homestead questions and converting from 7 to 13

[reesemay]

They re-established the note but I never got any proof of how or why they were able to do that
unless an affidavid of some employee looking at records applies, which was allowed because I did not know to object to it

[justbroke]

on the complaint to lift the stay, the end of it says I can request validation of the debt. Would it be of you opinion to do this? If so what would be the questions to ask about the note?

A debt validation doesn't help you in federal court. That's a separate thing and has nothing to do with the relief request itself. You need to have a cause of action in order to have the relief requested denied. They are probably using standard template language which is the same whether you were already foreclosed, or they haven't even started foreclosure proceedings.

In any event, I indicated what you should be preparing for. The links I posted will tell you what will happen. This is likely to end back up in State non-bankruptcy court. You should be preparing an appeal at the State level. You can still object to the Relief from Stay (RFS) and that will drag it out another 14-21 or even 30 days before it's granted.

This is a very big hurdle. You can ask in a DV about the note, but they re-established it in a court. They also have a summary judgment of foreclosure based on the re-established note. You need to be fighting in State court and, again... the most important thing is for you to learn Florida Civil Procedure and learn how to do an appeal. You need to determine whether you are barred from filing an appeal because the time period for filing an appeal has passed. If your home went to foreclosure sale, it is HIGHLY likely that this time period has already elapsed and you won't be able to file any appeal.

Unfortunately, these are things that should have happened at the State non-bankruptcy court level. The lower federal court (U.S. Bankruptcy Court) is barred by doctrine to not interfere with a lower court decision. The ONLY way to get the U.S. Bankruptcy Court (USBC) to grant you more than the RFS hearing that's already set, is to actually have something that proves that the State court action was void ab initio (void before it even started). That's a high bar to prove.

You would be one (1) of only two (2) cases ever to have the USBC interject themselves into an already settled matter at the State level... they call this res judicata for a reason. Because you don't know procedure, you must understand that if you appeal from the wrong "decision" or "order", you could have any appeal immediately denied because you appealed from the wrong order/decision. For example, if your questioning the order of judgment, you'd appeal the judgment... not the foreclosure. (You could appeal the foreclosure if you could prove that the bank did something wrong in the process of the sale. There were some amazing cases recently in Florida (Pinellas, Pollk?) where the bank messed up on the calculation of the amounts owed causing the homes to foreclose for less... or somesuch.)

As for the law requiring that the mortgage and note must be attached, that's if they exist. Otherwise, the creditor (movant/plaintiff) can also file a "lost not" affidavit and motion the court to re-establish the note at the same time. It appears they did re-establish the note, because you used that type of language in your posts. Re-established notes are nothing new and are required when the "original" mortgage and note aren't available (lost/misplaced).

I'm sorry that you're going through this, but this area of law is complex. State court, other than small claims, is a tricky minefield. While the Federal court system has just about everything on-line, including forms, local rules and procedures, it's difficult to get that information at the State court level! The state court system also has lousy "electronic docket" systems and it's not easy. That's one of many reasons why attorneys are paid high wages.

I'm afraid of doing anything in the State (Civil) Court! And I've battled big time creditor attorneys and have won in Bankruptcy court. It's a much different place. There's probably no other court of equity like the U.S. Bankruptcy court.

[tcreegan]

Hi reesemary,

on the complaint to lift the stay, the end of it says I can request validation of the debt. Would it be of you opinion to do this? If so what would be the questions to ask about the note?
This is a delaying tactic, usually used to buy more time in the case b4 the stay is lifted. There is a form you use to respond, asking for the validation. The court clerk should know which form(s) to use. They then have to show how they came up w. the numbers and show that it is indeed your debt.

Your language is a little off-kilter from what is used in our BK court, we have no 'complaint to lift the stay' It is a 'motion for relief' from the stay. Not a lawyer so I am not sure it makes a difference or not.......

Tom in Colo

[reesemay]

The bank, on the schedules were not properly noticed (paralegal entered wrong address ) The atty's for the bank made a notice of apearance and requested notice, they were aware of the 341 meeting and the dates. How do I ask the courts to allow constructive notice?
Since there is a court case in the civil courts and the bk was filed there, they had constructive notice. How do I address this? The bk court sent me a form to fill out w/ the correct address and on the bottom it says if the creditor address is not listed properly possibly might not be removed in the ch 7. Does this mean that they have a reason to try to fight the dismissal?
And will this cause a hearing?

Also can I file a motion to enlarge time to get an atty to help me w/ this?? How would I word the motion?

[justbroke]

The bank, on the schedules were not properly noticed (paralegal entered wrong address ) The atty's for the bank made a notice of apearance and requested notice, they were aware of the 341 meeting and the dates. How do I ask the courts to allow constructive notice?

I don't understand what you're asking. The fact that they filed an appearance is indicative of the fact that they were noticed. You don't need to "do" anything... so what are you trying to do?

Since there is a court case in the civil courts and the bk was filed there, they had constructive notice. How do I address this?

Address what? What's this whole "constructive" notice angle? Notice is just for dischargeability issues as well as, in limited cases, claims of a stay violation when the creditor was never properly noticed.

The bk court sent me a form to fill out w/ the correct address and on the bottom it says if the creditor address is not listed properly possibly might not be removed in the ch 7. Does this mean that they have a reason to try to fight the dismissal?

No. This would ONLY mean they could fight the dischargeability of that "specific" debt. Also, it's a discharge, not a dismissal.

I think you're worried that you put the wrong address and somehow this particular debt won't be discharged. It will be discharged. Should you have trouble later, you'd re-open the case to file a Complaint to Determine Dischargeability or a Complaint for Willful Violation of the Discharge Injunction. They "have" actual and constructive notice because they actually filed a notice of appearance! You shouldn't have trouble with this at all.

And will this cause a hearing?

I don't understand the overall question, but relative to notice, they have been noticed. There will be no hearing.

Also can I file a motion to enlarge time to get an atty to help me w/ this?? How would I word the motion?

You could, but your response needs to be... well... responsive, or they can motion for a summary judgment. I still don't know what you're trying to do. I think that you are still of the mindset that you somehow own the home free and clear because the original note was lost. However, it was re-established. Whether you have a case in the local court will be the real thing.

You should be on the phone now with attorneys. This is going to cost you money. The average cost to defend a foreclosure is about $1,500 in Florida.

You could file Opposition to the Motion or you could show up at the hearing and ask for a continuance. You can ask for a hearing, because most of those are done with "negative noticing" in your District (Florida at large) because the court doesn't want to waste time hearing cases that are already consented to. However, you still need a "reason" in your answer. You could put that you feel that the foreclosure was void ab initio and that they never properly re-established the note. This "might" get you to a hearing and perhaps a continuance, but the Judge is not going to deal with this in the Federal court system. S/he is going to send you back to the State court where you'll need to be prepared.

Call a few FORECLOSURE attorneys in Central Florida. There are some great ones, but don't ask me any names. I barely remember that ones I researched before. Just take a consultation to see if you even have a case.

You should already be doing that, or at least by the time you have read this sentence.

[tcreegan]

Hello again reesemary,

The bank, on the schedules were not properly noticed (paralegal entered wrong address ) The atty's for the bank made a notice of apearance and requested notice, they were aware of the 341 meeting and the dates. How do I ask the courts to allow constructive notice?

As far as I know, you don't need to do anything. The notice of appearance and requested notice takes care of the bank.

Since there is a court case in the civil courts and the bk was filed there, they had constructive notice. How do I address this?

This is confusing, the BK cannot be filed in a civil court, only a federal BK court. At any rate, if not already done, you send the clerk of the civil court the Bk notice w/ filing date and case #

The bk court sent me a form to fill out w/ the correct address and on the bottom it says if the creditor address is not listed properly possibly might not be removed in the ch 7.

Probably standard operating procedure for creditor change of address. If it is unsecured debt, the debt is discharged even if not listed. Now if it is secured.....don't know

Does this mean that they have a reason to try to fight the dismissal?
And will this cause a hearing?

What dismissal? Your case is being dismissed? No hearing

Also can I file a motion to enlarge time to get an atty to help me w/ this?? How would I word the motion?

Call the BK court clerk and ask what is the proper form and how to file it. You can probably download the form off the BK courts website

Good luck with everything, let us know how it turns out!

Tom in Colo

[reesemay]

If you're in Florida, check the "Creditor Matrix" link in PACER. The following are automatic: Florida Department of Law Enforcement, IRS, your county Tax Assessor and the Florida Department of Revenue Having wrote that, you should always schedule creditors so that there are no questions about notification.

I checked the creditor matrix and the only things listed are the ones I listed, other than the trustee's (local and orlando)
irs is not listed, local city is not listed, the sherriff's dept is not listed...

[justbroke]

I checked the creditor matrix and the only things listed are the ones I listed, other than the trustee's (local and orlando) irs is not listed, local city is not listed, the sherriff's dept is not listed...

It would never have your city or Sheriff. It should have the Florida Department of Law Enforcement (FDLE) for child support and DSO related issues. It should have the Orange County Tax Collector. It should have the IRS. If it doesn't have those people on the creditor matrix... very interesting.

[reesemay]

only ones listed are the ones I listed, no other ones in the matrix

[tyson24]

Reesmay,

I do not mean to go off topic but who is your mortgage company? I read everything but don't think it was mentioned.

Sorry for what you are going through. Financial stuff sucks. We are all in he same boat here or have been at one time.

[reesemay]

Really prefer not to say. But they are affilited w/ one of the largest banks bank of america and I am sure my loan was sold off as soon as they got it. Now just to be able to prove it is the big question. I need someone who can look up stuff on the SEC website.

[justbroke]

Anyone can look up the Mortgaged Backed Asset portfolios and SEC filings. I did for mine and found my EXACT loan. Needless to say, it's a little difficult in that you have to match your zip code and the amount you paid.

Having wrote that, I still think you're attacking this the wrong way. No one has ever one a challenge where they implied that the "bank" was already paid for the debt by the investors. The problem is, the "investors" own the Note and the mortgage, so... you owe them.

[reesemay]

Can you explain to me how you looked up your loan, did you know who your loan was sold to?

I am not sure which county you are in, but in this county the judges are not doing what they are supposed to be doing. Here is a little excerp of what is going on. "Rocket Dockets" And judges blatenly not takeing into consideration the validity of notes or mortgages or even the affidavidts....pretty frustrating when you are amongst the shenanigans, and the only thing you can do is just sit back and watch all this. And are forced to file bankruptcy.

http://4closurefraud.org/2010/09/06/foreclosure-fraud-rocket-dockets-senior-judges-and-judicial-bonuses/

[justbroke]

Can you explain to me how you looked up your loan, did you know who your loan was sold to?

I didn't know who owned my loan until I was served with foreclosure papers! Then I looked up my Asset Backed Security by its series. If you don't know who owns the rights to your loan, you'll never figure it out. Your service is, allegedly, supposed to give this information to you on demand. Some won't tell you! Anyhow, they don't really know the investors, but they SHOULD know and tell you who the Trustee is and what series of asset-backed mortgages it belongs to.

I am not sure which county you are in, but in this county the judges are not doing what they are supposed to be doing. Here is a little excerp of what is going on. "Rocket Dockets" And judges blatenly not takeing into consideration the validity of notes or mortgages or even the affidavidts....pretty frustrating when you are amongst the shenanigans, and the only thing you can do is just sit back and watch all this. And are forced to file bankruptcy.

Yes, but rocket dockets have been stopped by the Florida Supreme Court's intervention program. The reason for the Rocket Docket is because you can't just come into court and say "your Honor, they don't own the loan".... you have to have cause and evidence. The system would be severely clogged -- worse than now -- if a mere "ummm... they don't own the loan" would cause the entire case to spin out of control. A lot is about process and procedure and is specifically why the "average" non-attorney should never attempt this.

Even with that, the "rocket" docket exists because most people don't contest the foreclosure anyhow. If there's no one there, it's done! I guess you would never want to step into my Judge's courtroom. I have seen her do her own style of the rocket docket when it comes to Relief from Stay hearings. If the debtor isn't there -- or represented -- it's immediately granted. The reason they need to spend so much money on this process is because the Civil Court was never geared up to do this many foreclosures.

In any event, that's neither here nor there with your specific issue. If you had a case, it was back in the Circuit Civil court in your County. Your chance was to challenge the ownership of the Note and whether the lost note affidavit and the restoration of the note was correctly upheld and the judgment of foreclosure issued. I'm not saying that this never happens or that there aren't cases where the note was lost and the lender could not legally have restored the note! I have read about them.

I don't know what you want to do at this point. Unless you appeal the judgment, I don't see anywhere, from a legal standpoint, that you have a case before the bankruptcy court. I'd be preparing an appeal. You'd probably need to prove that the case was void ab initio to get an appeal anyhow, since it reads as though you never challenged it and/or filed a responsive pleading in the State civil foreclosure case.

[reesemay]

I am pretty sure the case was void ab initio to begin w/, now to prove it.