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Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 40643
Experience:  Texas Attorney for 30 years dealing in real estate
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I have retained representation, but I was hoping to obtain a

Customer Question

Hello:
I have retained representation, but I was hoping to obtain a 2nd opinion on a foreclosure matter.
Purchased a small condo in Denver from an Owner/Agent seller.
I put about $30k down and signed a note for $80k due in 1 year.
When I attended the first HOA meeting I was informed of over $20K in special assessments that were pending a final vote for replacement of all balconies (even though we had a basement unit), a new roof, remediation of a Radon issue, and replacement of major plumbing.
NONE of these defects were disclosed prior to sale (I am a RE Agent myself - there was no disclosure here).
Anyhow, I have been battling with this stubborn Seller for a settlement. and even considered rescission on the whole deal and giving it back, but my losses would be high. He will not budge.
In June, he filed Foreclosure against me, NOT due to late Note payments, but due to my refusal to pay the HOA assessments that I maintain were fraudulently misrepresented to me, which effectively caused a delinquency to the HOA, and is protected in his DOT.
My current Attorney feel confident that he can prevail at the R120 hearing, arguing we were not in default due to the issues above. However, my review of the limitations of the hearing to void or postpone foreclosure (payments or military only) give me a pause on his estimate of success. He is a RE Attorney, but NOT a active in foreclosure procedures etc.
Can you comment on your opinion of the above? My foreclosure in set for October, my credit is perfect and I want to avoid any missteps if a sale, or redemption are my only TRUE cures here, as I will need more time than the time permitted after the R120 hearing to arrange either.
Thanks. Ralph Massetti.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ray replied 1 year ago.
Hi and welcome to JA Ralph.Ray here to help you.
You would hope the lawyer can resolve this ahead of the foreclosure.Otherwise you may have to pay the HOA dues and seek recovery from the seller.
I agree with you that there was nondisclosure here. Liability then is on the seller you depend on the lawyer to get this resolved prior to October or you will have to front the HOA assessment and sue for the money from the seller and your other remedies here as well.
You depend on the lawyer to force resolution , suing if necessary to get you recovery including lawyer fees from the seller.The realtor if there is one here should get a demand letter too as they have errors and omissions type coverage that can pay at least part of your losses.
If your lawyer is not acting fast enough you need to consider a change here, the time window is relatively short.It doesn't sound like he is pushing this to the degree you need.You have remedies through the courts and hopefully realtor has insurance as well.I would explore the realtor since they have liability as well.
You may want to consider a lawyer change,
Lawyer referral with ratings. I suggest you review your own lawyer here for ratings and then look for one with higher satisfaction ratings..
http://www.avvo.com/real-estate-lawyer/az.html
This is a specialized area, competent counsel is critical there is a real short window here.
I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.
Expert:  Ray replied 1 year ago.
If you can leave a positive rating when we are done it is sincerely ***** ***** wish you the best here.You have great facts to pursue this.
Customer: replied 1 year ago.
HI Ray:I appreciate your reply.Two notes. One, is the Seller IS the Owner / Agent here, so I have already filed a complaint with the CO DOR, and understand that civil court may be my only remaining remedy if a settlement is not reached.Second, my Attorney has been adequately aggressive here, instead D. Counsel seems bent on using all remedies despite our claims validiity (for that I don't blame him).I reached out on JA to find a RE Attorney that is specifically familiar with the R120 Hearing scope to determine if our planned argument will be considered, or if my Attorney may be unrealistically optimistic.Can you perhaps escalate the question to someone on the JA rosters who may have SOP familiarity specifically with the R120 Hearing impact on foreclosure procedure.Respectfully,Ralph Massetti.
Expert:  Ray replied 1 year ago.
I think your lawyer is a bit too optimistic..
There are only two defenses to a Rule 120 action:
1) 1. The money is not due, or
2) 2. the action is barred under the Service Member Civil Relief Act
Timeline for filing a Response:
The Response must be filed with the court and served on the Petitioner at least five days prior to the date set for the Rule 120 hearing.
So here the HOA need only prove up the debt, whether this was disclosed to you is not an issue.You are looking at a separate suit against seller and realtor, I do not think he will be successful in such a hearing in raising the issue.The debt here is likely valid, the issue of disclosure is for a separate civil suit.
So if your plan here is to solely dispute this in the R120 hearing you are not likely to be successful.It is very limited here to them proving that the property involved has a valid debt against it.
Reference as you can see it is a limited hearing, a separate civil suit is the real remedy here.
http://www.denverpost.com/ci_16539427
It is very unlikely the judge allows you to raise other issues.
You should be legitimately concerned.
Thanks again.
Expert:  Ray replied 1 year ago.
Customerplease let me know if you have more follow up.I addressed the 120 issue above, it is not a problem, thanks for letting me clarify.
Expert:  Ray replied 1 year ago.
If you click on the first subject here on this page it walks you through exactly was a Rule 120 hearing allows, very limited..
https://www.google.com/search?q=colordao+120+hearings+foreclosure&ie=utf-8&oe=utf-8
Expert:  Ray replied 1 year ago.
More
http://foreclosuredefensenationwide.com/?p=402
You can file a separate civil suit here against seller and to stop foreclosure.
Thanks again, good luck with all.