topic Re: Need Help with Dismissed with Prejudice Mortgage in Rebuilding Your Credit

Need Help with Dismissed with Prejudice Mortgage

Oorah — Mon, 31 Dec 2012 00:59:25 GMT

Back in early 2007 my mortgage sold to a conglomoration of Banks, Chase, JPMorgan, Duetsche, and Wells Fargo. I did not receive a letter telling me where to make the payment, so I mailed it to the address on the letter informing me of the assignment. My check was sent back telling me to mail it to another address in Utah, Utah sent my check back and told me to mail it to NC. Now I have two payments due so I mail them both to NC, after three weeks, sent back and I was told to mail them to Ohio. I am furious at this point and can get no help on the phone. I mail the checks to Ohio and they are sent back telling me that America's Servicing Company serves my mortgage and I need to mail the payments there. Three payments now due, I am raging. I mail all three payments to America's Servicing Company and they send the check back telling me that they cannot accept payment because they have started the foreclosure process. I sit down in tears and rage. I am going to lose my home for no reason.

Two days later when I have rational thinking, I call my attorney, who refers me to another attorney that he feels can help me better than he can. I go see this attorney and he looks at the paperwork and calls it unbelievable. He attempts to get the bank on the phone for 15 minutes, then asks his secretary to continue to try to get a human as we talk. He says he thinks this can be fixed easily, maybe with just a letter or two. and I pay him for his time. At this point I have not been served with court papers and he thinks it is a plus that I have been proactive because he said most see him when they are facing the last days.

I get the court papers, we go to court and ask that this be rectified and the Judge orders mediation. I am thinking I can save my house. Mediation happens May 2009 and we accept what the bank puts on the table. The reduced my interest rate, removed the late fees, and I am to pay $5000 and restart my payments. Shockinly, they do not want a check that day. My payments are to start in two months, July, and I will get new payment info, address, new terms, etc very soon. Fast forward to mid June and I call my attorney to see if he has heard from the bank so that I can make my payment. No he hasn't, so he calls their attorney and she is going to get on it. August 2009 we have not heard anything so my attorney files a Motion to enforce mediation agreement. Bank nor their attorney do not show up for court. Judge issues order giving them 30 days to comply. They do not. He then files a motion to dismiss due to failing to comply. Judge says no and gives them another 30 days to comply and orders them to pay my attorney fees for not showing up at the last hearing. Again they do not comply. Four months later they send me a modification package. I told my attorney I did not want to apply for a modification, I wanted them to follow through with the mediation agreement. We again wait for them to comply and they fail yet again, and I start receiving letters telling me how to avoid foreclosure by short sale of my home. I am furious, I have been trying to pay them and avoid foreclosure for three years at this point.

November 2010 my attorney files another Motion to Dismiss. Court in December, their attorney by telephone. Judge asks if I have received anything from the bank regarding the mediation. No. He asks their attorney what she has to show that they have tried to comply, she has nothing. Judge asks me if I have heard from the bank at all and I tell him I am getting info on how to avoid foreclosure by short sale. He is not happy. He dismisses with prejudice due to failure to comply with two court orders, and contacting me directly and not through my attorney.

People may be elated if this happened to them, but it is not the end of the story. I cannot get anything corrected on my credit report. America's Service Company is still reporting negatively. They are showing activity on the account Dec 2011 that I have no clue about. I have disputed this info with the credit bureau's this summer and they did not change anything. Now my report shows customer disputes info, with an added comment, foreclosure process started, even though it ended instead. America's Servicing Company is showing on the credit report, but all of my court papers show the four banks which apparently the credit bureau's are not smart enough, or don't care is the same account.

Going back to court again in January because the bank moved the file to another law firm and this firm is now trying to re-file the foreclosure, which my attorney said they are barred from doing for several reasons. #1 The wording in the mediation agreement said that the agreement replaces the terms of the mortgage, therefore making the original mortgage invalid #2 They did not appeal the original court order within the year allowed #3 They did not pay my attorney fees which was ordered by the court which they have to do before they can take any action #4 The statute of limitations has run out on the original mortgage even if they were allowed to file against it.

Any suggestions..........Anyone........... I am at a loss My attorney said this is all new territory for most of them, and is not well voiced on credit issues like this. It seems that America's Servicing Company will continue to report whatever they want, and the credit agencies will not take any documention I provide that does not have America's Servicing Company on it.

Re: Need Help with Dismissed with Prejudice Mortgage

llecs — Mon, 31 Dec 2012 02:52:22 GMT

Wow. I know they are bringing suit next month. Maybe your attorneys can counter sue with a stipulation they could be compelled by the court to fix the credit reporting.

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Mon, 31 Dec 2012 02:57:50 GMT

Thanks for responding. The only problem I see there is that they haven't done anything else the Judge has told them to do, so I cannot imagine they would do anything in the future they are ordered to do. Even if I get a court order when we go to court next month, it will still not have America's Servicing Co listed on it since they are not mentioned in the suit and I will face the same crap with the Credit Bureau's not accepting the documents I send.

Re: Need Help with Dismissed with Prejudice Mortgage

chasmith — Tue, 01 Jan 2013 13:32:48 GMT

At some point the judge is going to get really, really upset and so I would definitely add the deletion of all credit reporting to what your lawyer requests.

At some point your lawyer should be asking for contempt of court rulings (for example on the failure to pay legal fees), sanctions against the attorneys, etc.

This really should be brought to the attention of the state authorities (Attorney General or other entity dealing with consumer protection). Check whether America's Servicing is part of any of the cases brought by various entities, if so contact those. But I wouldn't do anything without discussing with your attorney.

Re: Need Help with Dismissed with Prejudice Mortgage

Kevin5974 — Wed, 02 Jan 2013 03:46:14 GMT

Your attorney needs to send them a letter asking to change the reporting. Send it to opposing counsel. If not done in 30 days, file and ex-parte

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Wed, 02 Jan 2013 05:38:17 GMT

I did some research today and found that Wells Fargo and America's Servicing Company are one in the same, but America's Servicing Company has never registered to do business in FL or the Office of the Comptroller. It will be interested in seeing how it turns out They are filing for rackettering and predatory lending.

Right now I am not sure the attorney will do anymore before the hearing comes up at the end of the month. Also not sure if the judge will do anything ex-parte considering this is a mortgage we are talking about. He didnt allow the dismissal on the first motion to dismiss my attorney filed when the banks attorney didn't show up for court because he said it was the ultimate penalty. Ironically, if it had been me or my attorney that didn't show up, I am sure we would not have been given the same latitude. Instead, he ordered the second order giving them 30 days to comply with the mediation agreement.

My attorney thinks I am sitting in a good position now, and I don't want to put too much into the case for the Judge to have to decide on. My plan is to see how things turn out at the hearing, and then push to have my credit restored. If they do not pay my legal fees, I understand that I can file some sort of lien against them. At least that is what a couple did to Bank of America and were paid when they showed up with a moving van to seize some of the banks assets. Hopefully it will straighten out at the hearing. Maybe there will be some discussion before the hearing between the attorneys. I really just want to get the bigger issue resolved. According to one of my credit reports the foreclosure falls off of my credit report August 2013, fingers crossed anyway.

Re: Need Help with Dismissed with Prejudice Mortgage

Shogun — Wed, 02 Jan 2013 08:48:35 GMT

What an absolute fiasco. I'm hoping the best for you!

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Wed, 02 Jan 2013 20:13:12 GMT

Shogun wrote:
What an absolute fiasco. I'm hoping the best for you!

Thanks, and yes it is. Lets hope that the August 2013 drop off date that is listed on one of my credit reports holds. Hard to believe I have been dealing with this long enough for it to be old enough to drop off, seems like forever.

Re: Need Help with Dismissed with Prejudice Mortgage

starry1 — Wed, 02 Jan 2013 22:09:05 GMT

That is a cluster of epic proportions. When do you go back to court? I'd be very interested in hearing what happens next.

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Wed, 02 Jan 2013 22:42:52 GMT

starry1 wrote:
That is a cluster of epic proportions. When do you go back to court? I'd be very interested in hearing what happens next.

We have a hearing scheduled for the end of this month. I don't think anything will stop it from going forward, hope not anyway. I will be sure to post the results of the hearing, if I am not in a corner pulling my hair out. I received a copy of the Motion to Dismiss that my attorney filed via email, and I was quite impressed to say the least. It is lengthy, but makes it clear what happened at all of the previous hearings, and the banks failure to follow through with what they offered and both of the court orders.

Re: Need Help with Dismissed with Prejudice Mortgage

sjt — Thu, 03 Jan 2013 01:55:58 GMT

Oorah wrote:
starry1 wrote:
That is a cluster of epic proportions. When do you go back to court? I'd be very interested in hearing what happens next.
We have a hearing scheduled for the end of this month. I don't think anything will stop it from going forward, hope not anyway. I will be sure to post the results of the hearing, if I am not in a corner pulling my hair out. I received a copy of the Motion to Dismiss that my attorney filed via email, and I was quite impressed to say the least. It is lengthy, but makes it clear what happened at all of the previous hearings, and the banks failure to follow through with what they offered and both of the court orders.

What a big CLUSTER!

So these banks sent your payments back and gave you the run around and now they are foreclosing on you. You sue them and win and they still havent complied. They need to be exposed big time!

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Thu, 03 Jan 2013 02:58:48 GMT

There was no other suit except their original foreclosure suit, which resulted in my Dismiss with Prejudice, until this new suit that they have filed to try and foreclose again.

So, I haven't sued them at all. I have only been defending the cases they are filing against me.

I never wanted anything for free. The entire time the suit was going on, I wanted to restart payments and went to the mediation with my checkbook. Didn't even ask for the case to be dismissed with prejudice. My attorney and I fully expected to hear the case Dismissed without Prejudice, but the Judge was upset that they had not obeyed his two previous orders to comply with their own mediation agreement. Hindsight and what I have read regarding other issues, makes me feel that they were trying to get me to apply for a modification that would not qualify me for and try to get me out of my house. Fortunately, we both signed the mediation agreement before they sent me the modification application.

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Mon, 28 Jan 2013 06:24:17 GMT

Well here is the latest update

The hearing is Thursday. This hearing will only be to see if their new foreclosure holds any merit. My attorney filed her motion to dismiss stating that their is no new default because the bank and I were not returned to our previous status due to the signing of the mediation agreement. Basically she is saying that the mediation agreement take presidence over the mortgage and the bank is filing foreclosure regarding the original mortgage note. The bank filed an answer to her motion stating that yes we were returned to our regular status with the original mortgage note after the last case that was dismissed with prejudice. The case law she is citing is Singleton vs Greymar if anyone is interested.

My attorney also pled that the bank is outside of the statute of limitations based on the acceleration of the note in April 2007. The bank said that the 2007 acceleration is not in question because they filed a new acceleration in April 2012. My attorney believes their April 2012 acceleration holds no merit because there was never a mortgage reinstated for them to accelerate.

Some people think that if their foreclosure is dismissed with prejudice they won and the bank cannot refile, this isn't true, they can file a new foreclosure based on continuing default if payments are not made.

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Fri, 01 Feb 2013 04:26:25 GMT

WE WON !!!

I didn't attend the hearing today, my attorney said it was not necessary. She sent me an email immediately after the hearing to let me know that the new foreclosure attempt was also dismissed WITH prejudice.

The judges decision was that due to the settlement agreement being signed, and their prior lack of following through with the settlement agreement, that they could not file a new default on the mortgage.

Is it over??? We don't know. Their is the possibility that they will appeal, there is also the possibility that THEY will file to enforce the settlement agreement that they failed to follow through with after two court orders.

If they do not file an appeal, or motion to enforce the settlement agreement within 30 days, then we will move forward from there.

As soon as I get a copy of the new dismissal, I am going to send both of them to the credit bureau's and try to get them removed from my credit report. I know that getting the banks to correct anything is going to be fruitless, so I am just going to have to push a little harder. I learned that America's Servicing Company, who is the company reporting to the credit bureau, and Fleet Bank are one in the same, so I am going to submit the documentation so that I won't continue to be told that the banks the dismissal was filed against, is not the company reporting the info.

Hopefully this will be over soon. It has been since 2007. I am estatic, but apprehensive to celebrate at this point.

Re: Need Help with Dismissed with Prejudice Mortgage

Kevin5974 — Mon, 04 Feb 2013 05:01:38 GMT

Congrats! I worked in civil litigation vs. these monsters. They are long and arduous cases. Way to stick with it!!

Re: Need Help with Dismissed with Prejudice Mortgage

guiness56 — Mon, 04 Feb 2013 05:08:19 GMT

Congrats! And a BIG sigh of relief!

Re: Need Help with Dismissed with Prejudice Mortgage

Oorah — Mon, 04 Feb 2013 05:17:38 GMT

Thanks, both of you

I am happy that the Judge ruled in our favor, definately. Something just tells me that it isn't over yet. I just hope that my checkbook will hold out until it is over.

I am anxious about the next 30 days, because apparently that is the window of time they have to file for a re-hearing, or an appeal.

The SOL runs out on the mediation agreement, I believe May 2014. I am not sure the SOL falls under the same rule as a mortgage, but I would imagine it does. The SOL for credit cards and such is three years, and for mortgages it is five. Sure would be nice if the mediation agreement fell under the regular credit SOL, because if it did, it would have expired May 2012

Re: Need Help with Dismissed with Prejudice Mortgage

starry1 — Wed, 13 Feb 2013 05:19:29 GMT

I'm sorry I missed your post. I'm so happy for you, congrats!