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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26130
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I want to reply to your helpful answer about attorney liability

Customer Question

I want to reply to your helpful answer about attorney liability and the meaning of reconveyance.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Roger replied 1 year ago.
Hi - thanks for the follow-up question.

My biggest concern is that the foreclosure has now already occurred, and if a judgment has been entered and/or if the house has been sold at foreclosure, you generally only have 30 days to object (possibly up to 6 months in VERY limited circumstances). So, it may be really hard to mount any successful lawsuit against the lender now that the property has been foreclosed.

At the time, you could have filed a counterclaim for mortgage fraud, which would have stopped the foreclosure - - at least temporarily - - but now it would be much more difficult to pursue the claim now. However, Kentucky does have a 5 year statute of limitations, so you could possibly still file suit for mortgage fraud.

This is a very complex matter because of the lending institution's rules, regulations and procedures with doing loan modifications or refinances, and the documents will have to be fly-specked in order to see if there was any improper action taken by the bank/lender. Thus, you are certainly going to need to consult an attorney for help with this.

If you file suit, you may be able to ask the court to enter a temporary injunction to stop you from being removed from your property until your case is resolved.
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.

Thank you Kirk. I lost my internet connection last night. Your response is very helpful. If you can hang in there with me - and anwer these questions, I promise to tip you.


I realize a post-sale lawsuit makes everything a billion times more difficult - I was stupid to believe the Independent Foreclosure Review's Remediation Framework, wherein the remedy for my situation included "rescinding the foreclosure when possible." As I'm sure you know, the framework was scrapped.
Anyway - here are the highlights of my case.


>>> Please let me know if you think this constitutes mortgage fraud or any other kind of case for wrongful practices.


When I missed my 1st payment in June 2010, the balance due was $94K. According to the amortization - the balance was not expected to be this low until January 2011. I had been paying ahead to try to pay off early. In July, I requested relief by asking the bank if I could pay "interest only" until January. They did not respond. In August, I sent two partial payments that added up to more than a single payment and they returned the money. In September, I applied for loan modification and after sending more documents a couple times, in December 2010, I received notice that my modification documents were complete and being passed on to underwriting. Despite their claim they tried to reach me in February 2011 to get more documents, I never received a message from them and never got the loan modification.


QUESTION>>How does the bank prove they actually left phone messages?


Also, in Sept 2010, I was served with the notice of the foreclosure action. I responded to the foreclosure on October 5, 2010. My response included irrefutable official title documents that proved the additional lien being alleged as being secured by the house was the original mortgage from 1996. The title documents clearly released this mortgage - satisfied in full in 2002 when we rolled the balance into a refinance that gave us cash for home improvements.


Although I have proof they received this response on Oct. 5, 2010, I never received a response to my response.
Fast forward from October 2010 to December 2011 - 15 months later..


In December 2011 the bank delivered another set of foreclosure papers via 1st class mail. These included the same errors as the first complaint as if my initial response was non-existent.


Yet, nearly 15 months passed while the mortgage fell farther behind and the fees continued to accumulate. In March 2012, the payoff for the loan being foreclosed was over $113K. (Amt owed was $94K in Jan, 2011) I asked the banK's attorneys for an itemization of all the liens against the house and they would not give it to me. Then I referenced the false "Count" in the complaint and requested they remove the non-existent debt based on the irrefutable evidence I provided in my response in Oct 2010 and they refused.
This refusal caused my uncle, who had offered to loan me the money so I could catch up on my mortgage payments - to be very skeptical and he explained deficiency judgment. The worst is that the bank's dishonesty caused my old-school uncle to question me - a cruel result of their legal tactic - which I am shocked to realize this is legal.
In addition, they incorrectly started their interest and penalty fee calculations on 05/01/10 instead of 06/01/10.


QUESTION>> Would this be enough for you to take a case against the bank for fraud or for any other wrong-doing?


Thank you for your time and God Bless!
With Warmest regards,

Expert:  Roger replied 1 year ago.
Unless the lender has phone records that show the date, time and length of calls, etc. it would be virtually impossible for them to actually prove this.

One thing to keep in mind is that a lender agreeing or allowing you to apply for a loan modification does not stop the lender from foreclosing at the same time. Basically, you're in a race, and if the loan modification goes through before the foreclosure, the foreclosure will stop, but if the loan modification doesn't complete or isn't approved, the foreclosure will proceed. Thus, it may be that these two things were going on at the same time.

As for whether or not mortgage fraud occurred, that's very hard for me to say without physically going through all of the papers. Mortgage fraud involves deceptive documents or approval for a loan that should have never been granted or other overt acts. The fact that the lender may have been negligent in listing this loan incorrectly may be negligent - - which you could sue for - - but it may not rise to the level of mortgage fraud.

We cannot take on clients through this site, but I do think it is worth consulting an attorney about your situation and the possibility of filing suit for damages.
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26130
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 9 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Warmest Regards XXXXX XXXXX have provided me with reason to hope.

Expert:  Roger replied 1 year ago.
No problem. Glad to help.
Customer: replied 1 year ago.

Did you get paid $49 plus $12.01 tip? (The .01 is my way of saying I appreciate you more than my money can express)

Expert:  Roger replied 1 year ago.
Yes. Thank you for checking on it. Let me know if you need anything else.

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