How soon can I refile if dismissed?

[despritfreya]

To overspent:

Sorry, but, like I said, there is no free ride. You, like many who go down the path, are trying to hang your hat on misinformation floating on the Net and in the main and not so main stream news media. While I may take the time to look up all of the cases you have cited, I have no doubt that in each case the debtor eventually lost or will lose.

The following is the TRUE outcomes of the first four cases you mention:

John Kemp vs. Contrywide: No free ride on this one -

Stay lifted to allow state court proceeding to proceed but then temporarily reimposed pending another bk hearing. In mean time, Trustee to disburse $20,000 to BAC and debtor to pay $3000/month to Trustee as adequate protection to be held by Trustee pending further order.

Bailey vs. BONY: Debtor lost all -

This case I am all too familiar with. Mr. Bailey filed a change of address about two months ago and the bank has foreclosed on all properties. But, he did get to live in one of the properties for over 1 year without making a payment and the banks he was “fighting” ran up a ton of legal fees.


In re: HWANG: - Bank won the appeal- matter back in the bk ct where debtor will most likely lose:

As of October 15, 2010: Civil Minutes-General for Appeal CV 08-7871 Ruling: The Court REVERSES the Bankruptcy Court's determination that IndyMac is not the real party in interest and the courts REMANDS the matter to the Bankruptcy Court .

_________________________________

Now onto the fun one:

ROBIN HAYES: You have indicated it is a Chapter 13. Wrong. Was converted to a 7 over 2 years ago and having over 700 docket entries dealing with everything from taxes to the fraud committed by this debtor the history is quite interesting:

Debtor was a very bad person and was forced to enter into the following with the State:

"The Enforcement Action related to a foreclosure rescue scheme through which the defendants allegedly conspired through their respective roles as mortgage brokers, real estate brokers, closing attorneys and straw buyers to deceive homeowners into selling their homes under the false promise of avoiding foreclosure and maintaining their homes and their homes’ equity. The Complaint alleged that Debtor facilitated the scheme in her individual capacity and as the sole owner, officer and director of defendant real estate brokerage. . . By its Enforcement Action, the Commonwealth sought injunctive relief against Debtor, and recovery of restitution, civil penalties and attorney’s fees and costs pursuant to M.G.L. c. 93A § 4. On June 26, 2007, Debtor filed the within bankruptcy proceeding. On August 28, 2007, the Commonwealth filed an estimated, unsecured proof of claim for $1.3 million. On August 15, 2008, the Commonwealth commenced this adversary proceeding seeking to except its claim from discharge pursuant to 11 U.S.C. § 523(a). On July 14, 2010, following commencement of trial of the Enforcement Action in the Superior Court, the Commonwealth agreed to resolve its claims against Debtor pursuant to the terms outlined in the Final Judgment attached as Exhibit A. In summary, the Final Judgment provides that judgment shall enter in favor of the Commonwealth: (1) permanently enjoining the Debtor from engaging in certain, specified conduct in the Commonwealth of Massachusetts; and (2) requiring entry of a judgment against Debtor totaling $40,000."

As it relates to your issue, on 8/19/2008 the Court held:

"IN ACCORDANCE WITH THE MEMORANDUM DATED AUGUST 19, 2008, THE COURT DENIES THE MOTION OF DEUTSCHE BANK NATIONAL TRUST COMPANY FOR RELIEF FROM STAY. THE COURT SUSTAINS THE DEBTOR'S FIRST OMNIBUS OBJECTION WITH RESPECT TO THE PROOF OF CLAIM FILED BY AMC MORTGAGE SERVICES, INC. THE COURT DISALLOWS THE CLAIM WITHOUT PREJUDICE TO TO RECONSIDERATION."

However, in November, 2008 case was converted to a Chapter 7 and the Motion to Reconsider which was filed, was deemed moot as a new claims bar date would be issued and bank, if it wanted to, could file another claim. On 4/1/09 bank files a Motion to lift stay in the Chapter 7. On 5/29/09 debtor files an adversary vs. the bank.

Then on 6/29/09 the Court entered the following Order:

"Motion by Deutsche Bank National Trust Company For Relief From Stay Re: 232 Perkins Avenue, Brockton, MA. THE COURT HEREBY GRANTS DEUTSCHE BANK'S MOTION FOR RELIEF FROM THE AUTOMATIC STAY AS IT ESTABLISHED A COLORABLE CLAIM TO PROPERTY OF THE ESTATE."

By the way, the adversary was dismissed on 12/23/10 just two days ago.

__________________________________________

So, as you can see not one out of your 1st four listings gives you the ammunition you seek. Your actions in fighting are no more than a delay tactic and will eventually result in the loss of the home. I can’t imagine that you really believe you will succeed in anything other than delaying a foreclosure.

Des.

[despritfreya]

Ok, so now that I am digesting the large meal and have nothing better to do I actually looked up the balance of the cases you cited. While they are not as clear cut as the first four I went through, none of them really help you.

In re Wilhelm:

A consolidation of 4 Chapter 7 cases and 1 Chapter 13 Case. In all the Motions for Relief were denied without prejudice. However, the stay is lifted upon the closing of the case in the 4 Chapter 7 cases so, who cares about the denial. In the Chapter 13 case there has been no other activity so one does not know what is going on. However, the debtor filed an Amended Plan surrendering the property and filed a Notice of Change of Address so it sounds like the property will be foreclosed.

In re Minbatiwalla:

Debtor files an Objection to the POC claiming no attachments evidencing an interest in the property. Ruled, Objection sustained as the creditor failed to follow local rules in what documents it needs to attach. Creditor may amend claim but must attach all relevant evidence. Debtor, at the time, was attempting to modify the loan. Modification was approved. By the way, original claim was filed on 12/7/09. The Order on the objection to the claim was signed on 3/1/10 and the Amended Claim (with supporting docs) was filed on 6/11/10. No lift stay filed, presumably due to the loan modification.

Paredes v. PHH - wrong cite as there was no adversary proceeding in this case. Correct name:
In re Paredes.

Another case where the Debtor and the lender entered into a loan modification agreement approved by the Court. However, before the loan modification was entered into, the attorney for this debtor who was also the attorney for Minbatiwalla, filed an Objection to the POC which was sustained by the Judge on similar grounds. The lender appealed the ruling but, once the loan modification was finalized, the parties stipulated to dismiss the appeal. Don’t know if the claim was amended.

In re Wells:

Debtor filed an Objection to Ocwen’s Proof of Claim. The Court disallowed the Ocwen claim due to lack of support for its position and directed Ocwen to produce evidence. The Court’s ruling was appealed but the parties stipulated to the dismissal of the appeal in January, 2010. In October, 2010 Ocwen filed a Motion for Relief. In November, 2010 the Court renewed its requirement that Ocwen produce evidence of its entitlement to its claim. The issues are still pending.

Des.

[justbroke]

In re Wells:

Debtor filed an Objection to Ocwen’s Proof of Claim. The Court disallowed the Ocwen claim due to lack of support for its position and directed Ocwen to produce evidence. The Court’s ruling was appealed but the parties stipulated to the dismissal of the appeal in January, 2010. In October, 2010 Ocwen filed a Motion for Relief. In November, 2010 the Court renewed its requirement that Ocwen produce evidence of its entitlement to its claim. The issues are still pending.

Yes, I looked up Wells too in PACER, before I read your post Des, and was about to write something similar. From the claims register, Ocwen (the servicer) amended the original claim in December (2009) after the original issue with the standing. There was allegedly a hearing on 12/6/2010 but it was delayed (standard delay tactics). Looks like the Judge will hear Ocwen and US Bank if they show up with the properly indorsed Promissory Note.

As I always say... it's only a matter of time before the paperwork is corrected!

I have yet to read any case that helps here either. I will restate that you are delaying the inevitable and if that's the game plan, then I hope that the fees that the attorney is charging you are worth it. (On a personal note, I have done the math in my particular case and even $5,000 in additional attorney fees to delay foreclosure would save me $5K per month for 12 months of delay).

By the way, HHH I do have an attorney. Inintially, he thought Oh you must pay BOfA what they want or lose the house. But after 2 hours of explaining to him about the broken chain of title on my house and showing the fraudulent Assignmnent and the 10 BK cases where debtors prevail when Movant can not prov their standing, he fnally gets it and agree to go along. I am in my 14 month of fighting. Thanks for the encouragement anyway.

I see no case where they "prevailed" in the long run.

What's your end game again, overspent? I hope it's not a free house, and is only to somehow coerce or pressure them into a loan modification. Even then, they are not required to do so.

I do really appreciate you taking the time to list the cases!

[HHM]

Nice work guys.

Desperation causes desperate thinking. As justbroke pointed, you still need an end game scenario.

The procedurally defective foreclosures are still more an issue for State's Attorney's General and not the individual homeowner. The only homeowners that have a true fraud claim are those that were actually current on their mortgage and were foreclosed, but those cases are few and far between. A debtor that was actually behind on the mortgage either looses the house or gets some sort of modification (the modification is usually of marginal benefit so the debtor looses the house anyway).

[overspent]

Thanks for all the replies. My position is if they can show the properly indorsed note from Ameriquest to BONY they canhave the house. With approx 100K under water it's not worth saving an I can rent a bigger, newer house for the same payment. Since there were origination frauds Ameriquest might have destroyed the evidence including the note. I 've been asking to inspect the note and they kept telling me I do not have the quthority which seems strange. A debtor should have the right to inspect the note may be they don't have it. In the end, whatever happens I've got nothing to lose.

[papie]

Thanks for all the replies. My position is if they can show the properly indorsed note from Ameriquest to BONY they canhave the house. With approx 100K under water it's not worth saving an I can rent a bigger, newer house for the same payment. Since there were origination frauds Ameriquest might have destroyed the evidence including the note. I 've been asking to inspect the note and they kept telling me I do not have the quthority which seems strange. A debtor should have the right to inspect the note may be they don't have it. In the end, whatever happens I've got nothing to lose.

So, if it's not worth saving and you have nothing to lose, why are you putting so much time and energy into fighting a losing battle?

It still seems like you're hoping for some kind of miracle that you're going to get something for nothing.

[justbroke]

I 've been asking to inspect the note and they kept telling me I do not have the quthority which seems strange. A debtor should have the right to inspect the note may be they don't have it. In the end, whatever happens

They don't have to show the note. As a matter of fact, these are usually stored in one of three major warehouses -- known as vaults. In many foreclosure proceedings, the notes are hardly ever even removed from the vault! In Florida, the new foreclosure process now requires the lender to submit the original promissory note with the complaint for foreclosure so that they prove ownership, since almost all notes these days are bearer instruments (indorsed in blank).

For a long time, a "certified" reproduction of the original note was all that it took. However, in Florida and other States, a lost note affidavit is sometimes easier to get than trying to find a "lost" note in the vault.

I still wonder, overspent, what you want? Do you just want to cause delay? Are you just "testing" the system to see what happens? Are you interested in Principal Reduction, and that's a partial motivation? What is this costing you?

Trust me, I think the delay alone may be worth it. There actually have been cases where a BK court allowed a Relief From Stay (RFS) only for the REAL party in interest to come forth LATER and ask for the same thing! I've also seen the same legal firm file two different RFS actions in the same case... for different movants (banks) for the SAME property. Yes, the paperwork has issues, but they usually prevail in the end.

[despritfreya]

I believe that overspent is only trying to delay moving. Overspent has found an attorney willing to look at the issue and file responses to the various motions. In the end, overspent will stay in the home for about 1 additional year, the lawyer will spend countless hours on the issues and hence the legal bill will be ever increasing. Overspent will then either dismiss or convert. The attorney will get what ever money is on deposit with the Trustee to cover legal fees, which probably will not be enough, and have to eat the rest. Smart debtor, dumb attorney.

Des.

[overspent]

Update:

We revised the BAC claim on Schedule D to disputed and asked BAC to file proof of claim. I told BAC, per my budget I can not afford to pay 2450 + arrearage; therefore, if they can show the original note and prove their standing , I will gladly surrender the house. Just like when we go to the bank teller window for some cash, we have to show a properly endorsed check. I can't just surrender to anybody. So far they have not filed a proff of claim yet (benn over 3 months). Waiting for hearing before the judge.


"Removed Case Info"

[justbroke]

You should remove your Case information from your post!