Trustee Delay / Postponement Services QUESTIONS?

[ticgroup]

What questions to ask the trustee to delay / postpone the sale date on a foreclosure?

I know that this is a guarded secret, as a lot of people are paying people to do this. But may I ask someone... What questions are you bringing up to the trustee that delays the sale date on a foreclosure?

What are the list of disputes?

[freedomwon]

ticgroup - I've managed to do this myself for an entire year now. Just imagine, these "trustee delay services" charge an upfront fee & sometimes upwards of 1,000 per month. Why would I shell out that money when I knew I was smart enough to figure it out myself. You are correct in that these services act as though it's a closely guarded secret. One you understand the foreclosure laws of your state, it's pretty easy to challenge the trustee.

In non-judicial states you can require the trustee to verify a comprehensive list of issues related to the legal nature of the foreclosure proceedings enacted by the lender, which as a byproduct, you as the homeowner still retain full ownership of the property and live there comfortably. Since the trustee assumes the liability in auctioning the property, they will not foreclose on the property if there is a potential violation pointed out to them prior to the Auction Sale Date as they could face sanctions.


To institute a valid foreclosure proceeding, they must be able to establish compliance with CCC 3-301, at commencement of the foreclosure proceeding, the recording of the notice of default, and throughout the proceedings until sale date. So then the following most basic requirements of CCC 3-301(a) or CCC 3-301(b) must be met:


3-301(a), Holder of the instrument: Was the entity filing the Notice of Default and subsequent actions, the Holder of the Note the entire time? This analysis turns on transfer and possession, and under California law, there are two requirements for a person to qualify as a Holder:


(a) ACTUAL POSSESSION: the person must be in actual physical possession of the instrument, and


(b) TRANSFER BY ENDORSEMENT: the instrument must be payable to that person where the transferor must indorse the instrument to make it payable to the transferee See CComC § 1201(20); See CComC § 3205(a);




So if you are facing foreclosure, demand inspection of the original note. Even if the note is produced, then demand proof that possession existed when the Notice of Default was entered. And even if possession existed properly at all times, endorsement and negotiability must be proper and timely. When was the note endorsed? Who was it endorsed to. Is there an agency relationship between the foreclosing agent and endorsee? Is the endorsement in blank? If there is no endorsement, is there a purchase and sale agreement that gives Holder rights, and did it exist prior to the Notice of Default?

California Civil Code §2924f (b)(1) states, "before any sale of property
can be made under the power of sale contained in any deed of trust or
mortgage…notice of the sale thereof shall be given by posting a written
notice…describing the property to be sold, at least 20 days before the date of
sale…and publishing a copy once a week for three consecutive calendar weeks,
the first publication to be at least 20 days before the date of sale…The notice of
sale shall contain…the name of the original trustor".



I've written a series of letter to RECONTRUST that address some of these issues but is very specific to my loan. You can read those letters here: My recent letter to BofA (Part 2) Another thing you can do is dispute the validity of the debt. You will find that letter in the link above.

[NJHomeowner]

Freedomwon,

I have a second property besides my primary that is under foreclosure in North Carolina (A Non-Judicial State). I am fighting to keep my primary here in New Jersey but have put very little effort into fighting for the property in NC , as we can not afford to keep it any longer. Also the property is not under water for the 1st mortgage but is for the 2nd Heloc. Both with Wells Fargo!

I have in amazement wondered why since receiving my NOD in May 2011 from RFC trustee (Wells Fargo is the servicer and I have not made a payment since 12/2010) they have not foreclosed. There is a special hearing at the County Court that I can attend that is usually scheduled about 3 weeks before the Sale Date where possibly I can protest the foreclosure. But every month I call the foreclosing attorneys office the day before this special hearing and ask if it will be held being I live in New Jersey and have a one day drive to get there. But for the last 13 months I get told that this special hearing has been continued about 30 days later down the calendar and so has the sale date.

Based on what you just posted the delay has been happening but with no effort from me what so ever. Is it because they are not in possession of the so called note or instrument? It has been baffling to me why every month it gets postponed and why this has been going on for a little over a year already. I now have the place rented to a friend and would like for this to go on as long as possible.

Should I ask for a copy of the note and or instrument?? Very Perplexed on this Foreclosure to say the least!!

[NJHomeowner]

Just found an assignment from MERS to Deutch Bank in May 2011 in the county records. So Mers is involved in this mortgage as well as my primary residence in New Jersey. I did also come across the Mortgage Deed of Trust instrument which was originally with Wells Fargo. But do they actually have it in their possession?

Very baffled by all of this can anyone enlighten me as to what is possibly going on....why all the postponements with me doing nothing at all.

I just initiated the short sale process, but not sure if it is even the right thing to do. According to Wells Fargo Liquidation Dept. with no offer on the table being in the short sale process will not stop them from selling the property unless there is an offer on the property!!

[Evan Bedard]

Freedom has excellent advice, you can also find various strategies to help delay foreclosure in the thread below:

http://www.loansafe.org/forum/chase-...heel-game.html

[freedomwon]

Hi NJHomeowner - In an effort to keep this thread on topic for the original poster, I've answered your questions over here ASC mortgage seriously behind!! Now need all the advise I can get!!

[ticgroup]

ticgroup - I've managed to do this myself for an entire year now. Just imagine, these "trustee delay services" charge an upfront fee & sometimes upwards of 1,000 per month. Why would I shell out that money when I knew I was smart enough to figure it out myself. You are correct in that these services act as though it's a closely guarded secret. One you understand the foreclosure laws of your state, it's pretty easy to challenge the trustee.

In non-judicial states you can require the trustee to verify a comprehensive list of issues related to the legal nature of the foreclosure proceedings enacted by the lender, which as a byproduct, you as the homeowner still retain full ownership of the property and live there comfortably. Since the trustee assumes the liability in auctioning the property, they will not foreclose on the property if there is a potential violation pointed out to them prior to the Auction Sale Date as they could face sanctions.


To institute a valid foreclosure proceeding, they must be able to establish compliance with CCC 3-301, at commencement of the foreclosure proceeding, the recording of the notice of default, and throughout the proceedings until sale date. So then the following most basic requirements of CCC 3-301(a) or CCC 3-301(b) must be met:


3-301(a), Holder of the instrument: Was the entity filing the Notice of Default and subsequent actions, the Holder of the Note the entire time? This analysis turns on transfer and possession, and under California law, there are two requirements for a person to qualify as a Holder:


(a) ACTUAL POSSESSION: the person must be in actual physical possession of the instrument, and


(b) TRANSFER BY ENDORSEMENT: the instrument must be payable to that person where the transferor must indorse the instrument to make it payable to the transferee See CComC § 1201(20); See CComC § 3205(a);




So if you are facing foreclosure, demand inspection of the original note. Even if the note is produced, then demand proof that possession existed when the Notice of Default was entered. And even if possession existed properly at all times, endorsement and negotiability must be proper and timely. When was the note endorsed? Who was it endorsed to. Is there an agency relationship between the foreclosing agent and endorsee? Is the endorsement in blank? If there is no endorsement, is there a purchase and sale agreement that gives Holder rights, and did it exist prior to the Notice of Default?

California Civil Code §2924f (b)(1) states, "before any sale of property
can be made under the power of sale contained in any deed of trust or
mortgage…notice of the sale thereof shall be given by posting a written
notice…describing the property to be sold, at least 20 days before the date of
sale…and publishing a copy once a week for three consecutive calendar weeks,
the first publication to be at least 20 days before the date of sale…The notice of
sale shall contain…the name of the original trustor".



I've written a series of letter to RECONTRUST that address some of these issues but is very specific to my loan. You can read those letters here: My recent letter to BofA (Part 2) Another thing you can do is dispute the validity of the debt. You will find that letter in the link above.

Hey Freedom,

Thank you so much for your reply. You have given me a renewed feeling of hope. What would you recommend the first course of action? Send in a QWR to produce the note?

[freedomwon]

Hey Freedom,

Thank you so much for your reply. You have given me a renewed feeling of hope. What would you recommend the first course of action? Send in a QWR to produce the note?

That would depend on where you are in the process and what your goal is with the property. Some want to keep the property, while others want to simply delay the process as long as possible.

Have you received a NOD or a NOTS yet? And if so, when?

[ticgroup]

That would depend on where you are in the process and what your goal is with the property. Some want to keep the property, while others want to simply delay the process as long as possible.

Have you received a NOD or a NOTS yet? And if so, when?

Hybrid...I want to keep the home because I believe i have sufficient income and qualify for a loan mod.....

but losing hope...because of the denials and lame excuses

I received a NOD back in March......i havent received a NOTS yet...but that is coming this week....per customer service of OCWEN......i guess the answer is yes...i want to keep the home

[ticgroup]

hey freedom,

I can't seem to find your first letter....first dispute letter about the note....

[freedomwon]

Hi ticgroup - The very first letter I sent to dispute the trustee sale is in post #1. I did send a letter prior to that about "where's the note" but did so through a web link so I didn't post that letter here on loansafe.

[ticgroup]

hey freedom,

Sorry for bombarding you with all these questions....i really truly appreciate your help. I have this 19 page crazy extensive qwr letter with a long list of disputes for them.....do you recommend i send it all at once...or should i do the wheres the note and just see what happens after that..

[freedomwon]

hey freedom,

Sorry for bombarding you with all these questions....i really truly appreciate your help. I have this 19 page crazy extensive qwr letter with a long list of disputes for them.....do you recommend i send it all at once...or should i do the wheres the note and just see what happens after that..

Hi ticgroup - This is your golden opportunity to learn from those that have gone before you! Any more than 3 questions on a QWR is considered to be excessive & you won't be taken seriously. What I recommend you do is send 1 QWR every month or so. Your servicer is to get back to you in 20 days with a response but many times you'll receive a boiler plate letter that states, your inquiry requires further investigation. I have a stack of those letters from BofA. Many of my questions to this day still remain unanswered. They started to answer a few once I got the OCC & the AG's office involved but still all in all, maybe 1/4 of my questions have been addressed. And the answers provided are many times just further perpetuates their negligence & FRAUD. But it's sure good to get that stuff in writing whenever you can.

When you do the "where's the note" be aware that any lender can go back to the original title company where you closed escrow & have them pull a copy of the note & then send it to you. They will even put a stamp on it to make it look official that it's a true copy of the original. Gotta love that! That doesn't mean they have the note in their possession.

[NJHomeowner]

Hi ticgroup - This is your golden opportunity to learn from those that have gone before you! Any more than 3 questions on a QWR is considered to be excessive & you won't be taken seriously. What I recommend you do is send 1 QWR every month or so. Your servicer is to get back to you in 20 days with a response but many times you'll receive a boiler plate letter that states, your inquiry requires further investigation. I have a stack of those letters from BofA. Many of my questions to this day still remain unanswered. They started to answer a few once I got the OCC & the AG's office involved but still all in all, maybe 1/4 of my questions have been addressed. And the answers provided are many times just further perpetuates their negligence & FRAUD. But it's sure good to get that stuff in writing whenever you can.

When you do the "where's the note" be aware that any lender can go back to the original title company where you closed escrow & have them pull a copy of the note & then send it to you. They will even put a stamp on it to make it look official that it's a true copy of the original. Gotta love that! That doesn't mean they have the note in their possession.

Freedomwon again excuse my ignorance but what does QWR stand for? Also if they can send you a copy of the note so easily and make it look official....is there a true benefit gotten from asking them for it??

[freedomwon]

NJHomeowner - QWR (Qualified Written Request). It is a letter you can send to your loan servicer with specific questions that fall under RESPA. The Real Estate Settlement Procedures Act (RESPA) insures that consumers throughout the nation are provided with more helpful information about the cost of the mortgage settlement and protected from unnecessarily high settlement charges caused by certain abusive practices.

The most recent RESPA Rule makes obtaining mortgage financing clearer and, ultimately, cheaper for consumers. The new Rule includes a required, standardized Good Faith Estimate (GFE) to facilitate shopping among settlement service providers and to improve disclosure of settlement costs and interest rate related terms. The HUD-1 was improved to help consumers determine if their actual closing costs were within established tolerance requirements.

Many homeowners have been subject to RESPA violations & can challenge these with a QWR.

[NJHomeowner]

NJHomeowner - QWR (Qualified Written Request). It is a letter you can send to your loan servicer with specific questions that fall under RESPA. The Real Estate Settlement Procedures Act (RESPA) insures that consumers throughout the nation are provided with more helpful information about the cost of the mortgage settlement and protected from unnecessarily high settlement charges caused by certain abusive practices.

The most recent RESPA Rule makes obtaining mortgage financing clearer and, ultimately, cheaper for consumers. The new Rule includes a required, standardized Good Faith Estimate (GFE) to facilitate shopping among settlement service providers and to improve disclosure of settlement costs and interest rate related terms. The HUD-1 was improved to help consumers determine if their actual closing costs were within established tolerance requirements.

Many homeowners have been subject to RESPA violations & can challenge these with a QWR.

Freedomwon thank you for a quick response and thanks for answering the QWR question....I had also asked about asking for the note....Is there a true benefit in that if it is so easy for them to go to a title company and produce a good copy stamped and all?

[freedomwon]

Freedomwon thank you for a quick response and thanks for answering the QWR question....I had also asked about asking for the note....Is there a true benefit in that if it is so easy for them to go to a title company and produce a good copy stamped and all?

In judicial states, there's a HUGE benefit. Once in court, the servicer will need to produce the original document as evidence. In non-judicial states, not so much. Just simply by asking, it sends a clear message you won't be rolling over like a dog!

Time to go light the bbq! Bye for now.

[NJHomeowner]

In judicial states, there's a HUGE benefit. Once in court, the servicer will need to produce the original document as evidence. In non-judicial states, not so much. Just simply by asking, it sends a clear message you won't be rolling over like a dog!

Time to go light the bbq! Bye for now.

Well New Jersey is a Judicial state!! So it seems to me that it would be worth asking for evidence of the note. Should I ask for the note and the securing instrument (did I get that right?)

Also what would be the best method in making that request??

Being we are presently in review for a HAMP Mod is it wise to make this request....could it rock the boat in getting approved for a modification??

[freedomwon]

Well New Jersey is a Judicial state!! So it seems to me that it would be worth asking for evidence of the note. Should I ask for the note and the securing instrument (did I get that right?)

Also what would be the best method in making that request??

Being we are presently in review for a HAMP Mod is it wise to make this request....could it rock the boat in getting approved for a modification??

Things take a long time in New Jersey. You will need to send a QWR (Qualified Written Request) to your loan servicer & ask who the investor is on your loan. Be certain to ask for the full accession number of your file. Once you have that, you will then go here SEC Info - the best EDGAR online database of Securities and Exchange Commission filings & IPOs & you will input the accession number into the search box. Then you will want to download the 10k filing for the month & year that is closest to when your loan originated.

Once you have that in your hot little hands, you will be looking for the Pooling & servicing agreement. This is the document that exists between your servicer & the investor. It essentially tells them what they can & can't do with your loan.

Asking for that info is not going to "rock the boat" in getting approved for a modification. What you will be able to discover on your own, is whether or not your loan servicer even has the authority to modify your loan. Remember - Knowledge is Power!

It's good to investigate for yourself.

[Jeffrey L. Shurtliff]

Well New Jersey is a Judicial state!! So it seems to me that it would be worth asking for evidence of the note. Should I ask for the note and the securing instrument (did I get that right?)

Also what would be the best method in making that request??

Being we are presently in review for a HAMP Mod is it wise to make this request....could it rock the boat in getting approved for a modification??

If the lender files suit against you to foreclose, the paperwork must be in order or the Judge will Dismiss without prejudice. This is called proper standing.

[freedomwon]

If the lender files suit against you to foreclose, the paperwork must be in order or the Judge will Dismiss without prejudice. This is called proper standing.

To expand upon that, don't be surprised if you discover at some point the paperwork is fabricated in some way. You must keep a watchful eye out for that. In some cases, it's the only way these banks can keep stealing our homes!

[acesfull]

Hi All

Hi Njhomeowner- If your true intentions are to get a modification then asking for the original note is somewhat of a moot point.
Chances are the servicer will not have the original note. Your main goal should be to simply supply the proper documents to your servicer and hope for the mod.

If your not interested in a mod or if your home falls into foreclosure then yes, during the discovery phrase of the case you could request a copy of the original note however I do not believe this is proper strategy,WHY because at some point they will produce the original note and you will lose your case. During the foreclosure hearings your goal should be to get the plaintiffs to produce forged, or fradulent documents to the court, then you challenge those documents. By requesting the plaintiff to produce an original document you are in theory proving there case for them..

Best regards

NJ-20 Months
Acesfull/HWP

[NJHomeowner]

Hi All

Hi Njhomeowner- If your true intentions are to get a modification then asking for the original note is somewhat of a moot point.
Chances are the servicer will not have the original note. Your main goal should be to simply supply the proper documents to your servicer and hope for the mod.

If your not interested in a mod or if your home falls into foreclosure then yes, during the discovery phrase of the case you could request a copy of the original note however I do not believe this is proper strategy,WHY because at some point they will produce the original note and you will lose your case. During the foreclosure hearings your goal should be to get the plaintiffs to produce forged, or fradulent documents to the court, then you challenge those documents. By requesting the plaintiff to produce an original document you are in theory proving there case for them..

Best regards

NJ-20 Months
Acesfull/HWP

Acesfull thank you for your post!!

Our first and foremost goal is to get a Modification...it is first on the want list by far as it will put us in a very favorable situation allowing us to put arrears on the back end with hopefully a substantial drop in payment.

What I fear is going another six or more months trying to get Modified and then getting a denial and being that much more behind. We are as you know 18 no 19 months behind.....so at this point I cruise through LS trying to P/U any bit of useful information I can .

Aces you have already been through most of the nooks and crannies of the Jersey foreclosure system. So I truly value your thoughts....and if I happen not to get a modification then I will most definitely turn to you for as much information as you are willing to provide.

Just out of curiosity how many attempts did you make at modification and why were you denied?? Also not sure who your servicer is?

As far as asking for the note at this point I will hold off as what you say makes total sense...even though we are 19 months behind we are truly in the very beginning stages of foreclosure.....and hope that because we are back in Modification mode again (for the second time the last attempt was 13 months long and got denied) they will not put much effort in the foreclosure process....but then again maybe they will and I am just trying to prepare for the worst....But yes a Permanent Modification is truly where we want to land!!

I will most definitely keep everyone posted and I will very much keep in touch with you Aces as you have mountain of Jersey Foreclosure experience to date!!

Thanks always for an advise in advance!

[acesfull]

Hi All

Hi Njhomeowner- Servicer was AHMSI, I did receive a mod in 08- then again in 2010- both were in-house mods with favorable terms.
However job loss and being underwater over 150k convinced me to become a Hampster Wheel player.

I am now deciding if I will appeal my foreclosure case in appeals court(Pro Se). Or simply wait and attempt a BK when the time comes.

Best regards,

Nj-20 Months
Acesfull/HWP

[NJHomeowner]

Hi All

Hi Njhomeowner- Servicer was AHMSI, I did receive a mod in 08- then again in 2010- both were in-house mods with favorable terms.
However job loss and being underwater over 150k convinced me to become a Hampster Wheel player.

I am now deciding if I will appeal my foreclosure case in appeals court(Pro Se). Or simply wait and attempt a BK when the time comes.

Best regards,

Nj-20 Months
Acesfull/HWP

Thanks Aces, we at the moment are not under water but are not very much in the positive zone (maybe a little under depending on the valuation you use) when you count the arrears and Heloc in the totals. But we do very much like our home and really want to keep it ( it is on the water on a lagoon just a couple houses from open bay water which makes it more unique then the average)....so the Hampster play is not for us...at least now now anyway!

Also if I can get a Mod on the 1st with ASC being the servicer..... We will be offered one for the Heloc with WF, but I may make an attempt at settling on the second with WF hopefully putting us in a more positive equity position down the road.....but we have other debt that will need to also be addressed before I would do that.

When I first came across LS I figured BK was inevitable for us considering our total Debt picture.... but after being a member of LS for a month and a half I have realized that BK could maybe be avoided and only be used as a absolute last resort!!

Keep in touch my fellow Jersey Bro and good luck as always in your Journey!!