Sorry, You Are Not a Winner. Please Play Again.

13 Mar

I am a day late in posting, as I spent five days in Las Vegas, gambling capital of the US. I met up with friends, dined, caught a few shows, and gambled a little. I lost more than I won, though I did better than usual, so my luck must be improving!

Las Vegas’ housing market was hit harder than California’s, because it was “ground zero” for mortgage fraud. Just imagine that – in the city where people go to take a chance at winning big – so many went for the gold in a whole different kind of gamble. Buying a home to live in should not be a gamble, though. Nor should making a sincere effort to work with your lender to save your home. Too often, it seems no different from dropping your money into a slot machine, only to realize that you just paid rent for the chair you’ve been sitting in. Of course, sometimes people do win. I worked for a short time in a casino, and based on my observations, I do believe in luck.

Some people would say I have been lucky that I have managed to remain in my home all this time. Yeah, they may be right about that – I’m lucky I picked an attorney to represent me in the Unlawful Detainer (UD aka eviction) court, who is a bulldog and unwilling to give up. He is always thinking two steps ahead – literally. He appreciates that I have taken an interest in my case and want to understand why he is doing the things he’s doing. I ask questions, and he’s always willing to explain what I don’t understand. Whenever there has been any action in the case, he is already thinking of what he’s going to respond with, and then what he’ll do if that doesn’t work.

So, your lender is taking you to UD court? You will usually be served within two weeks, if not several days, after they have sold your home. The notice should be taped to your front door, and, if the process server is doing their job well, they will also send you a notice certified mail. (If they don’t hand the paperwork to you directly, and don’t send you a certified notice, you may be able to use this in a courtroom, as whether or not the service was completed properly can be called into question.)

Once this notice has been served, you only have 30 days to respond; however, be sure to take note of the date the UD was filed with the courts!!! The lender can file anytime, and are not required to serve you right away. So, you will, most likely have less than 30 days to respond.

In my case, I had someone living with me who paid rent. Under new state and federal laws, if there is a tenant residing in a foreclosed home, the lender must give 90 days’ notice. Of course, with all of the back-and-forth that goes on when your attorney responds, then the mortgage company must re-serve you, it takes longer than 90 days.

In my case, I was served in August, but the trial didn’t go forward until February. In that aspect, I really did luck out, because the process server didn’t show up for the first hearing in time, so the UD judge who was supposed to hear the case rescheduled it two weeks out. Then, on the day of the scheduled hearing, the UD judge remanded my hearing to another judge, as he didn’t have time to hear it. The reason he didn’t have time? My attorney said it would be a three-to-four hour trial.

Typically, a UD hearing is a quick hearing. In the past, the majority of these were cases in which a renter (tenant) has done some action that has caused the landlord (property owner) to decide to terminate their contract. Because the landlord is the owner of the property, if the tenant has done anything wrong, the landlord can take them to court and have them forced out. So, typically, the UD judges are used to hearing this sort of thing, and to listening to people who can’t afford representation trying to appeal to their emotions. But the judges want cold, hard facts. That is what they are paid to judge.

With the massive amounts of foreclosures over the past three years, these same judges are hearing cases in which the ownership of the property has passed from one hand to another, and the rules are different. But the judges I have observed, and other people I know involved in foreclosure cases in other parts of my state, have been treating the homeowners and homeowners’ attorneys as if they are wasting their time. And there are many attorneys out there who really are wasting the judges’ time and their clients’ money. They go to court and you’d get the same result as you would from a cardboard standup of them, as they don’t argue with the judge or make any real attempt to represent their client, or to present the facts of the case.

So, my three-to-four hour trial finally went in front of a judge – a criminal judge – who was hearing the case as a favor to one of the UD judges. What I appreciated about him was that he listened to my attorney, who spent time educating him on the statutes he was referencing in his defense of me. My attorney tells me this is one of the biggest obstacles facing attorneys in post-foreclosure UD hearings – ensuring the judges really understand the statutes, how they should be applied, and what constitutes a breach of those statutes.

During the trial, my attorney was able to get the real estate broker shot down as a witness in the case. The mortgage company put her on the stand to testify that I missed my mortgage payments. How would she know that? She doesn’t work for the lender! She didn’t handle any of my payments! She wasn’t (or shouldn’t) have even been involved with anything to do with my home other than becoming the RE agent after it was sold at foreclosure auction! Bye-bye.

We moved on to the next witness, who was the process server. All of a sudden, the lender’s attorney requested to speak with my attorney outside the courtroom. He came back in and told me the lender wanted to settle with me! They went back outside. I happened to be sitting behind where the lenders’ attorney had been sitting, and peeked over. I saw that the process server’s form was blank except for my name and address.

Now I understood – they couldn’t prove he had served me! I had had this thought when I received an envelope in the mail with a copy of the notice – sent regular mail, no proof of mailing, no certified return receipt. And, since the notice had been thrown on my doorstep, without any attempt to knock or ring the doorbell – I had been home all day and found it the next morning. He hadn’t even bothered to retain a copy of what he had served me!

Their settlement offer was to agree to give me a loan modification. The cycle started all over again… they requested my financials; I waited to hear from them; someone contacted my attorney, saying she had taken over and couldn’t find the paperwork from the previous person and could I send it again; and again, and again… 18 months after making that offer to settle, and not once having given me an offer, they dismissed the UD action.

I felt really lucky when I heard they had dismissed the case for unknown reasons! Until they served me with a new one three months later. Damn… I hadn’t hit the jackpot…

Handy Tip: The above brings me to an important point – a lawyer who tells you that you have every chance of winning, that you’re going to prevail against your lender, is either overconfident or trying to snow you. Any attorney worth his salt should always be willing to advise you that there is a possibility that you could lose.

Even so, you should do some homework before you hire one. Of course, word of mouth is always helpful. There are websites out there that will give you some background information on attorneys and help you search by key words.

One of the most important things you should do is to check your State Bar Association’s website. You will be able to see if your attorney has been disciplined, which is an important indicator of how they conduct themselves with the courts. When you’re interviewing the attorney, you should ask them about verdicts they’ve won within the past five years. And, finally, protect yourself by asking if they have professional insurance.

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Posted by on March 13, 2012 in Uncategorized


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