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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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MERS

MERS (Mortgage Electronic Filing System) is on my copy of the note. i cant say right now what it exactly says. i have it at work. i;m hopeful thats my ace in the hole.

Not your ace in the hole

...but it will give great support for your case. Look up all the law suits and rulings against MERS, then compile them into a list of case citings to submit in your suit. When a judge/jury sees that MERS has been all up in the middle of some shady things, a precedence is set, which is taken into consideration in your suit, and it demonstrates to the jury that MERS does not come into the court room with clean hands. This makes it easier for you to paint yourself for both the judge and jury as the little guy who is about to become another statistic in an ever-growing list of little guys stepped on by the big MERS monster.


Do the same for your mortgage servicer.

Do you know how

to find out if MERS will be used? I have searched for it... I did find something online where my mortgage co (although in another state) foreclosed through MERS. Just not sure how to find out.

I do think I have to instigate a court hearing re: the note (and I am fairly sure they will not show it) as in Oregon it sounds like they can foreclose without a judge... they just notify the borower of foreclosure, then auction it off to the highest cash bidder in 60-90 days. Then the new 'owner' can or has to evict you (me).

Hey I wonder if I can bid on my own house.... (senerio: no one shows up to the auction but me... highest bid $1.00 - ha ha ha...?)

I don't know the civil procedures in your state

I can only tell you how things worked in my case, in Texas. Also consider that my case was a little bit different than yours in that my mortgage servicer defaulted, foreclosed and sold my house without my knowledge until almost 3 months after it all happened. Texas is a non-judicial foreclosure state. Also, the reason I did not know is because of a problem with the post office where my mail was being stopped at the post office and being returned as undeliverable before making it to my house. This means that when notices were sent to me certified mail, return receipt requested, as required by Texas Code of Civil Procedure, the sender had proof that I never got their notices. Still, they made no alternative effort to contact me (by phone, other delivery carriers/couriers, personal contact, e-mail or et cetera).


On December 1, when I found out about all of this, I began researching and found out that MERS had filed itself in my county's records as the Substitute Trustee in the Notice of Substitute Trustee Sale. They listed themselves as the Original Mortgagee, which is a lie. I never contracted with MERS and have tons of paperwork so show that the company I signed with, and the company that originated my mortgage, is NOT MERS. So I began looking through all my paperwork and found that MERS was listed as the beneficiary on my note. During the closing on my house at purchase, I was sitting at the title company with a group of people around me, flipping/scanning through a pile of papers, saying, “This just means [blah]. Initial here.” for each page. The page citing MERS was one of those pages. MERS was never mentioned to me. So I began researching MERS and found many cases and rulings against them for shady practices. I called the originator of my mortgage to ask how MERS came into the picture. The way it was explained to me is that my mortgage was originated, then put up for sale as a security through MERS, which is an electronic clearing house, much like one would find relating to stocks. Another company purchased my mortgage through MERS, and MERS took it upon itself to list itself in legal paperwork as Original Mortgagee. It was MERS that actually performed the sale of my home. In reality, MERS had nothing to do with my mortgage – only with the Deed of Trust, where MERS was listed as a beneficiary. MERS still needs the go-ahead from the holder of your note to perform the sale. I ended up not having to pursue the MERS issue because I had other grounds to fight the eviction process. MERS will be brought up in my suit, though.


In Texas, the court handling the eviction has no authority to rule on whether or not any transactions leading to the eviction demand were valid. That has to be done in a higher court. It's an issue of ownership versus possession. The JP court, where the eviction demand was filed, can only rule on possession. Nevertheless, with some very good advice I was able to raise the issue of whether or not the transaction was valid to the jury, despite objections from opposing counsel, and despite reprimands from the judge. Convincing the jury and planting certain seeds with them is what matters – not what the judge has to say. It's the jury that makes the decisions. When the judge tells you to stop pursuing a certain path or issue, there are ways you can respond to the judge, politely, to still get your words/points conveyed to the jury. And you DO want to demand a jury. In Texas JP court, where the eviction hearing took place, the judge cannot instruct the jury. I had to tell the jury what I wanted them to consider and decide on (that I did not commit Forcible Entry and Detainer as alleged; that the Plaintiff had not acted in good faith because it knew I did not receive its notices, yet it proceeded anyway, making no extra feasible effort to notify me; that the suit could have been avoided, so it is the Plaintiff, not me, who should be liable for court charges and fees; that the Plaintiff had no standing to evict me; and that eviction should not be granted).


Since you're saying Oregon is a non-judicial foreclosure state, and since you have a heads-up that I did not get, you have more leeway than I did. Once foreclosure is commenced, you have the opportunity to file your law suit in your District or County court to challenge the mortgage servicer's authority to foreclose (by demanding the original, genuine promissory note, and by putting MERS under the microscope – among other things) before things escalate to an eviction suit as in my case. Also, check into a Letter of Conditional Acceptance. If your lender cannot produce the genuine promissory note, which is likely the case, the LCA is a very powerful tool. Even if your lender can produce the note, they must implicate themselves in other fraudulent areas if they want to pursue taking your home under a LCA. Thanks to JuliusBragg for introducing me to this aspect.


You cannot bid on your home, but you can have a friend or family member present to bid, who can turn around and sell the house back to you (or lease/rent it to you). This is perfectly legal. If someone else buys your home at the auction, it is also legal for you to approach the buyer on the spot and try to work something out. As I understand it, often times these auction buyers plan to flip the house anyway, having just bought it for pennies on the dollar, so you're saving them a lot of work and still providing them with a quick profit by offering to buy back the house on the spot. However, having just been subject to foreclosure, attaining the credit for financing might be a problem. The Notice of Substitute Trustee Sale filed in your county's records will show the date, time and place of the auction to be held. In my case, the mortgage servicer sold the house back to itself. I don't know if this was because no one showed up for the auction or if they just faked an auction. I'm told that mortgage companies selling foreclosed houses back to themselves is common practice, but this was still a suspect sore spot with my jury. If you show up at the date, time and place shown on the notice filed in your county to find that there's really no auction, then you just have more ammo for your suit (for your mortgage company faking an auction).


Since you live in a non-judicial foreclosure state, yes, you have to initiate the suit. The second your mortgage company confirms that it has begun the foreclosure process, you need to file suit to challenge the company's authority/standing to proceed, seeking an injunction against the foreclosure until outcome of your case. You may or may not win your case. But these cases are prone to dragging out in the courts for many months or even years, during which time you do not have to pay mortgage. Be cautioned, however. Most mortgage companies are so buried in foreclosures that they are usually seeking just to take your house (not sue you for money owed). If you lose your case the lender can decide to also sue you for money, in addition to your house.


If you do file suit to fight your foreclosure, you will need to stand on points including, but not limited to:

  • In light of the rampant mortgage, lending and securities fraud that has taken place in this country involving mortgages originated after 2005, you have no idea how many hand your note has passed through, how many illegal ways it has been used or who, at this point, actually has authority to foreclose, which will be the entity holding the genuine note. If the court allows the foreclosure to proceed without properly demanding the genuine note, then it creates a liability for you because you can lose your home, then, at a later time, whoever does hold the real note can come back demanding more money and taking further action against you.

  • MERS has knowingly and willfully falsified legal paperwork, which it filed with your county under affidavit (claiming itself as the Original Mortgagee).

  • The lender must prove that it will be damage, and demonstrate exactly how it will be damaged, if you do not pay them and they do not recover the house. If your note says it is to be used as a security, it is likely that your lender has already been paid in full for the house, and even likely that they have been paid 2x to 3x over, by the money your signature created.

  • The lender never lent you any money, which is the only thing it is allowed to lend (it may not lend credit). I have seen some debate and argument on this forum in other threads about this issue. I can tell you from first-hand experience that when the Plaintiff was questioned as to whether they lent me actual money or credit, they began to squirm like crazy and angrily object to the questions, so there is something behind it that lenders don't want brought out into the light.

  • There are other grounds you can/will use as well, but after the battle I just went through in my case, I'm temporarily burnt out in a legal capacity and am about to enjoy some long-overdue sleep. :-)


    http://www.consumerwarningnetwork.com/?s=produce+the+note

    http://www.consumerwarningnetwork.com/2009/03/05/how-to-use-...


    If you decide to move forward without an attorney (recommended, because most attorneys will sell you out and have much less latitude in a court room than an individual), do so Sui Juris (NOT Pro Se, Pro Per, In Propria Persona or PRO-ANYTHING!). In fairness, this is not always true, but you have no way of knowing. You can file your suit, injunction and jury demand under a Pauper's Affidavit. Total cost to get your case in court this way, depending on your state, should be well under $100 (which is mostly paper, printer ink, gas to drive over and file your papers with the court and et cetera). If you hire a lawyer the lender might raise an issue in court of, “If he can shell out all this money for an attorney, why can't he pay his mortgage?!” You might get a lawyer Pro Bono where Pro Bono is Latin for “free officer of the court seeking to bend you over and sell you out while making it appear that he/she is acting in your best interest.” :-) Agains, this is not always the case, but most of the time, it is, and trustworthy lawyers who will act in your interests and give you their undivided loyalty are nearly impossible to find. Good luck!

Thank you so much!

I am going to spend this weekend figuring this out!

-and yes do get some rest, sounds like you deserve it! :-)

It must be hard to sleep

Don't just wait. Since you don't know when you'll hear, make sure you're doing everything you can to improve your position.

There are investors out there who might be interested in making a deal (depending on the deal). I'd be careful about that, but a good faith effort to do the right thing is often appreciated. Good luck.

IMissLiberty

What do you think? http://consequeries.com/

wolfe's picture

Awesome... :)

They are probably fairly swamped these days and would rather deal with the people that put up 0 fight. Hopefully, it will take a while for them to get around to it... And what would be even better is if they just can't find the paperwork... :)
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

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

At least...

...your mortgage company did not foreclose on your house and sell it out from under you – all without your knowledge, and knowing you had no knowledge of such actions. :-) That's what I'm facing right now.


I was served with a law suit on Dec. 1 and have to stand and answer in court on Dec. 8 – leaving me 4 business days to prepare. The suit is to evict me, and accusing me of forcible detainer. Essentially, on Monday I found out, for the very first time, that my house was foreclosed upon two months ago and sold. And get this: the mortgage company sold the house to itself. I talked to 9 attorneys yesterday and all told me that such is common practice. How can that be? In any case, I learned quickly who attorneys give their allegiance to – the court. Even if I could afford an attorney, I would not be caught dead going into court this coming week represented by one. I will likely lose my case, but at least it will not be because of placing my neck on an attorney's chopping block.

I'm very sorry to hear this

Do you have a place to go?
I lost my place about a year and a half ago. We're ok at the moment.
Renting, but ok.

"I don't endorse anything they say"
~Ron Paul On the 911 Truth movement.
http://www.youtube.com/watch?v=hGyhlNY0y1k

I'm not out yet

...and may not need to go anywhere for a while. We'll see shortly. :-) I have several good grounds to demand a stay of eviction to challenge the bank's authority to act in the manner that they have, and they may have broken a few laws in the process. It may be possible to at least delay the process a few months.

Dismissing the Foreclosure

I'm glad you were at least able to file an answer and avoid default, but the best response I've found is a motion to dismiss and then not asking for a hearing. That way it's on the attorney to ask for a hearing on your motion and the case stops until the motion is denied. With an answer, the case proceeds through discovery so you have to be proactive.

You should still have a motion to dismiss in the record, challenging the jurisdiction of the court to hear the plaintiff's complaint (or its right to be their in the first place) without them having the legal standing, genuine note and mortgage security agreement.

And file a counter claim for recoupment, that is really your only defense and the only way to have your defense heard. You can also amend your answer to include an affirmative defense for the same, "recoupment".

This means that they need to set off their mortgage default claim against your original deposit, the note, that they DO NOT have I guarantee you. And that suspiciously they did not record along with the mortgage.

Then, find your best copy of the note and have it notarized and recorded at your county recorder's office. Ask for a certified copy and take that home with you and then you'll get the one you recorded in about 10 days. This makes you now the holder in due course of the original note and you can now use it in the court as a payment of the entire mortgage default claim contingent upon them proving jurisdiction.

It also provides the evidence that unless you hand them that paper, they can never be the holder in due course, hence, cannot sue you. Always keep that original they sent back from the recorder's office, it's your money, a registered security, but use a certified copy as the payment into the court registry with those terms.

www.johngliha.com

How about a motion for evidence of discovery?

Make them produce a deed and the note. Most can't produce either. Kind of like asking a cop if they have a warrant ?

Just one last kick in the nuts, then a final deathblow

Hi John, Glad you got on

Hi John,
Glad you got on this thread. Thanks for being here.

You Judge A Tree By It's Fruit, NOT its Flower

"It is difficult to free fools from the chains they revere".
--Voltaire

It's hard not to be a menace to society when half the population is happy on their knees. - unknown

it seems that you are

selling everything I need.

interesting enough.

I am proud of you doing this.

We will all learn from your experience, thanks.

Prepare & Share the Message of Freedom through Positive-Peaceful-Activism.

wolfe's picture

Yep...

And what he is doing is 100% valid. I wouldn't expect to get paid on a note that I didn't physically have or could not prove ownership of, and since I do have a few, I am not speaking hypothetically.
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

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

thank

thank both of you!

Good Luck -

Gavination!

Best Wishes for you! Thanks for the update.

Does anyone NOT have a mortgage with BoA?

Me, I have 2. Now mind you, I have never set foot in a BoA office. Never signed a contract with a BoA header or logo. Indeed, the two mortgages I signed were with 2 different companies, and yet they both wound up at BoA.

Truth exists, and it deserves to be cherished.

I borrowed money to buy a

I borrowed money to buy a cheap used car for driving to work in 1979. Since then, I have not borrowed a penny.

Borrowing should be restricted to capital, not consumption or investment. Buying a house on credit is speculation.

Ĵīɣȩ Ɖåđşŏń

"Fully half the quotations found on the internet are either mis-attributed, or outright fabrications." - Abraham Lincoln

Ah, I have the opposite tale

I never had a credit card, never took out a loan. Then I got to "the top" of the corporate ladder...
Anyway, the reason I still am afloat is because I budgetted to cover two mortgages "until it sells." Well, things be tight, but that decision saved us... so far...

Truth exists, and it deserves to be cherished.

I'm with you Jive! We were

I'm with you Jive! We were able to sell our house, but have not run credit for years. We are now living in our paid for 31ft Travel trailer and will not take a mortgage ever again. We will save for property...park the trailer on it...maybe buy a used, used manufactured home with savings and then build a home slowly over time.

To hell with the banks and their slavery. Actually we all enslave ourselves with a 'gotta have it today' mentality. Thankfully, my wife is even more hardcore than me on this...so we are equally yoked in this endeavor.

======
Federal Reserve to the American People:

"Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam."

================
Who is John Galt? Vote ███ ███ 2012!

This is exactly right!! The

This is exactly right!! The new American idea that 'we' must have the biggest house, the newest cars, the fastest boats, whether we could afford it or not, is the OPPOSITE of what we should be doing.

Credit is a privilege, NOT a right, therefore, that privilege must be supported by tax dollars. If you want the privilege of credit, then dont complain about the income tax. And not coincidentally the social security number is used to track both!

Um, I bought a home.

When I thought I was nearing retirement, I put it on the market and bought a home in the country. I got stuck with 2 mortgages. I did get ONE credit card that I never kept a balance on until the RP campaign, I decided it was worth going in debt for. The one house was a doublewide trailer, and now I am in a 100 year old farm house. Not sure who you think you are describing, but whatever.

Truth exists, and it deserves to be cherished.

I hope all works in your favor

I also have the bank from Hell and just received foreclosure papers. We hired a lawyer and are now in the process of giving some hell back to BoA. Whatever the outcome we will not go silently until we've tried everything. Good luck and please keep us updated.

"Injustice anywhere is a threat to justice everywhere" MLK

wolfe's picture

Awesome news...

Good luck with the next round and hope it goes well. If you really want to keep the house, this next few months would be an ideal time to contact the bank and see if they would be more cooperative with you now that you are employed and giving them grief... :)
_________
The Philosophy Of Liberty -
http://www.isil.org/resources/introduction.swf

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

I can stop (or remove) the foreclosure action.

Please contact me as the spirit moves you.

Gene - care to share more?

I'm in the same boat - Wisconsin. Foreclosure action not yet taken by the bank but they could any time.

FHA loan through Wells Fargo. It is a fixed rate loan. Modified beginning of this year. Self employed. Work dried up this summer so I'm back in the same place (or worse) that I was a year ago.

6degrees

Yes

Please contact me as the spirit moves you.

congrats gavination!

please do keep us posted!

good job!!!