If you are in foreclosure, you can fight the case where it is (generally circuit court), or you can attempt to fight it in federal district court (under certain circumstances) or in bankruptcy court (which is also a federal court, but not a district court). Many bankruptcy courts around the country are beginning to turn the tide and are ruling against the banks. But in order for that to happen, you have to properly prepare your schedules to reflect that the mortgage loan is both unsecured and disputed. If you fail to do that you will not adequately challenge the debt. Most bankruptcy lawyers will not mark your papers in that manner as that will cause a large amount of work in the bankruptcy court. Bankruptcy courts move extremely fast and lawyers want to get paid for their work. If you are in bankruptcy, chances are good you won't have the funds to pay your bankruptcy lawyer to brief the issues and fight the bank in that court. In that instance, contact me as I may be able to brief it for you at a substantially reduced cost.
When you are sued for foreclosure, it is inappropriate to send a letter to the court. That is not a responsive document and will damage your case. There are a number of appropriate responses that may be available. A responsive document could be a motion to dismiss, a motion to strike, a motion to make the complaint more definite and certain, an Answer, etc. You should make as many legal and appropriate challenges prior to filing an Answer as possible. Here are three sample motions to dismiss. They each are a bit different. Sample 3 considers the defense of lack of capacity. Motion to Dismiss Sample 1.doc Motion to Dismiss Sample 2.doc Motion to Dismiss Sample 3.doc
If an Answer must be filed, the Answer should have affirmative defenses. Here are two sample Answers. The second one is a bit more specific and also includes an affirmative defense that the note and mortgage instrument were bifurcated (separated) at the time of execution such that the note was unsecured from its inception. Sample Answer 1.doc Sample Answer 2.doc Filing an Answer isn't good enough, though. After you file your Answer, you have to serve the bank's attorney with discovery demands in order to begin obtaining the information you need to fight your case. Typically, you would serve a Request for Production of Documents first and when you get the response back, if it is fully responsive, you would then serve Interrogatories. When you get those back you should then have enough information to make a more narrow request for documents and further interrogatories and then send a second set (within the limits of the rules) or set a deposition to take oral testimony. Here are some samples. Sample Request to Produce.doc Sample Notice of Service of Request for Production.doc Sample Interrogatories.doc Sample Notice of Service of Interrogatories.doc If the other side refuses to comply with your discovery requests, you should then set the matter for a hearing on a motion to compel. Here is a sample motion to compel. Sample Motion to Compel.doc
There are some other types of discovery that aren't specific to lawsuits that you can use even before litigation begins. You can demand debt verification under the Federal Fair Debt Collection Practices Act with this document: Sample debt verification letter.doc There is also the mystical Qualified Written Request (also known as a "QWR") that you probably have heard of. Here are two samples of a QWR: Sample Qualified Written Request 1.doc Sample Qualified Written Request 2.doc
Banks win on motions for summary judgment. These motions are relatively easy to win. All you have to do is provide some evidence that is in controversy that is material to the case. In this sample opposition to a motion for summary judgment, it attacks the motion from three different angles - a pending motion to dismiss has not yet been disposed of, discovery is outstanding, and the opposition includes an affidavit that the client saw the note in the court file and she contends it is a fake. Sample Opposition to Motion for Summary Judgment.doc
In many instances, homeowners are led to believe that the bank is working with them to avoid foreclosure by way of loan modification - all the while the bank is foreclosing on them. Loan modifications, for the most part, are a fraud. As of January, 2010, only 2% of HAMP funds have been used to modify loans. That means that both the government and the banks aren't honestly attempting to modify loans. So if you want to believe that you are one of the rare individuals who is actually going to get a loan modification, that's fine, believe it if it makes you feel better. But, don't drop your guard and stop fighting the foreclosure. If the bank tells you not to worry - that they won't foreclose on you or harm your rights while working with you to obtain a loan modification, ask them to put that in writing. They won't. So if you fall for it, you will get a judgment against you. Setting aside a judgment is tough. Each case is different and is highly fact dependent. Here is one case I recently was able to get set aside, but only because the client was on the ball and had filed some documents that technically prevented a judgment against him. Sample Motion to Set Aside Judgment.doc Sample Affidavit to Set Aside Judgment.doc Sample Order on Motion to Set Aside Judgment.doc Contact me if you would like to discuss my preparation of your documents for you which can save you considerable sums of money.
There are different types of "audits" that can be done on your mortgage loan. One more familiar type is called a "TILA" (from Truth In Lending Act). But, you have to act timely under that act as your rights evaporate quickly. If you sue within one year of obtaining your loan you can sue for damages. If you wait more than one year, you lose the right to claim damages. If you sue more than three years out, you're done - you lose - the statute of limits ran. Some people argue that the statute can be tolled for fraud. Good luck with that argument. Here is a federal suit I filed for rescission on a TILA violation. Hixson Filed Federal Complaint.pdf Exhibits to Complaint.pdf If you pursue a TILA lawsuit, make sure your rescission letter is appropriate. A copy of the rescission letter is in the exhibits to the Hixson complaint.
Here is an Appeal to the Fifth District Court of Appeals I wrote to challenge the grant of final summary judgment of foreclosure by Deutsche Bank on an unendorsed note that was made payable to First Franklin Bank. The concept is that if a note is made payable to a specifically identified person who is not the Plaintiff or the principal of the Plaintiff, that foreclosure then is improper. This is a good place to learn the specifics of this one issue. 09.4035.ini.pdf.pdf Contact me if you would like to discuss appealing your case.