Posted by JohnBoy on December 30, 2004 at 18:17:39:
What does the foreclosure papers say? The foreclosure complaint should include copies of the mortgage attached as exibits. If the loan was sold or transferred to Wells Fargo then a copy of the assignment should be attached as an exibit showing Wells Fargo is the one holding the mortgage.
If Washington Mutual is the lender and they never transferred or sold the loan to Wells Fargo then the case would have to be dismissed. They filed naming the wrong entity. Plain and simple. I don’t think you can amend a complaint to switch entities as the plaintiff. They filed under the wrong entity, period!
Check the foreclosure complaint documents and make sure there is nothing attached showing Wells Fargo has any rights to the mortgage. If not, file a motion to dismiss on the grounds that Wells Fargo has no legal interest in the mortgage and they filed under the wrong entity.
The motion to dismiss will buy some time even if the case isn’t dismissed. The plaintiff will have x number of days to respond and the court will typically set a day to have a hearing on the motion to dismiss, if they don’t just dismiss it. That alone would buy a little time. If the case is dismissed that will buy a little more time.
You can amend complaints, but I don’t think you can where the wrong entity has filed and then just amend it to name the right entity. I would think the case would have to be refiled naming the right entity from the start.