Home Loans and Support

Bank of America Auctioned Our House Without Notification

Discussion in 'Stop Foreclosure and Tell Us Your Story' started by ceesa123, Feb 28, 2011.

  1. ceesa123

    ceesa123 LoanSafe Member

    Here is my story. We live in Northern California. Our house was sold at auction on Feb. 4th without warning or notification to us. We were in the HAMP program with Bank of America and being considered for modification. On Feb. 2, I called BofA to make sure that the modification process was going through, as I did once or twice a month. The BofA rep who took my call told me that he had good news, the modification process just passed the Underwriter and it was going into Quality Control for up to 60 days. Well, on Feb. 17th...I got home from work and there was a FedEx letter from BofA stating that we failed to be accepted into HAMP but there were other options. I was in shock and called BofA. I was immediately forwarded to the REO department and that was when I was told that the house sold at auction on Feb. 4th. I didn't understand this, I was in utter shock. I hung up and freaked out. The next day, I gathered my strength and started raising hell. I called BofA and demanded answers...ha ha...no answers, just the run around. Come to find out, BofA sold our house without notification to us on this auction. Also, BofA never provided us with other alternatives than auction. We never got a chance to try again on the HAMP again. The house was sold to BofA, itself.

    To this day, there is still no notification by BofA to us (the homeowners) that the house was sold at auction. If I had never done my homework then we would have no idea that the house sold. After getting a handle on the fact that BofA acted illegally then that is when I called the Hope Hotline and started working with them. The Hope Hotline people put a case against BofA and that case was escallated to BofA. Right now, BofA has 30 days to reply back to the Hope Team or MHA (I think they're the same thing). Just this one step wasn't going to keep me from trying to get our house back. I then filed a complaint with the OCC and the Federal Trade Commission. I also wrote to my county's state senator and I wrote to the Governer of California, Jerry Brown. We are now going to start calling attorneys to see where we stand. Well, I found out on Friday that our case was sent to the OPP of BofA and we have been assigned a negotiator by the name of, Thomas Mendoza. This is where we stand right now. I still have no spoken to the negotiator but I'm calling everyday and leaving messages. Tomorrow is the day that I'm going to call the OPP and put some more pressure on them.

    That is our story. There is a lot more detail to it from what I've written about. But, in short...BofA lies inside and out. Never trust them. Never believe them. Always call them back after they give you an answer that you want to hear. Don't trust what they have to say. If you think it's too good to be true with BofA then it probably is....call back to triple check.

    Our goal from all of this is to get the sale on our house rescinded and back into the HAMP program again for another shot or some other reasonable alternative.<!-- google_ad_section_end -->
  2. BabyBlue

    BabyBlue LoanSafe Member

    To ceesa123...Bank of America showing its true colors again

    How horrible. Thank God someone is helping you and you are fighting. The person they assigned as your "negotiator" (Mendoza), can you check him out...see who he is, what his background is, etc.

    This kind of thing has to stop.

    I just posted something about Elizabeth Warren on a different forum. She has the President's ear. He needs to hear stories like yours. I would write to her as well if you have not already.

    I think you can search all of my posts and it will show up as the most recent.

    Your story is terrifying. I cannot imagine what you must be going through.

    Can you get your story in the media? That would be good.

    Did this get posted on the B of A forum...(I cannot remember what forum this is). If not it should be.

    REPORT IT TO THE STATE ATTORNEY GENERAL. She is newly appointed/elected as I think may take notice and action.

    Praying for you, stay strong and focused.
  3. DELL1

    DELL1 LoanSafe Member

    are you saying you never recieved ANY of the legally required notifications????????
  4. Liberty

    Liberty Guest

    You need to lawyer up today.

    File a lis pendens with the county clerk and recorder today.

    Nationstar Mortgage did the same thing to me.

    BOA is in violation of the terms set forth in the Service Provider Agreement they are under with Department of Treasury and supplemental directive 09-01.

    Lender MUST SEND BORROWER NOTICE OF HAMP DENIAL.

    GILPIN COUNTY DISTRICT COURT
    2960 Dory Hill Road - Suite 200.
    Black Hawk, Colorado 80422

    Plaintiff: Keith Cabaniss

    Defendants: Nationstar Mortgage, LLC


    Attorney for Plaintiff:
    Keith Cabaniss, pro se
    90 Geranium Way
    Black Hawk, CO 80422
    Phone: (303) 642-8181
    E-mail: cabaniss@ usa.com










    DCOURT USE ONLYD

    Case No. 2010CV-000043
    VERIFIED COMPLAINT FOR WRONGFUL FORECLOSURE
    AND JURY DEMAND

    Introduction: This complaint alleges inter alia that Nationstar Mortgage wrongfully foreclosed on real property commonly known as 81 Greystone Trial, Black Hawk, Colorado, 80422. Specifically, Nationstar repeatedly and falsely told Plaintiff that his loan modification was either in-process or had been approved, failed to inform plaintiff that his loan-modification application had been denied, and that this failure prevents plaintiff from exercising legal rights, including but not limited to, Chapter 13 bankruptcy, that would have allowed him to retain title to his home, which he largely built with his own hands.

    Plaintiff, Keith Cabaniss, pro se, for his complaint against Nationstar Mortgage, swears and affirms that:

    1. Defendant, Nationstar Mortgage, is a national mortgage lender that has transacted business in the state of Colorado.

    2. Plaintiff, Keith Cabaniss, is an individual who resides in, and previously owned and occupied real property located in Gilpin County, Colorado.

    3. The real property that Cabaniss previously owned has a common street address of 81 Greystone Trail, Black Hawk, Colorado, 80422 (the “Homeâ€).

    4. The Home is known as parcel no. 1711-031-01-213, in the public records of Gilpin County, Colorado.

    5. The legal description of the Home is:

    S: 3 T: 2S R: 72W Subd: LA CHULA VISTA RANCH Block: 002 Lot: 013A & IMPS A TRACT OF LAND CREATED BY BLE 04-09 RECPT #122305 & CORRECTED BY BLE 04-09A RECPT #124137 FORMERLY KNOWN AS BLK 2 LOT 13 & EAST 1/2 OF LOT 18.

    6. Cabaniss was the first owner of the Home.

    7. The Home is located in the mountains of Gilpin County, Colorado.

    8. The Home has a unique and spectacular view of the Continental Divide and Longs Peak.

    9. Cabaniss designed the Home, and largely built and finished it with his own hands.

    10. Cabaniss purchased the land on which the Home resides in November, 2003; built the home from July 2004 through January 2007; and completed its interior and first occupied the Home in January 2007.

    11. On May 25, 2007, Cabainss signed a promissory note to Nationstar for the amount of $230,431.01 (the “Noteâ€).

    12. The Note was secured by a Deed of Trust on the Home.

    13. Nationstar filed an action on January 17, 2008, to recover title to the Home by having the Gilpin County Public Trustee conduct a public sale of the Home (the “Foreclosureâ€).

    14. On information and belief, Nationstar did not own the Note or hold the corresponding Deed of Trust when it filed the Foreclosure.

    15. On information and belief, Nationstar sold the Note and had previously assigned the Note and/or the corresponding Deed of Trust at the time when it filed the Foreclosure and thereafter.

    16. On information and belief, Nationstar acted only as the servicer of the Note, i.e. Nationstar did not own the Note, but contracted with the Note’s owner to administer the Note, including to collect payments made on the Note.

    17. From January 2008, when Nationstar filed the Foreclosure, through mid-February 2010, Nationstar consistently and repeatedly postponed the sale date in the Foreclosure action.

    18. Cabaniss entered the Streamlined Modification Program Loan Workout Plan (“SMPâ€) February 19, 2009.

    19. Nationstar’s agent, Vessia, told Cabaniss on February 27, 2009, that his SMP modification had been approved.

    20. Cabaniss made one payment under the SMP.

    21. Thereafter, Nationstar called Cabaniss and informed him that SMP had been cancelled, and Cabaniss would instead enter a Trial Period Plan under the Home Affordable Modification Program (“HAMPâ€).

    22. Cabaniss entered HAMP in August 2009.

    23. HAMP requires that applicants complete a three month trial period by making the payments that would be required under a proposed modified loan terms. If a HAMP participant makes these required trial-period payments, the participant’s loan may be modified to reflect the trial-period’s payment terms.

    24. Cabaniss timely made his August and September payments under HAMP.

    25. Cabaniss pre-paid his October HAMP payment with his September payment.

    26. In September of 2009, Cabaniss called Nationstar to ensure that it had received his August, September, and October HAMP payments.

    27. By timely making his August, September, and October payments to Nationstar, Cabaniss successfully completed the HAMP trial period.

    28. Assuming that Cabaniss met other HAMP program requirements, Cabaniss’ successful completion of the HAMP trial period entitled him to have his loan modified in accordance with the trial-period payment terms.

    29. Nationstar confirmed to Cabainss that (a) it had received his August, September, and October HAMP payments; and (b) it was sending his plan to another Nationstar department to draft new loan documents for Cabaniss’ new and modified HAMP loan.

    30. Cabaniss’ HAMP loan-modification application was denied on or about Septmber 28, 2009.

    31. On or shortly after Cabaniss’ HAMP application was denied, Nationstar knew that Cabaniss’ HAMP application had been denied.

    32. Nationstar did not notify Cabaniss that his HAMP application had been denied.

    33. Nationstar was required to notify Cabaniss that his Hamp application had been denied.

    34. Cabaniss did not receive new HAMP loan documents from Nationstar.

    35. Cabaniss did not make further payments to Nationstar while he was waiting to receive his new HAMP loan documents.

    36. Nationstar consistently told Cabaniss that his new, modified, HAMP loan documents were in progress. The communications between Cabaniss and Nationstar, include, but are not limited to the following communications:

    a. Cabaniss called Nationstar on December 10, 2009, and informed it that he had not yet received any new, modified, HAMP loan documents. Nationstar informed Cabaniss that it was "still working to prepare new loan documents, could take another month."

    b. Cabaniss called Nationstar again on January 26, 2010. He informed Nationstar that he still had not received the new, new, modified HAMP loan documents. Nationstar told Cabaniss that “everything is ok.â€

    c. At the time Nationstar made the statements in the immediately preceding paragraphs (a) and (b) to Cabaniss, Nationstar knew that these statements were false.

    37. On or about four days after the January, 26, 2010, telephone conversation in which Nationstar told Cabaniss that “everything is OK,†Nationstar set a sale date for the Foreclosure.

    38. The Gilpin County Public Trustee held a Public Trustee’s sale of the Home on February 25, 2010 (the “Foreclosure Saleâ€).

    39. February 26, 2010, was the last date on which Nationstar could schedule the Foreclose Sale without having to file a new action to request a Public Trustee Sale of the Home.

    40. At the time of the Foreclosure Sale, Cabaniss had no notice that Nationstar intended to continue with the Foreclosure.

    41. Prior to the Foreclosure Sale, Nationstar provided no notice to Cabaniss that Nationstar had set the Foreclosure Sale, or that Nationstar otherwise intended to proceed with the Foreclosure.

    42. Cabaniss learned of the Foreclosure Sale on March 3, 2010, when he discovered a notice that Phil Heter, a Denver-based repossession/eviction processor and REO broker, that Fannie Mae now owned the Home.

    43. If Cabaniss had had notice of the Foreclosure Sale, he would have been able to exercise legal rights, filing a chapter 13 bankruptcy petition, which would have allowed Cabaniss to prevent the Foreclosure Sale and keep the Home by restructuring his debts and becoming current on the restructured Note over time.

    44. After Cabaniss learned of the Foreclosure sale, he again called Nationstar. On March 9, 2010, Cabaniss spoke with Thomas Brown of Nationstar. Cabaniss asked Mr. Brown to have Nationstar rescind the Foreclosure Sale because Nationstar had (a) failed to provide Cabaniss with any notice that it was proceeding with the Foreclosure Sale and (b) had made multiple misrepresentations to Cabaniss regarding the status of his HAMP modification and of his Note to Nationstar.

    45. Brown and Cabaniss went through Nationstar’s records of the communications between Cabaniss and Nationstar.

    46. Brown stated that Nationstar’s records of its communications with Cabaniss comported with Cabaniss’ own records of these communications, which are reflected in the preceding paragraphs of this Complaint. Brown also confirmed that Nationstar had not notified Cabaniss of the Foreclosure Sale or of that Cabaniss’ HAMP application had been denied.

    47. Despite his concurrence with the facts as Cabaniss presented them, Brown and Nationstar refused to rescind the Foreclosure Sale. More specifically:

    a. Cabaniss asked Brown, “What Happened?â€

    b. Brown responded, "Something transpired."

    c. In response to further questions from Cabaniss, Brown would not reveal what transpired, refused to rescind the Foreclosure Sale, stated that he was going to terminate the telephone call, and then hung up.

    48. On May 17th, Cabaniss held a conference call with Geraldo Hernandez of Nationstar and Jeff Plaine of Money Management (a HUD-certified loan counselor).

    49. During this May 17th conference call, Hernandez again affirmed that:

    a. Nationstar’s records of its communications comported with Cabaniss’ own records of these communications, which are reflected in the preceding paragraphs of this Complaint;

    b. Nationstar did not notify Cabaniss that his HAMP loan-modification application had been denied.

    c. Nationstar did not notify Cabaniss of the Foreclosure Sale date or that Nationstar was proceeding with the Foreclosure Sale.


    50. On May 20, 2010, Cabaniss spoke via telephone with Chelsea of Nationstar Mortgage’s legal compliance department in Dallas, TX. He asked why Nationstar proceeded with the Foreclosure Sale despite having informed Cabaniss that “everything is OK.â€

    a. Chelsea responded that there had been a "miscommunication between [Nationstar’s] Loss Mitigation and HAMP department."

    b. Thereafter, Cabaniss asked Chelsea "Why am I being held accountable for miscommunication within Nationstar?"

    c. Chelsea responded, “There is no explanation."

    First Claim for Relief
    Wrongful Foreclosure

    51. Cabaniss repeats and realleges all preceding paragraphs.

    52. Nationstar’s Foreclosure Sale was wrongful.

    53. Cabaniss has been damaged by the wrongful Foreclosure Sale.

    54. As a result of the wrongful nature of the Foreclosure Sale, the Foreclosure sale should be rescinded.

    Second Claim for Relief
    Breach of Contract (covenant of good faith and fair dealing)

    55. Cabaniss repeats and realleges all preceding paragraphs.

    56. As part of the Note, Nationstar had an obligation to deal fairly and in good faith with Cabaniss in its efforts to enforce the Note.

    57. Nationstar did not deal fairly and in good faith with Cabaniss in its efforts to enforce the Note.

    58. Cabaniss has been damaged by Nationstar’s lack of fairness and good faith in an amount to be determined at trial.

    Third Claim for Relief
    Fraudulent Non-disclosure

    59. Cabaniss repeats and realleges all preceding paragraphs.

    60. Nationstar represented to Cabaniss that (a) his HAMP loan application was in process; (b) he would receive new loan documents from Nationstar that complied with the term of the HAMP trial period that Cabaniss had successfully completed; and (c) Cabaniss’ loan from Nationstar and the processing of his HAMP application was “OK.â€

    61. Nationstar’s misrepresentations detailed in paragraph 60 above are false.

    62. At the time that Nationstar made the representations details in paragraph 60 above, Nationstar knew or should have known that these representations were false.

    63. Nationstar made the representations detailed in paragraph 60 above with intent that Cabaniss rely on these representations.

    64. Cabaniss relied on Nationstar’s misrepresentations to his detriment.

    65. Cabaniss has been damaged by Nationstar’s misrepresentations and his detrimental reliance on these misrepresentations in an amount to be determined at trial.

    Fourth Claim for Relief
    Fraudulent Non-disclosure

    66. Cabaniss repeats and realleges all preceding paragraphs.

    67. Nationstar had a duty to disclose to Cabaniss all material facts that were relevant to the Foreclosure Sale before the Foreclosure Sale proceeded, including, but not limited to, the fact that the Foreclosure Sale was proceeding and that Cabaniss’ HAMP loan-modification application had been denied.

    68. Nationstar failed to disclose the material facts detailed in paragraph 67 above to Cabaniss.

    69. Nationstar’s failure to disclose the material facts detailed in paragraph 67 above to Cabaniss was willful and intentional.

    70. Cabaniss has been damaged by Nationstar’s willful and intention non-disclosures in an amount to be determined at trial.

    Jury Demand

    Cabaniss demands a trial by jury.

    FOR THESE REASONS, the Court should vacate the Foreclosure Sale, restore title to the Home to Cabaniss as title existed prior to the Foreclosure Sale, award Cabaniss economic and punitive damages, award Cabaniss all costs and attorney fees incurred in this action, and award Cabaniss all such further relief that the Court deems as is just, proper or appropriate.

    Dated this 24th day of May 2010.

    ATTORNEY FOR PLAINTIFF



    Keith Cabaniss, pro se
  5. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    so this is your suit? I wish you the best. But playing the devils advocate here I want to point out a few key things that I see. Items 28. 60,67 are what is called HAMP BASED CLAIMS. You say in item 28 you have entitlement to the HAMP. HAMP is not an entitlement. On the HAMP based claims, their is no private action against HAMP. This is a US Supreme Court decision. Just for these three items this part of your suit will be shot down. This boils down to the fact that the bank had the right to foreclose on you. I am sorry to say this. It goes with our previous discussion. "Failure to state a claim" You must push your fraud accusations across the 12(b) line. I do wish you the best of luck and admire that you have the courage to stand up to the banksters.
  6. Liberty

    Liberty Guest

    The type in bold pushes me across 12(b)

    I don't care about the rest of it other than it just provides evidence that has been confirmed and verified by Nationstar that they are in violation of 09-01

    Nationstar states the same claim I state.
  7. marvelrules

    marvelrules LoanSafe Member

    So sorry, day by day I read and can't believe what is going on in this country. It seems we the people have no voice in our country. the problem is gov, banks, regulators,our elected officials are all in bed together and we are not invited.
  8. Jocelyn

    Jocelyn LoanSafe Member

    I would rather sleep with my dogs than with the elected officials, banksters and regulators of what used to be a great Country.
  9. DELL1

    DELL1 LoanSafe Member

    agreed about the fraud, not so fast on HAMP based claims.
    while their is no third party benificiary benefit for non-gse loans, as a HAMP participant, there still are certain duties...ACEVES comes to mind...also the case Lib/Menace and i debated the merits of that have parallels wherein issues of noitifcation were ruled in favor of plaintiff
  10. Liberty

    Liberty Guest

    I can't remember, but I believe Aceves is arguing for a modification, in that she was wrongfully denied. Is that right?

    I am not arguing for a HAMP mod.

    I am arguing that Nationstar is in violation of supplemental directives.

    You're right Dell, the MA Bankruptcy case most mirrors mine to date.

    ( and now that I'm thinking on it, Menace kept trying to knock me off my claim that Nationstar never sent notice of denial, he kept arguing apples as I was arguing oranges. Maybe Moe's right and he was a bankster.)
  11. DELL1

    DELL1 LoanSafe Member

    aceves was promised a sale would not take place if she withdrew her C13 claim. they sold her house the next day. in the other case, within c13, the plainiff was asking for TRO due to the fact he had not recieved timely hamp denial and servicer was obligated due to its fudciary repsonsibility to investor that they exprlore "other options" prior to selling collateral. this is the case most similar to yours..that was the case you and i debated menace about 2-3 weeks ago....his focus was focused on the 3rd party issue while you and i were looking at the issue of directives...good luck BTW
  12. Liberty

    Liberty Guest

    Right.

    I wonder why menace couldn't get it. Was it my Bachmann/Palin picture? (snicker)

    Or could it be he was a bankster?

    Thank you for the good luck. I need that.
  13. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    Also if your house is just sitting there and you have a lis pendeds of which legally clouds title, you may have the right to return to the house and occupy it legally. This shows you are challenging the foreclosure in a adverse action and you have rights to title. If this is case you could serve the lis pendens upon the evicting authority within your county. You can also serve a communication such as the one I showed you in my post about my house. The foreclosure is nonjudicial and if you dig you can find state laws of Colorado to justify your occupation and enforcement of title rights. This would be non judicial too. Doing this starts an adverse possession and you may be able to secure adverse possession under a written instrument. Please do no get me wrong here I really want to help you especially as you have come forward with you real name and I do think you are a man of courage trying to do this. Most would run away.
  14. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    Also a valid and easy claim you have number 53. In your responsive pleadings hit this area hard. Cite you have been irrepairably damaged by the harsh us of the security instrument to foreclose. The power of sale was used in an unconscionable way to permanently cause you irrepariable harm and it's use was not in the public intersest as the vacant house devaluates the houses in the neighborhood. You should have one to two full pages of stuff written with allegation #53 in your responsive pleadings. Caused you to become insolvent, damaged your credit, caused depression to come upon you ect.....
  15. Liberty

    Liberty Guest

    Right. I should claim under #53 that this whole ordeal is what made me a teabagger.

    Get Dell to testify that I am whack.

    That should be some damn good punitive damages right there!
  16. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    I ain't kidding move back in post no trespassing signs. Serve the evicting authority. It is your house dude! My lenders president called me last week because I sent him the communication on the adverse possession. Told him I owned the property. I am preparing the property for sale by owner and hope to be ready by the middle of the month. Going to sell for two thirds the value and make it move fast. LOL
  17. sandycane

    sandycane LoanSafe Member

    Jeffrey,curious and I dont want to go back and read over 400 of your posts.(lol)are you living in the home?and since you have tittle and it has been recorded do you plan on moving back into the home ?.....assumming that your not living there now.if you do not sell the home and you do not live in the home do you plan on moving back in at that point....I find this fascinating.Sorry about all the questions.
  18. marvelrules

    marvelrules LoanSafe Member

    I love taking a nap with my saint bernard, my husky is just way to of a shedder. lol
  19. SurfwhenUcan

    SurfwhenUcan LoanSafe Member

    ceesa, hold off on the attorney just yet. Many people place a lot of faith in "directives" but I never have. The devil is in the details with these things generally and you mention there is a lot unsaid here, so that's a concern - I usually find the case gets shot down by whatever is unsaid. Regardless of what happened here, prior to sale there are certain steps that have to be followed. Check with the County Recorder - there should be a Notice of Default and Notice of Sale recorded on your property - don't look it up online, go down there - electronic records online for properties in NorCal are notoriously porous. Also, B of A should be able to produce copies of said notices for you. Start here, because the majority of the time I see proper notification and a mod denial - which means you have not shot but at least you found out prior to taking 10 years off your life in tearing your hair out in frustration.

    If no Notices, then you could have a pretty good case for an illegal sale and might want to consult an attorney (should be Free). Generally, it is pretty easy (but aggravating) to rescind but only as long as it reverted to beneficiary (I've done it before a couple times), meaning no private parties bought at auction. If it was purchased by a private party, your chances drop close to 0% and you'll have to pursue this in court (and you won't get the house back). But it sounds like it's just a recission resulting from a miscommunication between servicer and trustee while a mod was under review (more common than you would think). If and when they rescind, ensure this is recorded on title.

    Now, that being said, if it is deemed to be a legitimate mod denial, AND they have notified you properly AND can document it as such, this doesn't look good. However, the downside for them is significantly greater than for you if they have not adhered to the statutes governing repossession in CA so if I were B of A, I would rescind and start over, which is likely to happen if the aforementioned scenario is NOT the case. I hope you can get what you're looking for - good luck!
  20. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    I am living in the home. I own the home. I have a title to the home. I am going to sell the home. I am ready to prosecute the title in the Bankruptcy Court against the fraudulent lender. They will have to come to court an prove they have a superior instrument recorded. They don't. If they try to foreclose on me I will show a superior instrument and ask damages.

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