Supporting, Informing & Connecting People in Foreclosure
Nothing special or fancy to report...just an update on where I am in my battles:
***None of what I say here is intended as legal advice and must not be contrued as such. For informational and testimonial purposes only.***
IMPORTANT: I am not quitting even though I have not had any justice in the court system thus far and have slipped quite far down this slippery sewer pipe heading soon for the end of the line which drops off into a cess pool at the end where the financial institutions intend for us homeowners to fall into. A precautionary measure would be to do as MUCH as you can as EARLY as you can as soon as you know you may be headed for foreclosure! Even loan modifications are not fool-proof nor safe. In fact, a loan mod is exactly what "fast-tracked" me into foreclosure when I had never missed a payment, so beware. No one wants to descend as far down as I have slipped! It stinks down here where I am, and it is a yucky, unnerving place to be! I hope to not see any of you down this far...so fight, fight, fight!
I have tried to update my situation as often as I can along the way to allow others to see some of the strategy I have used that may or may not work and why (if I know the reason) in order to either inspire or to warn others dealing with similar situations. I have been so busy keeping my home that I just have not had much time to post an Update on my situation for those who may be aware of my long, drawn-out battles fighting fraudulent foreclosure in CA.
GOOD NEWS: I am still in my home and have not given up possession. There is still an Automatic Stay in my Chapter 7 Bankruptcy. All my (few) debts having been discharged, yet the case is still open due to an Adversary Proceeding.
I appealed the Summary Action Court judgment granting possession of my property to a U.S. Bank NA, and the Appellate Division (an "in-house" appellate panel) affirmed the lower court's decision, and then the State court of appeals (the next step up) denied hearing my case. Even the Supreme Court, the highest court in the state, refused to hear my Writ of Certiorari (sometimes called Writ of Cert) (see Phred Maldonado's posting of the Writ in his Foreclosure Hamlet page, which will allow you to see how even a Writ in with " a cause and matter of Great Public Importance" did not classify as important enough to hear). This type of a Writ is a specialized Writ of Mandate and Prohibition usually employed at the US Supreme Court level, but on occasion in state high courts. This type of Writ is different from a "Petition for Review" of a lower court's decision. The way my entire case has been handled in the state courts is as if I have had zero rights and am some invisible entity in court that they refuse to hear. A blatant denial of due process for starters, is what has occurred.
In the aforementioned Summary Judgment Action, possession of my property which was erroneously granted to an entity/bank that has nothing to do with any contract I entered into with a "Lender/broker" that went bankrupt and is now defunct/non-existent. The bank who now claims to "own" my property says there is no debt nor was there ever a default, and they never took legal action against me to evict me. Figure that! I do know who is behind it: the loan servicer who claims to be "attorney in fact" for the Trust. The funny thing is, there is no PSA because the trust is not registered with the SEC (private trusts don't have to be registered, but trusts containing mortgage-backed securities DO), nor can the bank locate this trust. More than one party claims an interest in the same property (3, to be exact). The loan servicer claims to be "Lender" on the IRS filing of a 1099A, yet no contract exists between us. The "lack of" a required 1099A filing by the supposed purchasing party, the bank is another anomaly. The loan servicer says the loan was "pooled" and is in some trust, yet how and why was it sold at a Trustee's Sale if it was "in" a trust is interesting? Did they pull it out of the trust only to repurchase what they already own?Or better yet, are they allowed to pool a "non-performing loan" as they erroneously deemed mine to be. I'd like an explanation of whatever it is that smells do stinkin' fishy!
I am learning different ways on how I can proceed with all this mess since the courts don't want to follow the law. I am doing some "administrative remedy" (notice and demand letters, etc) in the private (out of court). So far, the Bank, the loan servicer and the Trust that claims to hold an interest in my property are willing to "settle" with me. Interestingly, the same law firm is representing all 3 of them. We have not yet to come to an "agreeable" solution since the financial offer they are willing to offer (which amounts to a few month's rent) they still want possession of my house, and I don't want to relinquish my property and the large amount of equity in it.
Just a brief history for those who don't know me or my "story", I live in CA, USA, and I owned my home/property unencumbered. I took out a HELOC (Home Equity Line of Credit) for a portion of my equity in my property. The contract was somehow wrongfully classified as a "Re-fi" (re-finance, which is really irrelevant in light of the bigger picture). The Bank which claims to own my home even stated there is no debt, and they have not taken any legal action against me. I DO need to get that in writing. But until I do, I am confronting the attorneys who have brought legal action against me in the name of the Bank, who represent the loan servicer who claims the right to take action for the Bank on the premise that they are "attorney in fact" for the bank. So far, zero documentation, proof or evidence of any of the claims have been produced, yet the court has granted the bank what they demand by the claims they have made.
I have discovered that in "Summary Action Court" (more commonly know as eviction, right to possession, or Unlawful Detainer court) will not nor cannot hear these arguments. Unfortunately in CA, neither would the unlimited civil court.
I have a pending Adversary Proceeding in my Ch 7 BK that is waiting to be heard in December 2011. I have a little time to finish up some administrative remedies I am in the midst of. I do understand from firsthand experience the frustration of many homeowners who are being railroaded by the court system. I used to be so naive early on that I thought surely "justice" would prevail, but when the laws and statutes (terms) are not followed, how can justice occur?
There has been one amazing and positive PUBLISHED "persuasive precedent-setting" Ruling in my BK on July 26th (see http://dtc-systems.net/2011/08/pro-debtor-stops-attorneys-bank-deam...), 2011 regarding the party seeking a motion to lift the automatic stay was not the "real party in interest" so the motion was denied, but this was only a temporary reprieve, since once my bankruptcy is closed, the automatic stay will be lifted or dissolved. I tried to sanction the law firms for these actions, but the BK court said I did not give the non-real parties in interest "safe harbor"...to correct their mistakes. What were they supposed to be allowed to do: withdraw 2 separated motions attempting the same action??? At the hearing on the sanctions issue, I said, "With all due respect, you honor, the FRCP and FRBP rules give no safe harbor provision for "non-interested parties" and according to your ruling, they are not real parties in interest, thus the denial of the relief of stay," and it was determined by the court that the motion for sanctions was a "non-bankruptcy matter" that needed to be brought in a non-BK court). I don't know what about a BK motion to lift the BK automatic stay that is NOT a BK matter). I was reprimanded by the BK judge for bringing such an action, and the motion for sanctions against both law firms denied, and I have not pursued it further...yet. If the law firms pull another stunt like that again, I'll be more insistent.
Once the entire BK case is closed, the bank can then go back to the eviction court to pick up where they left off and proceed with enforcement of the judgment they were already granted (albeit erroneously) in December 2010. I'll be ready for them when they do go back to fix the problem the bankruptcy court pointed out with the "real-party-in-interest" issue in reference to the eviction court judgment. What has occurred is that there is a Trustee's Deed issued for which there is no eviction ruling to enforce it on behalf of the "correct" party (real-party-in-interest). AND there is a eviction judgment granted for which no Trustee's Deed exists to back it up. Basically apples and oranges. The bank wants to go back to the eviction court and substitute the oranges for the apples they originally filed. We'll see about that.
Please stay strong and keep fighting, all you Foreclosure Fraud Fighters!
If anyone has questions on what has occurred at any stage in my situation and court battles, feel free to contact me at: firstname.lastname@example.org