jbutterfly3
Thanks for that update. I recommend you not rely on creditkarma, a 3rd party outfit. If you're really curious, you might pull credit reports directly from the three major CRAs. FWIW, that's what I'd do.
jbutterfly3
Thanks for that update. I recommend you not rely on creditkarma, a 3rd party outfit. If you're really curious, you might pull credit reports directly from the three major CRAs. FWIW, that's what I'd do.
Thanks for the advice I will! Meggagood no it is not a charge off, we really would like to just settle to have the lien removed and move on.. I will keep you posted as my lawyer still has not received discovery ordered by the judge and as until the 14th of the month nor have they amended the Demurrer.
Hello everyone, just another update.
Friday the 20th is the deadline for my lender to provide discover and to amend their suit to the court.
We have heard nothing from them AGAIN, i am told that we will be able to have the case dismissed if they do not comply with the courts ruling.
You can ask for dismissal and with PREJUDICE.This way if they try to sue again you can invoke collateral estoppel.Originally Posted by jbutterfly3
Thanks Jeffrey for the advice
Hi jbutterfly
Thanks for the update. I believe the plaintiff and plaintiff's attorney both realize the folly of their action and will dismiss the lawsuit. If they do dismiss the case (likely), I recommend you (your lawyer) file a memorandum of costs, which the prevailing party (you) will be entitled to.
However, if the plaintiff does amend their complaint, then I strongly recommend you cross complain. Then, if the plaintiff subsequently attempts to dismiss the case, they'd be required to obtain your permission, which can be conditioned on their paying your attorney fees and court costs. That indeed would be a propitious result for you.
Thank you Tom, I will certainly do that!
jbutterfly:
Thanks for all your posts. Reporting your breach of contract saga helped me see that the banks really can't sue strategic 2nd defaulters in CA , even if the loans are recourse (my only big far in all of this!)
It seems to me that the smallish (and rogue) bank for your 2nd was only trying to threaten you into resuming paying them. Since they are required to charge off a non-income producing account at 6mos (which would have been Jan or FEb 2012 for you), they pulled out all stops to get you to pay. But, it didn't work, and per Fed Guidelines, it *sounds like* they finally obliged and charged it off several wks ago, when you stated that the loan now appeared as paid in full on your husband's CR.
What is interesting to me is that you say the CR states "paid in full" in pymt details and not "failed to pay." Could it be that they are trying to make nice in hopes that you won't counter-sue? And now you really owe nothing? that would be a pleasant ending to your lawsuit saga! And you held firm, so you deserve it-- I think I would have lost my mind! Or my night-time sleep, anyway.
Meggood, the account shows as closed on the CR but it does not say paid in full.
The CR shows all accts paid as agreed so at this point it is not being reported as a charge off.
It does however have the late pays listed.
Hello Meggood, I pulled the actual CR today instead of relying on creditkarma.
The account is closed and shows as charged off, we have had no collections calls no are there any collections showing on the CR.
Today is the final day that the judge gave our lender to provide discovery and to amend the suit, i am hoping our lawyer will have some answers by the end of the day.
I am also hoping since our loan wasnt sold to collections, maybe our second will settle with us soon.
Even if your acct is sent to collections, you can still settle and have the lien released. Most 2nd defaulters on here have had their charged-off seconds "sent" to collections so that the CA folks can shake you down, but the bank still "owns" the debt. My personal experience with the CA that Chase (my 2nd holder) sent my acct to is that they robo call me the same time, 4-5 d/wk. really, no big deal. They have offered 20percent settlement, on behalf of chase, but I'm waiting for a sweeter deal.
It will be interesting to see how yours plays out. I would think it would be in your best interest to cross complain, b/c this can be a bargaining chip for you to lower the settlement amt. good luck!!
Update:
Second filed amended suit so a new court date in 45 days.
They didnt provide discovery as requested by the judge but claim they have an exclusion to the Security First Rule??
They asked our attorney for more time and he granted them 5 more days WTH?
Our lawyer says they are interested in settling but I think NOT, if they wanted to settle they have no need for discovery extension right?
jbutterfly
Thanks for the update.
I'm anxious to see their argument and how they think they enjoy an exclusion to the Security First Rule.
I recommend you now strongly consider a cross complaint. I realize it's a gamble, but if you prevail, it's likely the court would award you with the plaintiff paying your court costs and attorney fees.
Thanks Tom,
we certainly are strongly considering a cross complaint,
My husband has already let his lawyer know that we want our legal fees by them for sure.
It will either come out of the settlement or they will pay by order of a judge.
My guess is that the atty has an unreasonable client and can't get a settlement number or offer amount from them. Unfortunately the only way to fight it is to continue with the court case until they blink (or not). Be prepared to go all the way.
Yes Calokie we are going all the way.
From what I understand the demurrer can only be amended once so this is it for them.
If judge sustains again ruling in our favor they have no choice but to settle or keep the lien on our house until someday it goes up 200 grand LOL
jbutterfly:
So, the new court date is in 45 days, but what is the 5 day extension for discovery, then? if they don't meet that, what happens to the amended demurrer?
jbutterfly
The 5 day extension is probably a professional courtesy from your attorney.
If opposing counsel fails to respond to your/court ordered discovery in the time frame allowed by the court rules, then your counsel should file a motion to compel discovery. After which you should file a MTD.
If opposing counsel fails to comply with discovery they have zero shot of winning a Summary Judgement.
The court will not order summary judgment until all discovery is completed. If the discovery was court ordered and opposing counsel fails to respond they could be cited for CONTEMPT OF COURT.
Good luck with your case.
Best regards
Nj-18 Months
Acesfull/HWP
Hi acesful
Thanks for your post. In my opinion in our state jbutterfly is better off filing a cross complaint against the plaintiff. Hence I disagree with this statementYou might refer to my posts #53 and #24. When a plaintiff realizes they will likely lose the case, they attempt to dismiss the case and escape the liability of having the court award the defendant attorney fees and court costs.After which you should file a MTD.
However, if the defendant cross-complains, the plaintiff will be unable to file a dismissal without the consent of the defendant/cross-complainant. A settlement most likely would ensue requiring the plaintiff's payment of the defendant's attorney fees and court costs.
That's my humble opinion.
Good luck to you.
Last edited by TomEason; 04-22-2012 at 05:39 PM.
Hi All
Hi Tomeason-- Great debate and hopefully the OP will get some knowledge and some ideas to present to there counsel.
Most state civil courts mirror the rules of Federal Civil procedure. In NJ when a defendant files cross claims and counter-claims, the Burden of Proof then falls on the defendant to argue and present issues of materal facts to the court. This motion is timely and can become costly with no guarantee of a win. Also the court can and will only allow for a certain amount of costs and fee's to be awarded depending on court rules.
Tom, I as a Pro SE litigant attempting to keep the case has simple as possible. The more complex the case with motions and counter motions the less likely a PRO SE litigant will prevail. However,
In regards to the OP, OP having a competent attorney, then YES your strategy may gain some financial relief however the longer the case lingers only the attorney's get rich. My MTD strategy is to keep the case simple and get a quick result.
I don't recall the OP stating that there counsel took the case on a contingency based fee or doing the work PRO BONO. If either situation exist then yes I agree file all the counter claims and cross claims allowed by court rule and sue for damages.
Tomeason, always a pleasure to hear and learn from you. I value your knowledge and your opinion.
OP, I wish you the best results in your fight.
Best regards
Nj-18 Months
Acesfull/HWP
Aces, they were already given a 30 day extension by the judge from our demurrer hearing so i feel the lawyer should have said NO..
Then they definitely would have been in contempt of court and that may have changed the game soon for us?
meggood, the discovery is separate from our demurrer hearing.
Our attorney did mention that we had not received the discovery after asking multiple time so the judge ordered it be sent to our counsel by April 20th.
The court date is for the amended breech of contract suit_ they didn't amend the reason which is what they were suppose to do if they had a good one and they did not. They did amend the suit but only changed a name on the suit.. still no valid reason as 726 applies and that is the law.
It appears they are still stalling and maybe just bleeding our second mortgage with billable hours.
Hi Jbutterfly
I am only guessing about the professional courtesy being extended to opposing counsel. Maybe your attorney owed one to opposing counsel. Remember the longer the case lingers the more money the attorney's make. Unless of course the attorney is working PRO BONO or on a contigency fee, I doubt that is the case in your case? Please correct me if I am wrong.
What other reason would exist for the extension? Unless opposing counsel file for a motion to extend discovery in which case your counsel could argue that opposing counsel is simply delaying the court process.. I doubt that is the scenario, I stand by my opinion that your counsel simply extended an extension of time for discovery as a Professional Courtesy.
Good luck on your case. Please keep us posted.
Nj-18 Months
Acesfull/HWP
I hope you are right, just common practice to extend but our counsel did that the day of the demurrer when the judged asked if he would be willing to extend time to plaintiff.
How many times is a professional courtesy, we are on 2 extensions now.
In that case 2 extensions already, I suggest you have your counsel file a motion to compel discovery and start putting pressure on opposing counsel. Hopeful a quick settlement will come your way.
Best regards
Nj-18 Months
Acesfull/HWP
z
Thanks again aces, can't we just file a motion to dismiss based on the failure to provide as the judge had orderd?
Hi Aces
Thanks for your post. Although I welcome a debate, I might suggest you exercise caution in commenting on the laws of another state.
In my state, the at issue item is rendered quite clear, by both state code (Cal CCP Section 726) and case law. Prevailing in a cross-complaint would not be challenging (I'm confident I could argue the case in pro per both in written pleadings and in oral arguments before the court).
As such, a cross complaint is worth the risk, for the reasons I've previously stated. It's what I would do were I the defendant in this case.
As always my best to you
Just chiming in here if there is a dismissal, be it with prejudice or without prejudice and usually it is the latter; that if they brought forth another suit again in the future, they have created an evidencary hole that they would have to fill to sustain their cause for action. It depends on what you want to do and what your attorney will do as far as a cross complaint for fees. Most would take the dismissal and run.................Jeffrey
Hi
A PRO SE litigant is in favor of a MTD, a paid attorney is looking for delays and delays. Hence establishing billable hours.
Just my 02 cents.
Tomeason, I appauled your efforts. However should you be victourious and win a judgment(PRO SE). The time and fee's associated with the collection of the lawsuits is simply NOT WORTH THE EFFORT.
Take the win ala MTD an move on.
Best regards
Nj-18 Months
Acesfull/HWP
Aces & Jeffrey
Thanks for your posts. It's not my lawsuit of which I speak. It is that of jbutterfly3 and her husband.
And according to post # 54, I believe they are strongly considering the filing of a cross-complaint.
Otherwise when plaintiff/lenders realize their attempt to get a quick default judgment against an unwary defendant and that they are likely to lose, the lender/plaintiff usually dismisses their lawsuit.
However, if the defendant cross-complains, the lender cannot get away with a "free try". That lender cannot file a dismissal without having the cross-complainant agree, which of course he won't without the payment of attorney fees and costs.
This type of lender attempt to get an easy default judgment on a case without merit is occurring more frequently. And the complaint against jbutterfly3 is clearly without merit.
To allow such a lender/plaintiff to dismiss their action is letting the lender get away scott free with their "free try", only to try again on another borrower. With sufficient volume of lawsuits, those lenders will inevitably prevail in some cases. To allow those lenders to continue without suffering any downside is not the kind of game I'm willing to play.
Tom...........Thank you for your post back. I do also see your side and respect your opinion, as I think you are tops in this second lien stuff. It would be advantageous to get a judgment as that further widens the gap, if there is another suit brought ..................Jeffrey
I agree with Tom, cross complaint may prevent another member from going thru this ordeal.
I think we will have great leverage as well if they ask us to allow them to dismiss.
We meet with our attorney tomorrow as this is the final deadline for discover to us by the lender.
I will suggest next step is cross complaint.
Hi jbuterfly3
Thanks for that update. I know you'll apprise us of the results of your meeting tomorrow.
UPDATE: met with the attorney and sure am glad i asked for this meeting.
My husband was misinformed by whoever he spoke with.
Ok so the sustained demurrer with time to amend was for the name of the plaintiff, it appears who they had listed is not the lender??
The exclusion they have listed is that the property is worthless, judge has not ruled on that.
So they amended the name to a company that my lawyer says has no rights in ca and has pulled records from Sacramento to support that.
They have discussed a possible settlement but have not given the attorney their demands. Discovery is due Friday and we will not give any additional extensions.
We are preparing our demurrer to the plaintiffs right to sue, apparently unless he has registered in Ca, they have no rights to sue us??
To sum it up, still up in the air, waiting for discovery on Friday or the amt they would like to start negotiating from.
jbutterfly2
Thanks for your update. I presume what you're saying is the lender has no standing to bring a lawsuit in our state?
It's amazing the plaintiff's attorney is so clueless that they misnamed their plaintiff, LOL.
Sounds to me as if it's time for you and your husband to start playing hardball with these yo-yos.
I look forward to hearing future developments in your case.
I dont think they would go through starting a process like judicial foreclosure with the intent to only scare you..the banks will have huge loss from all the 2nd's.. so, why would they waste more money just to scare you. as for attorney's who know the foreclosure laws...it use to be only Bankruptcy attorneys new about foreclosure, so make sure yours has some experience with such cases, and was successful.
have you modified your first, or refinanced? maybe your 2nd is no longer attached to your 1st...I read some where that if you do that it separates the two. HUD maybe.
Yes I believe my attorney is saying they have no legal standing,
He too is shocked at their lack of attention to detail but says they are a huge law firm who handle foreclosures and suits for lenders and we are one of many.
He also feels now that we have the Demurrer they have actually started to look at this case and respond to phone calls.
We now have 30 days to file our new Demurrer and go from there, if we dont receive discover Friday he will file a motion to compel discovery.
Hello Pre, i believe you have misread the posts. We are not in a Judicial Foreclosure.
This is a breech of contract suit by our second lender.
I really don't understand your question?
My first and second lenders have always been completely separate loans.
What exactly is your meaning by the two being attached?
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