Pro Se response to motion requesting Court Order to sell

[skibum]

We found a motion taped to our house last week. The attorney's for the bank (US Bank National Assn.) are seeking a hearing to get a Court Order to sell the property. The sale is scheduled for October 14. I am not sure why they are filing this motion, so that's my first question. My second question is can I use this motion to delay the sale? Can I file a response and appear at the hearing on September 12? Third, if I can, is there any standard language I should use that might work?

We are working with Chase, the servicer, to get a loan mod but every month they send a request for more info. Even though I'm a CPA and was a mortgage broker I guess I can't figure out exactly what they want, or maybe it's them. LOL.

Thanks.

[AngelinaCatHub]

I've never heard of a legal document taped to a door in a legal suit. I assume you are in a suit or is the an AP? Does not sound like a normal lift of stay to repo.

Yes you MUST respond to a Motion and it will buy you time. Without a response, like a default Judgment, they are likely to have it granted.

Google your State plus legal Motion in form. Each State or County/district like forms filled in a certain pattern. Even font is preferred in some cases. Google case law and you may be able to get a run down of your State's procedures in a real tried case. Nolo has plenty of self help law books that will help you.

As far as what they are pulling, keep us informed as if feels irregular to me. 'Hub

[skibum]

Thanks 'Hub. I sent it over to an attorney friend of mine. Once I hear back I'll post his response.

[LadyInTheRed]

In California, documents can be served by "posting" (i.e., taping them to the door) after several unsuccssful efforts to serve a party personally. Perhaps Colorado allows service by posting in certain circumstances.

[skibum]

My attorney said: "My reading of the Motion is that it affords you the opportunity to object to the entry of an Order authorizing the sale of the home. If no objection is filed then the court will enter an Order authorizing the sale of the property. This is in essence a procedural motion."

I don't think I have a defense that I could use, unless I make something up. Should I make something up?

[biotechsolution]

Guess you could but if the court finds it frivilous you might be responsible for sanctions or attroney's fees.

[StartinOver]

Can you not file a response that indicates where you are in the loan mod process and that the party attempting to force the sale is the one dragging their feet and losing your paperwork?

[justbroke]

Can you not file a response that indicates where you are in the loan mod process and that the party attempting to force the sale is the one dragging their feet and losing your paperwork?

There is no law that says that a creditor needs to halt all foreclosure activity while they "drag their feet", "loose paperwork", or "just ignore you". In fact, most creditors will tell you that all foreclosure activity will continue during the process... through sale.

I would never file a response to the motion to sell stating that "yeah, I'm behind in payments, but I'm trying to get a modification". You just admitted to not paying in that response. Judge will quickly rule in their favor.

I don't see this going anywhere in the Bankruptcy court. In all likelihood, the BK Judge would kick it back down to the state non-bankruptcy court for a judgment. Were you already in process of foreclosure? Did you understand, when filing bankruptcy -- other than a Chapter 13 where you have a plan in place to reorganize your debts and correct the arrears through the plan -- that you may lose a home if you are not current?

If this was a strategy where you hoped that you might get a modification, but were behind in payments, then it looks like Plan A has failed. Are you just trying to delay foreclosure? How far are you underwater on the home? Is there a second mortgage?

Since your case is discharged but not closed, the creditor is taking ALL PRECAUTIONS to make sure they don't run afoul of the Trustee. I assume that the case discharged and the asset was abandoned by the Trustee. Since the case isn't closed, it is prudent for the Creditor to make this procedural motion just to make sure. Your only recourse may be back in State non-bankruptcy court where you could challenge the foreclosure... unless that process is already through judgment and the creditor is just trying to make sure the Trustee/Estate is okay with the state of the asset.