Hello, and welcome to JustAnswer! I am a licensed attorney and will be happy to assist you.
I'm sorry to hear you're having difficulty. Unfortunately, refis and modifications, even under the federal programs are pretty hard to come by days.
As far as the recorded deed being that of Countrywide, the present state of the recording would not likely stand in the way of foreclosure. But tell me, who is presently trying to foreclose?
What about the Deed of Trust question.
It looks like we were both typing at the same time. The present deed of trust shouldn't be a problem for the foreclosing entity. When in court, that entity will likely produce the documents showing the chain of title and ownership of the loan, even if not recorded. Chances are to get the recording straightened out before then, just to cover all bases, anyway. If the entity foreclosing can prove ownership of the note (which is not necessarily the same as recorded title) they will have standing and the recorded deed will not matter.
The points the courts will look at is whether or not the money is owed, whether "someone" has the right to foreclose, and whether the entity attempting to foreclose has the documents from the preceding entities that authorize it to proceed. Those documents do not have to be recorded deeds. They may be as simple as a purchase or agency agreement.
That said, if the entity does not have the documentation to make such a showing, the court will deny the foreclosure.
Select Portfolio Servicing is threatening only. Trying to work out a deal, but not doing very well.
Such occurs more than you might expect. It is the burden of the foreclosing party to produce the documents to the court. If they do not, which is sometimes the case, they lose.
It sounds like they're bluffing and acting like a collection agency.
If I was a bank, and I owned a note on the home upon which I wanted to foreclose, I might use a collection agency first, but would use my legal department to foreclose. The last thing the world I would do would be trust a collection agency or its attorney to handle the foreclosure action. No way.
Keep in mind, some collection agencies work under the letterhead of an attorney. That attorney is not licensed in your state. That attorney cannot sue you in a foreclosure or any other type of action.
You can look up the attorneys licensure on your State Bar website. With the attorney is not listed, that collection agency and that attorney will not foreclose. They can bluff all they want, but it can't happen.
Sorry, entered before done. What if the investor group and/or Select Portfolio Servicing do not or can not come up with any loan documentation or title documentation, as all of the paperwork has supposedly now changed hands 4 times.
If you are sued by someone it doesn't have the appropriate documents to show they have the right to bring the foreclosure action, that entity has no standing in court and cannot win the action. The more times title changes hands, the more likely something like this is to occur.
Have you received any correspondence from SPS with an attorney's name on it?
No. Prior to turning in any current documentation for possible re-fi/modification I was going to send certified mailed request for copy of all loan docs and title docs showing that I owe the funds. If SPS or the investors can not show this documentation that I owe anything on my house, how can they force me to even pay a loan that is possibly lost.
A certified request for copies would likely be a waste of five dollars. I have never known a loan purchaser to provide such documents upon request. If they file a court action against you, however, they will be required to provide the documentation, either attached to the actual lawsuit or during the discovery phase of litigation. That's the point when you can request any and all documentation and, if not produced, they cannot rely on it in the action. Until then, chances are you won't be provided with ownership or agency documents.
I know we had both been typing at the same time, so I urge you to go through our chat postings and read all of the information provided. I will do the same thing to make sure I haven't missed anything. Then, please let me know if you need clarification of any points, or if additional information may be helpful to you. I'll continue to assist until you have all the information you need. I'm here to help!
You mentioned that you are trying to work out a deal with SPS, but not getting very far. That is not surprising. When the matter progresses further, such as when it goes to an actual attorney or you received a summons and complaint for a foreclosure action, you will have much better standing to negotiate, believe it or not. Just because you will be dealing with collection agents who neither know the law, care about the real situation or have authority to make decisions. Instead you will be negotiating with an attorney. In most cases, that's a much better position to be in. The person will be speaking to will be rational, intelligent and either have authority to make a deal or be able to obtain it.
The reason for the questions is that I have heard of folks owning their homes free and clear because the banks could not come up with any loan documentation. I don't know if this was after the bank attempted to foreclose or what. I will be attempting to talk personally with one of these folks. Due to my loan docs going from Countrywide to BofA, to an investor group and or SPS, the likelihood they may be lost is possibly in my favor. Would I owe on a loan they do not have or can't find?
There is one more thing I want to point out. Many homeowners are of the belief that if there is a minor glitch in loan documentation that they will be able to avoid paying their mortgage and their, indefinitely, without payment. There are some attorneys who will actually support that possibility. Nothing could be further from the truth. I want to be sure to clarify that for you now, so you don't fall into the same trap as many others who believe such nonsense to the effect of unnecessarily losing their homes.
Don't believe the rumors. It is the most dangerous thing you can do. They are 100% untrue. It has never happened – ever.
If anyone tells you they can make that happen for you, they are either naïve or deliberately stealing your money.
Think about it from an objective standpoint. You took out a loan. You owe someone money. No judge has or will ever determine that you get a free house. The judge may demand more definite paperwork and better diligence before a foreclosure sale will be ordered, but I promise you, no judge has ever awarded or will ever award a home free and clear to the homeowner when there is still an outstanding mortgage.
I know this may not be what you want to hear, and I wish I could tell you differently, but I want to be very clear on this point. I have seen families destroyed as a result of believing this nonsense. They followed the advice of an attorney who has since been disbarred, created media mayhem and in the end paid lots of money to inevitably lose their home.
It's best to get the notion out of your head and move forward productively, rather than find yourself caught in an insidious trap.
You still have options. Quite possibly, several.
You can still (1) try for modifications/refis; (2) negotiate with the appropriate party; (3) consider a bankruptcy that may may delay foreclosure or help you avoid it altogether; or sell the property on your own terms. Leasing the property, or part of it, may also help.
I do understand that I owe on the mortgage, however my current income can not afford to owed payments. Additionally, I owe $621,000.00 on the loan, plus the $64,000.00 home equity loan. I had the house appraised in Dec.'12, which was $291,000.00. Along with all that, there is a County lien of $20,000.00 for paved roads. Right now bigger homes in the area are selling for under $500,000.00. By what you have said, a short sale is about my only option. I am still confused, having to pay an outstanding mortgage that is due but there are no documents showing it is due, how would that work.
Of the options I presented, bankruptcy, if available to you, is a better option than a short sale. A short sale may result in deficiencies and tax liabilities and there's often no avoiding tax liabilities in bankruptcy. Chapter 13 bankruptcy, if you qualify, may permit you to restructure that loan you are trying to modify in a manner that lets you cure the default over 3 to 5 years. You may also be able to extinguish a second mortgage on the property, depending on the circumstances. If the house is your primary residence and is not a duplex, you may not have the option of getting rid of the second mortgage, so it's important to plan ahead if you think getting rid of the second (if you have one) may make a difference in your ability to pay. It sounds like a bankruptcy consultation with an eye toward exemption planning may not be a bad idea.
Exemption planning is a process that may take a considerable amount of time to ensure adequate protection, so if bankruptcy is something you might consider in the future, you should consult with a local attorney as soon as possible. That attorney will be able to go over all of your paperwork and financial records to determine whether bankruptcy is something that could benefit you and, if so, which chapter would be best in your particular circumstances.
A good referral source will be your County Bar Association. There should be no charge for the initial consultation with the attorney to whom you are referred. Not all bankruptcy attorneys do exemption planning. In fact, very few do. The stronger the firm, the more likely they will be familiar with exemption planning. For that reason, you may want to consider a certified bankruptcy specialist when requesting a referral from the Bar Association. The Nevada State Bar website should list all the certified bankruptcy attorneys in your area. I expect there will be less than a handful.
A lot of people don't realize that the loan modification they are denied by the mortgage company is something they can force upon it through a bankruptcy. Only at an attorney who reviews all your paperwork will be able to tell you if you are in a position to effectively "rewrite" your home loan through bankruptcy.
I hope this information helps. If you need additional information or clarification, please let me know and I will continue to provide assistance. If this response has helped point you in a positive direction, please let me know that, as well.
You may also print and/or return to this page for reference, at any time.
All the best,
-- Attorney 1
In regard to my last statement about no existing loan documentation. As a retired police Officer of 26yrs, if there is no documentation or evidence there of, it doesn't or didn't ever exist. I guess that is my backwards thinking.
Very practical thinking in many situations. I wish it were as applicable here. In a sense, it is. If an entity shows up in court without documentation, and you point that out to the judge, the judge will show that entity the door. The matter may not be over, and you may not get a free home, but no evidence = no judgment.
At least on that day.
Is there anything else I can do for you today? We were again typing messages at the same time, so please reread what was posted or print it out for your records.
That was my thinking. "At least on that day", a stay of execution. Thank you very much for your time.
You are more than welcome. Please do consider the various options discussed in this post. There may be some good ones in there for you.
Best of luck!
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