Round 2 is over - Debtor 2 - Bank 0

[MtnMan]

We have not won the war but the bank (or their attorney) has their tail between their legs.

Major pays so far:

Round one:

At our first hearing with Clerk of Court we demanded original deed of trust.
The Banks attorney made the claim that they can foreclose w/o original per "In Re Helms". (only if debtor agrees that a copy is the same as, i.e. looks like it may be, the original)
Banks attorney asked for a 4 week continuance.

Round two:

After a second continuance request (2 more weeks) by the Banks attorney, at the second hearing the banks attorney revealed that they had just filed the assignment of the deed of trust via MERS that morning. This assignment was from the originator of the note directly to the current loan servicer. Prior to this assignment our loan did not appear in a search of MERS. (This assignment totally disregards the fact that we previously made payments to Indy Mac Bank and Indy Mac Federal Bank before our default. One West Bank took over the servicing of our loan after we were in default. We were previously informed that Deutsche Bank was the "Investor" but that we should not contact Deutsche Bank. (This smells like a CDO but we are not yet certain.)

We petitioned the Clerk to rule in our favor with prejustice as the Bank clearly had no standing to bring a foreclosure action at the time that they filed due to no assignment being filed.

The Banks attorney voluntarily canceled their foreclosure action without prejustice and indicated that they would re-file.

There is a violation of the Fair Debt Collections Act in our case in that the Banks Attorney has sent three different "Notice of Sale" documents to us so far which state that "By order of the Clerk of Court" including sale dates. Since no ruling by the Clerk of Court has occurred in our case this is obviously a fraudulent official document forbidden by and violations of sections 807.9, 807.13, 809.B and 809.C of the Fair Debt Collections Act. We know of two other cases that the same bank and same attorney has committed this same violation so we may have a class action case against them, which has a $500,000 penalty limit. (Any more violations out there in NC?)

We would like to get the Banks legal department engaged to work out a settlement. We do not want to participate in mitigation or disclosure. We may settle for a Deed in Leiu.

Any help with strategy, bank legal department contact information for One West Bank, info on other precedents in the MERS assignments area (we have heard that there might be a MERS precedent in Georgia). Can anyone verify this and give or direct us to details. Any other MERS precedents in the South East US?

Can anyone comment whether the MERS precedent(s) may or may not apply to my situatuion?

We are very appreciative for the information and feedback that we have received from this Forum so far.

[dan m]

bump to the top. dont back down

[AZ Meltdown]

I can't offer any advise on MERS, but I can cheer you on !!!!!!!!!!!!

[caldwellb02]

What state are you in Mountain Man? If it's Kansas, I'd say you might be sittin pretty. I haven't read anywhere yet that other states have used this as a precident, but maybe they have. In any event I am totally with you. Great going. Yeah!

[givemeabreak]

go for the knockout ( I hear the Rocky theme music in the background)

[mimirayo]

Mountain Man....good going. I decided that letters and requests were just not enough anymore, and I was going to battle them in the court as well....It's not until they are held accountable for their actions that things will begin to change