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I have been trying to modify with my servicer for months.

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Hi I have been trying...
Hi I have been trying to modify with my servicer for months. Wells transferred my file to the servicer (Fay Servicing) after trying to modify with them almost a year. I am self employed so income varies mo. to mo. but I manage. This has made income requirements a little tricky and prolonged the process. In any event, while I have been working with Fay I have had two sale dates that were supposed to be 'stopped' by Fay that didn't get stopped. I've had to file ch. 13 to stop these 11th hour sales twice now and am on my third. First filing dismissed, i was not able to make the date due to inclement weather and road closures that lasted days or weeks. Still working with Fay the whole time to modify but they still set another sale date without notice. When I get my mod denial letter, the new sale is only days away. They keep asking for the same docs over and over as reason why mod packet isn't 'complete'. 11th hr again i file second bk to stop sale, this time I am work hard to complete the schedules but can not find forms for 1. The ch 13 plan. I inquire at the court clerk where to find this doc. they refer me to trustee site. Trustee website is DOWN FOR MAINTENANCE! I look everywhere for how to complete this schedule but can't find it anywhere. I can't find in time so write a letter explaining this and attach to my filing. I explain to court clerk my predicament and I'm told that i filed everything I could so just wait for a response. I'm expecting instructions to come explaining how to complete my filing but all that comes is another dismissal. I'm shocked and panicked. I call Fay for an update. They say my mod file is complete, no more docs needed. Don't worry about the upcoming sale in a few days they would be stopping it. Morning of sale and it's still scheduled. At the last minute Fay need a copy of my 2015 taxes WHICH THEY ALREADY HAD. Sale is not stopped by Fay. I rush to courthouse and file again. No stay on 3rd filing. House sells to outside party. Major CFPB issues with Fay concerning notifications and duel tracking.
Q: How do I file a 'motion to impose stay' Can i show good faith in my second filing to get a stay based on my honest effort to complete the filing and having everything filed except repayment plan, which I now have ready. And finally, what are the chances of them rescinding the sale so I can continue my fight? Do I sue fay for illegal foreclosure because of dual tracking etc sited in the CFPB Consent Order (06/07/7) They have been ordered to pay monies, relook at all their loss mitigation files, and stop actions. Does this help me?
Submitted: 1 year ago.Category: Bankruptcy Law
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Answered in 8 hours by:
6/10/2017
Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 22,006
Experience: B.A.; M.B.A.; J.D.
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Hello: This is Phillipsesq. Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

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Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

I am sorry to read about your difficulties.

Was this a judicial or nonjudicial foreclosure?

When did the foreclosure take place?

Thank you for your cooperation.

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Customer reply replied 1 year ago
Non-judicial, the sale took place 6-1-17 just a few days ago. My third filing is still active but no stay is in place.
Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

Thank you for the information.

Unfortunately, there is no right to redeem in a non-judicial foreclosure. Since the foreclosure has taken place, the bankruptcy Court cannot retroactively issue a stay to reverse it. So, you question on how to impose a stay is now moot.

I am sorry that I do not have better news for you.

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Customer reply replied 1 year ago
Are u sure? I'm in California and I've read case law that says different. It may be state laws that allow this tho.
Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

Yes, I am sure. For more information, click here.

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Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

Also see California Code of Civil Procedure Sections 726, 729.010 to 729.090.

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Customer reply replied 1 year ago
these decisions don't apply?In Re Gonzalez, 456 B.R. 429 (Bankr. C.D. Cal. 2011)
United States Bankruptcy Court, C.D. California
Filed: August 1st, 2011
Precedential Status: Precedential
Citations: 456 B.R. 429
Docket Number: 6:11-bk-15665-MW
Judges: Wallace
Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

Thank you for the information. However, I will opt out to give another Attorney the opportunity to further assist you.

Goodluck with your case,

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Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Law Educator, Esq.
Category: Bankruptcy Law
Satisfied Customers: 125,221
Experience: Attorney At Law handling education matters.
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am a DIFFERENT CONTRIBUTOR.
The previous contributor is correct in the information they provided you. The only way the Gonzales case can help you reverse this sale is that if you find the deed never properly transferred. It does not allow the court to issue a retroactive stay. You would need to seek to vacate the non judicial sale by proving they did not properly sell the house or did not properly transfer the deed or did not conduct the non-judicial sale properly. If you cannot prove one of those things, I am afraid the non judicial sale cannot be redeemed or vacated.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 1 year ago
Thank you for your response and clarification. Obviously not the news I was hoping for. So even tho I did re-file the bk before the trustee sale, i can not get the stay applied in any way? I was gonna motion for the stay to be imposed when i turned in the remaining schedules before the 14 days. Is that a waste of time?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago

Thank you for your reply.

The CA law says they cannot retroactively issue a stay AFTER the sale, you could have received the stay if you filed before the sale. So, if the sale was perfected, I am afraid that the court is not able by CA law to impose a stay, because the sale is already over I am sorry to say.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 1 year ago
In Re Gonzalez, says the sale is not complete until the deed is recorded? Could they have recorded it this fast?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
Gonzales does say the sale is not complete until deed is recorded, but it also says the sale is final when the bid is closed and accepted and even mention that if that is not the case the trustee could go out shopping for other higher bidders. So the key is when the sale was final, not when the deed is recorded completing the transfer.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 1 year ago
Ok, thank you very much. One last angle, i was not sent notice of the most recent sale that occurred. I was in underwriting review with Fay, and recieved a notice that no more docs were needed. The morning of the sale date they requested a doc they already had. The day after the sale I still was getting noticed from Fay saying I was still in mod review but needed one more doc again. Is that eveidence of dual tracking? There was a CFPB consent order recently published that accused of this very behavior, notifications and dual tracking. Is there any action worth taking?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
As I said initially, you can file to vacate the sale only if they did not properly conduct the sale and failure to provide notice of the sale is grounds to seek to vacate the sale. Additionally, asking for duplicates of documents they already have is an unfair and deceptive practice and that is grounds to go after Fay for damages and if you prove they did this to delay the modification to give them more time to foreclose you would have a case for damages against them, but it would be money damages if the sale was final (presuming they provided proper notice of the sale to you).
If they did not give you proper notice of the sale, you can file in court to vacate the sale on that basis.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 1 year ago
Ok, well some hope at least. :) Any good news is a win at this point. Thank you for being patient. To clarify, I have had a sale dates every month since working with Fay, some obviously were postponed by the other bankruptcies etc. All I have recieced in this time were statements and various mod letters but not a notice of the last sale and I think the one before that also. Are they required to notify my in writing of each sale date?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
They are supposed to provide you notice of the sale date, yes. If they did not do so, you need to file to try to vacate the sale on that basis and on the basis of their unfair and deceptive practice seeking documents you already provided.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 1 year ago
Awesome, thank you very much. I really appreciate your rapid response and patience with my question. When u say file, do u mean file at the bk court and make the complaint part of my bk, or do I need to take separate action? Or both?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Thank you for your reply.
You would file a petition to vacate foreclosure sale in the Superior Court, not in the BK court. It is a separate action.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 1 year ago
You are the man, thank you very much. Guess I need to find a lawyer, do u practice in the Bay Area?
Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago

Thank you for your reply.

All of the experts on this site are forbidden by state law from representing anyone from the site. You can get a local consumer protection or real estate attorney at the same sites used by other attorneys, http://www.hg.org or http://www.lexmundi.com

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Bankruptcy Lawyer: Law Educator, Esq., Attorney replied 1 year ago

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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