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Roger
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Category: Legal
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Experience:  Litigation Attorney
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Is it legal for a banks attorney to refuse to correct a foreclosure

Customer Question

Is it legal for a bank's attorney to refuse to correct a foreclosure complaint that wrongfully alleges additional money is owed?
Submitted: 1 year ago.
Category: Legal
Expert:  Dave Kennett replied 1 year ago.
Dear JACUSTOMER - There's no law or rule that the plaintiff or his attorney has to correct a defective complaint. The proper procedure is to file an answer and deny the allegations in the complaint, not try to get the plaintiff to correct it. The plaintiff's attorney can claim anything he or she pleases in the complaint and you have the right to deny or to contest the allegations. If no additional money is owed and the plaintiff can't prove their case then you would win at trial and they wouldn't get the money. That's simply how the system operates and why we have courts. It is the plaintiff's burden to be able to prove what they allege in the complaint. They don't have to change the complaint but if they can't prove what they are claiming then they will lose at trial.
Customer: replied 1 year ago.

In spite of providing a title search in my response to the foreclosure, which included title documents, which proved the 2nd mortgage alleged in the foreclosure complaint was non-existent, which is in the court's file, the bank's attorney refused to correct the complaint by inferring that it was irrelevant since it had no bearing on the mortgage being foreclosed.
I explained the inclusion of the non-existent debt was absolutely relevant because its existence in the complaint was preventing me from securing the money to settle up with the bank. I explained my intent to avoid a wrongful deficiency judgment and a future unnecessary legal battle. They still refused to remove the debt and sold my house at auction a year and a half after I filed my response, to which they never responded.


In addition they never responded to my modification loan application after telling me my documents were complete and satisfactory.

What are my options?

Expert:  Dave Kennett replied 1 year ago.
Since the case is apparently over there's little you can do now to correct anything but at the time you could have filed a motion to strike that part of the complaint but just asking the attorney to do anything never has a chance of success. Obviously I have no way of reviewing the entire file so I can't tell you why a non existent mortgage would have been mentioned unless there had been a second mortgage that had never been released and it was necessary to name the second mortgage holder in order to marshal all liens as part of a foreclosure. I would think that you could have shown any possible lender that there was no such mortgage on the property regardless of the complaint allegations but it is difficult to go back and recreate the situation and circumstances. If you are still within an appeal period you could appeal the decision but otherwise I know of nothing you can do to correct the problem once the case is over.
Customer: replied 1 year ago.

Your answer confuses me because I know that reconveyance and rescinding are possible remedies for homeowners who have been wronged. I am still within the redemption time period.


My source of information mostly came from www.occ.gov on the pages posted regarding the INDEPENDENT FORECLOSURE REVIEW which ended up being scrapped. Even still, I received 3K dollars from the "AGREEMENT" and I want to spend it on an attorney.


Please explain how reconveyance works and/or why it's not a possible option for me to pursue.

Expert:  Dave Kennett replied 1 year ago.
I am going to opt out and open this to the other experts. I answered the question as to asking an attorney to remove incorrect information from a complaint but now you are getting into another area so I'll let one of the other experts review this additional info. You won't be charged for any of my time so there's no need to give a rating.
Expert:  Roger replied 1 year ago.
Hi - my name is Kirk and I'm a Real Estate litigation attorney. Thanks for your question.

From a procedural standpoint, the information provided by Mr. Kenneth is correct. In other words, if the loan information in the complaint was wrong, that would have been something you would have addressed in the response to the foreclosure complaint OR via a motion. Also, if the information related to a second deed of trust that wasn't being foreclosed, it would not have much bearing on the proceeding. I understand that it may have possibly hindered getting financing from a lender, but it should not have prevented it IF an independent title search proved the information to be incorrect.

In any event, a "reconveyance deed" is an official document from a mortgage holder releasing the debtor from the mortgage. It is evidence that the mortgage has been paid in full. The mortgage note is marked paid, the original mortgage is returned and a deed of reconveyance is issued to the home owner showing the mortgage has been paid off.

A deed of reconveyance must be recorded in the public records of the county where the property is located. If the deed of reconveyance is lost or destroyed, it creates a title nightmare and puts a cloud on the title because there is nothing to show that the loan has been paid.

So if you want to redeem the property, you would still have to pay off the mortgage, and if you're trying to get financing, you should be able to prove that the other lien identified in the paperwork doesn't exist with an independent title search.
Expert:  Roger replied 1 year ago.

Hi -

I was checking in to see if you had any additional questions or needed more information. If so, please let me know. Thanks!

Kirk

Customer: replied 1 year ago.

I didn't realize I was charged for two questions. How do I remedy this please?

Expert:  Roger replied 1 year ago.
It's not showing on my end that you were charges twice (or at least I haven't been paid twice). It may be because you asked 2 separate questions, but since you didn't accept this particular question, it shouldn't be an issue to straighten it out.

You can click the "Contact Us" button below and make sure that you get this straight.
Customer: replied 1 year ago.

You're the best!

Expert:  Roger replied 1 year ago.
Glad to help :)

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