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REALLY Need Help: My home Foreclosure hearing is tomorrow. *UPDATED* 4-26-2010!!!

Can any one here give me some advice on how to make the lender produce the note (in a legal manner). Countrywide was the original lender (they no longer exist). Bank of America now supposedly holds the note. How would I go about challenging them without hiring an attorney? Any advice would be much appreciated!

Ok, so I woke up this morning not knowing what I was going to do, logged on to the DP, and after reading some of your guys posts from after I went to bed I got up the confidence to go down to the courthouse to see what I could do.

When the magistrate asked me if I had anything to say I said yes your honor, I would like BofA, formerly Countrywide Home Loans, to produce the genuine original promissory note for this amount, also, I want to be sure B of A has standing to collect on this alleged debt. (thank you esp to jules and wolfe, jules for giving me something to go with, and wolfe with letting me know non lawyers get more leeway)

Anyway, the magistrate says very good; have you filed and answer with the court? No your honor, I have not. Mag: Technically you should have done that already, but I will grant you till 11/27/2009 to file an answer with the court and mail to all concerning parties.

UPDATE* 11/24/2009

After much research I have finished my answer to the complaint. Im going to take it to a lawyer friend now to review it and hopefully file it today. I really think I nailed it. The burden of Proof is now on the bank. I want to thank the whole Daily Paul family so much for all your advice, info, encouragement, and support! Wish me luck!

UPDATE* 11/25/2009

Answer to complaint filed with the clerk of courts today. Copy mailed to Plaintiff via certified mail. My lawyer friend says i probably wont hear from anyone for a while now.

UPDATE* 2/18/2010 !!!!!!!!!!!

Out of curiosity yesterday i was checking the Clerk of Courts website to see if anything new had been filed and sure enough Bank of America has filed a motion for Summary Judgment. They didnt even notify me though it says they did in their affidavit. i got it today at the courthouse. They have two affidavits in support of the motion. I think i've got em but i need help.

In the affidavit a man named Greg Hige*** labeled as Assistant Vice President of BAC Home Loans states:

1.
In such job position affiant has the custody of the accounts of said company, including the account of Mr. _____ , defendant herein. Affiant states that the records of the accounts of said company are compiled at or near the time of occurence of each event by persons with knowledge of said events, that said records are kept in the course of its regularly conducted business activity, and that it is the regular practice to keep such records related to the business activity.

2. Plaintiff is the holder of the note and mortgage which are the subject of the within foreclosure action. TRUE AND ACCURATE REPRODUCTIONS of the originals as they exist in Plaintiff's files are attached hereto as Exhibits "A" and "B".

3. Affiant states that there has been a default in payment under the terms of the aforesaid note and mortgage. The account is due for the August 1, 2008 payment and all subsequent payments. Plaintiff has therefore elected to accelerate the entire balance due.

4. Affiant states that there is due on said account a principal balance of 59,704.21, together with interest thereon from July 1, 2008 at 6.125 percent annum and as may be subsequently adjusted if provided for by the terms of the note, and advances for taxes insurance or otherwise expended to protect the property.

They didnt produce the genuine original note! All they did was submit another copy! Where do I go from here. My Answer specifically demanded they produce the Genuine original promissory note.

UPDATE!! 2-28-2010

Ive discovered that a lady who signed for the ASSIGNMENT OF MORTGAGE listed as the Assistant Vice President for Countrywide has also in the last three years been listed as Assistant VP of MERS, VP of Countrywide, and Assistant VP of Bank of New York, constantly flipping back and forth signing these ASSIGNMENTS OF MORTGAGE. Also, I just discovered tonight via Fannie Mae's web site that they currently own the loan for my house. They are not listed anywhere in any of BOA's filings. I'm diggin!!!

UPDATE!! 3-17-2010

Back on March 5th I filed my Brief in Opposition to Plaintiff's Motion for Summary Judgment challenging BOA's standing as the real party in interest after I discovered that my mortgage loan was sold to Fannie Mae, and to this day are still claiming ownership. As well as the fact that the lady they had sign the assignment of mortgage as Countrywide's Assistant Vice President also signed on the very same day on six different occasions as the Assistant Vice President of MERS that i could find on file with the the County Recorder here in my county. Well, checked the docket online today and BOA has filed a Motion for Extension of Time to reply to Defendant's Brief in Opposition to Summary Judgment.

I really dont know what to expect now.

UPDATE!! 4-02-2010

From the docket today:

"PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO REPLY TO DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS GRANTED. PLAINTIFF MAY FILE ITS REPLY ON OR BEFORE APRIL 23, 2010"

UPDATE 4-26-2010

The bank filed a reply in support of plaintiff's motion for summary judgment. I'm so confused and overwhelmed right now. I really dont know if i have a chance now. They are now stating that they are the servicer for fannie mae among other things. not sure where to go with this now.



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Because most people want

Because most people want simple non-cumbersome advice, and most people don't want to actually read the law/rules that the court has to follow.

I was gonna say the same jb!

or:

What do you have to lose gavination?

Wake up have a big cup of strong coffee and go give it a try! If you win and don't want the house...(or stall them) you can rent it out or sell it! I dunno - there is the law - and "they" break it all the time (lenders).

I should be the one asking the advice here! I just got a notice in small print on my regular monthly (unpaid) mortgage statement of foreclosure. And I do not want to move. I will squat before I move!

Now go give the FED and the banksters a swift kick in the groin!

no need to squat....that

no need to squat....that bank traded your signature, which at the time was of GREAT value to them, for the house you are in. You are NOT getting something for nothing.

The higher the credit score/ fico score the more valuable you were to the bank, They have long made their money on you. The promissory note you signed was the key to their wealth...the bank made up to 9 TIMES what you were approved for (google fractional reserve banking)...an in exchange you got the house, but because the bank is so greedy, NOW they want you to pay for the house as well....

This is why a bank would rather short sale to a new 'qualified' buyer for say $35,000 than to reduce your price down to $75,000...your name is already used up, the new qualified buyer is good for $315,000 or so.

Original Note.

Ask you lender (or whoever bought it) for the Original Note/Title --- No Copies. If they cannot produce, they're the ones in trouble.

http://www.givemebackmycredit.com/blog/2008/06/are-you-facin...

>>>There is only one original note for your mortgage that has your signature on it.<<<

Facing foreclosure? Info at http://www.consumerwarningnetwork.com may help. Your goal is to make certain the institution suing you is, in fact, the owner of the note.

Produce the Note - Fighting Foreclosure - CNN
http://www.youtube.com/watch?v=YUZdANb6UaY&feature=player_em...

Obama = O.ne B.ig A.ss M.istake A.merica

Obama = O.ne B.ig A.ss M.istake A.merica

Michael Nystrom's picture

Sorry to hear about it, too

I'm not sure if anyone linked to this, but it looks pretty good from by quick skim. There is a detailed How-to, and a couple of videos, though I haven't watched them yet.

Consumer Warning Network: Produce the Note How-to

Good luck. Hope this is of some use.

He's the man.

thanks

thanks, i did come across it, i just wish i would have two months ago. oh well, i'll go in there and do what i can. i'm already resigned to the fact that i'm losing it, and with the backlog of filings here in my county i figured i got til at least february til the sheriff comes knocking, by then the inside of this place will be an ice house from all the frozen and busted pipes. I saw what National City bank did to the house next door when my neighbor lost her job to injury, then her house three years ago. it sat vacant for two years, the bank originally listed it for 78,900.00. two years later after they let it go to the elements it sold for 16,900.00. Think my neighbor couldve afforded that mortgage? since then it's been totally gutted and is still being worked on.

Sorry, to hear of your

situation. Something, that I heard was a lot of banks forclosed on the homes but didn't take the owner's name off the title. Months and years after the city comes looking for the former owners with a huge TAX bill. If you lose your home make sure your name is OFF the Title so they don't come looking. Those banksters are gangsters.

"We can see with our eyes, hear with our ears and feel with our touch, but we understand with our hearts."

i

i read that also here in my local paper.

Sorry

but you need to take your medicine. I find it hard to believe that you trying to hold a property that you contractually failed to live up too. When a renter fails to pay his rent he gets evicted. You failed to pay your mortgage, now you get foreclosed on and looking for a loop hole.

Shame on YOU!!!

well

well, ive lived in this house for over six years now. purchase price was 78,900.00 put 10% down. so that put me at 71,000 roughly. in the six plus years ive been here; with principle and interest combined ive paid right around 59,400.00. + 7,890.00 down payment = 67,290.00. i'm not exactly trying to get something for free. this house is now worth maybe 55,000.00.

you find it hard to believe

you find it hard to believe because you have never read the rules regarding national banks...Countrywide home loans is, rather was, a chartered national bank, so the must follow the rules..." A NATIONAL BANK MAY NOT LEND CREDIT"

see this for clarity:
http://www.dailypaul.com/node/114342#comment-1243786

But what does lending credit mean?

In the cases cited, one indicated that lending credit was becoming a guarantor. Have you determined what the definition of lending credit actually is? I suspect that loans such as real estate loans made by Countrywide are not considered lending credit, which I am guessing has a much narrower definition.

"Bend over and grab your ankles" should be etched in stone at the entrance to every government building and every government office.

wolfe's picture

It didn't sound to me...

like he is looking for a loophole. It sounds more like he is trying to make the bank live up to it's requirements. There is nothing wrong with that. Making the bank produce the note, will not result in having the foreclosure dismissed. Just delayed while the bank digs through it's overly convoluted electronic paperwork.
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

The Philosophy Of Liberty -
http://www.thephilosophyofliberty.com/

oh Wolfe...we are so close

oh Wolfe...we are so close to agreeing...i can feel it:):)
you want the bank to live up to it's requirements, but you dont like that it is required to lend actual MONEY!!

Here are the eleven powers of a national bank, and if it is NOT here, they cant do it...see:
"A contract made by a corporation beyond the scope of its power corporate powers is unlawful and void." (McCormick vs. Market National Bank, 165 U.S. 538)
and
"A national bank, under federal law being limited in its powers and capacity, cannot lend its credit." (Howard & Foster Co. vs. Citizens National Bank of Union, 133 SC 202, 130 SE 758)

read seventh, this is where it says they can lend "MONEY"
http://www.law.cornell.edu/uscode/12/usc_sec_12_00000024----...

wolfe's picture

Never gonna happen...

You have fundamentally flawed logic on the topic. You don't understand half of what you say, and the other half you take out of context.
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

The Philosophy Of Liberty -
http://www.thephilosophyofliberty.com/

the

the more ive read tonight the less chance i think i have.

demand they present the promisary note

a lot of the banks dont have them. the paper has been shuffled around from dealer to dealer package and sold. demand they present them the courts are ruling in people favors all over the country. if anything you will slow down the process and buy more time.

right

right, but is there a form or legal doc i need to do this? from what ive read, there is.

NO, there is no form, Simply

NO, there is no form, Simply ask

"I would like Bank of America, formerly countrywide home loans, to produce the Genuine original promissory note for this account. Furthermore I demand to know if country wide or bank of America gave full disclosure regarding this loan, Further I demand to know if Bank of America or countrywide home loans can demonstrate that it was put at risk by extending this alleged loan to me, Further I demand to know if my signature on the original 'contract' created the value for the alleged loan.

I want to make sure that everyone present at this hearing clearly understands that a national bank, such as Countrywide home loans, or bank of America, may NOT lend credit, and since countrywide home loans, and Bank of America is/ was a chartered national bank, they must be held to the federal rules of all national banks:
see:
"A national bank has no power to lend its credit." (Farmers & Miners Bank vs. Bluefield National Bank, 11 F2d 83, 271 US 669)

"Banking Associations from the very nature of their business are prohibited from lending credit." (St. Louis Savings Bank vs. Parmalee 95 U. S. 557)

"National Banks may lend their money but not their credit." (Norton Grocery vs. Peoples National Bank, 144 S.E. 501, 151 Va. 195)

Lastly, I want to be sure that Bank of America has standing to collect on this alleged debt."

You will blow their mind...they will probably try to settle for a lessor amount,

I would try that

why not?

In my state there is no court date unless you are pro-active rather than re-active. They just send you a foreclosure notice, sell your house at an auction to the highest bedder and then the sheriff comes to evict if you don't leave. In Oregon I think you have to take the lender to court once the foreclosure begins if you wanna do 'show me the note'.

this is true in ALL

this is true in ALL states:
in California it is found in Cal Civil Code 3527:
http://law.onecle.com/california/civil/3527.html
"The law helps the vigilant, before those who sleep on their
rights."

I realize i'm not much help but,

maybe check this out legal zoom; http://www.legalzoom.com/legalforms/home.html

The DP is proof that the grassroots support for Ron Paul and his peaceful message of individual liberty is large, real, and not going away!

yes discovery is the way to go

start there.

Please let us know what happens gavination!

-and what you did/ didn't do! Looks like you will do ok either way since you are somewhat prepared. I don't have much advise other than what has been said below.

I hope you do well!

wolfe's picture

Found this....

http://www.foreclosure1.com/blog/foreclosure/inability-produ...

It may give you a better idea of keywords to search to find the right documents and such.

Many legal sites online offer boiler plate legal docs for things like Motion To Produce in exchange for a few bucks. You just fill in the details and you are all good...

Btw, that article is on exactly what you are trying to do and it's even in your state.... Good luck, and let us know how things turn out.
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

The Philosophy Of Liberty -
http://www.thephilosophyofliberty.com/

foreclosure warning signs

Foreclosure is something that doesn't really come as a shock to most people. I mean I understand that when someone buys a home they don't exactly picture themselves foreclosing on it years down the line but things happen. I found this resource that will help people realize if they are heading in the foreclosure zone.
http://www.gobankingrates.com/mortgage-rates/foreclosure/are...

thank you!

you guys are all awesome!

From

From what ive read, my only shot is to serve a motion for discovery. I just have no idea on how to go about it.

gavination

It doesn't have to be perfect-

List your name
under it list if you are Plaintiff or Defendant

then the Case number

then the defendants name
under it list defendant

center: MOTION FOR DISCOVERY

United We Stand

gavination

Then under that you request everything that you WANT from them-

1..

2...

3...

and so on

Then you sign & date the motion and take another paper and write it to the : Example

Dear James G. Woodward, Clerk of Court,

Please find Plaintiff's (or) Defendant's Motion For Discovery..

Copies of Motion For Discovery have been sent to the _______________ are you the Plaintiff? If so - then you will say : sent to Defendant[s]

United We Stand