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I am a plaintiff in this suit a pro se against GMAC & Aurora…

Hi Sir, I am a...
Hi Sir, I am a plaintiff in this suit a pro se against GMAC & Aurora Loan Services for Wrongful foreclosure filed in Oct 2010. I attended the first initial hearing and none of the defendants attended in Nov. 2010. In Dec. 2010, my daughter got kidnapped and I almost lost my mind to the overwhelming task at hand when the police retrieved her back within that month, sad to say GMAC while am busy repairing the life of my 9 year old daughter then, GMAC has filed for Chapter 11 Bankruptcy. They have sent me a notice of bankruptcy, and later on they have sent me motions after motions which at that time my priority was to save my daughter's life. Today, my daughter has recovered a little from all the trauma and I finally have the time to look at all the documents sent to me, this year GMAC has filed a motion to dismiss my complaint with prejudice on the basis of res judicata, as they were saying that I failed to file a proof of claim over a year ago to the Bankruptcy Court. I need to answer this motion, because I don't want the court where I filed to dismiss case because I never was granted a Trial to be heard in court because GMAC has filed for Bankruptcy and Aurora Loan took advantage of dismissing itself from the case while I was busy helping my daughter. I know I have a fight, but what I am wondering is that, is Predatory Lending and Wrongful Foreclosure act may be forgiven or watered down by Bankruptcy Relief? Please help me if I can still fight against the GMAC's motion.
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Answered in 3 hours by:
11/23/2017
Law Educator, Esq.
Category: Consumer Protection Law
Satisfied Customers: 125,925
Experience: Attorney experienced in commercial litigation.
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.

Unfortunately, you have a huge issue here, that being that your personal issue involving your daughter does not excuse you for not keeping up in court with your court case from 2010 or for not filing as a creditor in the bankruptcy filing. Your 2010 suit is likely dismissed by now based on the bankruptcy, so your only even possible chance is filing in Bankruptcy court.

You can TRY to file a motion for leave to file proof of claim out of time in the Bankruptcy court, but here is the issue, if the bankruptcy estate has already been given out to all of the other creditors, there is noting left for you to even get. So, sadly, I am afraid to tell you that the failure to attend to this matter as it was going on is going to mean the matter is now over.

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Law Educator, Esq.
Category: Consumer Protection Law
Satisfied Customers: 125,925
Experience: Attorney experienced in commercial litigation.
Verified
Law Educator, Esq. and 87 other Consumer Protection Law Specialists are ready to help you
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Customer reply replied 7 months ago
Sir, what about the non-dischargeable items in Bankruptcy court such as the Loan they set me up fraudulenty by declaring my income without my knowledge & many more? I am just trying to see the avenues where the bankruptcy court will have no jurisdiction over fraudulent acts of the debtor or better yet over the court ruling where I filed this suit of Predatory Lending. What do you think about this scenario? Also, as far as statute of limitations, can I still file a motion for another defendant who got out of this case to be re-engaged back by filing into the Sixth Circuit Court?

Thank you for your reply.

If you prove the loan was fraud, then that debt owed you for violation should not be discharged in BK but the problem is the amount of time. In addition to the statutory bar for bringing any further claims called the statute of limitations, here is a legal principle called laches, which says that even if you could have brought a claim if you waited too long to the prejudice of the other party, you lose that right. The issue is that your personal issues are not the court's problem or good cause for giving you more time to collect and if the bankruptcy is completed already and the money paid out to the creditors of the bankruptcy, then you are too late.

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It is too late to try to bring the other defendant back in, too much time has passed in the case, that is the problem. Also, the only way to get the other party back in is getting the court to reconsider and if they refuse then you have to get permission for an interlocutory appeal to the appeal court, but again so much time has passed it is not likely to allow this.

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Customer reply replied 7 months ago
Thank you so very much for your answer Sir. Yes, I can prove that the Loan was a fraud because they declared my income even though I gave them my paystub, and even though I did not want them to declare whatever income they want to declare. I will look into the "interlocutory" appeal. Actually, the judge last month suggested to try to file an appeal, so I will do that.
Customer reply replied 7 months ago
Sir, I would like to search online for all the public cases where debt owed by GMAC for violation should not be discharged in BK when proven that the loan was fraudulent. May I ask your help if you know of any cases right of that I can reference in my response to their motion? I would greatly appreciate any help. Thank you so very much!

Thank you for your reply.

We are not a case law research service, but you can use www.findlaw.com online or you can go to the local court library and use their computers to search the other pay for service databases for free in the court library.

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Customer reply replied 7 months ago
Hi Sir, good evening. I am still working on my reply to the supplemental motion of the defendant to dismiss GMAC from the case I filed. I would like to ask you if you could give me a valid example of " state a claim upon which relief can be granted" like in my case I had stated these in lengths in my First Complaint, but I have researched in all different places but I am still confused about how to state my claim for which relief maybe granted. Please help because I also have researched that there were many case that were dismissed by the judge for lack of statement of claim for which relief maybe granted.

Thank you for your reply.

A claim upon which relief can be granted is you need to explain specifically HOW the loan was fraud, you need to state exactly what they did that was fraudulent.

Proof of claim is a bit different, proof of claim is something you file in bankruptcy court telling the court that the party who filed bankruptcy owes you money.

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