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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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Dallas, You are clueless,

Dallas, You are clueless, thats not "like" consideration!! The grantor of the funds were from us when we signed the promissory note, our energy created the funds, wheres the consideration?? you gave them a promissory note they fractionalized, then they also get the a mortgage on the house???? Think about it, i read a attorneys pleadings last week coming after a guy for the house and a judgement, so they get the money and the house???? its one or the other, never both!! read through your mortgage/or deed of trust and you will see it was pledged...no consideration, no meeting of the minds, no full disclosure. This violates the bankruptcy and GAAP principles. Banks don't create the original source of the funds out of thin air, its from our signatures.
read title 12 and title 31, title 15 1692, ucc 3 and 9, its all there.

your correct in many courts do walk over the process however if a judges has been bound by contract and will need to convert his personal assets or bond for breaches in contract he may not. In a non judicial foreclosure state, it wouldn't need to go to court, its an administrative process.

as far as you believing in property rights???? Im assuming you have never heard of allodial title, you cant own property/cars or anything in this country, only convey and reconvey title, otherwise why would you pay taxes??? "certificate of title" is not title.
if you read through with a law dictionary all your mortgage docs and see the legal words they use "primary residence" "homestead" you will see you never own it.

No dispute

I have no disagreement what so ever.

United We Stand

A Short Sale investor could have helped.

I am in Arizona and I am a short sale investor. Too bad or I could have helped you early on. I don't know for your situation.

But generally let me say to all others out there...

Lets say house has a mtg for $250,000, yet its worth only $140,000 to $150,000 today and you are 90 days behind on payments, ...now you face three options:

A) Catch up on payments and pay the note as scheduled.

B) Seek a short sale investor out who will negotiate a discount for the note and get this resolved for you. You walk away without a house, but at least you can get your credit back and (most likely get a release) because the issue is resolved and so bank will not seek the short fall difference from you. Getting that release should be your goal, though it not 100% assured, every case and bank is different, but my read out there is that once a short sale is complete, the courts would look well on you and so, banks are highly unlikely to go after you. You walk away with your head high, lesson learned, disaster avoided. Start anew.

C) Foreclosure: This you should avoid. This sticks with you for many years and also makes credit & gaining employment difficult. And the unhappy bank may at anytime still come after you for the short fall difference.

So my advise, don't look to realtor to do your short sale. They are not pros at that and try, but have limited success dealing with banks. They are not in the best of positions to negotiate the note and help, though they try.

In peace & liberty,
Treg

Yes, please BUY this wonderful libertarian BOOK! We all must know the History of Freedom! Buy it today!

"The System of Liberty: Themes in the History of Classical Liberalism" ...by author George Smith --
Buy it Here: http://www.amazon.com/dp/05211820

What credit?

There is no credit.

My mother

is going through this same process, sounds like the same story too. Crazy! I'll see if she can post something. I recommend hiring an attorney though, as there are sooooo many different fields of law, you really want to get someone who understands this aspect of the legal system. She did and is having a lot of success! Don't know if the lender will eventually give up because they broke all kinds of laws and didn't follow any kind of correct procedure, but the second mortgage she had on the house WALKED AWAY when they started seeing all the legal red tape they were going to have to begin to face.

So many knowledgible people here on DP..............

I am currently fighting the corrupt system on another issue. Over $16,000 in credit card bills ultilizing.........
www.fsnfreshstart.com

"First they ignore you, then they laugh at you, then they attack you, then you win!"
GANDHI

"First they ignore you, then they laugh at you, then they attack you, then you win!"
GANDHI

"The belief is worthless if the fear of social and physical punishment overrides the belief."

How long have you been going

How long have you been going through the process with fsnfreshstart.com? How is it working out for you?

...

Just sent my $$$ in on this past tuesday...............

I can give you an idea of cost, how long the process takes, and what the final outcome would be in your particular situation.

"First they ignore you, then they laugh at you, then they attack you, then you win!"
GANDHI

"First they ignore you, then they laugh at you, then they attack you, then you win!"
GANDHI

"The belief is worthless if the fear of social and physical punishment overrides the belief."

I just wanted to say how

I just wanted to say how wonderful it was to see this on top of the front page. DailyPaul loves YOU! Truly great : )

Mises.org
Know your stuff, learn real history and economics @LibertyClassroom.com

yeah it warms my heart.

to see help for others!

hey

hey daddy warbux. i tried calling mickey, his phone goes right to voicemail and states that his inbox is full. any other route through? thanks

Gavinator, try an email

Hermitageway7@cs.com

Sometimes you have to keep trying. He never answers voicemails. He's Italian.

You'll get him.

The Last Hope Trader
Forensic Trading For Times of High Crime

try John Stuart @

try John Stuart @ 480-232-0606 I think Mickey is working with him next week in Phoenix, explain your situation

if you do goto court do a

if you do goto court do a counterclaim and and administrative process getting the bank into contract with you they owe you consideration for the note.

whoever has the superior claim wins. This isnt bullet proof because judges are wacked out, but its supposed to work this way.

banks operate under GAAP principles accounts payable and accounts receivable.
when you sign a promissory note you create the money the bank deposits as there asset and then show it as a liability to you(meaning you funded the loan). then we pledge the home as a security to guarantee payment. However you never got any consideration for granting the note. I researched my promissory note and mortgage, i looked up every word i didn't know in blacks law 6th edition, i like blacks 6th because its similar to the UCC definitions.

*****if they file an affidavit of lost note, pay them with a copy of a check, and ask the judge if he will consider a copy of the check as payment, if not, how can you be liable for a copy of a note******

its insane how this works but when you wrap your mind around it, it will infuriate you and its how the banks have stolen the worlds wealth, through money changing. As long as we all keep being complaint and "paying our bills with debt instruments" it will keep getting worse.

look up 14th amendment citizen under subsection D, they lay all the debt on the "us citizen" requiring more and more energy from people until one day....the host dies, its inevitable

Answer and Motion for Discovery

Sorry to read about your predicament, and please note I am not an attorney. My knowledge on some basic rules of procedure comes from working closely with several astute attorneys over the years.

Nevertheless please consult a licensed attorney in your state for actual legal help.

First and foremost, as the DEFENDANT you must must must file an "ANSWER TO COMPLAINT AND SUMMONS", otherwise the judge will most likely be forced to award a "DEFAULT" and/or "SUMMARY" JUDGMENT in favor of the PLAINTIFF.

In the answer you will have to ADMIT, DENY, or reply INSUFFICIENT INFORMATION to EITHER ADMIT or DENY for each item contained within the COMPLAINT and SUMMONS.

Additionally, you will have the ability to exercise your legal defense against claims made by the PLAINTIFF such as the:

"The Doctrine or ESTOPPEL"
"The Doctrine of Unclean Hands", etc.

Whatever you do, do NOT show up to court without having filed SOMETHING.

If you are overwhelmed at the prospect of filing an answer, perhaps first file a MOTION for ENLARGEMENT of TIME and request an additional 30 to 60 days in which to research the law to represent yourself Pro Se or retain an attorney.

As far as as forcing the PLAINTIFF to produce the original Mortgage note, you will have to file a "REQUEST to PRODUCE DOCUMENT" or a "MOTION to PRODUCE DOCUMENT" depending on the trial rules for your county and state.

Depending upon where you live, run a Google Search for STATE NAME + Trial Rules. Most jurisdictions at least at the state level have the rules available for download.

AGAIN whatever you do, DO SOMETHING otherwise you are sunk.

Perhaps start with the "MOTION for ENLARGEMENT of TIME", it at least gets an action by YOU onto the CHROLOGICL CASE SUMMARY.

Also, you will need to call the Clerk of the Courts in your County and see how many copies you need to file and if the copy for the PLAINTIFF needs to be sent CERTIFIED MAIL or may be sent standard mail.

Finally, hope this is helpful for you, but again I am NOT an attorney and you should always consult with an attorney licensed in your state regarding legal matters.

But whatever you do, DO SOMETHING.

Allison Bricker

http://SmArgus.com

"None are so hopelessly enslaved as those who falsely believe they are free." - Johann Wolfgang von Goethe

I am so proud of you!!!!

that is awesome!!!

In my state the Attorney General decided to settle all CountryWide Claims with CountryWide - for the grand total of $2000 per house for the person who was foreclosed on - IF YOU SIGNED A PAPER SAYING YOU WOULDN'T GO FOR FURTHER LEGAL ACTION. I sent a letter to the Attorney General and CountryWide when I heard this. It was a simple note on NEON GREEN paper:

I KNOW
THAT YOU KNOW
THAT I KNOW THIS IS CORPORATE PAYOFF
DISGUISED AS JUSTICE.

I attached the news clippings from Massachusetts and Kansas. The banks are starting to sweat and they will use the Attorney General's office if we don't. Keep the Attorney General's informed of what is going on!

WOW

Interesting.

SteveMT's picture

Don't answer this letter without at least some legal advice.

You do not want to be in a "Pro se" (self representation) situation. They already have a slick lawyer who knows how the system works. You don't.

You need a lawyer who knows the jargon, sighting of legal decisions, and who knows what buttons to push to get the information you need and to keep you in your house.

I know that you don't want to hire a lawyer, but could you speak to a public defender?

Many employers provide a service called EAP: Employees Assistance Program. If you have this program, everyone has access to 4 hours of legal advice (as i remember).

Is that a possibility?

Just a tip one NEVER wants

Just a tip one NEVER wants to be "pro-se" but rather "sui-juris"

http://www.usavsus.info/ entertainment or information?

Gavination, will be praying for a good outcome,

glad you have work, though, and hoping for the best for you.

ytc's picture

Truly awesome, gavination!

You must have impressed the magistrate with your knowledge and sincerity for him to grant you the extension to file the documents.

It's so encouraging and heart-warming to know that there are decent government officials, here and there, and that we are never doomed for worst outcomes.

Many thanks for sharing your experience.
-y

Check out Moore's latest movie: it talks about such things

You might get a tip or two.

Also, call up Dave Ramsey's show. He is the host of an amazing personal finance show. http://www.daveramsey.com/company/contact-us/

I wouldn't take advice from

I wouldn't take advice from either of those two in regards to the method the OP is using. Those two will tell you to do it the "mainstream" way of doing it, and will laugh at you if you bring up JB's advice. Why would they laugh at you? Well for the same reason they laugh at Schiff.

ignore almost all input

ignore almost all input people have given on this thread, you have very little time, i have a lot of court experience, almost all pro se litigants lose on technicalities, NOT MERIT, the merit is never heard because the case gets thrown out on technicalities.

study your states rules of civil procedure. If your responding with in the 30 days allowed under the fair debt collection practices act, you have a lot of option under title 15 section 1692, and its short and easy to read.

you also have options under tila and respa for a full forensic audit.

if you start filing paper work thats not cognizable to the court, it will not even be considered.

if the lender hires an attorney to come at you under the FDCPA, ask for them to exhibit a power of attorney to speak on the real party in interest behalf and make sure you ask for a copy of the collection bond.

if you can absorb this quickly you can keep them at bay for years but will need to follow my strategy laid out below for reconvayance of title. and it will be a huge battle, but when doing this your taking the banks energy and making the field neutral,

im glad your deciding to fight, it over whelming at first, and weather you win or lose, you will learn a lot and dont forget, no matter what you have an interest in the promissory note, worst case scenario you can file a 1099-A reflecting you as the grantor of the funds and file a 1099-C making the bank liable for the taxes.

get a 4506T and check out the 1098 section, a lot of time the banks report us as the lender to the IRS then send us the opposite of what they reported to the IRS.

P.S. I researched Jermone Daly case, it was over turned by the Minnesota supreme court, however the principles of the case are sound.

Troyusaguy, Daily Paul in house counsel.

Have you been harrassed by debt collectors?

Just call Troyusaguy at 1-800-BAD-BANK for a free consultation.

And remember, when Troyusaguy gets done with your creditor you'll have a trophy head to hang on your wall. No extra charge.

Dthompson's picture

Opps

Forgot the link!

http://livinglies.wordpress.com/podcasts-the-neil-garfield-s...

"When governments fear the people there is liberty. When the people fear the government there is tyranny."

-Thomas Jefferson

"When governments fear the people there is liberty. When the people fear the government there is tyranny."

-Thomas Jefferson

Dthompson's picture

Forms

This site has some good info and court forms, it's a little hard to navigate, but the info is there.

Good luck, do not give up.

"When governments fear the people there is liberty. When the people fear the government there is tyranny."

-Thomas Jefferson

"When governments fear the people there is liberty. When the people fear the government there is tyranny."

-Thomas Jefferson

Michael Nystrom's picture

!!!!!!YAY!!!!!

You Rock! This is the best news I've heard all day.

I am so proud of you and proud of all the good people here standing with you.

We all stand together and we will WIN!

Good job and thank you for showing courage!

I know it isn't easy. It will never be easy. There will always be fear, unease, worry. Courage is the ability to act, and do the right thing in spite of all of those imaginary emotions.

By showing courage, you give the rest of us courage.

Just like Ron Paul.

To be mean is never excusable, but there is some merit in knowing that one is; the most irreparable of vices is to do evil out of stupidity. - C.B.

HEY! You asked for help right?

Focus. Don't waste time with arm chair quarterbacks.

If you miss a step in civil produre with the wrong judge you're screwed. Got it?

Just pick up the phone and call this guy Mickey now.
(717) 903-3061

Nine days will fly if you've never drafted an answer to a complaint.

There is an army of patriots out there willing to help you get this thing behind you.

DWB - I might have to change my mind about you

Maybe only for this thread, but I want to thank you for this. You certainly stepped up when this guy asked for help. It will be interesting to see this play out.

Truth exists, and it deserves to be cherished.