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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jbike

26

Timothy C. Springer, Esq. #207229

Nancy D. Klepac, Esq. # 253896

LAW OFFICES OF TIMOTHY C. SPRINGER

4905 N. West Avenue, #102

Fresno, CA 93705

Telephone: (559) 225-3622

Facsimile: (559) 225-3459

Attorney for Debtor(s),

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF CALIFORNIA

In the Matter of: JOHN LYSTAD

KAREN LYSTAD

Debtors,

JOHN LYSTAD;

KAREN LYSTAD

Plaintiff/Debtors

vs.

SUNTRUST MORTGAGE, INC. and DOES 1-10.

Defendants/Creditors.

Case No: 11-10201-B-13F

Chapter 13

Adv. No:

OBJECTION TO CLAIM NO. 5 BY SUNTRUST MORTGAGE, INC. AND COMPLAINT FOR DETERMINATION OF AMOUNT OF DEBT, BREACH OF CONTRACT, VIOLATION OF THE TRUTH IN LENDING ACT, VIOLATION OF REGULATION Z, VIOLATION OF THE CALIFORNIA PREDATORY LENDING ACT, FRAUD, FRAUDULENT CONCEALMENT, NEGLIGENT MISREPRESENTATION, DURESS, EMOTIONAL DISTRESS, AND VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200.

JURY TRIAL DEMANDED

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jbike

INTRODUCTION
COMES NOW JOHN LYSTAD and KAREN LYSTAD, debtors in the above referenced case (hereinafter "Plaintiff/Debtors"), through their attorney, the Law Office of Timothy C.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 25 26 27 28

Springer to seek determination of the amount of the claim by SUNTRUST MORTGAGE, INC. (hereinafter "Defendants" whether one or more)
Plaintiff/Debtors object to Proof of Claim Number 5, filed on July 25, 2010 by Daniel K. Fujimoto for Defendants in the amount of $538,220.09 with arrearages in the amount of $49,540.41.
Plaintiff/Debtors seek damages against Defendants for fraud, fraudulent concealment, negligent misrepresentation, breach of contract, duress, emotional distress, violation of the Truth in Lending Act and regulation Z, violation of the California Predatory Lending Act, and violation of Business and Professions Code § 17200.
Debtors are seeking actual damages in the amount of $76,970.09, compensatory damages in the amount of $100,000.00 and punitive damages of $1,000,000.00 or an amount to be determined by this court.


In support of their complaint, Debtors allege as follows:
PROCEDURAL HISTORY AND JURISDICTION

17 1) On January 7, 2011, Plaintiff/Debtors commenced a voluntary case under Chapter 13 of the Bankruptcy Code, by filing a petition which has been assigned Case No. 11-10201-B-13F in this Court.
2) This adversary proceeding arises out of and relates to the Chapter 13 case of Plaintiff/Debtors Case No. 10-61191-B-13, on the docket of this court, filed September 28, 2010.
24 3) This court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334, and 11 U.S.C. §523 (a) (1) §157 (b) (2) (B) since Plaintiff/Debtors are directly objecting to the claim of Defendants and the amount shown on their proof of claim. This is a core proceeding.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 2
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4) This may be a non-core proceeding with respect to the violations enumerated which led to the incorrect proof of claim, but which may be determined outside of the bankruptcy law and outside 28 U.S.C. § 157.

PARTIES

8 5) JOHN LYSTAD and KAREN LYSTAD are the debtors in the above referenced Chapter 13 case.
6) Defendant, SUNTRUST MORTGAGE, INC. was named in Schedule D of the Plaintiff/Debtors’ Petition as the holder of the First Deed of Trust on Plaintiff/Debtors’ residence.
14 7) Defendants, DOES 1-10 are persons or entities acting within the course and scope of their employment with SUNTRUST MORTGAGE, INC. and/or agents acting on behalf of SUNTRUST MORTGAGE, INC.
8) SUNTRUST MORTGAGE, INC and DOES 1-10 shall hereinafter be collectively referred to as "Defendants."

STATEMENT OF FACTS
  1. On September 11th 2001, Plaintiff/Debtor John Lystad was on the 61st floor of the World Trade Center South Tower, and using the money that Debtor received from injuries as a down payment Plaintiff/Debtor purchased the underlying real property. See Declaration of John Lystad filed concurrently herewith ("Dec. Lystad").

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 3
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10) On March 28, 2006, Plaintiff/Debtor John Lystad, solely, executed a Deed of Trust in favor of Defendants in the amount of $461,250. See First Deed of Trust attached to Proof of Claim No. 5.
4 11) Plaintiff/Debtor John Lystad was told by Defendants that the must be in his name alone, although the property documents are in the names of both Plaintiff/Debtors.
7 12) In 2007, Plaintiff/Debtors were having financial difficulties and they sought a mortgage modification from Defendants. Dec. Lystad
9 13) Plaintiff/Debtors were told that they needed to be further behind in their mortgage and were told to stop making payments.
14) After a long period, Defendants verbally agreed to modify Plaintiff/Debtors’ loan. Dec. Lystad.
14 15) According to the verbal agreement the terms would be 5% interest for 30 years with any arrearages to be capitalized. Dec. Lystad.
16 16) On or about January 30, 2008, Defendants sent a letter to Plaintiff describing the terms of the new loan. A true and correct copy of the letter from Defendants dated January 30, 2008 with the loan documents is filed herewith as EXHIBIT A.
20 17) When Plaintiff/Debtors received the loan paperwork, they were confused because the loan payment did not significantly decrease and the interest rate was not lowered.
18) Defendants demanded that Plaintiff/Debtor wife sign the modification, despite the fact that she was not on the original loan, nor did she ever receive any of the original loan disclosures or information.
26 19) In fear for their house and under duress, Plaintiff/Debtor’s signed the loan modification. (hereinafter referred to as the "2008 loan"). Dec. Lystad.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 4
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20) In EXHIBIT A, Defendants asserted that the principle balance was $451,060.33, and then added $18,099.08, for a new principle balance of $469,159.41. See EXHIBIT A.
3 21) Defendants had Plaintiff/Debtors remit an amount of $4,500 and Plaintiff/Debtors’ loan was modified. See EXHIBIT A.
22) Defendants applied the $4,500 as $500 towards fees $100 for a BPO and $3,900 towards escrow fees and then in the same letter capitalized delinquent escrow in the amount of $7,117.04, thus the total amount to escrow would be $11,017.04. See EXHIBIT A.
9 23) Plaintiff/Debtors assert that they were not $11,017.04 behind in their escrow. Dec. Lystad
10 24) EXHIBIT A states that the principle balance after capitalization was $469,159.41, the loan would be paid by April 2036, the interest rate would be 7.25%, and the payment would be $3,146.54. See EXHIBIT A.
14 25) Debtors made the $3,146.54 modification payment for one year. Dec. Lystad
15 26) About August 2008, Plaintiff/Debtors realized that their principle balance was not being reduced. Dec. Lystad
27) Debtors called the Defendants and objected to their handling of their loan because nothing was being applied to principle. Dec. Lystad
20 28) Plaintiff/Debtors fought with Defendants for several months regarding this issue and after speaking with Amy a loss mitigation supervisor, Defendants agreed to modify Plaintiff/Debtors loan.
29) Defendants agreed that for the payment of accrued fees, Defendants would modify Plaintiff/Debtors loan to the originally agreed 5%. Dec. Lystad
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 5
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30) On July 20, 2009, Defendants sent a letter to Plaintiff describing the terms of the new loan, hereinafter "2009 loan." A true and correct copy of the letter from Defendants dated July 20, 2009 with the loan documents is filed herewith as EXHIBIT B.
4 31) EXHIBIT B states that the beginning principle balance was $469,159.41.
32) $469,159.41 is the capitalized amounts listed on EXHIBIT A AND the beginning balance on EXHBIT B. Thus Debtors had the exact same principle balance between January 2008 and July 2009. See EXHIBITS A&B
9 33) EXHIBIT B states that Plaintiff/Debtors owe interest in the amount of $17,007, which is exactly 6 months of interest on $469,159.41 calculated at 7.25%. See EXHIBIT B.
34) EXHIBITS A&B together evidence the fact that 12 months of principle payments although made were never allocated. See EXHIBITS A&B
14 35) Plaintiff/Debtors called Defendants and demanded an explanation. Dec. Lystad
15 36) Plaintiff/Debtors explained that they were supposed to have been paying 5% interest with the remainder of the payment going to principle. Dec. Lystad
37) Plaintiff/Debtors explained that Defendants had not been allocating any money towards the principle balance. Dec. Lystad
20 38) Filed herewith as EXHIBIT C is a true and correct copy of Debtors’ August and October 2008 mortgage statements showing year to date principal paid $0.00.
39) Plaintiff/Debtors spoke to several individual agents of Defendants and waited for a resolution. Dec. Lystad
25 40) Defendants admitted to Plaintiff/Debtors that they do not have a 30 year fixed payment, fixed interest, interest only loan. Dec. Lystad
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 6
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41) Plaintiff/Debtors continued to assert that their payments had been incorrectly applied and stopped making payments in an attempt to force Defendants to live up to their agreement.
3 42) In July 2009, Defendants agreed to modify Plaintiff/Debtors loan to the originally agreed 5%. Dec. Lystad.
43) Plaintiff/Debtors objected that the principle that should have been applied for the prior year was still not correct. Dec. Lystad
8 44) Plaintiff/Debtors were told by Defendants that either they sign the paperwork or Defendants would foreclosure on their house. Dec. Lystad
10 45) Plaintiff/Debtors signed the paperwork under duress as instructed and began making the new payments. Dec. Lystad
13 46) In 2009, Debtor had a heart attack. Dec. Lystad
14 47) Based on information and belief, the stress and strain caused by Defendants was a major contributing factor. Dec. Lystad
16 48) On July 25, 2010, Defendants filed a claim in Debtor/Plaintiffs’ Chapter 13 Bankruptcy in the amount of $538,220.09 with arrearages in the amount of $49,540.41.
19 49) Plaintiff/Debtors original loan was for $461,750.
20 50) Plaintiff/Debtors have already made 3 years worth of payments. Dec. Lystad
21 51) Plaintiff/Debtors allege based on information and belief that Defendants overstated their claim as much as $76,970.09, and based on Defendants own letters, overstated the arrearages as much as $31,452.04. Dec. Lystad
25 52) Proof of Claim Number 5 was filed on July 25, 2010 by Daniel K. Fujimoto for Defendants in the amount of $538,220.09 with arrearages in the amount of $49,540.41.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 7
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53) Proof of Claim Number 5 filed by Defendants incorrectly asserts missed payments that were actually made by Plaintiff/Debtors. Dec. Lystad.
3 54) Filed herewith as EXHIBIT D is a printout from Defendants’ webpage showing payments made by Plaintiff/Debtors during the period in which the proof of claim asserts that no payments were made.
7 55) Filed herewith as EXHIBIT E is a printout from Defendants’ webpage showing an original loan amount of $483,733, however, that number was not on any of the loan documents for any of the modifications.
10 56) Proof of Claim Number 5 filed by Defendants incorrectly attaches the original note signed by Plaintiff/Debtor in 2006 and not the active modified agreement signed by Plaintiff/Debtors in 2009. Dec. Lystad
14 57) Proof of Claim Number 5 filed by Defendants is incorrect in that the amounts of the Defendants claim are incorrect based on their above failure to properly allocate payments for the prior years. Dec. Lystad.

FIRST CAUSE OF ACTION: OBJECTION TO CLAIM AND REQUST FOR DETERMINATION OF CLAIM AMOUNT UNDER 11 U.S.C. § 502
[As to ALL DEFENDANTS]

21 58) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
23 59) Proof of Claim Number 5 was filed on July 25, 2010 by Daniel K. Fujimoto for Defendants in the amount of $538,220.09 with arrearages in the amount of $49,540.41.
26 60) Plaintiff/Debtors assert that the amount of Proof of Claim No. 5 is incorrect.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 8
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61) Plaintiff/Debtors assert that the arrearage amount listed on Proof of Claim No. 5 is incorrect.
3 62) Using an amortization table along with EXHIBIT A and EXHIBIT B to Determine the amount of Plaintiff/Debtors claim, demonstrates that the amount of Proof of Claim No. 5 is incorrect.
7 63) Proof of Claim Number 5 is incorrect because Defendants have not correctly applied principle payments nor properly applied the loan payments.
9 64) Proof of Claim Number 5 is incorrect because Defendants arrearage calculation is incorrect.
65) Proof of Claim Number 5 is incorrect because Defendants have attached the original loan documents rather than the second modified loan which is actively in place.
14 66) Proof of Claim Number 5 is incorrect because it lists payments that were not made by Plaintiff/Debtors; however, EXHIBIT D shows some of those payments.
16 67) Plaintiff/Debtors have provided several documents in the form of the exhibits attached hereto, demonstrating that Proof of Claim Number 5 is incorrect.
19 68) Plaintiff/Debtors request an evidentiary hearing.
20 69) Plaintiff/Debtors request a determination by this court of the correct amount due and owing to Defendants.

SECOND CAUSE OF ACTION: BREACH OF CONTRACT
[As to ALL DEFENDANTS]

25 70) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 9
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71) Plaintiff/Debtors and Defendants signed a loan modification contract on or about January 30, 2008.
3 72) In the contracts Defendants agreed to make and Plaintiff/Debtors agreed to pay a 30-year fixed interest amortized loan.
73) Defendants determined the payment amount and agreed to apply that payment to principle and interest with Plaintiff/Debtors loan to be paid off by April 2036.
8 74) Plaintiff/Debtors made 12 payments under the contract.
9 75) Defendants breached the contract by failing to allocate any of the payment to principle.
10 76) Defendants mailed Plaintiff/Debtors EXHIBIT C, which states that as of October 2008, the year to date principle amount allocated is $0.00.
13 77) After the contract was breached by the Defendants, Plaintiff/Debtors stopped making payments to Defendants
15 78) After six months, Defendants presented Debtor/Plaintiffs with a new contract that included false statements of the debt owed.
79) Debtor/Plaintiffs demanded a correction of the principle balance, but they were told that either they agree or their house would be sold.
20 80) Debtor/Plaintiff signed the new contract under duress.
21 81) Plaintiff/Debtors alleges on information and belief that Defendants willfully and knowingly breached the 2008 loan contract.
82) Plaintiff/Debtors alleges on information and belief that Defendants willfully and knowingly forced Plaintiff/Debtors to sign a new contract under duress.
26 83) As a direct and proximate result of Defendants' actions Plaintiff/Debtors has suffered actual and statutory damages in an amount to be proven at the time of trial.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 10
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84) Defendants', conduct was done with reckless disregard for the requirements of the law and for the safety, wellbeing, and legal rights of Plaintiff/Debtors. Plaintiff/Debtors therefore request an award of punitive damages pursuant to Civil Code section 3294 as against all Defendants.
85) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

THIRD CAUSE OF ACTION: VIOLATION OF THE TRUTH IN LENDING ACT AND IMPLEMENTARY REGULATION Z
(15 U.S.C. 1601 et sec.)
[As to ALL DEFENDANTS]

86) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
15 87) The pertinent parts of Section 226.18 of Regulation Z regarding the Truth in Lending Act [12 C.F.R. § 226.18] states that for each transaction, the creditor shall disclose the following information as applicable: (g) Payment schedule. Other than for a transaction that is subject to paragraph (s) of this section, the number amounts, and timing of payments scheduled to repay the obligation; (s) Interest rate and payment summary for mortgage transactions. For a closed-end transaction secured by real property or a dwelling, other than a transaction secured by a consumer's interest in a timeshare plan described in 11 U.S.C. 101(53D), the creditor shall disclose the following information about the interest rate and payments: (2) Interest rates—(i) Amortizing loans. (A) For a fixed-rate mortgage, the interest rate at consummation; (B) For an adjustable-rate or step-rate mortgage— (ii) Negative amortization loan; Interest-only payments. (4) Payments
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 111 2 4 5 6 7 8 10 11 12 13 15 17 18 20 22 23 24 25 26 27 28
for negative amortization loans. For negative amortization loans: (6) Special disclosures for loans with negative amortization.
3 88) Defendants violated Section 226.18 of Regulation Z because they did not did not disclose to Plaintiff/Debtors the items listed above, and based on information and belief Plaintiff/Debtors assert that it is likely that after discovery, Plaintiff/Debtors will determine other items improperly disclosed and reserve the right to amend and include such violations.
9 89) Defendants failed to provide Plaintiff/Debtors with any disclosures stating their loan would not be applied to principle.
90) Defendants failed to follow Regulation Z with regard to negative amortization and/or an interest only loan.
14 91) Based on information and belief, Defendants added Plaintiff/Debtor wife to the loan documents without giving her any required disclosures or information.
16 92) Based on information and belief, Defendants demanded that Plaintiff/Debtor wife become liable on the loan or Defendants’ would foreclose on the property.
19 93) Plaintiff/Debtors alleges on information and belief that Defendants violations enumerated above were willful and knowing.
21 94) Plaintiff/Debtors alleges on information and belief that Defendants, and each of their, violations enumerated above were willful and knowing.
95) As a direct and proximate result of Defendants' violations of the Truth in Lending Act, Plaintiff/Debtors have suffered actual and statutory damages in an amount to be proven at the time of trial.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 12
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96) As a direct and proximate result of Defendants' violations of the Truth in Lending Act Defendants are liable for statutory damages under 15 U.S.C. 1601.
3 97) Defendants', conduct was done with reckless disregard for the requirements of the law and for the safety, wellbeing, and legal rights of Plaintiff/Debtors. Plaintiff/Debtors therefore request an award of punitive damages pursuant to Civil Code section 3294 as against all Defendants.
8 98) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

FOURTH CAUSE OF ACTION: VIOLATION OF CALIFORNIA PREDATORY LENDING ACT
(Cal. Fin. Code §§ 4970 et sec.)


[As to ALL DEFENDANTS]

14 99) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
100) The Defendants made the consumer loan pursuant to the California Predatory Lending Law insofar as they arranged, negotiated or made the consumer loan. (Cal. Fin. Code §4970(b))
20 101) The Defendants violated the Predatory Lending Law. Said violations include, but are not limited to, the following violation of California Financial Code §4973 (c) A covered loan shall not contain a provision for negative amortization such that the payment schedule for regular monthly payments causes the principal balance to increase, unless the covered loan is a first mortgage and the person who originates the loan discloses to the consumer that the loan contains a negative amortization provision that may add principal to the balance of the loan.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 13
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102) The Defendants, and each of them, failed to discloses to the consumer that the loan contains a negative amortization provision that may add principal to the balance of the loan and The Defendants, and each of them, acted in a manner that constitutes fraud. (Cal. Fin. Code §4973(2)(n)).
103) Plaintiff/Debtors alleges on information and belief that Defendants, and each of their, violations enumerated above were willful and knowing.
8 104) As a direct and proximate result of Defendants' violations of California's Predatory Lending Law, Plaintiff/Debtors has suffered actual and statutory damages in an amount to be proven at the time of trial.
105) Defendants' conduct was done with reckless disregard for the requirements of the law and for the safety, wellbeing, and legal rights of Plaintiff/Debtors. Plaintiff/Debtors therefore request an award of punitive damages pursuant to Civil Code section 3294 as against all Defendants. (Cal. Fin. Code §4978(b)(2)).
16 106) Defendants are jointly and severally liable for their violations of California's Predatory Lending Law pursuant to California Financial Code §4974(b).
19 107) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

/ / /
/ / /
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/ / /

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 141 2 3 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28

FIFTH CAUSE OF ACTION FRAUD, FRAUDULENT CONCEALMENT AND NEGLIGENT MISREPRESENTATION
[As to ALL DEFENDANTS]

4 108) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
6 109) Defendants and/or their agents made the following representations to Plaintiff/Debtors:
a. As to the 2008 loan:

      1. That a portion of Plaintiff/Debtors’ payment would be allocated to principle so that the debt would be repaid in August of 2036.
      2. That Defendants had been allocating a portion of Plaintiff/Debtors’ payments
      3. That the interest rate would be 5%
      4. b. As to the 2009 loan:
      5. That if Plaintiff/Debtors’ wished to avoid foreclosure they must sign the modification.
      6. That the arrearages accurately reflected the actual arrearages with respect to Plaintiff/Debtors’ loan.

22 110) Plaintiff/Debtors allege that at all times herein mentioned, representations made to Plaintiff/Debtors pertaining to their loan were false and fraudulent.
111) The representations made by Defendants were, in fact, false. When Defendants made these representations, they knew them to be false. These representations were made by Defendants with intent to defraud and deceive Plaintiff/Debtors and with intent to induce Plaintiff/Debtors to act in the manner herein alleged.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 15
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112) Further, at the time Defendants made the promises to Plaintiff/Debtors, Defendants had no intention of truthfully or lawfully performing them.
3 113) Plaintiff/Debtors, at the time these representations were made by Defendants and at the time Plaintiff/Debtors took the actions herein stated, were ignorant of the falsity of Defendants’ representations and believed them to be true.
7 114) Plaintiff/Debtors, at the time promises were made and at the time they took the actions herein stated, were ignorant of Defendants’ secret intention not to perform and Plaintiff/Debtors could not, in the exercise of reasonable diligence, have discovered Defendants’ secret intention.
115) In reliance on these representations, Plaintiff/Debtors were induced to sign the mortgage modification contract and pay Defendants’ the upfront fees and costs.
14 116) Had Plaintiff/Debtors known the actual facts, Plaintiff/Debtors would not have completed the transaction.
16 117) Plaintiff/Debtors’ reliance on Defendants’ representations was further justified because Plaintiff/Debtors are unsophisticated borrowers, ignorant of the financial machinations and instruments being used to complete the transaction and were forced to reasonably rely on the advice and superior knowledge of the Defendants.
21 118) As a proximate result of Defendants’ fraud and deceit and the facts herein alleged, Plaintiff/Debtors were fraudulently induced to enter into a transaction that represented itself to be a fixed term loan, but in fact based on Defendants allocations, had Plaintiff/Debtors continued to make the payment for 30 years their loan would have stayed at the same balance.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 16
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119) Plaintiff/Debtors were forced to take action in order to compel Defendants to live up to the agreed bargain and ended up requiring bankruptcy to protect their house. Therefore, by reason of Defendants’ fraud, Plaintiff/Debtors have suffered damages.
4 120) In doing the acts herein alleged, Defendants acted with oppression, fraud, and malice, and Plaintiff/Debtors is, therefore, entitled to compensatory and punitive damages in a sum to be determined at trial and such other and further legal and equitable relief as may be deemed just and proper.
9 121) Defendants made these representations for the purpose of enticing Plaintiff/Debtors to make the loan described herein. Plaintiff/Debtors reasonably relied upon these representations.
13 122) Defendants made the following false representations either negligently or intentionally to Plaintiff/Debtors:

    1. Defendants misrepresented the finance charges and annual percentage rate, as defined by applicable federal law that the Plaintiff/Debtors were paying for the loan.
    2. Defendants misrepresented prior to delivering the loan documents that the loan would have an interest rate of 5% percent, but actually gave Plaintiff/Debtors a loan of 7.25%, unbeknownst to Plaintiff/Debtors.

123) By intentionally misrepresenting the terms of Plaintiff/Debtors’ loan and misallocating the payments, Defendants violated California Business and Professions Code §17200 et seq, and their implied "covenant of good faith and fair dealing"
26 124) Based upon the representations of Defendants, Plaintiff/Debtors reposed their trust in the representations of Defendants. Such trust was reasonable. Plaintiff/Debtors
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 171 2 4 5 6 8 9 11 12 13 15 16 17 18 20 21 22 23 24 25 26 27 28
relied on Defendants’ professional statements that the loan would be repaid as stated on the documents.
3 125) Plaintiff/Debtors allege on information and belief that Defendants knew at the time they made these misrepresentations of material facts to Plaintiff/Debtors that were untrue.
7 126) Plaintiff/Debtors alleges on information and belief that Defendants, through their fraudulent scheme, intentionally and fraudulently charged Plaintiff/Debtors over $50,000 that would not have occurred had Defendants’ properly allocated the loan.
10 127) Plaintiff/Debtors allege that the loan was unconscionable in that the repayment terms were unfair and unduly oppressive, because the payments were never applied to the principle.
14 128) Defendants have alleged that Plaintiff/Debtors defaulted on their residential home loan, and that this default was not directly related to the structure of the loan and interest rate. However, Defendants prior fraud during the loan transaction has excused Plaintiff/Debtors from any performance.
19 129) Plaintiff/Debtors alleges that by virtue of their reasonable reliance and the increased interest they were made to pay, that they have been damaged in the loss of good credit and a higher payment and are now being involved in litigation, all to their damage and injury.
130) Plaintiff/Debtors has been made to suffer deep and severe emotional distress, mortification, anxiety, and humiliation all to their damage and injury in an amount which has not yet been fully ascertained, but in no event less than the jurisdictional limitations of this court.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 18
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131) Defendants’ conduct as set forth above was intentional, oppressive, fraudulent, malicious, and/or in reckless disregard of Plaintiff/Debtors’ statutory rights, so as to justify an award of punitive damages in an amount sufficient that such conduct will not be repeated.
132) As a direct and proximate result of the misrepresentations of Defendants, Plaintiff/Debtors have been injured in an amount to be proven at trial and therefore Plaintiff/Debtors are entitled to recover such damages from Defendants, and each of them, individually and severally.
10 133) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

SIXTH CAUSE OF ACTION: DURESS
[AS TO ALL DEFENDANTS]

16 134) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
18 135) Defendants failed to accurately apply the payments that they were given by Plaintiff/Debtors.
21 136) When Plaintiff/Debtors complained Defendants asserted that they should be taking Debtor’s home and demanded that Plaintiff/Debtors sign a modification contract and return it in 24 hours or that Defendants would take we will take Plaintiff/Debtors’ home.
137) Defendants’ threat was illegal.
27 138) Defendants did not have the right to take Plaintiff/Debtors’ home after illegally misappropriating Plaintiff/Debtors’ payments.
OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 19
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139) Plaintiff/Debtors’ signed and returned the modification contract in fear that the Defendants’ would take Plaintiff/Debtors’ home.
3 140) As a direct result of Defendants’ acts, Plaintiff/Debtors have incurred actual damages and injury in fact consisting of lost money and property.
141) By virtue of Defendants’ actions, Plaintiff/Debtors are entitled to recover punitive damages in an amount to deter such wrongful conduct in the future.
8 142) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

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jbike

SEVENTH CAUSE OF ACTION: EMOTIONAL DISTRESS

[AS TO ALL DEFENDANTS]

  1. Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.
  2. 44) Defendants failed to accurately apply the payments that they were given by Plaintiff/Debtors.
  3. 45) When Plaintiff/Debtors complained Defendants asserted that they should be taking Debtor’s home and demanded that Plaintiff/Debtors sign a modification contract and return it in 24 hours or that Defendants would take we will take Plaintiff/Debtors’ home.
  4. 46) Defendants’ threat was illegal.
  5. 47) Defendants did not have the right to take Plaintiff/Debtors’ home after illegally misappropriating Plaintiff/Debtors’ payments.
  6. 48) Plaintiff/Debtors’ signed and returned the modification contract in fear that the Defendants’ would take Plaintiff/Debtors’ home.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 20

1 149) As a direct and proximate result of Defendants’ threats Plaintiff/Debtors now have suffered emotional and mental distress and pain and suffering, including apprehension, anxiety, fear, nervousness, trepidation, uneasiness, concern, worry, dread, tension, all of which have resulted in the disruption of Plaintiff/Debtors’ life and the peace and their mental tranquility.

7 150) Defendants’ actions exacerbated an already difficult situation and as a direct and proximate result of Defendant’s willful and wrongful conduct Plaintiff/Debtor suffered his heart attack in 2009.

10 151) Plaintiff/Debtors believe and assert that the heart attack was at least partially caused by Defendants’ wrongful actions.

13 152) Based on the threats by Defendants’ Plaintiff/Debtors were scared, humiliated and emotionally distraught.

15 153) As a direct result of Defendants’ acts, Plaintiff/Debtors have incurred actual damages and injury and have incurred monetary damages, including but not limited to attorneys’ fees and costs, necessitated by bringing this lawsuit, in an amount to be proven at trial.

20 154) By virtue of Defendants’ actions, Plaintiff/Debtors are entitled to recover punitive damages in an amount to deter such wrongful conduct in the future.

155) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

EIGHTH CAUSE OF ACTION FRAUDULENT AND DECEPTIVE BUSINESS PRACTICES VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200 Et Seq.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 211 3 5 6 7 8 9 11 12 13 14 15 16 17 18 19 21 22 23 24 26 27 28

[AS TO ALL DEFENDANTS]

2 156) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.

4 157) Failure to provide accurate disclosures is an unfair and/or deceptive act and practice under California Business and Professions Code, §17200 et seq.; in addition, failure to provide materially accurate disclosure is unconscionable, fraudulent, and constitutes a sufficient basis for alleging undue influence, breach of fiduciary duty, negligence and/or malpractice.

10 158) Defendants violated § 17200, et seq., by engaging in deceptive and or unfair practices, including, but not limited to, the following:

    1. misrepresenting the expected terms of the loan transaction and failing to give accurate disclosures of the terms of the transaction before requiring Plaintiff/Debtors to sign the loan documents.
    2. Failing to accurately allocate payments
    3. Threatening foreclosure in order to induce Plaintiff/Debtors to sign the loan documents

20 159) As a direct result of Defendants’ acts, Plaintiff/Debtors have incurred actual damages and injury in fact consisting of lost money and property.

160) Plaintiff/Debtors incurred out of pocket monetary damages, and will continue to incur monetary damages.

25 161) Each of Defendants’ harassing acts was so willful, vexatious, outrageous, oppressive, and maliciously calculated enough, so as to warrant statutory penalties and punitive damages.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 22

1 162) Each of the Defendants are individually and severally liable to the Plaintiff/Debtors for the following, which Plaintiff/Debtors demands as relief:

    1. Reduction of the principle and/or arrearages so that they accurately reflect the amount that should have been due and owing;
    2. returning any and all additional money paid by the Plaintiff/Debtors including all payments made in connection with the transaction; and
    3. actual damages in an amount to be determined at trial, including attorney’s fees.

9 163) As a proximate result of Defendants deceptive, unfair, and wrongful practices, Plaintiff/Debtors have incurred monetary damages, including but not limited to attorneys’ fees and costs, necessitated by bringing this lawsuit, in an amount to be proven at trial.

13 164) By virtue of Defendants’ unfair and deceptive business practices, Plaintiff/Debtors are entitled to recover punitive damages in an amount to deter such wrongful conduct in the future.

16 165) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

/ / /

NINTH CAUSE OF ACTION: VIOLATION OF THE FAIR CREDIT REPORTING ACT

[AS TO ALL DEFENDANTS]

25 166) Plaintiff/Debtors incorporate by reference each preceding paragraph as if it were fully set forth herein.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 23

1 167) Defendants forced Plaintiff/Debtor wife to sign the loan modification and become liable on the debt.

3 168) Defendants negatively reported the debt to the credit bureaus.

4 169) Had Defendants not illegally forced Plaintiff/Debtor wife to sign the modification, her credit would not have been harmed.

7 170) Plaintiff/Debtor wife’s credit was harmed as a direct result of Defendants’ actions.

9 171) Defendants’ actions violated the Fair Credit Reporting Act by engaging in deceptive and or unfair practices, including, but not limited to, the following:

    1. Failure to provide accurate disclosures
    2. misrepresenting the expected terms of the loan transaction and failing to give accurate disclosures of the terms of the transaction before requiring Plaintiff/Debtors to sign the loan documents.
    3. Failing to accurately allocate payments
    4. Threatening foreclosure in order to induce Plaintiff/Debtors to sign the loan documents
    5. 20 172) Each of the Defendants are individually and severally liable to the Plaintiff/Debtors for the following, which Plaintiff/Debtors demands as relief:

    6. Reduction of the principle and/or arrearages so that they accurately reflect the amount that should have been due and owing;
    7. returning any and all additional money paid by the Plaintiff/Debtors including all payments made in connection with the transaction; and
    8. actual damages in an amount to be determined at trial, including attorney’s fees.

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 24

1 173) As a direct result of Defendants’ acts, Plaintiff/Debtors have incurred actual damages and injury in fact consisting of lost money and property.

3 174) Plaintiff/Debtors incurred out of pocket monetary damages, and will continue to incur monetary damages.

175) Each of Defendants’ harassing acts was so willful, vexatious, outrageous, oppressive, and maliciously calculated enough, so as to warrant statutory penalties and punitive damages.

9 176) As a proximate result of Defendants deceptive, unfair, and wrongful practices, Plaintiff/Debtors have incurred monetary damages, including but not limited to attorneys’ fees and costs, necessitated by bringing this lawsuit, in an amount to be proven at trial.

13 177) By virtue of Defendants’ unfair and deceptive business practices, Plaintiff/Debtors are entitled to recover punitive damages in an amount to deter such wrongful conduct in the future.

16 178) As a result of the foregoing, Plaintiff/Debtors are also entitled to costs of suit and attorney’s fees, plus other incidental and consequential damages in an amount to be proven at trial.

/ / /

/ / /

/ / /

/ / /

WHEREFORE, Plaintiff/Debtors having set forth their claims for relief against the Defendants respectfully pray of the Court as follows:

OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 25OBJECTION TO CLAIM AND COMPLAINT FOR DAMAGES 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

  1. That the Plaintiff/Debtors have and recover against the Defendant $76,970.09, or a sum to be determined by the Court in the form of actual damages;
  2. That the Plaintiff/Debtors have and recover against the Defendant $100,000 or a sum to be determined by the Court in the form of compensatory damages for emotional distress;
  3. That the Plaintiff/Debtors have and recover against the Defendants $1,000,000.00 in the form of punitive damages or a sum to be determined by the Court
  4. That the Plaintiff/Debtors have and recover against the Defendants all reasonable legal fees and expenses incurred by their attorney;
  5. That the Plaintiff/Debtors have such other and further relief as the Court may deem just and proper.

Respectfully Submitted,

Date: March 23, 2011 The Law Offices of Timothy C. Springer

__/s/ Nancy D. Klepac .

By Nancy D. Klepac,

Attorney for Plantiff/Debtors

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William A. Roper, Jr.
In my opinion, those who post the LIVE pleadings of a pending legal matter, inclusive of identifying personal information, are courting disaster.
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jbike: As usual William Roper is correct.

 

What in the world are you doing posting the precise parties and the exact venue? Any help or discussion you got in here would be severely ham-stringed in that confidential strategy and pleadings would be openly discussed which would not be in your best interest.

       I see things wrong with your pleadings but I'm not a lawyer and this is not legal advice. ~ But it would be a disservice to you to discuss this since there is no doubt as to the case and parties. And why are you using a bankruptcy attorney to file a monstrous wandering diatribe lawsuit of this multi-faceted nature?  I can tell you this is a very poorly written lawsuit.

 

 

* * * * * * * * * *

I strongly suspect you wrote the pleadings and asked your lawyer to fine tune it

(on a shoe string budget) and submit it so I don't blame him.

Not to be overly harsh but does your attorney know you posted this online?

* * * * * * * * * *

 

Ed Cage  

 

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Since I'm not an attorney and my attention span dictates that I speed-read, the pleading appears to be complete and proscribes a common abuse borrowers experience daily from mortgage lenders.

As far as posting it on line, it might seem amateurish to you legal beagles, but I don't think it's akin to farting at a wedding.  If you have the patience to read it and have some suggestions, and are lawyers by profession then it couldn't hurt to throw out a few ideas.

This forum is semi-public, does not get the distribution of the New York Times and is not directed to the general public.  Those who come here have a common bond and unique experiences with predatory lending.
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William A. Roper, Jr.
Stephen:

Since court pleadings are inherently public documents which could usually be obtained from the courthouse (and sometimes online) anyway, posting pleadings doesn't inherently prejudice or disadvantage the Forum participant.

However, there are several really DIRE challenges to disclosure of one's identity and discussion of one's own case and live pleadings.

The first challenge is posed by the fact that anyone who identifies defects or deficiencies within the posted pleadings through critical comments is taking the plaintiff to school as to how to defeat a particular defendant.  Despite the fact that foreclosure mill law firms and LPS personnel DO troll foreclosure defense web sites, the identification of these weaknesses are very possibly the smallest of the concerns.  Most of the foreclosure mill lawyers will identify and seize upon the weaknesses almost instantaneously without the coaching of Forum participants.

But the second challenge is a bit more DIRE.  If a person who is a defendant makes readily identifiable posts to a public website, these CAN and MAY be used as admissions and evidence against the defendant within a judicial proceeding.

Thirdly, if the foreclosure mill LEARNS that a defendant is making public posting or CORRESPONDING with non-lawyers about the case, the plaintiff can seek to obtain the defendant's UNPRIVILEGED correspondence or admissions about the postings through written discovery.  If someone posts anonymously, the likelihood of being hit with written discovery of this sort is very small.

And it isn't just the DEFENDANT who is subject to written discovery.  ANY Forum participant OR the Forum itself could always be hit with a subpoena and a deposition on written questions about their communications with a defendant in the case.  So hanging your NAME out there has some rather marked perils for EVERYBODY.

Fourth, IF Forum participants identify weaknesses in the Plaintiff's allegations or assist a defendant in developing more focused and coherent defensive strategy, the open discussion of this litigation strategy which can be readily identified to a particular defendant is inherently UNSOUND.

*

This post might beg the question as to WHY then I use my OWN name on my posts.  And there is a fairly straightforward and simple answer.  Although I am involved in a foreclosure case, I am NOT a maker of the alleged note nor a grantee of the alleged deed of trust.  I haven't defaulted on ANY debt or mortgage obligation.  There is NOTHING that I might be asked in discovery that would impair or prejudice my own case.

But even so, you do NOT see me posting the pleadings or discovery from this case, nor soliciting advice from others in respect of this litigation.

*

I have posted elsewhere a caution about disclosure of one's identity.  I would expressly RECOMMEND that defendants engaged in live litigation KEEP THINGS a little cryptic.

IF posting pleadings or discovery, AT LEAST strip out the identifying information.

The one ADVANTAGE that most defendants have is the the plaintiff have budgetted to spend only minutes rather than hours on each case and tend to give the short shrift to research and preparation.  As long as a defendant's case remains someone anonymous and undifferentiated, the plaintiff is far more likely to appear in court unprepared, possibly never having even read the defendant's pleadings.

Posting pleadings, discovery and other filings not only might TAKE THE PLAINTIFF TO SCHOOL and expose a defendant to additional perils.  It might ENERGIZE a plaintiff to an otherwise undifferntiated and anonymus case.

While pride in ones' work might tend to impel a person to cry out perceived successes from rooftops, my experience in military strategy and intelligence suggests otherwise.
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NotAProSe
I agree with Mr. Roper.  In fact, I found this site on Google by typing in the name of the bank bringing suit against me.  Some of the post here named the bank and the search engine provided the link.  The more I read, the more I realized the reoccurring message was if you can get/afford legal counsel you should -- so I did!!
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I have been researching for DAYS and my eyes are bloodshot and my brain is numb. I am hoping to find answers or guidance from someone on here. I have 5 days to file an answer to a summons and complaint. To hire legal council is out of my reach at this time. Here are some facts:
I have WF posted on my title search as owner and that is who is bringing forth the foreclosure...however...a inquiry as to who holds the original note to WF brought back a response saying that WF was the servicer and that freddie mac was the lien holder. The title work says nothing about it being held in a trust, nor does the title work mention anything about freddie mac buying the note, and transfering it. I am trying to do a sec search but am finding it to be a very difficult task. I am worried that I will miss an important step in filling out the proper answer and hurt myself and my case chances in the long run. I have found some sample answers that I am trying to go by, but they are all geared towards the plaintif not being the proper party for standing as they have a different mortgage co on title, robo signers, mers etc for proof of fraud, I only have a letter from WF saying that they are the servicer.
Any ideas on what I should put in my anwser regarding this? Should I still try for motion to dismiss based on lack of standing? I have many things I wanted to include in the answer, but if my whole answer is revolved around a dismissal it may look very amaturish to include the rest of my points...ie..modification promise gone bad, wrong amount owed, predatory lending loan and more. I also have a still open chapter 7 case and wonder if I could somehow amend it to help my case on this.
My clock is ticking, and I am stressed out!

Thanks for sharing your thoughts,
Joe
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William A. Roper, Jr.
Joe:

IF you have an open Chapter 7 case, then it is UNCEAR TO ME WHY you are facing a judicial foreclosure action UNLESS the purported mortgage investor ALREADY obtained a lift of the automatic bankruptcy stay.  If that is the case, it is TRULY unfortunately, because generally speaking litigants have been faring far better before somewhat more honest Bankruptcy Judges than before state court judges.

If you already allowed the plaintiff to obtain a relief of stay unopposed then you already flushed your first best line of defense down the toilet.

IF you are in bankruptcy and the plaintiff has NOT obtained a relief of stay, then you probably need to file a suggestion of bankruptcy in the state court action, which is likely to immediately STAY any further civil actioin on the foreclosure until an order granting relief of stay can be obtained.

This is NOT to say that you may not have a variety of other potent defenses which can be asserted in state court, but where you are already in bankruptcy, you probably OUGHT TO HAVE opposed the proof of claim and motion for relief of stay.

*

Freddie Mac has traditionally and typically had its servicers foreclose in the servicer's name.  There is more than a little case law which suggests that a servicer might have standing as long as it is the holder of the alleged promissory note at the commencement of the suit.  But the servicer is NOT normally the holder.

Moreover, careless and corrupt foreclosure mill law firms often prepare false pleadings which contain allegations which are simply UNTRUE.  For example, in a foreclosure suit brought by a plaintiff like WF, the complaint may state that WF is the owner and the holder of the note.  In most instances where Freddie Mac is the investor, the former is going to be UNTRUE.  That is, if Freddie Mac is the investor, then Freddie is the owner.

The holder of the Freddie Mac owned instrument at default is likely to be Freddie's instituitional custodian.

The servicer (WF) would then request the physical delivery of the note to the servicer (or the servicer's foreclosure mill law firm), but very often this request isn't made until AFTER the servicer FILES SUIT.

When the servicer wasn't actually holding the note at commencement, then the servicer lacks the authority to bring the foreclosure action.

The precise nature of this problem may vary from jurisdiction to jurisdiction.  And where it is the servicer bringing the suit, the problem may be one of capacity rather than one of standing.

By contrast, when a foreclosure suit is brought in the name of MERS or of an investor which hasn't yet obtained the rights to the mortgage, the defect is one of standing.

*

Precisely HOW to plead is a matter not only of the unique facts of the case, but also of the laws of your jurisdiction and the Rules of Civil Procedure for that jurisdiction.

*

In some places, when a defendant files a motion to dismiss for lack of standing, this motion must be determined BEFORE the defendant is required to answer.  But more commonly, the defendant must answer directly within some express time limit and that answer needs to set forth various defenses, including any allegations as to lack of standing or capacity.  And beware.  In some places, certain defenses have ot be raised in a verified (sworn) pleading.

There are differences and nuances as to the law and Rules in different places.  There are Forum participants who are already litigating in many jurisdictions.  But NO ONE can help you to understand these nuances without knowing the jurisdiction (state) where your foreclosure is taking place.

*

In most states, there are express provisions within the Rules to obtain an enlargement of time in which to answer or respond to particular allegations.  In many places, such enlargements are routinely granted when the application, usually by motion, is timely made and supported by sworn affidavit.  This is particularly true in respect of a defendant's answer, as most courts prefer to decide matters on the merits rather than as a consequence of the failure of a party to meet an artificial deadline.

To the extent that you are stressed about getting an answer timely filed, you might want to READ THE RULES about enlargement (in many states Rule 6) together with the cases associated with those Rules.  But you also need to honestly assess what your EXCUSE, reason or "good cause" is to ask for the enlargement.

Difficulty finding a good foreclosure defense attorney would usually be good cause, though hardly so if you failed to even look for one.  Since courts PREFER for litigants to be represented by attorneys, the court would often be likely to grant a brief enlargement to answer where you indicated that you were seeking an attorney, explaining the efforts and difficulty in finding one.

Bear in mind that many jurisdictions have legal aid societies which offer some legal assistance to indigent persons.  These are very often understaffed and lack the resources and personnel to help all persons in need of assistance.

If you SOUGHT help from one or more such a legal aid society and had been UNABLE to obtain an attorney at little or no cost, then that would be a useful story to tell in seeking an enlargement.  But if you simply never BOTHERED to seek an attorney, then do not be surprised when the court is rather impatient with a last minute plea for more time.

While I have encouraged Forum participants to be careful about disclosing details about their identity and case, you really need to share at least some basic facts such as the jurisdiction where your foreclosure is taking place if you hope to get useful help.
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South Dakota. I have called 2 attorneys in town so far. I am on pre paid legal so called them 1st, but they have a conflict of interest. currently STILL waiting for another lawyer from their program to call me back. The other lawyer I called seemed to think I really didn't have a case and really couldn't tell me how much it would cost to run the case, but supposed to go the 1st round would be about 4-5k.
We did our own BK, never reaffirmed with WF, but at the time we were still trying for our modification so had to tell them in writing we wanted them to continue to try for workout options. Our case has not been closed off by the trustee yet, as the estate still owes money.
We had planned to just walk away after being served, then I ran across the Foreclosure Defense Handbook, read it, and got mad. We WANT to fight. We want to fight and win. Then we want to shout from the rooftops here in our area how to do it, there are many people who are being shoved out of their homes, and the homeless shelter here is over full. So far in our area there has been no attorney to come forward to fight this ongoing battle, which is beyond me as to why.
So that leaves me to surfing the internet looking for answers, and in a short time frame to boot. Since I don't know when the pre paid legal folks will get back to me, or if in time, I am pressing forward and giving it my best shot. I guess a best shot is better than no shot at all.

Thanks
Joe
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Joe: NACA lists one lone member in SD.  I personally know a few NACA members and they are great, others are as useless as an ashtray on a motor cycle.

Also search adjoining states, there may be members who are also admitted in SD.

http://www.naca.net/


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Joe: NACA lists one lone member in SD.  I personally know a few NACA members and they are great, others are as useless as an ashtray on a motor cycle.

Also search adjoining states, there may be members who are also admitted in SD.

http://www.naca.net/


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Way to go thanks for the link, called that atty and was told "no", based on the fact they didn't know enough about my case, and that it would take him to long to come up to speed on it. At least he was straight forward on it with me.
Mr Roper...I found out that my BK 7 is in fact OPEN, I also found out from the State records on the BK that wells fargo has not filed for a motion for relief of stay. I am still trying to get an atty to take my case, if I can afford to. In the meantime I have a deadline to hit and need to push forward. My question is at this point, what the heck do I do?
I want to pursue this in BK court...so what do I file there?
I ALSO have to file an answer to state Ct based on the summons and complaint sent, so what should I state on that?
Does anybody know of a good site to pull docs off of, or a site that I can buy a program from (that doesn't cost a arm and a leg) that can guide me easily thru all of this? a step by step program? What do you use?
I also would love to know if any of you out there have purchased a sec audit, and if so, was it worth it. I am finding nothing so far in my own search and wonder if there is something out there at all?

Glad you all are here and willing to help out
Thanks
Joe

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William A. Roper, Jr.
Quote:
Joe said:
South Dakota.  I have called 2 attorneys in town so far.  I am on pre paid legal so called them 1st, but they have a conflict of interest. currently STILL waiting for another lawyer from their program to call me back.

 
Joe:
 
You need to start using your head and approaching your problem analytically.
 
To the extent that you are in a pre-paid legal program that ENTITLES YOU to some representation, you need to pull out the contract and ascertain YOUR RIGHTS under this pre-paid legal plan.
 
In many places, these pre-paid legal plans are a SCAM.  That is, you PAY MONEY IN or your employer pays money in, but when you actually try to USE your benefits you are DENIED.
 
But if you ONLY ASKED ORALLY and you FAILED TO FOLLOW the contractual procedure to request legal assistance, then (a) THERE IS NO RECORD of your request and (b) there has probably been NO BREACH of the pre-paid legal plan, BECAUSE YOU NEVER FORMALLY ASKED.
 
IF you are entitled, then you need to READ THE CONTRACT and MAKE A FORMAL REQUEST CONSISTENT WITH THE PLAN.
 
If the local lawyers in your town are unable to help because of CONFLICTS, you MIGHT be ENTITLED to another attorney elsewhere.  But WHETHER you are entitled DEPENDS UPON WHAT THE PLAN SAYS.
 
IF YOU ARE ENTITLED TO AN ATTORNEY AND HAVE FAILED TO ASK PROPERLY IN WRITING OR FAILED TO ASSERT YOUR RIGHTS, YOU ARE GOING TO GET NO SYMPATHY WHATSOEVER FROM THE COURT!
 
The very FIRST THING I WOULD DO IS READ THE PRE-PAID LEGAL CONTRACT.  Then I would BRING A COPY of that contract to ANY ATTORNEY I VISITED to see whether he thinks he might be able to represent you at the expense of teh pre-paid plan, etc.
 
*
 
If you ONLY ASKED ORALLY, THEY WILL PROBABLY NEVER CALL YOU BACK.  They are probably NOT REQUIRED TO under the contract.  And if they JUST WAIT until you have LOST, then they wont have to represent you AT ALL.
 
*
 
Quote:
Mr Roper...I found out that my BK 7 is in fact OPEN, I also found out from the State records on the BK that wells fargo has not filed for a motion for relief of stay. I am still trying to get an atty to take my case, if I can afford to. In the meantime I have a deadline to hit and need to push forward. My question is at this point, what the heck do I do?

 
Whether you are entitled to a civil stay is completely dependent upon the status of the bankruptcy matter.  This requires a legal conclusion with respect to the unique facts of your case.
 
But understanding YOUR RIGHTS in respect of the bankruptcy is particularly IMPORTANT.
 
Typically, the FILING of a bankruptcy petition automatically invokes the civil stay.  While the bankruptcy continues, the stay tends to remain in effect.  That is WHY the secured creditor must seek a relief of stay.  You need to check the Bankruptcy Docket records for YOUR CASE, to ascertain whether they applied for and were granted a stay BY COURT ORDER.  If the creditor did NOT receive an order releasing the stay, usually the stay would remain in effect through discharge.
 
YOU REALLY NEED TO ASK A QUALIFIED BANKRUPTCY LAWYER ABOUT THIS.  YOU MIGHT ALSO WANT TO ASK THE BANKRUPTCY TRUSTEE.
 
*
 
IF you bankruptcy stay remains in place, then you MIGHT NOT BE REQUIRED TO ANSWER, in part because the foreclosure filing itself may have been a violation of the stay!  Check the Rules of Civil Procedure for your jurisdiction.  There may be a specific Rule that provides for the process by which you may file a suggestion of bankruptcy.
 
This may consist of nothing more than furnishing the court some notice perhaps with an attached copy of a filing or order from the bankruptcy.
 
IF you are entitled to a stay, that might very well stop the foreclosure DEAD IN ITS TRACKS and force the plaintiff to come into Bankruptcy court with a motion for relief of stay.
 
Again, whether this is a viable avenue available to you depends upon the status of the bankruptcy.
 
*
 
Even IF you are entitled to simply assert the existence of the stay through a notice contituting a suggestion of bankruptcy, IF you must file pro se, you MIGHT also consider a "belt and suspenders" approach of BOTH asking the Court for a Rule 6 enlargement AS WELL AS asserting your right to a civil stay through a suggestion of bankruptcy.  If it later turns out that you are NOT entitled to a civil stay, then you may at least be covered by the motion for enlargement.
 
If you ARE entitled to a civil stay, the Court will probably freeze the case due to the Bankruptcy stay and then DENY the motion for enlargement as moot.
 
READ THE RULES.  READ THE CASES ON THE RULES.  READ THE RULES AGAIN.
 
If you are faced with litigating as a pro se litigant, you MIGHT consider going to the Court House and ASKING the Clerk whether there is another foreclosure case in which the defendant has filed for bankruptcy in your jurisdiction.  Then ASK TO SEE THAT CASE FILE.  Find the suggestion of bankruptcy filed in that case.  Consider using this document as a model for your own filing.
 
Ideally, you would find one or more examples.
 
If you are in or near a major city, try visiting a county or academic law library.  Many times, there are forms books published for a particular state.  These forms books are like legal recipe books.
 
There IS more than a little peril in simply copying someone else's pleadings OR pulling draft pleadings from a forms book.  There may be some unique or special issues relating to your case that are not readily apparent to you and which the sample pleading or forms book overlooks.
 
IT WOULD BE BEST TO CONSULT A LAWYER.  I AM ASTONISHED THAT YOU MIGHT BE ENTITLED TO REPRESENTATION, BUT THAT YOU HAVE FAILED TO TAKE THE NECESSARY STEPS TO ASSERT YOUR RIGHTS AND OBTAIN REPRESENTATION.
 
 
 
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Mr Roper, thank you for your help thus far. We were able to stop the foreclosure temporarily thanks to your advice! We were able to get a letter fromt the BK court stating that the foreclosure mill was in fact in violation and was trying to foreclose on us illegally as a motion for relief of stay was never obtained. That stalled them for about a month, now we are back to square one, we just received a motion for relief of stay last week. Lots of more research has led me right back to this forum, full of valuable information and advice. Our legal plan will allow for some "free" council (as in, look at docs I draw up myself...perhaps?) everything else falls outside of the freebie offerings due to the nature of the entire case. Bankruptcy and foreclosure are not included in my monthly rate.
We have about 9 days to come up with some sort of reply to give to the BK court, in regards to the relief of the motion of stay. Looking for some more great advice and direction from all of you who have blazed this path before us and can guide us down the correct pathway. We want to keep Wells Fargo in the realm of BK court for as long as we can, doing discovery etc. in the hopes that we can uncover a solid winning strategy, as well as avoid paying any Plaintiff attorney fees should we lose.

As always, thank you for your help and advice!
Joe
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