DOH! I've been served!

[BROKEDED]

I walked right in to this one but it's not so bad. I was a witness to a neighborhood fight about a year ago and I was served a subpoena over the phone for a court date this week but was told they would come out and give me the physical subpoenas last night.

They didn't show so when the deputy showed up today with papers in hand, I thought nothing of it until I saw the first few lines while he was holding them. I was afraid that I was only going to get about two weeks notice before the hearing. I believe law in NC states 10 days notice of hearing and then 20 days notice before sell.

The hearing date is the first week of August and the sell date is the end of August so that gives me about 2.5 months before the hearing date to finalize a plan to delay this as long as possible.

[JackBondLove]

So you are being subpoenaed to testify in court as a witness to a fight? What does this have to do with BK?

[ryan]

I think OP was just mentioning the fact he was served a year ago about something else by phone, rather than in person. Now, he's been served personally for a FC action, I believe. ( he references "sell date")

[BROKEDED]

Sorry if I wasn't very clear. I was expecting to be subpoened as a witness. Instead I was served my hearing/sell date papers.

[JackBondLove]

I'm still confused. Are you trying to say that you had expected to be served a subpoena to testify in some criminal case in which some other persons were the defendants, but instead were served a summons about a court case which involves your default to a creditor?

[justbroke]

Since North Carolina is primarily a Deed of Trust State that relies on non-judicial foreclosures, it's very difficult to stall a Trustee sale. Trust me... I tried. Only bankruptcy stopped the sale.

Unfortunately, in a Deed of Trust situation, you don't hold the Deed to the property. It's held by a third party, usually a title company, and also known as the Trustee. They are actually the party enforcing the Power of Sale clause, although they usually name a Substitute Trustee (which is usually a law firm).

[BROKEDED]

I'm still confused.

MY LENDER IS FORECLOSING ON MY HOUSE.


justbroke - The ideal plan is this: Give the clerk of courts a good reason to give me 60 more days which to my understanding they can do by law. (ie. I have a buyer, family giving me money to cure the debt, etc.)

This will fall through, of course, and hopefully a hearing will be set at the end of the 60 days and then a sell date about 20 days later. This will add 3 months, give or take.

Before the new sell date, I would ask my lender for a modification. According to new Banking Commission regulations that go into effect June 1st, the foreclosure process must come to a halt until the lender has extinguished the possibility of a loan modification. I would hope that this would burn up at least another 60 days or so and require another hearing and sell date which would total another 3 months or so. My only concern is that there are some banks/lenders exempt from the new regulations and I'm going to find out where my lender stands here shortly.

Before the next new sell date happens once again, we will file Chapter 7, which is another 3 months. I don't know what we're going to try with the lender during the foreclosure. I've thought of trying to get into a rental agreement, negotiating a buyout of the second and then re-affirming the first, making them evict me, don't know yet. I need to see what the housing market is going to do.

Worst case scenario in a straight foreclosure, is being out of the house by the first of December. Best case according to the ideal situation above, is being out by the first of May next year.

By the way, Met is the lender/servicer, Fannie is the owner.

[justbroke]

BROKEDED, that's alot, but I'm glad that you have both a plan and know that you may need to be out earlier. The entire process in NC isn't very nice, since a Judge really never hears the case... it's just the Clerk of the Court. If you can get the Clerk to agree and get an extension I would be really excited to hear about it!

[BROKEDED]

Haha, you don't sound very optimistic. It's kind of a long shot, I'll admit but my biggest fear is simply missing the obvious and losing a month or three of not paying a mortgage.

As for the Clerk of Court, when I was calling to see if a special procedure had been filed under my name, I asked the Clerk about the process and such. I inquired about delaying the sale and she told me that they could delay it for 60 days and that it could be done but most people did not show up for the hearing so most people never took advantage of it.

I tried to squeeze a legitimate "reason" to delay out of her but she wouldn't bite. Fiddle sticks!

[justbroke]

I inquired about delaying the sale and she told me that they could delay it for 60 days and that it could be done but most people did not show up for the hearing so most people never took advantage of it.

Exactly... people don't usually defend or show up for the hearing.

I tried to squeeze a legitimate "reason" to delay out of her but she wouldn't bite. Fiddle sticks!

Yeah, I don't know the specific reasons. I do know that Bankruptcy would stop it. LOL Even after I surrendered my property in NC, they canceled the sale for at least 15 months (several times over the period) before it finally sold at the end of 2009. Their problem was that they didn't prosecute in the name of the true holder of the note, and had to go file an assignment and start the entire foreclosure process over! Oops!

If somehow you could convince the Clerk that the Substitute Trustee is not representing the true holder of the Note...

I have no real answers... only speculation and probably not any good advice. I don't think that mere begging will delay it.

[BROKEDED]

Well, I had originally planned the "produce the note" tactic. First Horizon Home Loans had it first, then FH and Metlife Home Loans merged and now Met services it but Fannie Mae owns it to my knowledge.

The odds that Met can produce the original might be in my favor but I wouldn't want to bet the farm on that saving me. They might just call my bluff in front of the Clerk. Maybe I should plan a multi-pronged attack and hope that one of them works.

Do you know if the trustee usually shows for a hearing? Can they win by default even if the trustee (and myself) don't show? Maybe the Clerk was trying to say, "Just show up and you can get it delayed.".

Were you still in the property after you surrendered it? And...exactly what do you mean by "surrendered"? Could you have stayed in the property waiting for the sale?

I've wondered how long after the discharge I'll have before it goes to sale. Hopefully they won't ask for the stay to be lifted.