I really wanted to help people, but only if people want to be helped. It's possible to ask for and give information w/o over-divulging personal info.All good my friend, I'd rather we post in private, or on our NJ thread. I'm tired of picking up our own posts, when doing research. Etc., Etc., (LOL, tonight's movie is the "King & I". "Shall We Dance"?
Here is the thing, you really don't need to hire a lawyer to do this, but I can see why you would. As long as you follow the procedure, outline this as a conditions precedent to SJ, submit the correct affidavit's, and cite case law it shouldn't be a problem, as long as you ask for dismissal with prejudice, and request that all legal fees, late fees, and any other fees be either paid for by the Plantiff or be dismissed.Another win in the NY Appellate Court on the FHA face-to-face defense. Court made it quick and simple. In about 2 pages, SJ for the bank was reversed. Never should have gotten to the appellate court. The trial court judges are despicable because they are requiring a borrower to pay a lot of extra money to fight the trial judge's preferential decision. Our courts and judges make our legal system look like a big joke. Hope they all rot in hell.
Here's the link to the opinion.
My feeling is people do not need a lawyer for the majority of foreclosure cases IF they can commit to a large amount of research and education. The exceptions are cases involving some really technical, or never-heard-before defenses, and cases where it's commonly known the judge is an ass and won't allow a pro se to get anywhere in his/her court.Here is the thing, you really don't need to hire a lawyer to do this, but I can see why you would. As long as you follow the procedure, outline this as a conditions precedent to SJ, submit the correct affidavit's, and cite case law it shouldn't be a problem, as long as you ask for dismissal with prejudice, and request that all legal fees, late fees, and any other fees be either paid for by the Plantiff or be dismissed.
The question now becomes what happens next? The case goes back to court. So what happens to the note? The loan was never properly accelerated so all of the fees and INTEREST and such get wiped out. The entire balance of the loan is now not due, however what do you do now? I would argue that the note needs to be reset back to the point when the foreclosure was filed. The FHA guidelines don't really state what happens if the note was improperly accelerated.
Hopefully, this info will help other visitors here. You're preaching to the choir with me cyadra. I've been studying this defense and countless cases for the last 5 years.Its a shame that a pro se homeowner has to layout this entire scenario to a judge or a lawyer. The main things I feel that have to be stressed is that you as the homeowner entered into a contract with a lender, knowing full well that there are a set of rules provided for by HUD that both parties must follow. This is listed three times on my note, and three times on the mortgage. Any lender who purchases the note should understand this. It is not your fault as the homeowner that the lender or servicer does not understand or know what the HUD rules are. Also, a judge (or court) is not in a position to determine if a homeowner is getting a "free" house, if that is what they state, then you are not in a court of equity. Their only job is to determine the outcome based on the rules of HUD, in a lot of cases, state law isn't even applicable. I would even appeal a judge's decision if it were in my favor, if he or she insinuated that as a homeowner I was out to get a "free" house, that is injecting bias into a matter that is purely equitable.
The argument is simple. Before a foreclosure can take place the note must be accelerated. You can not go from a missed payment straight to foreclosure. In order to accelerate the note, the face to face meeting (and other things) must take place. The face to face meeting actually has to take place before a certain period of time occurs. If the lender never has that face to face meeting, however you have been in default for over that period of time, you can NEVER go back in time and cure it. From that point forward, the lender can never ever ever be successful in court and they can never foreclose. They can foreclose on you over and over again, and they will never win, even if they hold the face to face meeting after the fact, they are in non compliance. Thus the note can never be accelerated.
If banks and servicers where smart what they would do is forgive all of the past debt and pay the lenders all of it through their own funds, and continue the mortgage as if nothing happened. The note would not be in default and both parties can start over from square one.
As far as foreclosure mills are concerned, they know all about this. I have seen documents already from foreclosure seminars around the country on how to try and get around this, and basically their only hope is that proper court procedures were not followed by the defendant. They know there is no defense to this when properly pleaded. They also know that they are under a much better microscope from the courts, and many mills and servicers are willing to allow a few houses to slip through their fingers vs taking the risk of pissing of the government or the court.
Another HUD regulation often not followed deals with notification when a servicer changes. A lot of times (as is in my case) my original note and mortgage required me to send my payment to the lender. FHA rules require the new or old servicer to send a letter to the homeowner when the servicer changes and payment goes to a new address. 90% of the time this letter (which is very specific) is never sent, a bill is sent, but not a letter. Courts have determined that a bill is not considered a formal letter like HUD wants. In cases like this, the homeowner is not responsible for ANY fees or penalties whether the loan is in default or not.
I 100% agree that this defense is a conditions precedent defense. I would ask for both a dismissal with prejudice and without. And state to the judge that since it is impossible to ever accelerate the note the case should be dismissed with prejudice because they can never collect on it.
That's wonderful news Fiasco. Happy someone got something from it. Can't be sure but I am pretty certain it has helped me too. It's admirable that you sought out other people to help. Yes, you can send me messages. What state are you in? You can tell me in a message if you want to keep that info off this forum. All the best to you & your family.Pat, I first read this post about one yr ago but was unable to respond because our computer died & couldn't afford to replace it. Still don't have one. We have suffered through some hard times, however, this info was extremely helpful. Our lender had won the summary judgment, but we still wrote the letters. They got the judgment last year. Since then, we have heard nothing. No one at HUD will tell us if any investigation is going on. They say that's the rule. But we have a sneaky suspicion HUD's inspector general is/was doing something with our complaint. Against my instinct, my husband insisted on calling the bank's attorney. They said it was on hold but would not say why.
Not only did this help me, but I had a job where I encountered a lot of people in trouble with their loans. So 6 of us got together as a group to write the letters and keep each other up to date with what was happening with our own individual campaigns. All of us have been successful at least to some extent. As you said, it wasn't easy. We had to be committed and stick to it. Not one of us spoke to any lawyer who knew anything about this defense. But we have searched for cases and found a bunch of them. I know 3 other people who have not been foreclosed yet & as opposed to writing these letters, they are preparing themselves to fight using this defense & any others they have.
I thank you so very much for posting this. I'm grateful to you & grateful to my brother who told me to keep searching for info online. I found this.
We still have no computer & money is still tight due to 2 ill children, but I will log on when I can get access. Don't want to use a friend or family member's computer. Also don't want to leave much of my personal info here, but is it okay to send you a private message?
Don't think this thread will go dead for quite some time.I don't know if this thread is dead or not, but it is now officially 5 years since I was served. I have been fighting the foreclosure of my FHA loan using this defense against WF. WF basically did nothing for 4.5 years. The county court stepped in and wanted to know three times from WF what was going on, if they didn't want to prosecute this the court would dismiss. I remained silent. WF lied and sent the court some BS, and begged for another month. I remained silent. Then in October, six years after I took out my FHA loan, WF decided to sell it to another lender. So it looks like WF sucked the insurance money out of the loan, then decided to dump it to someone else.
However, there has been no court filings, the new lender sent me some notices, etc. But I am not sure that they know what is going on either. So now, unless WF kept real good documentation, how is the new lender going to prove that WF followed through with the FHA guidelines? Anyone else go through this?
I think this is a real issue. But the assignee should have the records from the prior lender for proof. If they don't, then they have a problem. Once you deny the meeting, they then must prove they complied. Same as the requirement to prove what you owe. I bet they will have that.However, there has been no court filings, the new lender sent me some notices, etc. But I am not sure that they know what is going on either. So now, unless WF kept real good documentation, how is the new lender going to prove that WF followed through with the FHA guidelines? Anyone else go through this?
You make good points that have to be raised. I do know, that now I have to amend my answer since there is a "new" party. The other issue to bring up is that it is STILL an FHA loan, it has an FHA number assigned to it, and no matter who takes over the loan, it doesn't not change on its face that it is a FHA loan that must meet FHA guidelines. I am prepared to fully lose this case at trial and immediately ask for a TRO for the sale and appeal it to the state level if I need to, at least it seems, in most states the appeals process works.I think this is a real issue. But the assignee should have the records from the prior lender for proof. If they don't, then they have a problem. Once you deny the meeting, they then must prove they complied. Same as the requirement to prove what you owe. I bet they will have that.
The only case I saved that deals with this is the below Texas case.
https://scholar.google.com/scholar_case?case=16215250138004246857&q=janice johnson v Chase&hl=en&as_sdt=4,110,125,238,239,241,367,368,369,370
The court said:
"Under the terms of the purchase and assumption agreement between JP Morgan and the FDIC, JP Morgan explicitly did not assume liability for any borrower claims arising from WaMu's "lending or loan purchase activities."
"...... the district court correctly determined that § 203.604(b) is inapplicable to JP Morgan because Johnson was already more than three months in default when JP Morgan acquired the loan."
These courts are so full of bullshit. The judges will make any kind of jackass ruling. This ruling is ridiculous since the court is sending a clear message to mortgagees in the entire state that a party can avoid its obligations under a contract by just selling the contract, thus making no one liable. The judge knows this stupid decision would not occur in any other court. If I were you, I would look for precedent in your state about a party not being obligated under a contract merely because it was sold/assigned to another. It needn't necessarily be a mortgage case. Prepare for it and be ready on offense.
Not only that. if the new lender was assigned your loan with full knowledge of your delinquency, then it is NOT a holder in due course, and so it is liable for all the obligations of your prior mortgagee.
"As to parties who acquire a mortgage and mortgage note from the original mortgagee, the general rule is that an assignee of a mortgage has all the rights of the original mortgagee/assignor, but stands in the shoes of that party and enjoys no greater rights and benefits."
The court no doubt thinks that to make the new mortgagee liable is not FAIR. All the courts care about is what is FAIR for the crooked servicers. BUT, the new mortgagee had no obligation to buy a delinquent loan. When they opted to buy a loan in default, they assumed all liability under the contract for that loan. There cannot be a "get out of jail free card."
And think about it this way. If the new assignee has no right or obligation to follow through with the contract requirements as applicable to 24 CFR 203.604, then why does the assignee have the right to pursue anything under the contract? The court has no right to parse obligations under the assigned contract.
The purchase and assumption agreement between JP and the FDIC is moot. First of all, I am pretty sure where the doc says
"liability for any borrower claims arising from WaMu's "lending or loan purchase activities," it is NOT referring to the mortgage and note. That reference applies to things like fraud in loan origination, fraud in the selling of loans to Fannie/Freddie, horrible underwriting of the prior lender, selling those pick-a-pay loans, etc. That statement has nothing to do with obligations under the note and mortgage, which wouldn't even make sense. Not only that, parties cannot make a separate contract with a 3rd party to relieve themselves of liability under a totally different contract. Again, if this were the case, people would do this all the time to evade liability and responsibility. It's akin to me transferring my home/note to a buyer and then that buyer would have no obligation to comply with some or all my mortgage provisions.
The problem with judges making stupid rulings is that they fail to analyze what they are saying to see if the decision might have major repercussions down the road.
If you are worried about this happening, just prep and be prepared. This ridiculous offense surely would not hold up on appeal where far more judges have common sense.
As I have mentioned earlier, this defense sounds easy, but it isn't. Quite a few ways the mill will try to defeat it.
Yes, and I neglected to add. Make sure to include the prior mortgagee as a 3rd party also.You make good points that have to be raised. I do know, that now I have to amend my answer since there is a "new" party. The other issue to bring up is that it is STILL an FHA loan, it has an FHA number assigned to it, and no matter who takes over the loan, it doesn't not change on its face that it is a FHA loan that must meet FHA guidelines. I am prepared to fully lose this case at trial and immediately ask for a TRO for the sale and appeal it to the state level if I need to, at least it seems, in most states the appeals process works.