Posted by JT-IN on September 23, 2010 at 09:35:57:
$
forclosure - Posted by greg
Posted by greg on September 21, 2010 at 21:07:03:
If I were to get someone to deed me a house that is set for forclosure on oct 1
would I be able to stop the forclosure?
If so. . .
how
NO - Posted by WAREIA
Posted by WAREIA on September 22, 2010 at 14:43:41:
In my experience, placing someone on the deed or deeding title to an entity such as an LLC or Trust does not stop or forestall a foreclosure.
Lots of Possibilities… - Posted by JT-IN
Posted by JT-IN on September 22, 2010 at 07:13:51:
There are lots of possible ways to stop a foreclosure…
- Pay the arrearage
- Negotiate a settlement or forebearance agreement to pay the arrearage over time which also includes keeping current on future payments.
- Filing a Bankruptcy. Usually you wouldn’t do so personally but a more common approach in days gone by would be to deed the property to a Corp or LLC and then file a Bk for the entity. This approach costs money so unless the property is high dollar with lots of upside this may not be that feasible.
- Resell and close the transaction prior to the sale date therein paying the mtg in full
- If a judicial foreclosure state, it is possible to challenge the documents and/or the process, depending upon actual circumstances and the status of the case.
Best if we knew much more detail here which may shed additional light on the avenue which might be best to travel. At best the odds of success are a low percentage unless you have the cash to cure the default.
Re: forclosure - Posted by Kristine-CA
Posted by Kristine-CA on September 22, 2010 at 24:32:52:
Greg: what state are you in? There are some state specific things that
apply to foreclosures and we would need to know that in order to answer
and/or comment on your question. Kristine
WA Stats say not here - Posted by John Merchant
Posted by John Merchant on September 22, 2010 at 15:09:03:
In WA State, only thing that can stop a DOT foreclosure is injunction action with temporary restraining order; and the party seeking same has to put up a CASH bond for all back payments, attorneys fees, all costs, etc…so a virtually impossible burden.
Being in the the DOT Foreclosure business I often hear of or about a threat from the owner/debtor that he or she is going to stop the foreclosure, but once that debtor talks to a lawyer and learns some WA law his threats seem to fade away.
BK only “stays” BK temp. - Posted by John Merchant
Posted by John Merchant on September 22, 2010 at 15:12:30:
I see lots of CH 7 filings that do “stay” a DOT non-judicial foreclosure for a few weeks, but a Motion to Lift Stay clears that out of the way in a few weeks.
BK filing stays in all states nt - Posted by John Merchant
Posted by John Merchant on September 23, 2010 at 22:06:03:
Meant to say that BK filing, either 7,13 etc. also stays a foreclosure but these are normally of short duration, lasting just a few weeks.
These filings and stays are so common at the last minute to forestall DOT foreclosure auctions that the usual foreclosure auctioneer’s spiel in WA includes language that “if a BK has been filed, whatever happens at the sale today is void, and the sale will b e postponed, etc.”
Re: BK only “stays” BK temp. - Posted by Tom Thumb
Posted by Tom Thumb on September 22, 2010 at 16:47:41:
Not exactly true, John. I filed my Chap 7 in Sept, 2009, and it was
discharged this Feb. However, their Motion to Lift the Stay has been
stopped dead by my demand that they PROVE STANDING. Next hearing in
in January, 2011. That is definitely more than a few weeks.
An Adversarial claim? - Posted by TableTurner
Posted by TableTurner on September 22, 2010 at 18:31:16:
How about chapter 13?
You wanna bet it won’t be lifted? n/t - Posted by John Merchant
Posted by John Merchant on September 22, 2010 at 16:56:21:
b
Only if they can prove standing - Posted by JT-IN
Posted by JT-IN on September 22, 2010 at 18:38:05:
There is some case law on this with Bk Judges. In fact the Produce the Note strategy seems to work best with the almighty power of a Bk Judge wielding their mallot, I mean gavel. Certainly if the lender can provee that they are the party in interest then they would be entitled to the relief from stay, but if his dates are accurate, (Sept 2009 to Jan 2011) that is a long time for the lender to not produce sufficient evidence to be granted relief, wouldn’t you agree JM…? Something is amiss in the chain of documents somewhere…?
I’d guess state by state diffs - Posted by John Merchant
Posted by John Merchant on September 22, 2010 at 18:55:08:
Probably BK courts have taken differing positions on this depending on their states.
Some, I’d guess (not having briefed it), would prefer this issue be addressed by the state trial courts in re rights of debtor to stay a foreclosure. BK courts in general try not to get too heavily into deciding state substantive law as those BK courts believe state law should be determined by state courts
The “produce the note” folk would face a hostile BK Court in many states.
Re: I’d guess state by state diffs - Posted by Tom Thumb
Posted by Tom Thumb on September 23, 2010 at 08:26:41:
I filed an Adversarial Proceeding several months ago and the Lender,
ONE WEST BANK, submitted a phony Assignment of Deed of Trust
prepared by a replacement mill in Florida and signed by the usual
suspects, Bryan Bly, Crystal Moore, and Jessica Fretwell. These names
are on the list published by Fraud Investigator and Attorney Lynn
Szymoniak on her Fraud Digest website. I displayed the document to
the judge and thanked the Lender for making such a stupid mistake.
He asked for the continuance and I asked for another 60 days which
the judge granted. I told the judge I DID NOT want the Lender to have
to produce the original blue ink note, nor the full chain of title, I ONLY
wanted them to prove they were entitled to payment as the Real Party
in Interest. They can’t do it. They did furnish a copy of the “original”
note in their moving papers with an allonge stamped on the back.
However, two months earlier they acceded to my demand that they
produce a copy for me as a result of my RESPA letter and they did –
same note with the same double punch holes on top – and with NO
allonge. I think they have dug themselves quite a hole. I’ll keep you
updated.