Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Steve Anderson
G;day. I received an attorney affirmation in opposition of defendant's  MTD today. In the affirmation, the lender's attorney states that the requisite notices of RPAPL 1304 and 1303, which are necessary here in NY, i.e. his client, the plaintiff, is not obligated to send any prior notices to me, the defendant as he, me, is neither, the owner of the subject premises, a "borrower" as it is defined in the RPAPL, or a mortgagor in this instance.

Ok, now we are getting down to the nitty gritty. So, why was  I served the summons and complaint, as well as the other defendants, my nephews and niece? I have to say here, that I am the executor of my mother's estate, which this home is a part of. Could someone please explain what the attorney for the plaintiff, the lender, is trying to accomplish? I understand, as he keeps mentioning the in affidavit, that the lender has not been compensated for some time.

Everyone knows I reside at the premises under foreclosure as even some documents he submitted from me and others say that. The attorney is also attacking me saying I used amateur practices, cutting and pasting articles or laws from the Wall Street Journal, stuff like that, which I never did. Also, he keeps bringing up old correspondence between the parties involved that frankly has nothing to do with my MTD for conditions precedent, except that they were conditions the lender or their attorney never met.

So, can I respond to this affirmation in opposition to dismiss before the submission date of FEB 3rd or do I wait until after the judge looks at my motion? If I can, please offer any assistance that would be beneficial to my case. Also, if my MTD is dismissed, can I file a disputing motion countering all the arguments in his affirmation or do I defend my position in an Answer that will be necessary in 10 days?

I am asking for your help as I want to stay in conformation with the time frames and guidelines in foreclosure proceedings. The court and the opposing attorney have already broken most of the them numerous times already, but somehow get away with it. If there is a better method for my to follow or apply, your assistance is appreciated.

Finally, as I mention in my first paragraph, who is the lender and their attorney trying to pin the repayment on, or actually what I they trying to accomplish? Thanks for listening, appreciate your assistance, SA
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t

Steve:

 

I want to make a quick observation prior to responding to the substance of your query.  Mr. Roper some time ago posted a caution against Forum participants sharing identifying details about their foreclosure situation.

 

You are posting under the name "Steve Anderson".  Perhaps this is merely a screen name or handle.  If this is actually your name, I would highly recommend that you adopt some other handle which is less identifying.

 

I say this, in part, because discussing a foreclosure in which the defendant is executor of the estate of a deceased borrower already significantly narrows the universe as to your identity and other details which you have included may uniquely identify you to the plaintiff's foreclosure mill law firm.

 

On the bright side, it is most common for foreclosure mills to cut corners and devote minimal time to each case.  Therefore it is unlikely that the plaintiff will search for information about you.  But it is probably better to take Mr. Roper's caution to heart and to take care to avoid posting unique identifying details.

 

*

 

Without seeing the pleadings, the motion or the plaintiff's response, I am going to hazard a guess about what is going on and this reflects some concern about just how treacherous it can be for a pro se litigant to defend against a judicial foreclosure.

 

Those who use sites like the Forum to school themselves about the issues, the law and viable defenses very often miss some subtle, but really significant issues and aspects, which might be immediately and intuitively obvious to a bright and reasonably experienced attorney.

 

Your post mentions "I am the executor of my mother's estate, which this home is a part of".  Your post also states that "Everyone knows I reside at the premises under foreclosure as even some documents he submitted from me and others say that".

 

This information is suggestive that you might have at least three separate and distinct interests in the subject property, any of which would explain WHY you might be named and served.

 

First, if your mother expressly bequeathed to you all or a portion of her fee interest in the subject property, you may have an individual ownership interest in the property.  Whether this is the case probably depends upon both some specifics of probate law in your jurisdiction, as well as the express provisions of the Will admitted into probate.

 

Second, to the extent that you occupy and are in actual possession of the property, you have some interests and rights as an occupant.  Whether your occupancy is as a tenant under a lease, a tenant at will or by sufferance, as a guest, as a person in hostile adverse possession or as an owner in occupancy would seem to depend upon a variety of facts not mentioned within your post.  It is not uncommon for plaintiffs in a foreclosure to expressly name those in actual possession of a subject property, even if they lack an ownership interest.  By naming and serving these persons, the plaintiff obtains jurisdiction over these people and forces them to present any defenses or counterclaims to the foreclosure suit, obtaining a single adjudication and determination of the suit and making any judicial order of foreclosure binding on these.

 

Third, as executor of your mother's estate, the probate laws may vest in you the rights to the subject property during the pendency of the probate.  It is not altogether unusual for probate laws to vest the assets of the estate in an executor or administrator and to make these assets subject to various other claims against the estate, whether secured or unsecured.  Usually, those who can establish that they were owed money by a decedent can make claims against an estate and those claims which are properly established must be paid from amongst estate assets.

 

For example, suppose that your mother had owned the house free and clear of a mortgage and that the house was valued at $250,000.  Further suppose that this was the ONLY asset of the estate.  Now suppose that your mother had $25,000 in outstanding credit card debt, as well as $25,000 in unpaid medical expenses at her death.

 

Finally, let us suppose that the creditors to whom the $25,000 in credit card debt as well as the $25,000 in medical expenses was properly established through a valid, lawful claim, properly allowed by the executor or administrator and approved by the court (where necessary).

 

The Will might have vested ownership of the subject property in YOU and, perhaps, one sibling.

 

But this bequest would usually be subject to the payment of just debts, including the claims mentioned above.  To the extent that there existed $50,000 in valid unpaid claims against the estate, despite the fact that the Will made a specific bequest to you and the sibling, the executor or administrator would probably have to sell the subject property to pay these valid claims.

 

In some places, the subject property would be said to be owned by the heirs, but that this ownership would be subject to a form of trust during the pendency of the estate, where the subject property would be held and managed by the executor or administrator and would be subject to sale to pay the just debts as reflected by the valid approved claims.

 

*

 

Here, things can get a little complicated, and we see the emergence of some differing concepts discussed in other threads.  These are the concepts of standing and capacity

 

As an heir and beneficiary of a specific bequest of the subject property, you would seem to clearly have an economic interest and be subject to injury in respect of the suit.  You would seem to be a necessary and possibly even an indispensable party to the suit as an heir.  So you would probably be named in the suit as an heir.

 

But separately, as executor, you are seemingly managing this property as a fiduciary for the benefit of not only the heirs, but also the other persons interested in the estate, including creditors.

 

*

 

You need to realize and recognize that you are wearing three distinct hats in this matter and you ignore this distinction at your peril.

 

The plaintiff probably also named you in the suit as executor of your mother's estate.  Your role as executor is a separate capacity than your role as heir.

 

If you filed your Motion To Dismiss (MTD) and failed to make this motion as executor, then you may have made the motion in an incorrect capacity.  Moreover, if an answer was due and you failed to answer in each capacity, you may be in default in that capacity.

 

That is, if you answer only as Steve Anderson (implicitly in an individual capacity), you may already be in default in your role as Steve Anderson, as executor of the Mother Anderson Estate.

 

This may possibly still be corrected by making another separate filing in a timely way, possibly a filing accompanied by the NY equivalent of a Federal Rule 6(b)(2) motion.

 

*

 

There is yet another problem for which you need to be aware.  In many jurisdictions, while a person may represent themselves pro se, they are not permitted to represent another person or entity pro se.  For example, in almost all jurisdictions, an officer of a corporation who is not an attorney cannot represent a corporation in court.  A corporation must be represented by a lawyer.  Pro se representation of a corporation, even a very small corporation with a single shareholder is not permitted.

 

Similarly, a non-attorney who is a partner would usually not be permitted to represent a partnership in court.  The partner could represent himself or herself.  But each other partner would also need to appear individually pro se OR the partnership would need to employ an attorney.

 

The law is a little more muddled and mixed as to whether a trustee of a trust or the personal representative of an estate is entitled to represent the trust or the estate pro se.  I have seen some cases going both ways in a couple of jurisdictions, but have never researched the law about this in New York State. 

 

*

 

If you are representing yourself pro se as an heir, you might need to employ an attorney to represent yourself as executor of the estate.  This can be problematic if the estate lacks funds to pay the attorney.

 

It seems that it is probably better to at least file an answer or a MTD as executor, but if this is done without employing an attorney, you need to be aware that the answer or the MTD might be stricken on the plaintiff's motion due to the UPL issue.  Depending upon the UPL laws in NY and the case law on self-representation of executors and administrators, you might also have some other exposure.

 

*

 

It seems to me that of the allegations you assert have been made by the plaintiff, at least two of these would seem likely to be TRUE and probably can be admitted, though I would definitely encourage you to research the matter and to consult an attorney.

 

It seems to me that based upon the facts you describe, you would probably not be a "borrower" under RPAPL or otherwise.  You didn't borrow any money.  This is certainly true individually.  And it seems more than plausible that the estate isn't a borrower either.  Your Mother, the decedent, was the borrower.  The estate is now responsible for her debts, but ONLY to the extent of the estate's assets.  The estate is a debtor in respect of properly established claims.  But the estate didn't borrow anything.

 

(NOTE: The above interpretation is based upon my common sense understanding of the meaning of these terms and is NOT based upon ANY research as to New York laws.  YOU NEED TO READ THE STATUTE AND THE ASSOCIATED CASES.  Perhaps Angelo or another NY litigant can give you some additional insight.)

 

Neither does it seem to me that the estate is a mortgagor.  Again, it was your Mother who probably executed the mortgage.  The heirs and the estate acquired its interest in the subject property subject to the mortgage.  But an ordinary common sense reading would seem to me to preclude a finding that the estate or the heirs are mortgagors.

 

To the extent that your defense employs particular defenses available to borrowers or to mortgagors, this seems to me to be rather thin.

 

(Again, I have NOT researched this issue as it regards New York state law.  I am simply giving you an informed lay opinion.  In my view, if you took the dictionary definition of mortgagor and a common sense understanding of the meaning of that word, I can hardly see how you, the estate or the other heirs could be found to be mortgagors.)

 

As to whether you are an "owner", I would think you would need to look to the express provisions of the probate laws, the cases interpreting those laws and the language of the Will.

 

IF, for example, the property was bequeathed to your nieces and nephews, but NOT YOU, then I would think that you were NOT an owner in your individual capacity as an heir.  If you were bequeath an interest in this property by the Will, I would think that you probably are an owner, individually, but subject to the ownership of the estate during the pendency of the probate proceeding.  You then might very well be an owner of the subject property as executor.

 

*

 

You seem to be trying to school yourself up on the law in respect of both probate and foreclosure.  This seems to me to be a bridge too far for most litigants.

 

Finally, I would encourage you to heed Mr. Roper's suggestion that net borrower equity in the subject property ought to be the primary guide in selecting an overall strategy.

 

If there exists any equity that could be salvaged by a workout or a sale of the subject property, you probably have a fiduciary duty to the other heirs to sell the property, realize that value and distribute it.  To the extent that the outstanding debt exceeds the value of the property and this property has a net negative equity, sale (other than a short sale or deed in lieu) seems unlikely.

 

If the property is under water, I certainly understand your personal interest in drawing the matter out to continue your occupancy.  However, IF the estate has any other assets, you also need to take care since it is possible that a creditor might be able to reach other estate assets should there be an established secured claim and a deficiency.  (Again, I have NOT researched NY law as to secured claims in probate.  In some jurisdictions, a secured claimant must make an irrevocable election as to whether to pursue the subject property under the security interest or the debt under the note.)

 

Realize that while it might be in your personal interest as an individual to draw out the foreclosure, if this results in a larger debt and either the extinguishment of actual equity in the property OR the dissipation of other estate assets, YOU could be held responsible for breach of fiduciary duty by your nieces and nephews for any loss of value to which they were rightfully entitled.  YOU OWE A DUTY TO THE OTHER HEIRS AND OUGHT NOT BE VIEWING THIS MATTER SOLELY THROUGH THE PRISM OF YOUR OWN INDIVIDUAL SELF-INTEREST.   

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t

Steve:

 

I want to add one quick postscript regarding you or the estate being the "borrower".  In antiquity, the heirs of a decedent could be directly charged for the debts of the decedent.

 

Under these circumstances, if a person died deeply in debt, the widow and children would find themselves in debt, even if they had nothing whatsoever to do with creation of the debt.  That is, one could inherit debt.

 

This was found to be unjust.

 

A more equitable rule evolved that an heir could be charged with the debt of a decedent only to the extent of the value of assets inherited by that heir.

 

You and the other heirs probably cannot be held individually responsible for your Mother's debts.  You were not the maker of the note nor the grantor of the mortgage.  You are NOT (individually) the borrower, the debtor or the mortgagor.

 

As executor, you probably DO have some responsibility under the law to pay just debts that are properly presented as claims against the estate.  You probably CAN be held responsible as executor for those debts.  If you fail to carefully follow the law, you might even be individually held responsble (NOT as an heir, but as an administrator who failed to comply with the law)!

 

Living in the subject property rent free could also possibly subject you to some exposure.  YOU REALLY NEED TO CONSULT A GOOD LAWYER.  You should also to read the probate statutes about five times and then read ALL of the cases that seem to pertain to the most relevant provisions. 

 

You also might want to contact Mr. Roper directly.  I believe that his foreclosure is also a foreclosure in a probate setting.

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Steve Anderson
t, I want to thank you muchly for the long protracted response to my inquiry about my defense of not being served the proper prior notices and the opposing attorney challenging my vested interest, as not being a homeowner, mortgagor, or borrower. For the record, I am definitely a tenant as I have a lease and all that protection stuff and I am not SA, OK!

I have been thinking about this all day as you can imagine, so your post kindof solidified some of my observations and perspectives. I definitely need to know where the house stands in these proceedings. I mean, is it in legal limbo or what area. I know it is in the estate, so under probate, but what rights do I have to protect and defend the home? There must be some way that the estate had to be notified prior to the delivery of the summons and complaint. If I am listed as a defendant, first, and it says individually and then as executor that must define my status as defendant as well as those for my nephews and nieces. When I made out the Request for Judicial Intervention (RJI), there is a part where under the foreclosure addendum it asks for RPAPL 1304 notice given for each defendant. So let's simplify things as the plaintiff's attorney said....obviously, I am a defendant, stated in summons and complaint and on RJI form, so I must be able to defend myself according to NY law.

See, to me, since the attorney included not only me but my nephews and niece as defendants, he opened up the whole foreclosure to all these avenues that could be disputed. Here is the sticky part though, how can we dispute these violations, if we aren't considered, owner, mortgagors, or borrowers. We must fall under some category, or they couldn't take action against us...hmmm. I have to know early on how to defend these maneuvers with MY STANDING, as if it is not argued properly, then losing the house would be imminent. However, I always believe the truth prevails in life if addressed properly and adjudicated fairly.

In April, I sat down with the Home Equity Dept, well, three different ladies, three different times, and we reached an agreement to repay monthly. So, I came in the first week of May and made a payment by check which they gladly received. About 3 weeks later, the lawyer sent me back the returned check and a notice that he had advised the credit union not to take any more repayment money. I know that this is definitely a conditions precedent pertaining to a binding agreement we both entered into. I am mentioning this as this is a matter I left undisclosed, so as not to tip the hat of my defense.

Getting back to the status of the house and myself, can I counter his affidavit before the motion to dismiss is looked at on Feb 3rd, or should I wait and see if the judge rules in my favor and if not, use a lot of this in affirmative defenses and including motions to dismiss? I am asking this as noone seems to know if I can respond to his opposition to motions before it is perused, actually, it is just a submitting hearing, no appearance, or not.

I know it is difficult to prevail as a pro se defendant, but I know for a fact, I spend a lot more time on my defense than the attorney handling the foreclosure, from private sources. He seems more perturbed about my attempts to defend my home, than tackling the issue of coming to some sort of repayment. The court is supposed to have a mandatory settlement conference within 60 days anyways, that is also on the RJI, but noone has set that up either. Well, have given out some more info, as I know it is difficult to assist or counsel, if you don't have all the facts. Thanks for helping, will await more nuggets of wisdom, SA
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ka

Steve,

 

I think that t has given you some good suggestions and insight.

 

If you haven't already answered in your capacity as executor, rather than as an heir, it seems to me that you need to seek counsel from an experienced NY foreclosure defense attorney immediately.

 

While I think that t has laid this out rather clearly, I want to supplement his post with the following additional observation.

 

If you check the express language of RPAPL 1304, I think that you are going to find that the notice requirements of RPAPL 1304 apply to borrowers.

 

You are not a borrower, either as executor or as an heir.  Neither are you a borrower as a lessee.

 

Your deceased mother was the borrower.

 

See also the discussion within Angelo's thread:

 

Major NY Appellate Decision handed down Aurora Loan Services v. Weisblum

http://ssgoldstar.websitetoolbox.com/post/Major-NY-Appellate-Decision-handed-down-Aurora-Loan-Services-v.-Weisblum-5267191

 

Also read the Weisblum decision itself:

 

Aurora Loan Services v. Weisblum, Nos. 2010-03065, 2010-05864, 2011 NY Slip Op 4184; 2011 N.Y. App. Div. LEXIS 4108 (NY App. 2nd Dept., 2011)
http://scholar.google.com/scholar_case?case=7634440800047097953
http://www.nycourts.gov/reporter/3dseries/2011/2011_04184.htm

 

Also read the text on RPAPL 1304 carefully.

 

Also, take a careful look at RPAPL 1303, as well as the court's decision in:

 

First Natl. Bank of Chicago v Silver, 73 AD3d 162, 2010 NY Slip Op 02511 (NY App. 2nd Dept., 2010)

http://www.nycourts.gov/reporter/3dseries/2010/2010_02511.htm

 

*

 

There are certain notice provisions built into NY law within RPAPL.  But do not overlook the fact that there are also express provisions written into the promissory note and mortgage security instruments.

 

These contractual conditions precedent are every bit as potent in may respects as the legal conditions precedent enacted by the legislature.

 

Even if you were not entitled to the protections of RPAPL 1304 or some other statutory provisions, there are probably some particular sections of the mortgage instrument that would protect the executor, the heirs or both.

 

There are also possibly other express provisions of RPAPL that protect tenants.  Angelo or other New Yorkers might have some additional information about this.

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ka

Steve,

 

I want to share two afterthoughts about the meaning of "borrower" and implicitly the effect on other heirs.

 

First, while in my view only the person executing the promissory note is likely to be found to be a "borrower" this ought not preclude you from arguing otherwise at least up to a point.

 

I think that at least a plausible argument can be made that the New York legislature intended the word borrower to mean the person(s) obligated under the promissory note rather than merely the maker of the note.  I have reacted based upon the ordinary meaning of the word borrower.  But legislative intent can come into play, as well, particularly where there can be found some legislative history that shows what the legislature intended.

 

While I cannot speak for t, I intended only for my post to be the beginning of an inquiry, not an end.  I think that t and my post speaks to what the plaintiff is arguing.  I still think that you might persuade a court otherwise by persuasive arguments if you research, write and argue the point well.

 

To this end, I believe that you are on the firmest ground in arguing that since it would be the estate rather than the heirs that might be found liable IF there is a valid debt of which the decedent was the maker, that the estate and therefore YOU as executor might be entitled to be treated as a borrower.  I think that a reasonably strong argument could be made that such should be the case.

 

By contrast, the other heirs are not ordinarily obligated for the debts of the decedent and therefore are probably not entitled to be considered borrowers either as that term is ordinarily understood or under any reasonably expansive view of the RPAPL.

 

Separately, I want to also distinguish between the rights of the heirs to notice and the rights of the heirs to insist that the plaintiff comply with both the statutes and the contractual provisions of the alleged instruments.

 

To the extent that I am correct in my reading of RPAPL 1304, the heirs would not be entitled to the notice required of that section.  Nor would it seem to me that the heirs would generally be entitled to the contractual notice provisions of the instrument itself. 

 

That is to say, for example, that a maker of a note for $100,000 could not impose a duty for a plaintiff to serve a notice on each and every one of her grandchildren by bequeathing her interest in a real property subject to a note secured by a mortgage to her twenty five grandchildren.  Since the grandchildren are not in privity of contract or generally obligated by the note, it seems to me to be a stretch to assert that a holder of the note would be required to give a separate notice to each heir.  Bear in mind that a Will might even make such a bequest generally without even naming these heirs by name individually (she could simply bequeath her interest in the property "to all my grandchildren equally").  These heirs are not obligated under the note.

 

But it is quite another thing to say that the holder is altogether excused from the notice requirements of the instrument itself altogether or that the holder is excused from those notice provisions which are found to require notice to the estate through its executor.

 

And if the executor is due notice and such notice is not given, it would seem to me that any heir or interested party would probably be entitled to at least argue a conditions precedent defense.  That is, another heir should be able to intervene and answer setting forth a special defense of conditions precedent, but the defense would probably not be that the heir wasn't notified, but rather that the decedent and/or the executor wasn't given the required notice(s), etc. 

 

But one must also expressly recognize the possible limits to this argument.  For example, usually a person can waive notice.  For example, where the right to the notice belongs to the executor rather than the heir, if the executor waives either a contractual or a statutory notice, this waiver is likely to be both binding and dispositive.  Another heir can hardly argue that the notice wasn't given if actually waived.

 

Where there exists a person who is both executor and an heir, it is probably essential that each and every argument that can be validly raised be raised and argued both as executor and as an heir individually.  Failing to present such argument in writing in each capacity probably waives the argument.  If the executor presents a MTD or files an answer failing to specify the capacity or only in the capacity as heir, this argument is probably waived as to the separate role as executor.

 

Tread lightly and with extreme caution!  It is better to make the argument both ways and to make arguments that might be found to be marginal or wanting than to fail to make the argument and thereby to have waived the argument.

 

I cannot emphasize enough that this post is written extemporaneously and without benefit of ANY research as to New York statutes or case law by a fellow pro se litigant.  DO THE RESEARCH!  THIS IS NOT LEGAL ADVICE!!

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Steve Anderson
Hi, well, I used everyone of ka's rulings in my MTD with conditions precedent. I mean, even the attorney commented that they were right on...but like I stated before, I am not an owner, borrower, or mortgagor. I mean all those rulings make my case very strong and they need to be followed before a foreclosure can be entered into....but the plaintiff's attorney, just quoted the NY law under RPAPL 1304 about who qualifies.

So, this is where law comes to a crossroads and you have to decide what road to take. In fact, I believe the law is very deficient in this regard, and doesn't protect the heirs or executor at all. If the persons named in the summons and complaint are not able to defend their status then how do they protect their interest in the house. There must be some way or someone who knows the best avenue to travel in these peculiar instances.

I do know one thing, I am going to take some of this material to appellate court if I have to, as I signed a RJI form with my defendant information that specifically asked for a RPAPL 1304 prior notice. See, the court needs to understand that these paths cross in this particular situation and they need to render a ruling accordingly. They can't have that no person can defend their position cake and eat the one where they neglect the RPAPL 1304 notification that pinpoints their involvement in the foreclosure, esp. when they were not made aware that it was entering into the judicial phase.

I am hoping this thread will bring about more interest in estates that are in probate, but the deceased parent left behind, in my case, a small home equity loan i.e how to proceed in the proper manner, so that a settlement or resolution can be achieved by all parties involved. Thanks for all the input, keep the learning curve coming, esp. about my standing in this foreclosure, SA

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t

Steve -

 

While it remains baffling as to WHY you want this case to be prematurely dismissed, you should probably ask the courts to read RPAPL 1303 and 1304 in conjunction with EPT § 11-3.1:

 

  § 11-3.1 Actions
  Any action, other than an action for injury to person or property, may
  be  maintained by and against a personal representative in all cases and
  in such manner as such action might have been maintained by  or  against
  his decedent.

 

You also need to look up the New York cases interpreting this section.  Unless you know of some law or compelling reason to pursue the RPAPL 1304 issue in a MTD, I would instead FILE AN ANSWER interposing the SAME issues, then WITHDRAW the MTD and CANCEL the hearing.

 

It would be much better for this aspect of the case to be decided in 2014 or 2015.

 

But if you are in a big HURRY to lose the house, then press for an earlier ruling and help the plaintiff clean up its case!

 

You ought to be reading the entire Estates, Powers and Trusts (EPT) statute for New York state and then looking up the relevant cases that explain the most relevant provisions.

 

See:

 

http://public.leginfo.state.ny.us/menuf.cgi

 

You should also be reviewing the entirety of RPAPL (RPA), especially Chapter 13.

 

Like ka, I cannot imagine WHY other Forum participants ought to be reading these laws FOR YOU, if you are unwilling to read these yourself.

 

Have you even read the provisions of the mortgage yet??  This was suggested several times, but there is NO INDICATION that you have bothered to read the instruments.  These often help you to identify your best defenses.

 

Would you defend yourself in a capital trial with arguments you find on a cereal box?  WHY are you approaching this matter by simply filing a MTD that you probably pulled off the Internet when you SHOULD HAVE BEEN raising some REAL DEFENSES in a thoughtful answer.

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Steve Anderson
Hi, just returned to this thread after finally meeting with an attorney this aftenoon. Well, I definitely don't want to end this foreclosure prematurely, don't know where that got misconstrued, but do want to defend it in the proper manner protecting my interest in the home.

I have been reading, rereading, researching as many of the laws that pertain to real property and probate that I am able to access. So, today, I sat down with the lawyer, let him see all the docs and notices, I have received  and sent out. Well, I came back after he perused them, and he said, well, I couldn't have done a much better job, except for the legal manner the particular motions and affidavits require in their formatting. He said, the county courts around here are fairly lenient, to pro se litigants, but as you can see, the opposing attorney presents them in a certain way.

As mentioned in the above post, he said an Answer would have sufficed along with a request for Discovery....but then he retracted his statement after a few long pauses, saying the plaintiff's attorney was kindfo showing his hand when he said I wasn't a borrower, mortgagor, or owner...and a few other admissions that he just admitted that were completely untrue, like I wasn't a tenant...and, I have a 5 year lease, stuff like that.

So, to readdress some issues. It turns out filing a pre-answer MTD can be helpful in that not only does it delay the proceedings if you need to stay in your home, but it narrows down the manner in which the opposing attorney is preparing the plaintiff's case for future proceedings.

He ended our conversation with this revelation. The fact that the probate matter has not been settled destabilizes the situation. He said, any judge should see that early on.  He then said that the opposing attorney had a point in that I am not the borrower, owner, or mortgagor...but then went on to say that I must be considered as one standing in the gap for myself and the other defendants named on the summons. Proving this perspective might be difficult he remarked though, and when I mentioned to him the information supplied by forum members here, he was astonished, and echoed your sentiments that the defending must be from both an executor and an heir stance.

Finally, before I left his office, he said that the proper prior notice motion to dismiss was right on and might still bring about a dismissal. He said, it would be very time consuming to defend my foreclosure and he would represent me, but it would probably be more expensive than the loan amount due if it went on for a long period of time. Well, I wanted to express my realizations to all those who keep pressing for an attorney and for my interest and involvement in the resolution of my foreclosing, SA
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George Burns
Can anyone explain, to me, what Steve could possibly mean by " the proper prior notice motion to dismiss " ?

I have almost given up on trying to understand what he has done so far and what he plans or expects for the future, but, I still want to make sure that it is not just because I am not understanding his terminology.

Steve

You have no interest in the house. The will has not been probated as yet and the asset has not been transferred as yet. You only have a potential or possible interest IF all goes well.

It makes no sense to say that " he said an Answer would have sufficed along with a request for Discovery " then say that "  It turns out filing a pre-answer MTD can be helpful ". If he said that, it simply means that you DID THE WRONG THING. Don't try to spin his statements to you. What happens to you and the property does not affect any of us on this Forum. It is YOU who is affected, so protect yourself do not try to spin us.

While under the right set of facts and circumstances filing a pre-answer MTD could be helpful. that does not seem to be the case in this instance.

In general, going through the process of Discovery, with Interrogatories, Requests for Admissions. Requests for Production, Notice of the taking of Depositions (with a few resetting of dates etc) takes considerably longer to be completed than any pre-answer MTD or MTD will ever take.

Personally, I think that you are really trying to justify and rationalize the fact that you have screwed up your chances of a favorable outcome. You just cannot face that fact and so you try to drag "red herrings" all over the issues instead of facing the facts and try to correct the apparent mess.

Good Luck to you.
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Steve Anderson

Thanks for the positive feedback, George, will take your comments into consideration, SA

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ka

It is probably appropriate to crosslink this thread:

 

"NY Appellate Court - Suit Against a Dead Person Is a Nullity: Wendover Fin. Servs. v Ridgeway"

http://ssgoldstar.websitetoolbox.com/post/NY-Appellate-Court-Suit-Against-a-Dead-Person-Is-a-Nullity-Wendover-Fin.-Servs.-v-5757298

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