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Posted by Irwin Prince on November 26, 2003 at 04:55:51:
In Reply to: Option One Mortgage wrongful intentional foreclosure posted by Katherine Irene Solomon on November 23, 2003 at 08:46:16:
Katherine: Your problem is two-fold. 1) Getting a new lawyer who understands your case; and 2) being absolutely sure your evidence supports you.
Regarding no. 1. A lawyer who for 17 months has been unable to convince either your lender, your lender's attorney, the judge and possibly a mediator, that your cancelled check(s) trumps their claim of default, is not the lawyer that you want working for you. So shop around (quickly) for a good lawyer with foreclosure experience. Basically these cases are pretty simple. You either made the payment(s) or you didn't and cancelled checks talk pretty loud. Stay focused and don't get side tracked into issues like harassment or debt collection practices. Those are usually used as smoke screens to mask a real default, and every judge knows it. Nor will any Attorney General or pubic agency or other people with collection problems help you.
Regarding no. 2.Be sure that there is nothing wrong with your evidence. That is, your cancelled checks match each month that a payment was due without any gaps so that they can't say that the April check was applied to March and the May to April etc... It's ridiculous that this simple matter has been dragged out for 17 months and even referred to mediation for that matter. From what you've said here, a good lawyer will know how to get the case tossed out quickly.
b/t/w, What have you been doing about tendering the mortgage payments during all this time? You know, even if the Judge tosses out the foreclosure, you will have to make all of the back payments or you'll be right back in the foreclosure soup again. e-mail me if you have any questions.
For the past 17 months I have been fighting a wrongful forclosure Option One Mortgage filed on my home. This may not seem unusual, the unusual part is that I wasn't even late. I have all my cancelled checks, I was even mailing my payments certified mail with signiture required.
: This was their tactic and how this all started. I would mail my payment certified mail, they would receive it, cash it, and I would get the cancelled check back. the next month they would send my payment back claiming the did not receive the previous month. I would make a copy of the check front and back and fax it to them. They would still deny receiving the payment. April 2002 I mailed my payment certified mail, they received it, they cashed it, and I mailed my may payment in. They stamped it received before they mailed it back to me. After fighting with them on the phone a few weeks later I was served foreclosure papers. This was even before my payment was due.
: I had 20 days to file a counter suit against them. If I did not accomplish this the sheriff would have evicted me from my home. It was very difficult to even find an attorney that would take the case. I had
: to pay out $1500.00 just to retain an attorney.
: The first day in court I proved that I made all my payments. Yet Judge Mihok tried to find in their favor. We tried to get a different judge, but he wouldn't allow it. We tried to get a jury trial on several occasions but he wouldn't allow it. My attorney has been practicing law for 50 years, he has
: never seen a judge allow a foreclosure to proceed such
: as this.
: The judge ordered this case to go to mediation. In the 7 hours I still have to eat my attorney fees, and they will not credit me for a payment wich I have the cancelled check, my bank statement showing the money did come from my account. Yet they have no proof that they did not receive the payment. They said their
: bank made an error.
: The case is scheduled for Dec 22, 2003 for pre-trial. My attorney cannot continue due to a heart condition and very poor health. He also doesn't feel going in front of this judge is a very good idea.
: Other harasments they have done:
: 1.) continuously try to get me to pay an insurance policy through them even though I had insurance already on the house wich I had to prove over and over again.
: 2.) claim I did not pay my proper
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