Misapplied Payments NOW CHASE wants to FORCLOSE

[Cramdown]

Chase seems to be up to a real cute game lately. I had two checks for my monthly payment Nov./Dec. returned to me. I was told by my BK lawyer that Chase is foreclosing due to non-payment in 2009/2010. Well, I found out, due to my own research, that my bi-weekly payments were being mis-applied, so therefore my payments were showing late.



My question is this.... anybody here had any luck with suing Chases ass for "wrongful foreclosure"?


As far as I'm concerned, it's on now!!!!!


Thanks in advance for any advice======hugh

[tobee43]

unfortunately Alabama is a non judicial foreclosure state which means that a foreclosure does not have to go through the court system.

because of that, a judge cannot intervene with the process and force the bank to work with you unless you jump through some hoops (listed below). are you behind now? now that the payments have been located?

i found this info with a quick search, i changed a few things around because there were names but it's about your state, it may be helpful to your situation.


Stage One – Before the Foreclosure

This is the time when the mortgage company – normally the servicer – notifies the consumer that the loan is being accelerated and that a foreclosure sale will occur in 30 or more days.

The foreclosure sale must be advertised in the proper paper in the county where the property is located – normally for three consecutive weeks.

During this stage the consumer is normally trying to do one of the following:

obtain a loan modification,
reinstate the loan,
obtain another loan,
seek advice from a bankruptcy lawyer on filing a chapter 13 bankruptcy to stop the foreclosure, or
contact a consumer protection attorney to see if they can sue the mortgage or servicing company for breaking the law which will have the effect of normally stopping the foreclosure sale.

A modification is a change in the terms of the loan. Perhaps the past due interest and principal will be put at the end of the loan. Or the interest rate will be modified. Or the mortgage company will accept partial payments. This is the area in which the most rampant fraud occurs as the mortgage company or servicer will often promise to modify the loan, the consumer will rely (believe) the lie and then be damaged when the foreclosure sale happens.

Reinstating the loan means to bring the loan current or to pay a portion of the alleged amount owed so that normal monthly payments are resumed and the foreclosure sale is cancelled. Again, we see lots of fraud in this area as mortgage companies and servicing companies will tell Alabama consumers that a payment of, for example, $5,000 will stop the foreclosure sale and then the next month normal payments will resume. Instead of honoring its promise, the company will take and cash the $5,000 and then foreclose anyway saying the $5,000 was not enough to bring the loan current.

Often consumers will try to obtain a new loan but this is difficult given the negative credit marks that are normally on the consumer’s credit reports due to the late mortgage payments.

Many consumers look to a bankruptcy attorney to see if filing a chapter 13 bankruptcy is a good option to stop the foreclosure sale. Chapter 13 can be effective at stopping a foreclosure, at least temporarily, but one must still address the underlying issues of illegal charges, fraudulent statements, improper notification of the foreclosure, etc. that we discuss in our article here on Wrongful Foreclosures In Alabama.

Finally, some consumers who are in Stage One seek information and advice from a consumer protection lawyer that has an understanding of how foreclosures work, particularly in the context of securitization. you may want an experienced consumer protection attorney, you can better understand if you have a valid lawsuit to file against the mortgage company or the servicing company. Along with the lawsuit, sometimes it is appropriate to file a Temporary Restraining Order (TRO) to get a judge to order the foreclosure sale to stop. Other times the mortgage companies figure out it would be foolish to go forward with the sale after we have filed a lawsuit against them.

Stage Two – After the Foreclosure

When the consumer is unable to stop the foreclosure sale, then it must occur on the advertised date. This seems obvious but sometimes the mortgage company will decide to do it on a different date and unless proper notice is given of this change, the sale may be considered an illegal sale. But assuming the foreclosure sale occurs on the day it is supposed to occur, what happens at the sale and what happens next?

The sale normally occurs at the courthouse or the more precisely on the courthouse steps. Whoever is the high bidder will be able to buy the property. Sometimes this can be investors but more often it is the company that claims to own your note right now.

The new owner will then record a foreclosure deed in the probate court of the county where your home is located.

Normally the day after the foreclosure sale a letter will be mailed to you (certified and regular) from the lawyer representing the new owner informing you of the sale and advising you to leave or vacate your home within 10 days. If you don’t leave within 10 days, you can lose your right of redemption

You will have a decision to make. Do you leave your home and preserve your right of redemption or do you stay in your home and force the new owner (normally your mortgage company) to sue you in what is known as an ejectment lawsuit (Stage Three below)?

This area (and all of the areas we mention in this article) should be evaluated with a lawyer you trust but here are some general considerations:

Do you want to stay in your home?
Do you have a legitimate lawsuit that you could file either directly or as a counterclaim to the ejectment suit that will be filed against you?
Who bought your home – the mortgage company or an independent person or company?
Are you prepared to fight or do you want this matter to end with you losing your home?

There are many other considerations based upon your unique circumstances that we can discuss but these will give you a sense of what you might should think about as you decide whether to leave your home or not. Also understand that whether you leave your home or not does not impact whether you owe a deficiency on the mortgage. A deficiency is where you owe more than what was recovered at the foreclosure sale.
Stage Three – The Ejectment Lawsuit

If your home was sold at the foreclosure sale and if you do not move out in ten days, you will often be sued by the alleged new owner of the property to evict you (or eject you) from the property. Often a request for any deficiency is made in the lawsuit as well as a request that the judge “declare” that you have lost your right of redemption.

As we have discussed in the context of a debt buyer lawsuit, you need to make sure you answer the complaint. Normally you will have 30 days to answer the lawsuit. Most people don’t answer and therefore a default judgment is entered against them which includes being ordered out of your home.

So answer the lawsuit. Some people feel comfortable doing this on their own – if you are in this category then the advantage is you will save money on legal fees but the disadvantage is you will not have the expertise of a litigation attorney. Keep in mind that judges will expect you to know the law if you are acting as your own attorney.

Others want to hire a lawyer. Keep in mind that some lawyers have never been in a courtroom. There is nothing wrong with this but you need to understand if the lawyer you are looking at has tried cases, taken depositions, handled appeals, etc in the civil context.

Regardless of how you respond to the suit, along with your answer you may want to consider filing counterclaims against the company suing you if it is the original mortgage company that foreclosed on you. We will often add, in our counterclaim, the servicing company and other companies that were involved in any fraud, breach of contract, negligence, etc. in handling the loan payments, inspection fees, etc.

There is power in being the defendant and filing a counterclaim. Think of it this way. The mortgage companies/servicers have lied to you. Broken the contract. Probably don’t even have the right to do anything with the loan as they don’t know who owns the loan. On top of this they threatened to foreclose. Not only did they threaten to foreclose but they actually had the audacity to sell your home on the courthouse steps to themselves. Then, to kick you while you are down, they threaten you with eviction. Then to top everything else, they sue you. Now you sue them. This gets rid of all of the bogus arguments that you are “sue happy” or looking for a reason to sue these guys. They have done all of this to you and now they sue? If you ever want a chance at justice and you have legitimate claims, you have to make those claims now in most cases.

Few other points – since the mortgage company sued you in Alabama, most judges will make their “corporate representative” come to Alabama to give a deposition. After all they chose to sue you here so they should have to come here. Being the defendant you can often keep the case in state court (where you were sued) rather than go to federal court. There are advantages and disadvantages of both courts but you do have some options as the defendant.


Conclusion

No matter what stage of foreclosure you are in you have options if the mortgage company or servicing company has violated the law.

Gain knowledge of your rights; and
Take action!

[Cramdown]

Thanks for the great info TOBEE43.........


Yes I do want to stay in the home. I have been in the home since 2006. I am already in BK13 and under the plan I have been making my payments EVERY MONTH!! I guess if you choose not to include the 3 or 4 time I made a "bi-weekly payment, then I am in breach of the plan. I am not the one that decided to put the money in different buckets......CHASE did!!!!! My BK lawyer said I have 3 options as of right now.....

1) He was going to contact Chase's lawyer to see if there was something that could be worked out.

2) My lawyer would file this and that and get a judge to look at it. (Not sure what all he meant here on this option as I did not understand all the legal mumbo jumbo is was talking.

3) File BK.....AGAIN!!!

Not sure what to do hear but sit and wait. My lawyer is to contact me by the end of this week. Why should option 3 even be choice to save the home?? I'm pretty sure the amount of $$$$$ is ungodly with all the BS fees that Chase has added on. My principal on my home is not going down, it's going up!!! Back where I started in 2006. This is such a damn scam in my mind that Chase is trying yo run here. Why are they owning up to their mistake and trying to help me out. Don't they realize what shape the economy is in right now. You would think they (Chase) would be wanting to help me....yeah right!

[tobee43]

personally i would see if the atty's could straighten this out first and then i would go to option number 2. i think once a judge sees what has happened, i would like to believe chase will have to step back.

i so know what you are talking about with chase. they are our bank or were my bank. we were right in the middle of our loan mod when we were served with papers of foreclosure. thing is we called their bluff since we'd been living there over 30 years i think the last thing they thought is we would walk, but we did. here it is over 4 years and chase still hasn't foreclosed. they had the nerve to call a few months back and ask what are intentions were or are on the house. what is it about surrendering you don't understand. we now live out of state! they are just jerks, just for a lack of a better word, one hand certainly doesn't know what the other is doing that is for certain.

lately, judges are not taking kind to banks throwing people on the streets and with all you have going in your case i would have no problem going up in front of a judge with all my proofs. just make certain you are comfortable with your atty and he/she is 150% in your corner. contrary to what we want to believe, many deals are made that we are not privy to, so make certain you have faith with who is representing you. i would have them go after legal fees as well...as one would say this falls into the category of the "but" for law. but for the terrible humans at chase you would not be doing this today.

if you are already in a 13 there must be great records on your past payments. so i think or hope you got them good on this one!