Re: info about non judicial foreclosure
Posted by Julio Martinez-Clark on January 25, 2008 at 17:32:59:
In Reply to: Re: info about non judicial foreclosure
Posted by U. Frith on January 25, 2008 at 14:27:05:
U. Frith,
I'm not an attorney to provide legal advice nor I know the details of your case. Per my previous
response, a foreclosure sale is final, the law is clear that you will have to abandon the property
voluntarily or the sheriff will force you to leave it. If at the foreclosure sale a bidder paid more than
what you owe in your mortgage(s) including penalties, legal fees, etc, you may be entitled to any
surplus (call the entity that administered the sale to determine the sale price and/or any surplus and
how you can get it). The following is an excerpt from an article I wrote on the subject that may
further help:
"When faced with a foreclosure complaint, in my opinion, there two ways to stay in the home and
stop the process. One way is to attack the issue from a financial standpoint and the other is to
attack the issue from a legal standpoint. If you attack the issue from a financial standpoint, you
must to have cash to pay your mortgage. If you attack it from a legal standpoint, you must be able
to find a flaw in the foreclosure complaint to dismiss it; thus buying some time before the lender
and its attorney re-file the foreclosure complaint. I don’t see any other magical way of stopping
foreclosure.
If attacked from a financial angle, the homeowner will have to bring money to the table from any
source possible to pay the lender what the homeowner owes in back payments. This payment can be
done directly dealing with the lender or through a Chapter 13 bankruptcy filing in which the federal
court, the appointed trustee, the creditor(s), the homeowner's attorney and the homeowner agree on
a payment plan. If the homeowner doesn't want to keep the home, he/she has to sell the home (with
or without a short sale) or just let the home be sold at foreclosure auction. Homeowners should be
aware that based on academic research, the overwhelming majority of Chapter 13 filers do not
complete their payment plans and have their cases dismissed (see The Realities of U.S. Personal
Bankruptcy under Chapter 13, and Chapter 13 Bankruptcy: Successful Versus Unsuccessful Debtors);
unfortunately attorneys don't always disclose this to their clients and give false promises to them
and many homeowners end up losing all the money spent in bankruptcy fillings, attorney's fees, and
their credit history are even more damaged.
If attacked from a legal angle, the complaint could be dismissed and the homeowner may be able to
stay in the home (at least temporarily), by finding a legal flaw in the foreclosure complaint. For this
the homeowner will perhaps need to use the services of an attorney from the National Association of
Consumer Advocates or by consulting their local Bar Association. If you attack the issue from a legal
standpoint, you must learn about your legal rights and, preferably with the help of a consumer
protection attorney, find a technical or legal flaw in the lawsuit to have it dismissed. These flaws
could be hidden in the lender’s debt collection attorney not following your state’s rules of civil
procedures (for instance: You were served improperly) or by digging into the foreclosure complaint
and court docket to see if there is an actual plaintiff’s proof of ownership of the promissory note, or
if the original promissory note has been filed in the court records, or any of the other twenty-
something reasons that that could render a judgment void or invalid (go to www.Beat-Debt-
Collectors.com to learn more about this). For a perfect example of how a determined homeowner in
the Cleveland area attacking a foreclosure complaint from a legal angle was able to stave off
foreclosure for 11 years, see the story in the Wall Street Journal on December 28th, 2007 titled "The
Court House: How One Family Fought Foreclosure" (for more details, read the WSJ writter's blog)"
I hope this helps,
Julio Martinez-Clark
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