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Established Contributor
sjt
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Registered: ‎05-05-2010
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Re: Need Help with Dismissed with Prejudice Mortgage


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!

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Oorah
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Registered: ‎02-28-2012
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Re: Need Help with Dismissed with Prejudice Mortgage

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.


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Oorah
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Registered: ‎02-28-2012
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Re: Need Help with Dismissed with Prejudice Mortgage

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. 


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Oorah
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Re: Need Help with Dismissed with Prejudice Mortgage

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.


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Kevin5974
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Re: Need Help with Dismissed with Prejudice Mortgage

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

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guiness56
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Re: Need Help with Dismissed with Prejudice Mortgage

Established Member
Oorah
Posts: 26
Registered: ‎02-28-2012
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Re: Need Help with Dismissed with Prejudice Mortgage

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


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starry1
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Re: Need Help with Dismissed with Prejudice Mortgage

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


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