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I am being sued for breach of contract and the right to foreclose…

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I am being sued for...
I am being sued for breach of contract and the right to foreclose on the promissory note, after I rescinded the mortgage 2 years prior on tila violations connected to a refinance transaction. Spouse was not given any disclosures such as Notice of Right to Cancel, TIL and DOT. I was not given the proper disclosures. I am also counter suing. They are now trying to obtain a summary judgement. I am thinking of filing a chapter 7 and filing the mortgage as unsecured due to the fact proper notice of rescission was given prior to any type of legal action and it automatically terminates their secured interest. Also the party suing me is not the lender nor the servicer we made payments to. Is this the best way to handle this situation to force them to prove they have standing and get our rescission honored?
Submitted: 8 years ago.Category: Real Estate Law
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Answered in 2 hours by:
6/24/2010
Real Estate Lawyer: Ray, Lawyer replied 8 years ago
Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 49,575
Experience: Texas Attorney for 30 years dealing in real estate
Verified
Thanks for your question.Bankrutpcy filiing here woudl be best way to stop foreclosure.If you are trying to keep the hosue here it has to be a Chapter 13 .If you just want to liquidate debts here and surrender the house then Chapter 7 would be the way to go.Either way here a filing will automatically stay the foreclosure and any court proceedings in state court.It woudl be your best chance to stop them in their tracks and allow you to seek discharge of other debts as well..
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Customer reply replied 8 years ago
I am aware of that the question is can I list mortgage as unsecured since I rescinded long before they attempted foreclosure? When you rescind a loan under Reg Z for TILA violations it becomes unsecured.
Real Estate Lawyer: Ray, Lawyer replied 8 years ago
You may try to list it this way but they will argue an a note here it is secured.And honestly I think they would prevail in bankruptcy court .I mean the note is what makes it a secured creditor.
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