Bagels at a Bar mitzvah Part II
- Thread starter isisis
- Start date
moretrouble
LoanSafe Member
Quiet title case:
R.J.T. Food & Rest., LLC v. ResCap Liquidating Tr., 186 A.D.3d 768 | Casetext Search + Citator
Read R.J.T. Food & Rest., LLC v. ResCap Liquidating Tr., 186 A.D.3d 768, see flags on bad law, and search Casetext’s comprehensive legal database
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moretrouble
LoanSafe Member
By the way, my chapter 13 is going well. Trying to read to get up to speed. Had my creditors’ meeting but no creditor showed up. The trustee filed an objection but nothing too serious. In a bk case, the trustee provides an extra enforcer to your advantage.
The bk courts adopted a new proof of claim form requiring the creditor to account for all missed payments since the first missed payment. In my case, 14 years worth. Now if you know your trust and have your trust loan payment history, you can show the two payment histories don’t match, clearly somebody trying to profit. That’s the case with my loan. One creditor, two accounts, two payment histories. Will see what happens.
The bk courts adopted a new proof of claim form requiring the creditor to account for all missed payments since the first missed payment. In my case, 14 years worth. Now if you know your trust and have your trust loan payment history, you can show the two payment histories don’t match, clearly somebody trying to profit. That’s the case with my loan. One creditor, two accounts, two payment histories. Will see what happens.
Survivor_IN
LoanSafe Member
Notice of error and dual tracking. Current provisions require 6 months delinquency (in order to allow time to cure or resolve past due, such as arranging for or accepting a modification) prior to a lender's move to foreclose a property.
Servicers, per paragraph 22, are required to abide by all "applicable law" in enforcing liens or taking property. This includes federal rules and CFPB servicing rules.
Cover your bases and send a notice of error in order to correct servicing deficiencies leading to foreclosure. Always remember to use certified mail and return receipt on this type of correspondence!
Servicers, per paragraph 22, are required to abide by all "applicable law" in enforcing liens or taking property. This includes federal rules and CFPB servicing rules.
Cover your bases and send a notice of error in order to correct servicing deficiencies leading to foreclosure. Always remember to use certified mail and return receipt on this type of correspondence!
Survivor_IN
LoanSafe Member
now this is interesting, state courts tend to do the opposite (put the onus on borrower versus creditor)
moretrouble
LoanSafe Member
I went in PACER took a peek at one of the contested bk case from a local attorney. The atty fees was $110K. The debtors had to sign a affirmation to pay the attorney. House was forced back to lender. Lost the house, owed the money to atty.
Survivor_IN
LoanSafe Member
Who's attorney's fees? The bank or the debtor? Most notes have provisions for attorney fees. I always thought you could roll your attorney fees into your BK and spread it out just like mortgage. This would sting. It also sounds excessive and unreasonable.
moretrouble
LoanSafe Member
It started out with 3K initial payment. The case went all the way BAP and district court. The 40K was spread out over 5 years and at the end debtor’s atty asked for additional $70K and the judge approved. So worked out to $2K per month. ouch!!! Now I don’t feel bad doing it myself. My state court case must have cost them $200K in profit. Seven attorneys, 2 day trial, 7 years and still going, on my second appeal. Maybe I file a tort case after this.
Survivor_IN
LoanSafe Member
Oh how sweet! An extra 70k? !!! 
My opposition "negotiates" by altering charges and blending in fees here or there on objection(s). My first attorney objected to their rates for those "drive by" prop value calcs and they dropped a couple (which likely never happened). lol There docs and calcs are a sham. Initially they charged 3K for an out of state attorney that never made an appearance! There billing exceeds 150 percent of the loan. These alleged notes only secure 150 percent of the original face value of the loan against the property.
My opposition "negotiates" by altering charges and blending in fees here or there on objection(s). My first attorney objected to their rates for those "drive by" prop value calcs and they dropped a couple (which likely never happened). lol There docs and calcs are a sham. Initially they charged 3K for an out of state attorney that never made an appearance! There billing exceeds 150 percent of the loan. These alleged notes only secure 150 percent of the original face value of the loan against the property.
isisis
LoanSafe Member
Monday there was a hearing for an injunction. This would put an end to mock executions and allow the matter to be decided without the defendants harassment. Unlike a TRO this requires a determination that I would be likely to prevail or however they phrase it.
The judge couldn't make up his on the matter and had questions regarding a tender I'd made a couple years back to stop a sale.
Dude either hasn't been paying attention or he suffers from the common misconception that banks enjoy a unique immunity to contract law: they can enforce but don't need to perform.
Nonetheless, I supplied the published decision showing acceptance of tender is mandated. But the same decision points to tender being unnecessary if the borrower isn't in default. Um, duh.
Kicker in this, if he decides to grant the injunction but requires a bond it may be prohibitive of
continued litigation.
Anyway, I've got two back up plans.
1. File Chapter 13 with the only arrears being the three months during which non payment was induced because when I tendered those months it was refused and they placed me in default so payments couldn't accrue because they were excused. I would pay those three months and escrow through the plan and resume payments on the loan. This might work if bankruptcy court unlike civil court thinks that contract law pertains to the DOT. It would be pricey though, still that would be made up with in equity. Though as More Trouble pointed out a BK tanks your credit so equity becomes a largely academic concept for awhile.
2. File a complaint for repudiation to terminate the contract for failure of consideration and refusal to perform (same thing).This could be done through the court system or perhaps using an "extrajudicial" legal "self-help" remedy. More about that later.
Right now still waiting for the decision on the injunction.
The judge couldn't make up his on the matter and had questions regarding a tender I'd made a couple years back to stop a sale.
Dude either hasn't been paying attention or he suffers from the common misconception that banks enjoy a unique immunity to contract law: they can enforce but don't need to perform.
Nonetheless, I supplied the published decision showing acceptance of tender is mandated. But the same decision points to tender being unnecessary if the borrower isn't in default. Um, duh.
Kicker in this, if he decides to grant the injunction but requires a bond it may be prohibitive of
continued litigation.
Anyway, I've got two back up plans.
1. File Chapter 13 with the only arrears being the three months during which non payment was induced because when I tendered those months it was refused and they placed me in default so payments couldn't accrue because they were excused. I would pay those three months and escrow through the plan and resume payments on the loan. This might work if bankruptcy court unlike civil court thinks that contract law pertains to the DOT. It would be pricey though, still that would be made up with in equity. Though as More Trouble pointed out a BK tanks your credit so equity becomes a largely academic concept for awhile.
2. File a complaint for repudiation to terminate the contract for failure of consideration and refusal to perform (same thing).This could be done through the court system or perhaps using an "extrajudicial" legal "self-help" remedy. More about that later.
Right now still waiting for the decision on the injunction.
isisis
LoanSafe Member
Razmic,
I was wrong. It's not 30 but 60 years under the Marketable Record Title Act Civ. Code, § 880.020.
The power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation if the trust deed does not state the last date for payment.
If your recorded deed states the last date of payment the SOL is 10 years. If the last date isn't stated it's 60 years. Also keep in mind that during the time you've been in litigation on the matter the SOL stops running.
There's six year SOL on the note so presumably if you ar argue that they've breached the DOT then it no longer secures the note so enforcement might be time barred.
At least that's my understanding but this is a complicated issue so don't necessarily take my word for it.
I was wrong. It's not 30 but 60 years under the Marketable Record Title Act Civ. Code, § 880.020.
The power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation if the trust deed does not state the last date for payment.
If your recorded deed states the last date of payment the SOL is 10 years. If the last date isn't stated it's 60 years. Also keep in mind that during the time you've been in litigation on the matter the SOL stops running.
There's six year SOL on the note so presumably if you ar argue that they've breached the DOT then it no longer secures the note so enforcement might be time barred.
At least that's my understanding but this is a complicated issue so don't necessarily take my word for it.
Survivor_IN
LoanSafe Member
I have to digest this one, Isisis.
I'm trying to understand why there is no provision for acceleration in section 2911. Sometimes there is an acceleration clause in the mortgage (or DOT?). I would think this would provide an official due date, on a party filing a lis pendens or other court document or notice, so that they are in compliance with the CFPB 6 month wait prior to FC. Cali is difficult because some of these laws contradict CFPB protections. Cali needs to revise these antiquated foreclosure laws. I thought 15 years on a contract was bad but 60 years???? There is no clear answer where each case would be individualized in court according to DOT verbage.
I'm trying to understand why there is no provision for acceleration in section 2911. Sometimes there is an acceleration clause in the mortgage (or DOT?). I would think this would provide an official due date, on a party filing a lis pendens or other court document or notice, so that they are in compliance with the CFPB 6 month wait prior to FC. Cali is difficult because some of these laws contradict CFPB protections. Cali needs to revise these antiquated foreclosure laws. I thought 15 years on a contract was bad but 60 years???? There is no clear answer where each case would be individualized in court according to DOT verbage.
moretrouble
LoanSafe Member
The bank filed an objection to my plan, still pretending I owe $600K while loan schedule says $170. I am asking the court to delay the confirmation until after claim process. There is no law against stating a wrong figure in the objection but there is one in filing the claim. I am also considering dismissing the bk case and file a civil case in the District Court. Stay tuned.
isisis
LoanSafe Member
Injunction denied. The judge is either a bit challenged in his capacity to reason and apply logic to simple circumstances or he's bank owned. He's certainly deficient in his grasp of contract law. He's of the mind that prevention is something overt, perhaps involving threats or restraint and he fails to recognize that the lender it's under an obligation to cooperate with the borrower's performamce.
Not camping happily.
Not camping happily.
moretrouble
LoanSafe Member
The opponent filed a POC. I’ll be busy. The case will be interesting.
moretrouble
LoanSafe Member
Had some time to study the submitted claim. Basically, the same claim that was submitted in 2010 case. I can just rehash what I pleaded in my Challenge To Execution in the state court with the hope that the bk judge and the trustee are not blind like the state court judge and their judgments are higher than a fifth grader. Just have to go thru the process, got nothing to lose. By the way, the attorney fees in the BLENDHEIM case was over $165K. Pro se is the way to go.
moretrouble
LoanSafe Member
Merry Christmas to my fellow fighters.
I finished all my amended schedules and submitted a new plan so I can enjoy Christmas with the kids. According to law, I have to continue to make regular mortgage payments to keep the house, so surrender the property in the new plan. They just have to make sure they have the right to sell it. Otherwise, I’ll ask for 3 times the damages plus 20 times for punitive damage. Will file and serve a subpoena after the new year.
I finished all my amended schedules and submitted a new plan so I can enjoy Christmas with the kids. According to law, I have to continue to make regular mortgage payments to keep the house, so surrender the property in the new plan. They just have to make sure they have the right to sell it. Otherwise, I’ll ask for 3 times the damages plus 20 times for punitive damage. Will file and serve a subpoena after the new year.
moretrouble
LoanSafe Member
Filed a claim objection yesterday and had my plan confirmation hearing today. I asked the judge to deny my current plan to file the new plan in 7 days surrendering the property, then another hearing. Judge told me to get a lawyer, I told him with my case - cost prohibited- I like to do it myself. New plan, subpoena, reply to opposition to claim objection, adversary proceeding, BAP appeal, appeal to district court, 9th circuit....It's going to be a while... 200K attorney fees to them, Opposing attys must love me.
Survivor_IN
LoanSafe Member
Has anyone else watched this Frontline Documentary, "Easy Money?" We have now been through 2 cycles of Quantitative Easing for different emergencies, one for the Great Recession and one for the pandemic! What I found interesting was the acknowledgement of financial markets and the shadow bank developments, taking advantage of the Feds attempts to stabilize the economy.
(2 hr)
(2 hr)
moretrouble
LoanSafe Member
Yes, I watched this. An example is NewRez took advantage of the low rate, sold bonds at 3% to fund servicing advances for subprime defaulted loans, in effect paying down the balances of those loans , while recording the balances at default then adding the advances for interests, taxes, and fees, then foreclose and pocket the difference. About to be exposed in the bankruptcy court.