Tenants in common

[Vikingsmom]

Hi,
My company is Saxon (bank of new York Mellon) we owned the house as tenants in common (Michigan) the note Saxon has they wrote in joint and crossed out "in common" my papers don't have that crossed out. The deed/title was one of those done thru MERS so only ones listed are MERS and equity consultants (which sold us to Novastar who sold us to Saxon) they filed an assignment after they put us in foreclosure. The affidavit is attempting to show chain of title but equity consultants and Novastar are both non existent. The vice president for MERS that filed this is on a list of robosigners in fact I found him as a notary on other documents. The other owner filed chapt 7 and did a quit claim to me, I filed chapt 13. They filed a motion to lift the stay in the chap 7 case and an order to continue foreclosure was approved. What does that mean for me? Do you think I can do anything about those assignments seeming fishy? Help!!

[justbroke]

What is your endgame? That's the real question.

If you're trying to delay the foreclosure, you can probably do so. A "tenancy in common", under Michigan law, means that you each own a 100% undivided share of the property. This is equivalent to Florida titles having the owners names connected by the word "or" (instead of and). So, if the title reads "John Doe or Jane Doe", that's a "tenancy in common". The property could be sold or otherwise conveyed by either party without the consent of the other. However, if the title had "and" as the preposition, "John Doe and Jane Doe as joints tenants. They would each own a divided 50% interest in the property.

I don't think it matters on the title anyhow, since the other party quitclaimed (QC) the property back to you, so you are the sole legal owner of record.

As for the assignments, they typically need to be executed and/or recorded before the filing of the lawsuit. To tell you the truth, if you're just trying to delay game, then you could probably attack the assignments and delay the foreclosure. In 99.9999% of the cases, the Bank eventually gets their paperwork in order. As one judge put it, the fact that the party trying to foreclose may not be the correct party, there is a mortgage recorded in the public record that the debtor signed. The question is only who the right party to foreclose is and who the debtor owes money to. Most judges simply ask defendants to foreclosure, "did you pay"?

If you are going the delay route, then I would recommend spending the $1,000-$2,000 for a foreclosure defense attorney. (That's about the rate in Florida with $1,500 being average.) Most judges won't even speak to the homeowner who is pro se -- simply asking them in open court "did you pay?"

As for the automatic stay, a new one was put in place when you filed. The creditor would need to seek relief from the stay (RFS) in your case as well. What are you planning to do?

[Vikingsmom]

I plan on staying in my house. I was just curious since they clearly did the assignment after the foreclosure if they could even foreclose to begin with. Hopefully all goes well in my bankruptcy. Now if I complete the bankruptcy can they do anything after my discharge or can they order a lift on the stay because of the other owners bankruptcy?

[justbroke]

If the property is in your Chapter 13 Plan of Reorganization, and is confirmed... they can't seek a relief from stay or move to foreclose. The only way they could, is if your Plan doesn't provide for payments, you miss payments, or the Plan can't be confirmed. So long as the property is provided for in your (confirmed) plan, you should be fine.

They should not be doing anything with the foreclosure at this point since your Chapter 13 started a new stay.