Responding to Notice of Claim and/or Objection

[johnna]

Chapter 13 question, after creditors meeting but before plan confirmation. The junior lender on my residence filed a Notice of Claim. Shortly after, they filed an objection. Do I reply to the Notice of Claim or to the Objection? Or do I try to negotiate something with the junior lender outside of the court prior to filing anything? I have issues with the junior lender that include them charging us pre-petition interest when our mortgage documents do not allow for it, the note is not made payable to my junior lender, and the junior creditor failed to complete the claim form with such things as a breakdown of fees and costs being charged to us. We are pro-se filers. I just need to determine if I should file actions with the courts or try to settle with them first? I hate showing my hand to them. Not to mention being treated as if I don't have a brain because I am not an attorney. Per the Trustee's recommendations, it says we are to settle such objections.

[LadyInTheRed]

I moved your question to its own thread in our pro se filers forum where you may get more focused help. But, I think what you really need is an attorney. I Chap 13 is difficult enough to file pro se. Fighting a creditor makes it even more important that you have an attorney to help. A trustee might be willing to give you a little procedural guidance, but the trustee is not there to protect your interests. He is there to administer the bankruptcy estate for the benefit of the creditors.

I can't be of much help, but it sounds to me like you need to both object to the claim and respond to the creditor's objection. Was their objection to your plan? What was the basis for their objection? If the creditor objected to your plan, it is true that you should try to come to an agreement on how to resolve the objections before the confirmation hearing. This may require you to amend your plan. Or, you may decide you can't reach an agreement with the creditor and fight the objection. Even if you may eventually settle, there are deadlines to object to the claim and respond to an objection that you need to make sure you don't miss.

I highly recommend you find an attorney to help you. Not being an attorney does not mean you don't have a brain, but it does mean you may not have the experience or knowledge of bankruptcy law and procedures that is necessary to get you through this. The members of BKforum may be able to provide you some guidance, but we are no substitute for a qualified local attorney.

[johnna]

I have had such bad luck with attorneys....they are not invested in this the way that I can be. I am a paralegal and know this takes lots of research, research, research. I spend most every hour available just reading and researching.

Update....filed an Objection to POC. My junior mortgage lender filed an amended POC and did not address any of the issues raised in the objection other than standing. Attached to the original POC was an Allonge from the original Lender Bryco Funding Inc. to WMC Mortgage Corp. (both names hand written on the document). WMC is not my current lender, hence the lack of standing.

Attached to the Amended POC filed last week is (1) an Allonge whereby the name "WMC Mortgage Corp." is typed and there's a "Pay to the order of Franklin Credit Management Corporation, without recourse" stamp executed by Jessica Fuentes, Assistant Secretary WMC Mortgage Corp. and (2) Allonge marked "Pay to the order of: Deutsche Bank National Trust Company, as Certificate Trustee on Behalf of Bosco Credit II Trust Series 2010-1, Without Recourse" executed by David Behler, Delinquency Manager, Franklin Credit Management Corporation, and witnessed by Giselle Olivera. #2 is new and never seen before and David Behler is an employee of my junior mortgage lender's servicer.

What is suspicious is it appears that they took a copy of the Allonge filed by my first mortgage lender, "revised" it and attached to the amended POC. The first indication was the original Allonge showed the lender's name as handwritten and now it's typed in. The first allonge did not have a stamp on it from WMC, the amended one does - in the same exact space as the one marked on my first mortgage lender's allonge.

Question is: do I file another objection to amended POC? Or should be filing something else?

In addition, I want to see the original note/allonge. I want to see if the lender's name is handwritten or typed. Can I request a meeting to see the original note/allonge?

[justbroke]

Question is: do I file another objection to amended POC? Or should be filing something else?

In addition, I want to see the original note/allonge. I want to see if the lender's name is handwritten or typed. Can I request a meeting to see the original note/allonge?

Typically if you file an objection to proof of claim, and they respond, you should request a hearing. I don't know what despritfreya may say about Arizona procedure, but in most Florida bankruptcy courts, the bankruptcy judges do not want to argue (securitized-mortgage) standing in the Federal court. Many of the FL BK judges send it to State non-bankruptcy court where it probably belongs.

But, having wrote that, did they file a response or an opposition to the objection to POC? At least in Florida, we can do these on (judicial) negative noticing meaning that if there's no response to the actual objection, within 21-30 days (I can't remember which period), and the motion/objection was properly formatted with the notice, then the movant could send a proposed order to the judge. The judge would then take everything into consideration without a hearing. Otherwise, you need to request a hearing. That's why, in many of my objections to POC, I put "REQUEST FOR HEARING" in bold in the caption space. Your procedures for Arizona Bankruptcy Court are likely different.

In fact I changed my mind on what I would have done.

You're in a Chapter 13? If I were in Florida and trying to avoid a lien on any claim that secures property, I would have filed a Motion to Determine Secured Status and Avoid Lien. It would start a controversy and there would be a preliminary hearing and then one or more trial dates (unless your judge likes to carve out 4-hour trials in the afternoons). Again, negative noticing works in my State so there may actually be no hearing.

You are attacking standing -- for a securitzed mortgage claim -- which some (many?) bankruptcy court judges don't like to deal with. In Florida, most of the BK judges that I have personally dealt with send these types of issues back to State non-bankruptcy court (probably where they belong). I actually say this from experience attacking standing on a securitized mortgage. Mine had actual issues (no stamps at all).

[johnna]

They just filed an amended POC. I had also objected to such things as their accounting. They are seeking default interest and the DOT and Note do not allow it. They did not remove or defend it in the amended POC. They failed the first time to itemize costs. Amended POC fails AGAIN to itemize costs. I attached to my objection a ledger from the lender showing where they were taking post petition payments and applying to pre petition payments. Fees on the ledger were dated in 2014-2 years before this filing. They left all fees as due in the amended POC. The filed amended POC was minimally prepared. Not to mention, they failed to address that my DOT was recorded 2 different times and each DOT has taken a different assignment path. The original POC referenced one DOT but attached Assignments not for that DOT. The amended POC attaches the correct Assignments but this DOT was not assigned to the substitute trustee as part of the Trustee's Sale.

I was starting to draft a Complaint to determine the Validity, Priority or Extent of a Lien or Other Interest in Real Property and Petition for Injunctive Relief.

I'd love to see the original note-one copy is attached to the POC as handwritten and the one attached to the amended POC is typed.

[johnna]

One DOT is assigned to Bosco Credit II Trust Series 2010-1 and the other DOT is assigned to Deutsch Bank National Trust Company, as Certificate Trustee on behalf of Bosco Credit II Trust Series 2010-1.

Is this the same?

[justbroke]

One DOT is assigned to Bosco Credit II Trust Series 2010-1 and the other DOT is assigned to Deutsch Bank National Trust Company, as Certificate Trustee on behalf of Bosco Credit II Trust Series 2010-1.

Is this the same?

Based on my experience, that is usually how securitized trusts are done when there is a Deed of Trust (DOT) rather than a Mortgage. With a DOT they have to name a (new/same) Trustee each time down the chain. The original DOT would have been in the name of the original Creditor; Bosco Credit. When they placed it into the trust, the trustee (of the Trust) is named; Deutsche Bank NTC as... of Bosco... 2010-1. The "Trustee" for the DOT itself is usually some attorney/trust management company local in that State (at least that's how mine worked for North Carolina).

Attacking the securitization process, the pooling services agreement (PSA), or parts of that process are usually a non-starter for the mortgagor since they are not a party to the PSA, the "bankruptcy remote" entity, or the real estate mortgage investment conduit (REMIC). I tried since my mortgage didn't make it into the pool I was assigned, technically. It's not my issue, it's a tax issue for the series.

As I wrote, maybe despritfreya may nudge you, but I personally started with a standard Motion to Determine Secured Status and Avoid Lien through motion practice (under FRBP 3012).

Ask the clerk to set it for hearing. You never know how the judge is feeling.

[despritfreya]

To all,

At the moment I cannot respond to the above. Just had a death in the family and will be unavailable for a day or so. Sorry.

Des.

[justbroke]

Oh Des, take care of yourself and your family first -- which I see that you're doing. So sorry for your loss and so sorry to keep tagging you.

[johnna]

Sorry for your loss. Family first!!

I will keep plugging along and really appreciate all of the guidance.

[despritfreya]

Ok, I’m back for the short-time. Family coming into town on Saturday with the funeral on Monday so my posts may be spotty. I thank all for their well wishes.

johnna

I have looked at both POCs that were filed and your objection to the 1st POC. As you know, I do not subscribe to the theories raised especially if you have not been banking the post petition monthly mortgage payment. Regardless, your Objection reads well and is very professional. You have a good judge and she will appreciate your efforts.

The amended POC purports to correct the deficiencies you raised. I see assignments that were filed in 2014 trumping that 2016 assignment attached to the first POC which references the recorded Deed of Trust ending 31. The 31 Deed of Trust was filed 8/18/06. One does have to wonder how that 2016 assignment made it into the mix if the lender is relying upon the second recording of the Deed of Trust - very sloppy of the lender’s part.

From what I saw of the series of 2014 assignments Bryco gave to Franklin, Franklin gave to Huntington, Huntington gave to Bosco and it is Bosco who currently “holds” the beneficial interest in the Deed of Trust. Each of these assignments references the recorded Deed of Trust ending 73. The 73 Deed of Trust was recorded 8/29/06.

In addition, the promissory note apparently went from Bryco to WMC, from WMC to Franklin and then from Franklin to Bosco.

Thus both the note and the Deed of Trust are held by the same entity as far as I can tell.

As to the issue of the re-recording of both your 1st and 2nd ten days after the initial recordings, my only comment (and I may have said this when we initially discussed this at the other forum) is that there may have been some deficiency with the first recordings and the title company “corrected” the problem with the second recordings. Normally a re-recording will have a cover page that states the document is being re-recorded because _______. Yours do not have such a statement which takes me back to my initial concern of the differences in your signatures on the second recording. But, such is not my area of expertise so I do not know what to make of it.

If you believe there is still an issue now that the Amended POC has been filed, you need to file another objection. This time it is an Objection to the Amended POC and must be based upon the problems you see in that claim. Assuming the lender files a Response (as opposed to another Amended POC) you then request a Hearing on the Objection. Please make sure to review and follow Local Rule 3007-1 see:

http://www.azb.uscourts.gov/rule-3007-1

Hope this helps.

Des.

[johnna]

Couple of notes....the DOTs for both my first and second mortgage were re-recorded days later and neither has any reference to being re-recorded for any reason.

Review of the Allonge attached to Deutsche Bank/Bosco Credit amended POC shows the following differences as compared to the Allonge attached to the initial POC:

Allonge attached to initial POC	Allonge attached to amended POC
name "WMC Mortgage" as handwritten (upper left of page)	"WMC Mortgage" is now typed (upper left of page)
No endorsement on Allonge	endorsement/stamp specifically to "Franklin Credit Management" - my Servicer endorsement in the same position on document as Allonge attached to Deutsche Bank/Ocwen (1st mortgage lender) Query: Why would Allonge reference my Servicer? Would the Servicer be the purchaser of the loan from WMC Mortgage? Why would the endorsement not be blank as was the case with my first mortgage lender, Ocwen.
copies marked as certified copies	copies not marked as certified copies copies attached are very clear copies copies are reduced in size, as compared to those attached to initial POC, except WMC endorsement is the same size as that marked on the 1st mortgage lender Allonge All signatures in color ink, except WMC endorsement Name Bryce Angell and Title CEO appear to be touched up, as does endorsement/stamp to Franklin Credit
Made payable to WMC Mortgage	Made payable to Franklin Credit Management Corporation Franklin Credit Mortgage Corporation is my Servicer. STILL missing is the Allonge endorsed to Deutsche Bank, on behalf of Bosco Credit, my current Lender!

Things that make you go hmmmmm....where did the handwritten Allonge go to?

The amended POC does not address other objections raised:
(a) wrongfully charging interest not allowed by my loan documents;
(b) failed to itemize, or dispute the fees and the ledger I attached to my Objection; and
(c) didn't acknowledge or address the two DOTs recorded and the impact this has to our title (Notice of Trustee's Sale recorded on only one of the DOTs), not to mention the different paths those two DOTs took.

I was communicating with MERS via email last week until I asked how no one knew there were two DOTs recorded if MERS was responsible for overseeing the "assignments" of my loan. The emails stopped - crickets. I placed a call to MERs help desk and again was told their role was to know who "owned" my loan, however, MERS had no record of two DOTs. But they wouldn't confirm for me which one they had on their system. The call was cut short.

Why do I have to keep bringing these discrepancies and/or missing documents to the court's attention? Ugh!! In addition to the glaring discrepancy between the two Allonges (handwritten vs. typed), the lender still has not produced an Allonge payable to Deutshe Bank on behalf of Bosco Credit. Just give them another 2 weeks to manufacture another Allonge.

I want to ask to see the original note and am willing to travel to see it. Which would they produce - the handwritten one or the typed one?

Thank you for taking time away to take a look at this for me and thanks for the compliment on my objection - had to dust off my paralegal skills in the litigation area (I do transactional/real estate). I keep reviewing local rules to make sure I am in compliance. I spend a lot of time lately reading......reading......and more reading.

Again, sending prayers to you and yours during this time of loss. I really appreciate you taking the time to assist me in my journey. Thank you. Thank you. Take Care.