The Statute Of Limitations Defense For Foreclosure

PatZZ

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Recently, courts in both Florida and NJ decided they would make up new state SOL statutes that govern foreclosure to insure the lender can win. The usual modus operandi in our dishonest courts with crooked, incompetent judges.

Both courts decided that a dismissal of the case would result in an automatic deceleration of the loan because once the case is dismissed, it would place the parties back to where they were before the complaint was ever filed.

A new complaint could then be filed using a new default date and that's it. Now, I'm not going to even get into why this logic is just stupid on its face. But, if your loan is FHA, take a look at what I came across in the HUD Handbook:


Clearly, a dismissal of a complaint has NOTHING to do with whether the loan is decelerated. This paragraph gives only 3 options for deceleration. Dismissal of a complaint isn't one of them.

It is so critical that we not make payments of any kind nor agree to any repayment plan IF we feel we could have a defense under the SOL. For anyone who is unaware of this, wow, what a difference a payment or an agreement could make.

In addition, the filing of a complaint does not accelerate the loan since the loan must be accelerated BEFORE a foreclosure complaint is filed. If you read your complaint, there should be an Acceleration section where it says something like:

"By reason of the defendant's default, plaintiff exercised the contractual right, provided by the mortgage, to accelerate the debt."​

The key word of course is exercised. Take note of the past tense The lender has already accelerated the loan. A lender can conceivably accelerate and never foreclose. The 2 events are not necessarily tied together.

In one of my NOIs, it states: "If the default is not cured by the date . . . . . . the sums secured by the mortgage may be accelerated w/o further notice." Both the FL & NJ courts mentioned that borrowers can produce no proof as to when the loan was accelerated. Perhaps not. Seems no notice is required. But in order to foreclose, the loan had to be accelerated, so we know the date of acceleration was at least one day before the filing of the complaint.

IMO, all of this language kills the court's "new" SOL argument dead. Keep this in mind if you reach the SOL or are close to getting there. The courts just make up shit for the bank, so we need to check everything and everywhere to see if there is anything out there that contradicts their nonsense rulings.

Please comment anyone if you think I'm missing something in my analysis.
..
 
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PatZZ

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Though not directly tied to a SOL case, these events could occur in a complaint involving the SOL.

In an August 2016 Vermont decision involving acceleration/deceleration after a dismissal and the filing of a new complaint, the appellate court stated:

"Lender appeals a judgment for borrowers in lender's second action for a judgment on the note and foreclosure, after the first was dismissed with prejudice. Lender argues that the first dismissal cannot be interpreted as vacating the judgment on the note and for foreclosure that the trial court had previously issued in that case. Alternatively, lender contends that its notice of default in the initial foreclosure action was sufficient to satisfy its notice obligation in connection with its second foreclosure action. We conclude that the trial court's dismissal with prejudice of the lender's first action on the promissory note and complaint for foreclosure did effectively vacate that court's prior judgment for lender on the note and for foreclosure. We conclude that lender was not on this record entitled to pursue a second action because it had not taken any steps to reinstate borrower's monthly payment obligations after lender had accelerated the note. Accordingly, we affirm."​

A very interesting case everyone should read. Some good legal arguments.

http://scholar.google.com/scholar_case?case=1546486673209204379&hl=en&lr=lang_en&as_sdt=2006&as_vis=1&oi=scholaralrt#r[5]
....
 
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acesfull

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Though not directly tied to a SOL case, these events could occur in a complaint involving the SOL.

In an August 2016 Vermont decision involving acceleration/deceleration after a dismissal and the filing of a new complaint, the appellate court stated:

"Lender appeals a judgment for borrowers in lender's second action for a judgment on the note and foreclosure, after the first was dismissed with prejudice. Lender argues that the first dismissal cannot be interpreted as vacating the judgment on the note and for foreclosure that the trial court had previously issued in that case. Alternatively, lender contends that its notice of default in the initial foreclosure action was sufficient to satisfy its notice obligation in connection with its second foreclosure action. We conclude that the trial court's dismissal with prejudice of the lender's first action on the promissory note and complaint for foreclosure did effectively vacate that court's prior judgment for lender on the note and for foreclosure. We conclude that lender was not on this record entitled to pursue a second action because it had not taken any steps to reinstate borrower's monthly payment obligations after lender had accelerated the note. Accordingly, we affirm."​

A very interesting case everyone should read. Some good legal arguments.

http://scholar.google.com/scholar_case?case=1546486673209204379&hl=en&lr=lang_en&as_sdt=2006&as_vis=1&oi=scholaralrt#r[5]
....
Hi Patzz
I would think the " Doctrine of Collateral Estoppel" would barred the bank from bringing another suit.
My .02
Regards
Nj-70 Months
Acesfull/HWP
 
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johnna

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I have been fighting foreclosure on my second with Franklin Credit / Bosco Credit II Trust Series 2010-1 / Deutsche Bank National Trust / T D Service for the last 90 days - only to have to file Chapter 13 bankruptcy today to stop the sale scheduled for tomorrow.

I hired the law firm ARK Law Group in Bellevue, WA (I'm in Phoenix, AZ) to assist with a modification/short settlement. Another story for another time - 2nd year associate was left to negotiate my case. Nadia, one of the partners at ARK, tells me during our initial call that they are experienced with my lender. This did not come across at all these last 90 days. A modification was denied in 4 days. I was offered a repayment plan of $21,743 down now and $3600/month for 12 months. It was appealed on 9/15/16, Thursday. Monday, 9/19/16 Franklin again declined any modification and renegotiated the repayment plan to $10,000 down on 9/20/16 and payments of $2000 a month for 36 months! Declined every request to postpone sale.

I spent the weekend completing Chapter 13 BK docs, just in case. I digress....while completing bankruptcy paperwork this weekend, I pulled credit reports and find that Franklin Credit had reported our second mortgage to credit bureaus for the first time ever! We've had this loan since 2006! The first thing that stood out was the date of last payment reported to the credit bureaus: 12/2009. AZ SOL is 6 years.

I sent an email to ARK Legal on Sunday about my SOL discovery and asked if sale could be stopped due to SOL. ARK had no sense of urgency nor seemed to understand the implications of this. Their response to me was to file the BK and deal with the SOL on the other side.

Today, the day before the sale, my attorney advises me that Franklin is willing to postpone if I sign and pay the down payment of repayment plan today. I had not had the renegotiated repayment plan for 24 hours. So no postponement again.

It wasn't until early this afternoon that my attorney tells me sorry, no postponement, go ahead and file BK and find a local litigator to pursue to SOL issue.

I had to file BK today merely because of my second mortgage. I had no other credit issues. I could afford the payments. Years ago Franklin would return our funds for no apparent reason, went silent for years (I'm guessing due to Franklin Holdings filing bankruptcy and restructuring), I was sent monthly statements so infrequently, and correspondence was very minimal for years. I thought a review for a modification was underway - only to find out they recorded the Trustee's Sale and a local real estate investor announces this news to me the next morning in my driveway.

So now the bankruptcy is filed and everything I've worked to improve over the last 4 years (credit rating and credit card lines of credit) is scarred by a bankruptcy filing. This bk filing today was devastating to me!!!

I still have this SOL issue.
Arizona has a six year statute of limitation to collect on a contract (presumably that applies to deeds of trust or mortgages).
12-548. Contract in writing for debt; six year limitation; choice of law
A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:
1. A contract in writing that is executed in this state.


Also, the foreclosure statutes limit the ability to start a foreclosure after the statute of limitations runs.
33-816. Limitation on action or sale of trust property
The trustee’s sale of trust property under a trust deed shall be made, or any action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the contract secured by the trust deed.

Over the last 2 days, I couldn't get anyone (TD Service, Franklin and my attorney) to acknowledge that my second loan might be time barred and was reason to postpone the sale. I think I have discovered Franklin's dirty little secret - they are aware of SOL, failed to negotiate any modification, insisted on a down payment be made now, which could reset the SOL time-clock in their favor, and are in a hurry to finalize this foreclosure.

Am I off base re: SOL? I don't think so.
In a perfect world, I would like to file perhaps a TRO-to stop the sale-and determine if the SOL has run. If I could get that I could get my bankruptcy dismissed but everything needs to be on an expedited basis so I don't become too invested in the Chapter 13 filing.

I need to find an AZ foreclosure attorney with some knowledge about bankruptcy and SOL, and a set of balls to take on Franklin slime.
In the meantime, I'd love to hear your thoughts.

Background: lived here since Dec 1999, 1st loan was modified 3 years ago and is perfect; all payments made on time.

Thanks for taking the time to read. I'm frustrated and exhausted with this process and 2nd lenders not negotiating in good faith.

Another discussion that needs to be held later:
Servicer (Franklin) works for investor (Bosco) and servicer's role is to act and protect investor;
investor and servicer have the same owners/management/one man show (Tom Axon);
Trustee's (TD Service) customer is servicer (Franklin) and is obligated to act on behalf of servicer. TD Service is the Trustee assigned to handle the Trustee's Sale 9/21/16.
WHO PROTECTS AND LOOKS OUT FOR THE HOMEOWNER? NO ONE!! This is wrong. I experienced this today and it was an awful feeling.

Thanks,
Johnna
 

despritfreya

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Sep 8, 2011
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Johnna,

The most likely problem with your SOL theory is that the SOL has not run as it relates to the actual loan. Your loan, unless the lender accelerated it more than 6 years ago (and long before it issued the Notice of Trustee Sale), is most likely not fully due and payable until its maturity date which may or may not be sometime in the future. Your failure to make a monthly payment simply means you are delinquent in those particular contractually due payments and the SOL may run on each individual payment. You need to look at your loan document. When is the last payment under the loan due?

Des.
 

johnna

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Feb 4, 2013
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Johnna,

The most likely problem with your SOL theory is that the SOL has not run as it relates to the actual loan. Your loan, unless the lender accelerated it more than 6 years ago (and long before it issued the Notice of Trustee Sale), is most likely not fully due and payable until its maturity date which may or may not be sometime in the future. Your failure to make a monthly payment simply means you are delinquent in those particular contractually due payments and the SOL may run on each individual payment. You need to look at your loan document. When is the last payment under the loan due?

Des.
It has been said that the statute of limitations serves to protect defendants and courts from stale claims where plaintiffs have slept on their rights. As a general matter, a cause of action accrues, and the statute of limitations commences, when one party is able to sue another. Sato v. Van Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979); Norton v. Steinfeld, 36 Ariz. 536, 544, 288 P. 3, 5 (1930). The traditional construction of that rule has been that the period of limitations begins to run when the act upon which legal action is based took place.

In the case of default on an instrument containing an automatic acceleration clause, "the debt is fully matured and the statute of limitations begins running when the debtor first defaults." 54 C.J.S. Limitations of Actions § 153. But if the acceleration clause in a note is optional, the debtor is not liable for payment on future nondelinquent installments "until the creditor chooses to take advantage of the clause and accelerate the balance. Unless the creditor exercises the option, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due...."

Is this where you were going? I need to look at my loan documents.
Johnna
 

despritfreya

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Sep 8, 2011
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"But if the acceleration clause in a note is optional, the debtor is not liable for payment on future nondelinquent installments "until the creditor chooses to take advantage of the clause and accelerate the balance. Unless the creditor exercises the option, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due...."

Is this where you were going? I need to look at my loan documents."

Yes. I will assume your mortgage loan is a typical one therefore your loan has just been accelerated, at the option of the lender, by the recording of the Notice of Trustee Sale.

Des.
 

despritfreya

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Sep 8, 2011
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Johnna,

Had to wait until I got to the office to send this. . .

As it is clear you understand the significance of case law, I believe you will want to look up the following:

Navy Federal Credit Union v. Jones, 187 Ariz. 493, 932 P.2d 1007 (Ariz. App. 1996);

Baseline Financial Services v. Madison, 229 Ariz. 543, 278 P.3d 321 (Ariz. App. 2012); and

Ortiz v. Trinity Financial Services, LLC, 98 F. Supp. 3d 1037 (D. Ariz. 2015)

There are a bunch more cases on this subject but I think the above will give you the info you seek.

Des.
 

spike9999

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May 28, 2014
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I have been fighting foreclosure on my second with Franklin Credit / Bosco Credit II Trust Series 2010-1 / Deutsche Bank National Trust / T D Service for the last 90 days - only to have to file Chapter 13 bankruptcy today to stop the sale scheduled for tomorrow.

I hired the law firm ARK Law Group in Bellevue, WA (I'm in Phoenix, AZ) to assist with a modification/short settlement. Another story for another time - 2nd year associate was left to negotiate my case. Nadia, one of the partners at ARK, tells me during our initial call that they are experienced with my lender. This did not come across at all these last 90 days. A modification was denied in 4 days. I was offered a repayment plan of $21,743 down now and $3600/month for 12 months. It was appealed on 9/15/16, Thursday. Monday, 9/19/16 Franklin again declined any modification and renegotiated the repayment plan to $10,000 down on 9/20/16 and payments of $2000 a month for 36 months! Declined every request to postpone sale.

I spent the weekend completing Chapter 13 BK docs, just in case. I digress....while completing bankruptcy paperwork this weekend, I pulled credit reports and find that Franklin Credit had reported our second mortgage to credit bureaus for the first time ever! We've had this loan since 2006! The first thing that stood out was the date of last payment reported to the credit bureaus: 12/2009. AZ SOL is 6 years.

I sent an email to ARK Legal on Sunday about my SOL discovery and asked if sale could be stopped due to SOL. ARK had no sense of urgency nor seemed to understand the implications of this. Their response to me was to file the BK and deal with the SOL on the other side.

Today, the day before the sale, my attorney advises me that Franklin is willing to postpone if I sign and pay the down payment of repayment plan today. I had not had the renegotiated repayment plan for 24 hours. So no postponement again.

It wasn't until early this afternoon that my attorney tells me sorry, no postponement, go ahead and file BK and find a local litigator to pursue to SOL issue.

I had to file BK today merely because of my second mortgage. I had no other credit issues. I could afford the payments. Years ago Franklin would return our funds for no apparent reason, went silent for years (I'm guessing due to Franklin Holdings filing bankruptcy and restructuring), I was sent monthly statements so infrequently, and correspondence was very minimal for years. I thought a review for a modification was underway - only to find out they recorded the Trustee's Sale and a local real estate investor announces this news to me the next morning in my driveway.

So now the bankruptcy is filed and everything I've worked to improve over the last 4 years (credit rating and credit card lines of credit) is scarred by a bankruptcy filing. This bk filing today was devastating to me!!!

I still have this SOL issue.
Arizona has a six year statute of limitation to collect on a contract (presumably that applies to deeds of trust or mortgages).
12-548. Contract in writing for debt; six year limitation; choice of law
A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:
1. A contract in writing that is executed in this state.


Also, the foreclosure statutes limit the ability to start a foreclosure after the statute of limitations runs.
33-816. Limitation on action or sale of trust property
The trustee’s sale of trust property under a trust deed shall be made, or any action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the contract secured by the trust deed.

Over the last 2 days, I couldn't get anyone (TD Service, Franklin and my attorney) to acknowledge that my second loan might be time barred and was reason to postpone the sale. I think I have discovered Franklin's dirty little secret - they are aware of SOL, failed to negotiate any modification, insisted on a down payment be made now, which could reset the SOL time-clock in their favor, and are in a hurry to finalize this foreclosure.

Am I off base re: SOL? I don't think so.
In a perfect world, I would like to file perhaps a TRO-to stop the sale-and determine if the SOL has run. If I could get that I could get my bankruptcy dismissed but everything needs to be on an expedited basis so I don't become too invested in the Chapter 13 filing.

I need to find an AZ foreclosure attorney with some knowledge about bankruptcy and SOL, and a set of balls to take on Franklin slime.
In the meantime, I'd love to hear your thoughts.

Background: lived here since Dec 1999, 1st loan was modified 3 years ago and is perfect; all payments made on time.

Thanks for taking the time to read. I'm frustrated and exhausted with this process and 2nd lenders not negotiating in good faith.

Another discussion that needs to be held later:
Servicer (Franklin) works for investor (Bosco) and servicer's role is to act and protect investor;
investor and servicer have the same owners/management/one man show (Tom Axon);
Trustee's (TD Service) customer is servicer (Franklin) and is obligated to act on behalf of servicer. TD Service is the Trustee assigned to handle the Trustee's Sale 9/21/16.
WHO PROTECTS AND LOOKS OUT FOR THE HOMEOWNER? NO ONE!! This is wrong. I experienced this today and it was an awful feeling.

Thanks,
Johnna
Johnna- I filed a quiet title lawsuit in AZ in regards to my SOL 2nd in AZ. They tried to fight back but they finally decided it was not worth the battle. FYI- they did try to lie about some of the events that never occured, but I stood my ground and called their bluff. In the end, I agreed to dismiss the lawsuit and they gave me my title and marked my account paid in full. I will send you the attorney info I used. Best of luck.
 
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spike9999

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Johnna- I can't private message you- can you change your settings so I can send you the info via private message. BTW- I had very good payment records along with recorded conversations and voice mails from the 2nd. If you have the original loan docs, that would be very helpful too.
 
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PatZZ

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"But if the acceleration clause in a note is optional, the debtor is not liable for payment on future nondelinquent installments "until the creditor chooses to take advantage of the clause and accelerate the balance. Unless the creditor exercises the option, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due...."

Is this where you were going? I need to look at my loan documents."

Yes. I will assume your mortgage loan is a typical one therefore your loan has just been accelerated, at the option of the lender, by the recording of the Notice of Trustee Sale.

Des.
The SOL info you need to refer to is in your state's SOL statutes. Once accelerated, there are no more payments and there can be no new default. This stupid crap is what the crooked courts in NJ and probably FL have created so the banks can win. I think the SOL statutes can't be more clear. But the judges create their madness and need a 25 page opinion to explain it. Bull****. I hate judges more than any group of people anywhere. They are placed in a position of such importance, yet they are despicable.

You said above: 'The trustee’s sale of trust property under a trust deed shall be made, or any action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the contract secured by the trust deed." The SOL in my state does not refer to the actual sale possibly being a violation of the SOL. Your statute is different I guess because it is non-judicial. Because in my state, any SOL defense MUST be made in the very beginning of the lawsuit. The defendant must immediately raise the issue in a motion with the court. But if the actual sale must also occur before the SOL expires, then perhaps you need to file a motion with the court seeking a stay of the sale until the SOL issue is resolved. You don't have to discuss the SOL with the lender. In fact, I wouldn't have told them anything about it and they undoubtedly do not care about what you are saying. The ONLY way to resolve the issue is with a judge. The lawyer you spoke to likely knows little to nothing about the SOL. The SOL defense does not come around very often so there are few experts..

One of the areas these judges focus on is "deceleration." So, delve into that a little bit too.

On the other hand, if you want to keep your home but you fear you might lose the SOL defense in court, you should still have an upper hand to get a better loan mod - especially if the lender is fearful of the SOL. I would want a deal with ZERO dollars upfront and a nice new monthly payment you feel real comfortable with.
.
 
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PatZZ

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In the 2003 NY case below, the court QUICKLY and SIMPLY came to the conclusion the SOL statute intended. The SOL has expired and the bank is toast. No reinterpreting the statute or making up stupid sh** conclusions. Higher court refused to even hear the bank's appeal.

I think NY's courts are more honest and ethical than NJ. Perhaps because it has a democratic AG who means business. He is heavy-handed when it comes to the banks. The NJ AG must be in bed with the banks. I have NEVER heard about anything our AG is doing.

https://scholar.google.com/scholar_case?case=8625722162341364997&q=lavin v elmakiss&hl=en&as_sdt=2006
.
 
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PatZZ

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Johnna- I filed a quiet title lawsuit in AZ in regards to my SOL 2nd in AZ. They tried to fight back but they finally decided it was not worth the battle. FYI- they did try to lie about some of the events that never occured, but I stood my ground and called their bluff. In the end, I agreed to dismiss the lawsuit and they gave me my title and marked my account paid in full. I will send you the attorney info I used. Best of luck.
Spike, did your 2nd ever officially accelerate your loan?
.
 

spike9999

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Spike, did your 2nd ever officially accelerate your loan?
.
Yes they did and I had the supporting paperwork as well. And you are correct- when I approached a few attorneys about the state SOL laws, they looked at me like I was crazy. I actually had one attorney call me the next day to apologize. There is one (AZ) case law I could locate, it was old and a BK that clouded the issue. I really had to take a leap of faith when I filed the lawsuit. I was also concerned with the Florida Supreme court decision having impact on my case.
 

PatZZ

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Yes they did and I had the supporting paperwork as well. And you are correct- when I approached a few attorneys about the state SOL laws, they looked at me like I was crazy. I actually had one attorney call me the next day to apologize. There is one (AZ) case law I could locate, it was old and a BK that clouded the issue. I really had to take a leap of faith when I filed the lawsuit. I was also concerned with the Florida Supreme court decision having impact on my case.
I wish my 2nd had accelerated. I save all my mortgage paperwork and all I have are several letters where they were demanding the full balance. If/when they foreclose, I will use those as evidence it was accelerated since they can only request the full balance upon acceleration.

Sometimes, the FL judges are just as crooked and unethical as judges in NJ. Whenever the courts come across an issue that can affect more than a few cases such that the homeowner could win, the judges begin an unnecessary reinterpretation and/or revise law and statute right from the bench.

The attorneys always think the pro se is a moron. Can't figure why. Learning the law is not like learning rocket science. I have also found that many attorneys become disinterested when they see the pro se is actually very astute.
.
 
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just_me

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PatZZ at al - Great Discussion Great Advice
Aces - Absolutely Correct - I believe Collateral Estoppel resolves the issue, even in spite of (or addition to ) SOLs, and should always be included in a basic defense, but even in absence can be argued at a later date.

The 'correct' argument is key. Fortunately the education level, diligence, and experience here will eventually find the correct option though analyisis and information sharing. :)

No wonder that banks' attorneys follow these boards too. It's a shame homeowners defense attorneys don't participate, contribute, or do the research to learn something new and contribute in a meaningful way to stop the title washing fraud which is in favor of banks who participated in fraud and widespread economic collapse. Yes, these Banks actually do want the proverbial 'free house' because they already took substantial bailout money and this 'real' item is a now a bit of a bonus. But I digress. Maybe in the past there was some attorney interest in helping homeowners, but now most attorneys are refusing these type of cases and it is a moot point to for them to learn it or even care to waste time meeting you. Sad form of justice. Some courts have pressured or routinely 'quashed' those that do, so maybe bad climate matters too. This naturally leaves many with no option but pro se. Yet, somehow, even though they have the cough cough qualifications to accept 'new and novel' they (ordinary attorneys) are largely disinterested and you have to throw a lot of money at them, usually whatever they deduce is your savings from not paying the mortgage. We (homeowners) now can clearly see what an abuse this is (overcharging for one or two necessary, short, court responses that delay everything). This is a nothing less than further rape of our financial health. Over the course of time and life, I have done it both ways. Sometimes I've had an attorney and sometimes not. As someone with an education, I learn from my mistakes.

When this topic came up in the past, yes, banks began arguing that 'each payment due' re-starts SOLs. Don't buy that, it's been largely disproven. Technically it voids the SOLs indefinitely, expanding collection rights. This is not the spirit of the law. However, this doesn't stop banks from using it. If a pro se doesn't object properly, then they proceed on it. This tends to work in many cases even though it is not a correct argument. Banks periodically hire new people and start over. If the case is undefended, no attorney, a homeowner scared straight no knowing what to do, they win. I have routinely seen DB use old case law with dated rulings, and try to set new precedents on this particular item in my region. They are rolling the dice. Sometimes they get lucky.

The thing to remember on this point is that the mortgage has been accelerated and there is 'no monthly payment due' but rather a balance in full against your house. They want the tangible asset. The paper asset is based on frauds. This washes away the initial bad acts and technically gives them a clean titile through abuse of the legal process. DB thinks they can avoid BK rules by stating foreclosure is cough cough 'In Riem' and not against any particular person who is liable for the debt. (free house again)

So, yes, in order to use that particular argument, the case MUST be dismissed, in order to restart a new foreclosure using a DIFFERENT default date. So, technically, they can do this ad nauseum, if they actually perform a correct set of facts, such as ACTUALLY having provided notice of NEW accelleration and NEW foreclosure case. And yes, they MUST decelerate and remove the notice of foreclosure in your County Clerk's Land Records Office first. This "deceleration" may also involve an internal accounting action and a new statement to you containing a due date or a past due date, and a 'new' payment, etc. Beware. Also remember, one can always argue against this 'new default', conduct discovery, and/or provide proof that default date is incorrect, if in fact it is. I

Many have learned dismissals without prejudice (where they can re-file) create exactly this opportunity and resolve nothing. I learned that through others and decided that I was NOT going to do that. Ironically, the judge even suggested it. Hmmmm...

My concern was my un-answered Qs and a non-helpful attorney. I wanted to know what happened to the "discovery" that I had already obtained. My best guess was that I did not want to lose all that work and the items my arguments were based on by starting over. (robo s*gning case) I also did not want to lose my legal with a 'dismissal' that would actually require her services again in the very near future. I needed her and technically, due to legal ethics, she can not quit my 'active case.' But if the case is dismisssed, well then, she can fly away and not come back! lol. I know she is not interested but it is extremely helpful to have someone field their various attempts with a basic requisit legal response. (less anxiety, prevents them from saying I was served notice if I actually was not) The 'bank' also made several attempts at identifying themselves correctly which was kind of funny, but ask me that one later. I had opportunity to dismiss at that point too and did not.

I suppose I guessed right? :)
Will follow up with full report at later date.

However, there is also a competing theory for everyone to consider who is in the opposite boat. This is based on the proverbial 'How many bites at the apple does one legally get?' I know someone working on it in my area. Even if the bank does successfully re-initiate, they can't keep coming back to court without proper proof that they do in fact have standing. Collateral estoppel prevents them from contradicting past arguments even if it is from a different, prior, foreclosure case They also can't keep re-arguing the 'next monthly payment due' in correct legal form, without all that crap involved cause they don't care or haven't devised a fraud scheme to process it. But they do keep rolling the dice on it (free house with incorrect default claim, legal right, and standing) and sometimes it works if the homeowner does not answer complaint.

Ironically, I was not in actual default when I was foreclosed on. (twice mind you) I stopped paying ONLY AFTER they began refusing payments FIRST. So yes, banks would be wanting this loophole. In my case, they don't have it. LOL. I will fight this case till the day I die, and when I do die, my relatives will have money to keep on fighting "on behalf of my heirs." Haha. Yes, I'm that mad that no one went to jail and they stole money during origination and later fabricated the forced default trying to seize my property. These parties have continued their bad acts and should be held accountable for the financial frauds and the devastation they in fact caused on a national level. This is why I say, NO. They don't get my house too.
 

just_me

LoanSafe Member
Sep 14, 2015
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Johnna - Here's my thoughts:

Since you are concerned with the credit report and effects of BK, I would consider a
Motion to Withdraw
your BK13 case

Why? You only have ONE issue - that is the debt collector that is foreclosing. You really don't need BK13 on your record, especially given all you've done to correct and improve it.

I have been fighting foreclosure on my second with Franklin Credit / Bosco Credit II Trust Series 2010-1 / Deutsche Bank National Trust / T D Service for the last 90 days - only to have to file Chapter 13 bankruptcy today to stop the sale scheduled for tomorrow.

I hired the law firm ARK Law Group in Bellevue, WA (I'm in Phoenix, AZ) to assist with a modification/short settlement. Another story for another time - 2nd year associate was left to negotiate my case. Nadia, one of the partners at ARK, tells me during our initial call that they are experienced with my lender. This did not come across at all these last 90 days. A modification was denied in 4 days. I was offered a repayment plan of $21,743 down now and $3600/month for 12 months. It was appealed on 9/15/16, Thursday. Monday, 9/19/16 Franklin again declined any modification and renegotiated the repayment plan to $10,000 down on 9/20/16 and payments of $2000 a month for 36 months! Declined every request to postpone sale.

I spent the weekend completing Chapter 13 BK docs, just in case. I digress....while completing bankruptcy paperwork this weekend, I pulled credit reports and find that Franklin Credit had reported our second mortgage to credit bureaus for the first time ever! We've had this loan since 2006! The first thing that stood out was the date of last payment reported to the credit bureaus: 12/2009. AZ SOL is 6 years.

I sent an email to ARK Legal on Sunday about my SOL discovery and asked if sale could be stopped due to SOL. ARK had no sense of urgency nor seemed to understand the implications of this. Their response to me was to file the BK and deal with the SOL on the other side.

Today, the day before the sale, my attorney advises me that Franklin is willing to postpone if I sign and pay the down payment of repayment plan today. I had not had the renegotiated repayment plan for 24 hours. So no postponement again.

It wasn't until early this afternoon that my attorney tells me sorry, no postponement, go ahead and file BK and find a local litigator to pursue to SOL issue.

I had to file BK today merely because of my second mortgage. I had no other credit issues. I could afford the payments. Years ago Franklin would return our funds for no apparent reason, went silent for years (I'm guessing due to Franklin Holdings filing bankruptcy and restructuring), I was sent monthly statements so infrequently, and correspondence was very minimal for years. I thought a review for a modification was underway - only to find out they recorded the Trustee's Sale and a local real estate investor announces this news to me the next morning in my driveway.

So now the bankruptcy is filed and everything I've worked to improve over the last 4 years (credit rating and credit card lines of credit) is scarred by a bankruptcy filing. This bk filing today was devastating to me!!!

I still have this SOL issue.
Arizona has a six year statute of limitation to collect on a contract (presumably that applies to deeds of trust or mortgages).
12-548. Contract in writing for debt; six year limitation; choice of law
A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:
1. A contract in writing that is executed in this state.


Also, the foreclosure statutes limit the ability to start a foreclosure after the statute of limitations runs.
33-816. Limitation on action or sale of trust property
The trustee’s sale of trust property under a trust deed shall be made, or any action to foreclose a trust deed as provided by law for the foreclosure of mortgages on real property shall be commenced, within the period prescribed by law for the commencement of an action on the contract secured by the trust deed.

Over the last 2 days, I couldn't get anyone (TD Service, Franklin and my attorney) to acknowledge that my second loan might be time barred and was reason to postpone the sale. I think I have discovered Franklin's dirty little secret - they are aware of SOL, failed to negotiate any modification, insisted on a down payment be made now, which could reset the SOL time-clock in their favor, and are in a hurry to finalize this foreclosure.

Am I off base re: SOL? I don't think so.
In a perfect world, I would like to file perhaps a TRO-to stop the sale-and determine if the SOL has run. If I could get that I could get my bankruptcy dismissed but everything needs to be on an expedited basis so I don't become too invested in the Chapter 13 filing.

I need to find an AZ foreclosure attorney with some knowledge about bankruptcy and SOL, and a set of balls to take on Franklin slime.
In the meantime, I'd love to hear your thoughts.

Background: lived here since Dec 1999, 1st loan was modified 3 years ago and is perfect; all payments made on time.

Thanks for taking the time to read. I'm frustrated and exhausted with this process and 2nd lenders not negotiating in good faith.

Another discussion that needs to be held later:
Servicer (Franklin) works for investor (Bosco) and servicer's role is to act and protect investor;
investor and servicer have the same owners/management/one man show (Tom Axon);
Trustee's (TD Service) customer is servicer (Franklin) and is obligated to act on behalf of servicer. TD Service is the Trustee assigned to handle the Trustee's Sale 9/21/16.
WHO PROTECTS AND LOOKS OUT FOR THE HOMEOWNER? NO ONE!! This is wrong. I experienced this today and it was an awful feeling.

Thanks,
Johnna
 

just_me

LoanSafe Member
Sep 14, 2015
637
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28
sorry wouldn't let my finish... use this window of time wisely, create all arguments before you file your motions - the motion to withraw is simple and doesn't require any particular reason, although be prepared to have some relevant statement if necessary. Just do it in 30 days or less.
 

PatZZ

LoanSafe Member
Jan 30, 2011
2,026
157
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PatZZ at al - Great Discussion Great Advice

The thing to remember on this point is that the mortgage has been accelerated and there is 'no monthly payment due' but rather a balance in full against your house. . . . . .

So, yes, in order to use that particular argument, the case MUST be dismissed, in order to restart a new foreclosure using a DIFFERENT default date. So, technically, they can do this ad nauseum, if they actually perform a correct set of facts, such as ACTUALLY having provided notice of NEW accelleration and NEW foreclosure case. And yes, they MUST decelerate and remove the notice of foreclosure in your County Clerk's Land Records Office first. This "deceleration" may also involve an internal accounting action and a new statement to you containing a due date or a past due date, and a 'new' payment, etc.

How many bites at the apple does one legally get? .. . . . .


Recently, I started a thread about the SOL. The SOL statute in most states is very clear. Not ambiguous at all. But all the clarity of the SOL means nothing if the ignorant judges REFUSE to allow the homeowner to get the "free house" and so they ignore everything and anything in the statute and rule for the bank. The judges actually create new law.

Depending on the circumstances, deceleration is not that simple. Something I would bet the lender/servicer are not aware of. Oftentimes, deceleration cannot be done via a letter. And that is gold.

Both in FL and NJ, the defense attorneys argued there could be no more payments due. Did the court care? No. The very fact that the court claims every payment not made is a new default does indeed mean that there is no SOL. The court has effectively knocked the statute off the books. The SOL would only come into play after the set date for maturity established in the note. Yes, they can get hundreds of bites at the apple and (perhaps) make the homeowner pay each time. Totally foolish and unconscionable. Courts always talk about moving cases along and clearing the docket. But with this silly, illogical reasoning, cases could remain on the docket, albeit with new case numbers, for years and years and years. The judges are scum of the earth.
.
 

wanda robo

LoanSafe Member
Sep 29, 2012
3,940
634
113
NJ
sorry wouldn't let my finish... use this window of time wisely, create all arguments before you file your motions - the motion to withraw is simple and doesn't require any particular reason, although be prepared to have some relevant statement if necessary. Just do it in 30 days or less.

Have you, by any chance, been playing with your DB voodoo doll?

http://www.bloomberg.com/news/articles/2016-09-28/deutsche-bank-troubles-dent-europe-s-engine-as-merkel-wobbles