge to sign a stay. But I need to see the form. The form you showed
Expert:  LADYLAWYER replied 5 years ago.
Your typing was cut off. There is no "standard form". Each one is drawn up specifically for each case. That is why I was suggesting you have an attorney work with you on this who knows the very specific facts of your case. The form I gave you at least quoted NY law so you could draw up something on your own if you are not willing to hire an attorney. You will, of course, have to change all the facts, court name, parties names, etc. so it will reflect your own case. As far as what to write in the body, you should use the case law in the example and will have to make your own arguments. If you put something together and want me to look at it, that would be fine.
Expert:  LADYLAWYER replied 5 years ago.

Hi,

 

I was able to open up the link with no problem. You have to have adobe acrobat reader though. Most computers have this, as it is a .pdf file. Perhaps you need to install this program to be able to open up the file? You can download Adobe here: http://get.adobe.com/reader/?promoid=BUIGO

 

And then come back and open up this link: http://www.nycourts.gov/library/queens/PDF_files/mortgageelectronic-davis.pdf

Customer: replied 5 years ago.

HI, Good morning. I found in Microsoft Word 2003 a legal document template. I started it but don't know if I have filled it in correctly, I hate flying by the seat of my pants. In any case I am happy to pay you what ever you feel is fair for the non-legal advice/educated answers if you can help me with this. I opened the one you sent finally and it looks so complicated for my needs, so if there is a way I can show you what I've done please let me know. Thanks again. valerie

 

Customer: replied 5 years ago.

 

 

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU_________________________X

 

Emigrant Mortgage Company, Inc.,

Plaintiff,

vs.

Valerie Adams Acevedo, XXXXX XXXXX Jaeger,, Astoria Federal Savings and Loan Association as, successor in interest of Flushing Federal Savings, and Loan Association, Capital One Financial , Corporation as successor in interest of Sunrise, Federal Savings and Loan Association and Home, Improvement Mortgage Acceptance Corporation, a/k/a Home Improvement Mortgage Acceptance, Corp.,

Defendant

 

Case No.: No. 08-76002 (ast)

 

ORDER TO SHOW CAUSE TO STOP THE FORCLOSURE SALE OF MY RESIDENCE AT 217 N. PARK DRIVE, N. MASSAPEQUA, NY 11758, ON MAY 5, 2009 AT 11:30AM

Customer: replied 5 years ago.

I am doing this in pro se because if I can't get this stay I will immediately call my lawyer to set up the chapter 7, which as you know will need to be filed electronically before midnight tomorrow. I am looking for the legal phrasing to say that I would like a stay for 60 days to continue my fight to save the home. I have been at this for 2 years, I am a single mom with 3 special needs kids, two adopted sibs from la county. I work two jobs and can do this if they will consider giving me a loan mod. which they have been unwilling to do thus far. Not very friendly. anyway I am looking for phrasing in microsoft at the moment your help is appreciated

Customer: replied 5 years ago.
are you still there?
Expert:  LADYLAWYER replied 5 years ago.

Hi,

 

Sorry! I answered you back and then went to church. I am home now though. I don't usually work on Sundays, but I will make an exception as I know you need help and giving you that help really isn't work. I cannot accept any more money from you though. I will be happy to look over your order. It does NOT have to be as complicated as the example I gave you, I just gave you that because it had some of the applicable case law in it. Let me know how you need help with this.

Customer: replied 5 years ago.

I, Valerie Adams Acevedo, a 49 year old, single mother of three boys, (James, 16, Eric, 15, both Life scouts and on their way to Eagle, as well as new members in The Order Of The Arrow, and Nicholas, 7 a cub scout,) have been struggling to keep my childhood home for two years. My boys and I have been through severe hardship these past few years. My children, all at one time special needs, witnessed the untimely death of my mother, then the death of their aunt, whom I had taken in to care for during her fight with cancer, the loss of our two remaining family pets, the loss of their parents marriage, and major move to New York. Our only vehicle, a 1993 Chevy Astro van with 200,000 miles and no reverse and inheritance was stolen by a handyman I had hired to help me upgrade this house, the vehicle has since been recovered at a cost of $1,500.00 but the jewelry valued at $10,000.00 remains a loss. I broke my fifth metatarsal and was casted for 9 weeks in 2007, then again broke a bone while saving a tortoise from becoming road kill, this kept me out of work for an additional five weeks this past September, 2008. I am alone, frightened and still despite being diagnosed with clinical depression I am unwilling to give up. I keep it together for my children.

 

I have had no guidance or mentors or help of any kind that would have helped me make smarter decisions, however, not only did I think I was doing the right thing, I am by no means an irresponsible borrower. I borrowed money from Emigrant bank, a no documentation loan at an adjustable 9.125%, (default rate 18%) and put over $170,000.00 into the upgrading of this home. I put in a new boiler, new windows, new roof, siding, gutters, basement, and bathroom, upgraded the electricity, fixed ceilings, and fixed walls, replaced worn bare flooring, painted and upgraded the second floor. I over paid and had several horrible experiences with service contractors. I then paid bills for an entire year in advance due to the special needs of my then four year old. I needed to be available for his therapists, specialists and there was no sitter that was able to handle him then.

 

The minute, Nicholas, entered Kindergarten; I secured a position as a school bus driver for the handicapped, at Educational Bus Transportation in Copiague, NY. This allows me to take Nicholas with me on my early morning route and then drive him to school. My older two pick him up and do homework until I get home in the evening.

I have rented the upstairs and started to board dogs in my home to those that want a kennel free experience for their pets. I do not call in sick, work all additional available bus runs, am able to receive unemployment when there is a lack of work, i.e., school vacations.

Presently, I am trying to secure a third job as a driving instructor.

 

this is where I am at on the affidavit.... I will send the first page next. Thanks for your help!!!!!!!

Customer: replied 5 years ago.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU______________________X

 

Emigrant Mortgage Company, Inc.,

Plaintiff,

vs.

Valerie Adams Acevedo, XXXXX XXXXX Jaeger,, Astoria Federal Savings and Loan Association as, successor in interest of Flushing Federal Savings, and Loan Association, Capital One Financial , Corporation as successor in interest of Sunrise, Federal Saving,

Defendant

Case No.: No. 08-76002 (ast)

 

ORDER TO SHOW CAUSE TO STOP THE FORCLOSURE SALE OF MY RESIDENCE AT 217 N. PARK DRIVE, N. MASSAPEQUA, NY 11758

Customer: replied 5 years ago.

MY COMPUTER KEPT CRASHING, DON'T KNOW WHAT YOU WROTE. OY WHAT A WEEKEND. whoops didn't mean to have the caps lock on.

just got back from church myself, figured it might give me more inspiration. thanks valerie

Expert:  LADYLAWYER replied 5 years ago.

Hi,

 

Okay, thanks! It sounds like you have had a really rough time of it and I definitely feel for you. Here is the thing though--the hardships that you are mentioning are not defenses to the foreclosure. The court cannot grant the stay of foreclosure based on the reasons you have so far provided. You have to have legitimate, legal reasons for the court to grant the stay. Even if the judge wanted to grant it because you have been through so much, his hands are still tied by the law. What's more, a stay is only a temporary fix to stop a foreclosure. Borrowers may file a motion with the court to stay the foreclosure sale (also known as an order to show cause), but must show meritorious defense and a compelling reason for the stay. Filing for Chapter 13 bankruptcy will automatically stay a foreclosure, but this again is temporary. I see in one of your above posts that you realize this and are just trying to buy yourself more time so you can "fight", but I hate to see you keep throwing good money after bad. I know this is your childhood home, and I know this is a big deal to you. Has your attorney given you any indication on whether you might qualify for a mortgage modification under the new administration? I think that that is what you need to find out first. If you qualify under any of the new legislation, then you will have real legal reasons to stay this foreclosure and get the lender to do what you want. If you get the stay, I would start to spend more of my time and effort concentrating on having an attorney to research that issue for you. In the meantime, feel free to send me your second page. But just so you know, you have to have some real legal defenses here or this will not be granted.

sale.

Expert:  LADYLAWYER replied 5 years ago.
Here are just some of the examples of legal defenses to a foreclosure action: http://www.articlesbase.com/national,-state,-local-articles/legal-defenses-to-foreclosure-561043.html There are also other things like improper service, etc.
Customer: replied 5 years ago.

bummer. ok, well I filed two chapter 13s, dismissed without predjudice, the lender will not speak with me, I have spoken to their lawyers, of course they have no reason to want to help because as one of the richest banks around it has, I am sure already recouped their money tenfold, I just got off the phone with my lawyer he said to tie in that I am speaking with the bank. I had asked for forebarence and/loan mod applications, they sent them and I should use them as exhibits, also mention that I am trying to work out a deal based on Obama's stimulus package and that is why I am requesting the stay, now my lawyer seems to think he might be able to grant that and that it might be worth the try since I am doing it on my own. I need the time to get the rest of the documentation in. The judges are supposed to have a little more latitude with this stuff now aren't they? I hate to give up.

 

Customer: replied 5 years ago.

thanks I will look at them, can't I give you a bonus?

 

Expert:  LADYLAWYER replied 5 years ago.
Those are all good pointers that your attorney gave you. I would definitely do those things. You are more likley to get the stay that way than if you just try to pull on the judge's heart strings. I know it is tempting to use emotions in this, because this is a very emotional thing you are going through! But try to keep it more to the cold, hard facts, if you will, and give the judge something to work with on why he would be able to legally grant the stay. It IS true that they have more latitude with something like this, but there has to be SOME legal basis for his decision. The fact that you are going through hard times does not give him the ability (legally) to help you. The fact that you have diligently been working to modify the loan and that the lender is not being cooperative, is more of a reason to grant the stay. I happen to be a very emotional and prolific person myself and even after almost 10 years of doing this stuff, I find that I am still having to rein my emotional side in all the time! It's tough! Please do not worry about the bonus. Any "work" on my Sundays is done pro bono and God simply wanted me to help you today. I will keep checking back in so as you are drawing up the document, just let me know if you have any questions.
Customer: replied 5 years ago.
thank you so much, I will modify the affidavit with those points in mind but should I put that at the beginning or at the end?
Expert:  LADYLAWYER replied 5 years ago.
Well, I haven't taken a look at your second page yet, but I would put it at the beginning and then weave a few facts in about you trying to work hard at a modification because you have 3 special needs children, two of whom were adopted. There should really only be a few sentences here and there about your personal life. The judge should hear a little about your background, but again, you need to focus on giving him legitimate reasons for granting the stay. Bring that to the forefront and you will have a much better chance of getting what you want.
Customer: replied 5 years ago.
ok will do thanks, XXXXX XXXXX on it. thanks again.
Expert:  LADYLAWYER replied 5 years ago.
Okay great. I am going to go do some things but I will keep checking my email to see if you have written me. :) We'll get it done, don't worry.

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