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Purchased house in 2004 with, what are real estate agent…

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Purchased house in 2004...

Purchased house in 2004 with, what are real estate agent describe as "creative financing". One primary lender (Adjustable Rates), and a secondary lender (Balloon). Due to unforeseen circumstances we fell behind on both mortgages. In February, 2017 we had a house fire, totally gutting one bedroom and heavy smoke damage to bath, living room and kitchen. (Insurance was for "structure only". When we were finally able to live in the house again (10 weeks) I started working with lenders to work out arrangements with them. The primary lender worked with us and we are now in our fifth month of that agreement. Secondary lender requested additional paperwork which needed to be received by them no later than November 3, 2017. I faxed requested paperwork to them on October 23, 2017, (I have confirming fax receipt). Waited for confirmation, and on December 6 were served with a Notice to Quit, as a January 15, 2018. I contacted lender explaining all, they asked for a copy of confirmation receipt, which I faxed to them, along with all the original paperwork faxed in October). Today they informed me there is nothing they can do. I have no where to take my family. My husband barely gets around now (two hips and one knee replacement), my daughter who lives with us, along with my three grandchildren, has been at Bristol Hospital, Behavioral Medicine wing since December 31 with severe anxiety and depression. Is there anything I can do, or are they going to show up here on the 15th, and force us all out onto the street. Thank you for your time.

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

Sorry, I should have known that. Connecticut

Lawyer's Assistant: Has any paperwork been filed?

What type of paperwork?

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Just that I need help!

Submitted: 6 months ago.Category: Real Estate Law
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Answered in 1 minute by:
1/9/2018
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago
Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 34,389
Experience: Began practicing law in 1992
Verified

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

Please allow me several minutes to read your facts and type my response both initially and when you add a follow up question or add facts. Please don't ask "are you there", "where is my answer", etc., since when you post it can erase what I am working on. If we are having a conversation unless I tell you I am going offline, I will be here but I may be doing research.

I have read and understand your facts, is there a specific question with which I could assist?

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Customer reply replied 6 months ago
What can I do now to prevent them from putting us out on the street? We have no place to go, plus I have a signed agreement with our Primary Lender for automatic payments.
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

The only things you can do, assuming that their paperwork is correct, proper notices were given, etc. is to either 1) pay the amount they are requesting, 2) file for an injunction through the court, or 3) file for a bankruptcy.

I am assuming that if you had the funds to pay them you would have done so therefore I won't discuss #1.

As to #2, requesting an injunction from the court, that is an expensive, complicated process for which you really need to hire an attorney and therefore is cost prohibitive to most people.

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

That leaves filing for bankruptcy, which under your facts seems like the best option. When you file for bankruptcy the court issues an "automatic stay" immediately upon filing. This is similar to an injunction and it basically tells anyone that is considering a lawsuit against you, trying to foreclose, etc. to stop what they are doing and do everything through the bankruptcy court.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

A bankruptcy will allow you to force the lenders or anyone else to whom you owe a debt to restructure what is owed and will also prevent them from forcing you to leave your residence.

You will need an attorney to help with this as well, and the prices for attorneys are set by the bankruptcy court.

It takes a few days, normally, for an attorney to put your paperwork together and file it so you want to go ahead and proceed immediately.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

The bankruptcy will negatively affect your credit but being behind in the payments does as well and you can start recovering from a bankruptcy almost immediately, although it does stay on your credit rating for seven years.

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Customer reply replied 6 months ago
Okay, will have to consider. Can you take a look below, please? I know this talks about "landlord/tenant", but do the same "rules" apply in our case? SUMMONS AND COMPLAINT
If your tenant still has not moved after the last day given
in the Notice to Quit, you must return to the clerk’s office
with the original Notice to Quit, the State Marshal’s
Return of Service, and a completed Summons and
4
Complaint. (See JD-HM-32 on page 16 for an example of
a completed Summons. See JD-HM-8 on page 17 for an
example of a Complaint issued for nonpayment of rent in an
oral, month-to-month tenancy, and JD-HM-20 on page 18
for a Complaint issued for termination of lease by lapse
of time in an oral month-to-month tenancy.) You will
need to make 1 (one) original and a copy for each of the
tenants/defendants. In addition, you should keep 1 (one)
copy of everything for your records. Be sure to indicate in
numbers 1 (one) and 3 (three) of either Complaint whether
it is an oral or written week-to-week, month-to-month or
year’s lease.
You must personally return to the court with your
completed Summons and Complaint for the clerk’s
signature on the Summons. Also, bring the original
Notice to Quit with the State Marshal’s Return of
Service. The clerk will set the return date on the Summons.
The return date is a date from which certain
time periods are measured, such as when the defendant
must file an Appearance or a Pleading (Response). The
return date can be any day of the week except Sundays
and holidays. It is not necessary for you to appear in
court on the return date because there will be no hearing
on that date. After the clerk sets the return date and
signs the Summons, you should keep 1 (one) copy of all
papers for yourself and give the original and sufficient
copies for each defendant to the state marshal, who will
serve a copy on each defendant and return the original
to you. The fee for this service is approximately $45.00
to $60.00.
Once the state marshal returns the original Summons
and Complaint to you with the Return of Service noted,
you must file them at the clerk’s office with the original
Notice to Quit, at least 4 (four) days before the return
date on the Summons. When filing these papers, you
must pay an entry fee to the clerk. As of the date of
printing, this fee is $175.00. Payment must be made at
the time of filing by cash or check payable to Clerk,
Superior Court.
Always have the case name and return date available
when inquiring about your case docket number, if it has
previously been given to you.
The defendant has 2 (two) full days after the return date
to file an Appearance in the case to contest the eviction.
If no Appearance is filed by the third day after the return
date, you may request a Default Judgment for Failure
to Appear. (See JD-HM-9 on page 19) In order to obtain
the Default Judgment for Failure to Appear, you must
personally come to the clerk’s office to file a Motion for
Default Judgment for Failure to Appear and a Military
Affidavit. The office will supply you with this form. You
must mail a copy of this Motion to the defendant and file
the original with the court. Keep 1 (one) copy for your
records and make a note of the case docket number. If no
appearance is filed and all papers are in order, a judge
will enter a Default Judgment in your favor without
the necessity of a hearing. You will be notified by mail;
therefore, please do not call the clerk’s office.
If, however, the defendant does file an Appearance but
no Response to your Complaint (Pleading), you should
personally come to the clerk’s office and file a Motion for
Default Judgment for Failure to Plead."
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

What question did you have about that? Where did you get it?

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Customer reply replied 6 months ago
Wanted to know if this information would be the same in our case. Came from: Landlord's Guide to Summary Process Eviction (JDP-HM-14) 1 / 28 0 Notice to Quit is what we received
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

Sorry, the first couple of lines were missing and just popped up.

It depends on how they filed their case as to whether this applies to you. Normally in a foreclosure it would not, there are different rules that they go by. However, sometimes people "waive" certain things in the papers they sign and so I can't tell whether these apply to you or not. You would have to have someone go over the initial papers you signed with the company, anything you filled out or exchanged in the meantime, plus the papers you were served with.

We can't do that on here because it is against the website rules plus it is a lot of paperwork.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

Typically in a situation like yours there are more days after service in which to file an Answer, the forms aren't the same, etc.

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Customer reply replied 6 months ago
Okay - - well, thank you for your help.
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

Be sure and don't delay in making your decision. There is a lot involved in your case and if you are going to file bankruptcy the lawyer will have to get a lot of information from you and file the forms. The good part, as i said, is that the moment it is filed the automatic stay kicks in. Even if you can work out an agreement later and dismiss the bankruptcy, the filing will keep them from "throwing you out" in the meantime.

I'm not sure why the lender is doing a Notice to Quit, my suspicion is there is something else involved of which you are unaware.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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Customer reply replied 6 months ago
They are the secondary lender, was able to work out an agreement with the primary lender. I don't know if that has anything to do with it.
Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

It shouldn't, they have to have a mortgage of some kind to secure their loan. The only thing I can think of would be if they had already done a non-judicial foreclosure but CT doesn't allow those, it only allows judicial foreclosures.

The fact that this doesn't "match" any of the remedies or causes of action in CT may mean you signed some type of waiver without realizing it.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

I am going to be offline for a while. If you have any follow ups you can ask them in this thread and I'll pick up when I return.

When you issue your positive rating the question thread locks open and will no longer time out so if you have any follow ups in the future you can come back to this thread as well.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

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Real Estate Lawyer: Dwayne B., Attorney replied 6 months ago

.

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