Foreclosure in Thousand Oaks>Question Details

Martha, Home Seller in Thousand Oaks, CA

About rescinding a mortgage.

Asked by Martha, Thousand Oaks, CA Sun Jan 31, 2010

If it was done by a real estate lawyer the correct and legal way. And that there is a paper trial proving this. And that the mortgage bank still ignored it and forclosed on the home .Not telling anybody ( including the lawyer). Suddenly there was just a 3 day notice.
How common is this? And is this ever heard off? I have been able to get this info neither has the lawyer. He is just as suprised and chocked as I am.

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27
Martha. This really does sound like a mess. Is there anything in the public records that shows that you have a dispute with the bank (lis pendends). If they keep selling the note, they might try to sell the property at an auction and a third innocent party may end up buying it not knowing what they are getting into. I am also not clear on how they can sell a note after the foreclosure. I know you have received a 3-day notice, but have you been served with a summons for an eviction? Like I said, this is a mess and you won't get an answer to the problem here on Trulia. Looks like this will have to be sorted out in court and it's too bad you have to spend money on an attorney to deal with this. I hope they'll order the bank to pay your attorney fees.
1 vote Thank Flag Link Tue Feb 2, 2010
Ute Ferdig -…, Real Estate Pro in Newcastle, CA
MVP'08
Contact
Hi Martha,
I appears that your situation is quite unique and we all hope you are now on the road to a positive resolutiion. Once you have determined whether the foreclosure was, in fact, legal or not, you can begin the process of repairing your credit (assuming you were not treated properly on the non-judicial foreclosure).

We offer assistance 24/7 on our website, where Ventura County homeowners can find foreclosure help online. I hope this can be a useful resource for you as well.
0 votes Thank Flag Link Sat Mar 20, 2010
Thank you Bob for the link.

I will read it more in detail later today.

I do know (more I do have a good faith) that I will whin this situation.
I do know it is very odd and strange.

But I dont give up at all.
And since it is has been going on for so long. I started to talk to the bank way back in the summer off 2007.
I do think that the banks /investors involved) dont know any more who owns the house, where it went wrong and/or what to do. And somebody ( probably more than one person) do know something that this has been handled very poorly and not legal.
Other weise I would not be in the house any more.
0 votes Thank Flag Link Fri Feb 5, 2010
Martha,

Here is an interesting link related to your situation.

http://www.mortgagelawnetwork.com/2008/11/23/solving-the-for…
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Thu Feb 4, 2010
Bonnie Sterling.

Thank you for your input. However my house was foreclosed on in 2008. And i am still in the house.

I am not going anywere til this is done.I did get one unlawful detainer over a year ago. Challanged it and filled out my objcetions in the court house. Then nothing til the summer about the same week as TB&W got raided.
After that nothing.
My lawyer has called around and talked to a lot of people. And every time he asks who ows the house they hang up.
This whole think is very odd and strange.
I have had houses for the last 30 years and never run into something like this.
0 votes Thank Flag Link Thu Feb 4, 2010
Hi Martha, This would be common even if your loan was not a legal matter. It is like bank departments operate in silo's...each not knowing what the other department is doing. This happens when the seller thinks they are working on a short sale and then the bank sends them a notice for trustee sale. The one department handles one thing and the other department handles another. There was actually a case just like this on the news the other day. The banks comment was that they acted within their legal right to foreclose while the short sale process was being considered. When you are a big bank apparently acting in good faith, is not necessary. Well, as sellers consider how underwater they are and make strategic foreclosure choices, maybe banks will get it together but more than likely, they'll just go to the government for more of our tax dollars, too bad we cant do that.

Good Luck to you Martha, I'm afraid it sounds like you will probably be continuing your legal action from another residence. Don't be surprised if even your lawyer is not able to stall the foreclosure proceeding.
Web Reference: http://www.ConejoLiving.com
0 votes Thank Flag Link Wed Feb 3, 2010
Thank you Bob.

It does help.
Just want edit what I wrote in the last comment.

TB7W lawyer ( at the time) did not answer to any calls, faxes or emails at all.
0 votes Thank Flag Link Wed Feb 3, 2010
Martha,

Good inforomation. Here is about as far as I can help you.

I can't find my contacts and sources for this information so I have to go from memory, which is hopelessly error prone. Last year seveal buyers in Washinton and Oregon (I beleive) sued their lenders after foreclosure. They won and were able to unwind the foreclosure!

The court cases were related to the CDO/CMO contracts and foreclosure while the sellers tried to short sale or loan mod so your lawyer is going to have to compare your situation to those court cases, but there is precedent. The owners went on the offensive and won.

I hope that helps. If in the enxt day orso I can find my source. Ill repost.
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Wed Feb 3, 2010
Thank you for all the answers.

The last bank that had the mortgage before foreclosure was TB&W.
My lawyer did try to commuincate with (at the times they did have a lawyer ) their lawyer.

But their lawyer ignored him totally.
Meaning that their lawyer did respond or answered any calls, faxes or emails.

I do still have a lawyer.

And after over a year I am still in the home.

And yes I do have a whole paper trail with proof that all about this loan had a lot of wrong doing in it.

I have had it audited plus all my paper work have been read.
And I have been told (by lawyers) that I do have a big case. Since it all proofs that the banks lied and tried to use their power.

The lawyer is already prepaid my family so I dont have to worry about that.
0 votes Thank Flag Link Wed Feb 3, 2010
If you are up against One West you have some heay patronage to fight against.

Here is the link to the purchase announcemet of Indy Mac to One West.

http://www.indymacbank.com/bankauto/content/eng/OWB_Customer…

Here is the link to the Wiki on George Soros who owns the fund that was one of the buyers.

http://en.wikipedia.org/wiki/George_Soros

Good luck you may be fighting an uphill battle.
Web Reference: http://www.Find1Home.com
0 votes Thank Flag Link Wed Feb 3, 2010
Fair enough question, but I don't think that Indymac or TB&W loan services changed the discussion much.

My adivce is that she should ultimately wait until her loan is settled wherever its going to settle. The investor who ends up with the loan may be willing work something out. I don't know what sort of legal bills are being racked up but Martha has to do a cost benefit analysis of a sort here and execute a decision. I think that a little research and some phone calls by the attorney are within the realm of reasonable.

I do know know what price point of home or mortgage we are talking about here but I know a short sale attorney who gets results by suing the bank and bypassing bank systems via their in house attorneys. Instead of trying to work within the system, another option is to go on the offensive.
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Tue Feb 2, 2010
Bob, I think the issue is more likely that Indymac and TB&W no longer really exist, and their loans have been transferred. It is anyone's guess where these loan documents might be right now. However, regardless of what has happened to these companies, what is the obligation of Martha here? Should she rescind on this loan?
0 votes Thank Flag Link Tue Feb 2, 2010
Martha,

This is jsut speculation but I would be willing to bet that your "note" is being passed around by investment banks were were acting as insurers. Unlike a loan servicer, as the others described, what you may be seeing is the unwinding of a CDO/CMO contract.

This works this way. YOu took out a mortgage and the bank packaged it up with 100 others and then cut the pie who knows how many times. Each slice was sold to an investor who took a portion of your interest in return for a commitment that the investor would pay a claim or buy the rest of the interest in the property from the bank in the event of default. That investor could addtionally cut his share into smaller pieces and resell them (like a stock).

(This is why many short sales and loan mods do not get approved. When the request for loan mod or short sale is filed the insurer or investor starts to drag his heels trying to delay payment as long as possible. As long as possible is foreclosure, for most people.)

WHen your home went into forclosure the bank went to the investors who had a piece of your loan and said pay up and it in turn set off a chain of claims. In some cases the investors were already broke and when such a dead end is hit, no one knows what to do.

Like I said earlier, this is speculation but it explains things very well.

These obligations are tracked via a private title like service called "erisa" or some such thing. If you still have an attorney have them contact the bank and see if they can get educated on this "erisa" thing and let me know what your find out.
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Tue Feb 2, 2010
Yes one of the banks was Indymac and the other TB&W.

So I had to banks who both said they had the mortgage.
And then either one had it for some months.
Their words when i called in.

Then it was back to TB&W.

Believe me that my story nobody gets or/and understand.

And i am still here in my house after over a year.
0 votes Thank Flag Link Tue Feb 2, 2010
Martha, I think that with all the negative publicity about forcing people out of their home through foreclosure, some of the banks may be backing off a bit. Also, was Indymac one of the banks who had your loan at any time? They were involved in a lawsuit on Long Island where the judge ruled that the people didn't have to pay the bank, but I know that it is being appealed.
Also, lost documents are not as unusual as you would think. Here in NY, we are more likely to see it happen because we deal with 2 different things where original loan files are needed. When someone refinances or sells a co-op, they need to get the original stock certificate and proprietary lease from the bank. Sometimes these are lost, and the bank gives an affadavit. Also, New York has a mortgage tax. There is a way to re-assign the mortgage tax by obtaining the original mortgage document from the bank. Sometimes these are lost as well. It's more rare to have the need to find these in other areas of the country, because they really serve no purpose after closing.
0 votes Thank Flag Link Tue Feb 2, 2010
Yes I do have copies of all the loan doc. So does the lawyer.

But it seems that we are the only ones that do have them.

If the banks still had them and think that they are correct.
Why am I still here?

It has been over a year since the forclosure.
0 votes Thank Flag Link Tue Feb 2, 2010
Martha, do you have the loan documents you signed when you closed on your loan? If so, look for the transfer of servicing disclosure. If you have that, show it to your lawyer. When they transfer the loan, they generally give the whole file, which includes the note.
0 votes Thank Flag Link Tue Feb 2, 2010
Thank you Ute Ferdig.

I dont know how to look into records for this.
The lawyer does and he cant find out anything.

We all think there is a lot of if not all the paper work lost.
Their lawyer left the picture after the last bank (before) the forclosure went under.

Lawyer also says they cant sell the note like they do. In fact nothing can happen till we have been in court.

Yes I was was served a summon for evection.
A long time ago. We filed objections in court that it was wrongfully done. We also filed proof of that.

Then nothing has happened. Except months after ward the first bank tried a second forclosure (?). And that was just before they went under.
Lawyer filed again in court paper work.

He has talked to people that has come to the house. nobody seems to know that this is a court case.

And i am still here.
0 votes Thank Flag Link Tue Feb 2, 2010
When you signed your original loan documents, you would have signed a transfer of servicing disclosure that would tell you how likely it is for your loan to be sold. This happens all the time, and it does not mean that you do not have to pay your loan. Also, there are times when the loan is sold more than once, due to banks being bought out, going bankcrupt, or whatever. There are times when the original note is lost, but you should be able to get a certified true copy of your note. Again, this does not allow you to recind the obligation to pay the note. You received the money to purchase the house. No one could predict what would happen to the housing market, even those who may say they saw it coming, however I am sorry that you are now under water, so to speak, and you can't get out of it. It seems that your choices, if you are unable to pay your mortgage, is to allow it to go into foreclosure, or get the lis pendens removed and try to sell it as a short sale.
0 votes Thank Flag Link Tue Feb 2, 2010
Forgot to mention the following.

In the beging it was a paying mortgage.
Not in the end.

All this could have been avoided if the banks had known what they were doing and have had their papers in order.

Even tried to move. But the house got under water really fast. And since it needed to be up dated it didnt even have a chance to be sold. People didnt want homes that needed to be fixed up if they could get a nice up dated home for the same price.

Yes I have a great lawyer. And i do listen to him . He is also very suprised and a questionmark to what has happened and not happenend. And he has never heard of anything like this.

That is why I am writing this. To see what others think about it and/or have experinced it.
0 votes Thank Flag Link Tue Feb 2, 2010
Thank you for your replies.

When it all started the mortgage went back and fourt between 2 banks.

First they both were down as holding the note. One loan , no second.
Then suddenly no one had the note for 3-4 months.
Both banks blammed each other.

It finally got so weird, confusing, and no way to solve it that my lawyer rescinded the loan.

Since the forclosure happened , many months ago, the note has been sold to at least 3 different banks.
Nobody seems to know anything at all.Except that it keeps being sold.
Lawyer cant find out anything. Cause nobody knows what is going on. And what has happened.

I am still in the house.
0 votes Thank Flag Link Tue Feb 2, 2010
Hello Martha. I am sorry to say that it is not clear to me what kind of information you are exactly looking for. Sounds like you believe you had claims based on alleged violation of laws that apply when you get a loan (such as predatory lending practices) and you did not make your loan payments while your attorney was trying to negotiate something with the lender. What was he trying to negotiate? Just because negotiations are ongoing, does not mean that the lender will not pursue foreclosure remedies if you don't make your loan payments. You can't just rescind a loan and stop making payments while your attorney is negotiating. If that prevented foreclosure, everybody would do it. Of course, if the bank pursues foreclosure, they still have to follow the foreclosure laws and give proper notice. While you said that the bank did a lot of things wrong, you don't share any details. How long ago did you get the loan? Did you ever make payments on the loan? The reason why I am asking is because claims that are based on violation of laws when you obtained the loan don't last forever. There are probably many loan documents that would not withstand the test of a legal scrutiny, but most of the claims can no longer be pursued because too much time has passed, When the bank foreclosed, did the property go back to the bank or did a third party buy the property at the trustee sale? If the property went back to the bank, does the bank still own the property or has it since been sold to a third party? Do you still want the property or are you just interested in an award for damages? If a bona fide third party purchaser owns the property, getting the property back will most likely not be a viable option (check with your attorney). You clearly need an attorney who can sort things out and who can tell you what your options are at this time.

Wishing you the best of luck.

Ute Ferdig
DRE # 01326917
Broker-Owner
Ferdig Real Estate Solutions
0 votes Thank Flag Link Mon Feb 1, 2010
Ute Ferdig -…, Real Estate Pro in Newcastle, CA
MVP'08
Contact
Martha,

This is a matter of law and not real estate. I understand generally what has occurred since it has happened more than once. It is uncommon. Recently attorneys in Washington and Oregon that have ruled in favor of owners in situations where the bank "wrongfully" foreclosed on a property. Those transactions were unwound or the prior owners were compensated.

It's a mess so trust your lawyer.
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Mon Feb 1, 2010
Martha, it is still not too clear, but you may want to consult another attorney. I think that the only way that you can rescind a loan after you have signed all the documents and the loan funds is if on of the borrowers or owners of the property were not given the right of recission paperwork. There are attorneys that work on modifications for their clients who say that if there were things wrong with the original paperwork it is more likely that you can get a modification, but I don't think that you can rescind a loan just because you took out a loan with a bank and did not understand loan documents or programs. That could be reason to force a modification though.
0 votes Thank Flag Link Mon Feb 1, 2010
Martha,

This is unconventional but the rules have changed. When the governement put in place guidelines for loan mod's the banking industry lobbied for regulations that bypass state notification requirements. If an owner received a loan mod and re-defaulted the bank can simply foreclose without notifications or reporting.

Is this what occurred?
Web Reference: http://bob2sell.com
0 votes Thank Flag Link Mon Feb 1, 2010
Thank you for answering.
The loan I had with bank A was (had) a lot wrong with it. I had it auditid by a lawfirm.
The law firm tried to negoiate with the bank for about 6 months.

They didnt get anywere at all since they totally said different things every time the law firm talked to them.

So we decided to rescind the loan and then go to court .

There was a lot of wrong doings by the bank.

Lawyer rescinded the loan and the bank ignored it and just foreclosed.

By doing this they broke the law and sued me before we sued them.

Three day notice came . Then five day notice and paper work was filled by us in court. And then really no legal things have happened.

No court day . Nothing.

The bank was taken over by the FBI.
0 votes Thank Flag Link Mon Feb 1, 2010
Martha, I don't think we are really clear about what is happening here. Did you have a loan on your home from a bank who we will call "Bank A". You wanted to refinance with "Bank B", were approved for a loan and signed the paperwork, but then exercised your right of recission before the end of the third day so the loan never funded. Now "Bank B" wants to foreclose on your property even though this loan is not really on their books. Is that correct, or is it something totally different than that?
0 votes Thank Flag Link Sun Jan 31, 2010
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