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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101381
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I was served notice of foreclosure in 2009 which I quickly

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I was served notice of foreclosure in 2009 which I quickly answered (pro se), by evoking my right to rescind on a loan that I was clearly a victim of Predatory lending. The Lis Pendens was cancelled and I did not hear anything again until a yr later. The issue is I was served by US Bank who was not the lender. My mortgage is with Wells Fargo serviced by ASC. I was never notified that US Bank was assigned my mortgage and I still am being called by Wells Fargo about my situationand now the courts are ready to final approve the foreclosure. What can I do I think US BAnk does not have true claim to foreclose what can I do before the do that?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. You stated that you believe that USA Bank is not your lender, but Wells Fargo is. However, banks often sell debt, and it is not unusual for one lender to sell your mortgage to another. This is likely what has happened here. Ergo, this is likely not a method to stave off the foreclosure.

However, you mention RESPA and TILA violations. Can you tell me more about this?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

I received my TIL the day of closing never received preliminary disclosures. Closing costs were disclosed at 6066.12 and ended up being 10,638.70 an increase of 3.004%. I work in the industry now and found out if the APR is off by ..125% and needs to be disclosed to the borrower. They NEVER did that. I found out that if something like that occurs the right to rescind is valid beyond the 3 day rescission. So I exercised that right by notifying all parties. They were clearly in violation of RESPA guidelines and I want to fight to get my house free and clear. see attached.

Thank you for your reply, Adrienne.

If someone in your situation wishes to have this matter adjudicated by the Court, then it is best to move before foreclosure, rather than after.

What someone in your situation may wish to do is twofold:

1) File a complaint due to the RESPA violation with the U.S. Department of Housing and Urban Development. This may be done by sending a letter explaining the situation to:

Director, Office of RESPA and Interstate Land Sales
U.S. Department of Housing and Urban Development
Room 9154 XXXXX SW
Washington, DC 20410

HUD, New York Attorney General, or the Department of Financial Services may file a suit against Wells Fargo / US Bank due to the violation on your behalf. However, the issue is that they may take months to do so. As such, someone in your situation may be more interested in filing a suit yourself.

When a suit is filed, one may ask for temporary orders while the trial is pending to delay/disallow the foreclosure until the matter is heard under Fed. R. of Civ. Proc. Rule 65 et seq, and the Court may agree. The whole suit itself would be filed in federal District Court - RESPA is a federal law.

The issue is that if the foreclosure is already filed, it may be harder to stop it by utilizing a suit under RESPA. So it is best to file any such suit before, and then ask for temporary orders not allowing the lender to foreclose until the matter is heard. The Court should agree if it feels that the Plaintiff (i.e. you) has a case.

Of course, an attorney is recommended. Please let me know if you need leads for pro bono / low cost counsel in the state, and I would be happy to provide them.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.

The foreclosure process has already started are saying it is already too late to file suit?


No, I am not at all. It just makes thins a little more complicated.

If someone believes that there has been a RESPA violation, and due to this and other wrongful acts by the lender(s), the foreclosure should not have happened, the best thing to do is the following:

1) File a counter-petition alleging the RESPA violation and other violations and tying them into an affirmative defense;
2) File a request to remove the case to FEDERAL District Court since due to REPSA, the federal court now has jurisdiction; and
3) File for temporary orders to enjoin (i.e. stop) the foreclosure until the matter is heard.

Simply put, one wants to (1) file an answer, (2) possibly move the matter to federal court, and (3) get temporary orders in place to prevent the foreclosure from executing until the whole case is heard.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 3 years ago.

Ok I will get on it are there forms to fill out to do this or do I do by letter


I am assuming you mean the suit.

If so, then this is done by pleading, and it requires drafting both an answer/counter-complaint and a motion to remove the matter to a federal court, as well as temporary orders. There are no forms for this. The forms you find online are for common things like "motion for continuance," or a general denial "answer," etc. This is a lot more involved. You need an attorney for this.

May I recommend the NY Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

Again, let me know if you need leads for pro bono and low cost counsel in NY.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 3 years ago.

I submitted the rating do I have to on every response it looks like I may be charged on every response..

No, you do not have to rate on every answer.