SkyStillSunny

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Everything posted by SkyStillSunny

  1. I received notice from Ditech that the mortgage was sold to another company called Shellpoint Mortgage Servicing. Tried calling them, and they were clueless so I was planning on waiting to call them back, but then the Covid-19 hit so we decided to keep the house for another year, and try to sell it next summer. Plans are on hold for now. Her loan actually matures in October of 2020, so I'm wondering if the lien will expire because I have heard of liens expiring after some time.
  2. Sorry, this is a little long, but I wanted to try to get as much info as I know for some advice/help. In 2005, a family member purchased a home, then in 2010 she almost foreclosed on it, but was able to get a loan modification after working with the bank for a year on it. During that year, she didn't pay her 1st mortgage or her 2nd mortgage. Since the 1st mortgage was modified, she was able to keep her home. The 2nd mortgage was with HSBC, and they charged it off. That 2nd morgage was around 55k. Then in 2013, she moved out of state, and rented out her property in FL. She has had tenants in her home for the last 7 years. She wants to sell this home because she's really not making any money from the rental. And this is where we learned (the hard way) about how that 2nd mortgage really came back to haunt her. The title company found that there was a 2nd mortgage, and after some digging, after the charge off, it was sold to DiTech Financial, so they hold a lien to the house. They want 55k to release the lien, and well if we sold the house, then she would be under if she had to payoff the 2nd mortgage too. After all the fees for the real estate agent, closing, etc. and it means she'd end up paying to sell her house. She really needs to offload it because she can't manage the rental any longer and pay for repairs. Well when we tried to call DiTech, we got the run around and can never get someone to call us back. We want to try to settle, but we just found out that they are going through a bankruptcy! Does anyone have any advice about our best options here? Would DiTech settle a portion of the balance to release the lien, but honestly, would they have any incentive to knowing that we are trying to sell the house? Since the account is charged off, and it's been 10 years, then the debt essentially is not owed, but DiTech still owns the lien. Should we try to get an attorney to help? Would an attorney have a better chance of getting the lien removed? The security instrument states something to the effect of: "Borrower is indebted to lender... and providing for monthly installments of principal and interest, with the balance of the indebtedness if not sooner paid due and payable on October 1, 2020" So after that date of October 1, 2020, even without a recorded satisfaction, shouldn't the title agency consider the lien expired? When I contacted the title agency, they said that they don't consider it expired until 8-10 years after the maturity date! Does that sound right? I guess she just assumed that since the chargeoff/lien was put on the property in 2010, that it would be expired by now and she wouldn't owe that money. Anyway, I'm asking because I wanted to see if we had any negotiation power when we try to call DiTech again to settle so that she can sell the house! Since they are in the middle of filing for Ch. 13 bankruptcy, I don't know how willing they would be to negotiate with us, and even if they still own the debt. Maybe they sold it, but she has never gotten a letter about it if so. Honestly any advice, or sharing of similar experiences would be appreciated. This is a close family member, and I need to try to help her.
  3. I appreciate the response. It's helped me crunch the numbers and figure out what's best for my family. I went ahead and applied for the refinance, and it turns out I don't actually have to pay off my 2 collection accounts, so that was good. I was approved for an FHA at 4%, which based on my credit I guess is pretty good. I had a 627 Experian, 612 Transunion, and 650 Equifax. It turns out the refi is actually saving me even more than $500/month. Hopefully the rest of the process goes smoothly!
  4. Thank you guys. That's good advice. I think I'll apply, and determine if it's worth it. Right now my mortgage is ridiculously high, and I feel like I could get it down more than $500/month with a refi. I could easily pay off the 3k in collections at that point. Only problem is that although I have 2 collections, I still have several other charge-offs, that maybe one day a JDB could try to collect on? I still have about 2-3 years before SOL is reached on my accounts. The lender also mentioned that in some cases I could use the money in the refi to go ahead and pay off the collections so I wouldn't have to even pay any money up front for that. Would that be such a terrible idea?
  5. Hi there, I am trying to refinance my home mortgage, and have about 50% equity on it. But my credit score is bad. It's probably around 620. I have a lot of charge-offs, but notably 2 collection accounts that amount to about 3k. Some of the lenders I've called, when telling them this up front, said that I should pay off the collections, or that the banks might force me to pay off the collections accounts. Is this accurate information? Everything I read says NOT to pay them off, that it will reset the clock if I try to call them to negotiate. Plus, will it even improve my credit score? Any advice is appreciated! Thank you.
  6. Update: Went to court and was prepared with the following plan (thanks all for the advice): Present MTC arbitration If the mention the "ordinary claims," then I would say that I am requesting an injunction in my AAA demand form, which would make the "ordinary claims" exclusion not apply. If the judge denies, then ask for a continuance. I was thinking that if it got to this point, I would prepare a counterclaim instead. Well the attorney comes to meet me during mediation, and I tell him that I'm going to request arbitration. I show him the MTC I prepared, and the credit card agreement. He says this to me: "Georgia doesn't allow small arbitration through magistrate." And I reply, that's because it wouldn't be through the court, it's private arbitration. And then he mumbles something about small claims and looks through the agreement, and says "ok, well if you really want to go through with arbitration." I say yes. See the judge and my court order for arbitration gets signed! The judge did tell me that I should contact Cach LLC first to let them know. Not sure what was meant by that, but I plan on sending the AAA demand form to the law firm and the JDB. The attorney wouldn't give me a business card because he said that he's just filling in, so I will just send them to the address on my papers. However, I don't have an address for Cach. Just curious, but when I send in my AAA and copy them, how do they know it's in reference to this particular case? I'm sure they'll ignore it like all the others and we'll go back to court, and again, I'll get it dismissed withOUT prejudice because the judge never seems to dismiss with prejudice unless I've settled with JDB.
  7. Thank you @fisthardcheese. I will file my answer tomorrow and see how it goes in court in a month. Will update here.
  8. Hi @fisthardcheese or anyone else that would like to provide any suggestions at all. Any thoughts on the above? The clock is ticking before I need to file an answer, and was hoping for some feedback on my approach. Thanks!
  9. Thank you so much @NormInGeorgia. I'm going to see if I can use any of these claims if I file a counterclaim. Also, @fisthardcheese I saw the below in Norm's document at the very end. Doesn't this count as a prayer for relief? So this is my plan: 1. File an answer and deny the claim. Should I go ahead and put my affirmative defense with arbitration? The reason I asked about the counterclaim here is because on the Answer Form there is a section to counterclaim, but I guess you can't deny and counterclaim at the same time. I was confused about that. 2. At my court date, I will present my MTC arbitration. 3. If the attorney calls out the "ordinary claim" verbiage of the agreement, then I bring out my AAA form. (This agreement only has AAA as their arbitration option.) Should I file the AAA case now or wait? In my AAA form, I will submit this to the judge as evidence of the fact I'm not precluded by the "ordinary claims" exception in the contract. So what do I need to write in the claims section of my AAA form to indicate that I'm requesting an injunction? Do I have to find a claim? Like asking them to remove it from my credit report? Not sure what to write here... 4. What if the judge doesn't agree that my evidence does not preclude me from "ordinary claims"? Trying to think of all options here, because I'm certain this judge will find a reason after having seen him several times before. Thank you!
  10. How would I be able to ask for an injunction as a defendant? Is that requested on the answer form that I turn back in to the court? What if my injunction is denied? Are there any other common counter claims that these JDBs might be in violation? I have gone through the papers, and it doesn't appear to be any. If I were to find one, would I put my counterclaim in my answer?
  11. Yes, so I'm thinking I just try w/ the MTC instead of mention a counterclaim in my answer? If it gets denied because of the "ordinary claims" I was wondering if there was any other declaratory ruling that I could use that is not of monetary claim that would get me out of that provision.
  12. @NormInGeorgia I don't know if I could file a counterclaim in my answer because I don't think they have committed any FDCPA violations. The amount they are suing for is exactly the amount that is in my credit report. Although the original amount when I defaulted was like 1100, but after all the late fees a year later the amount owed is now closer to $1500. However, I'm not sure those late fees are considered violations. The JDB did not send me the agreement verbiage. It is one I found on the consumer agreement db.
  13. Hello, it's me again. I was just served by Stenger and Stenger (representing Cach LLC) on an account that was dismissed without prejudice last year. The last time they sued me I appeared in court and during mediation I told the attorney that I planned on filing a MTC arbitration. She was confused, and when we went to trial she asked for a continuance. The judge granted it, and we were to appear back in court 30 days later. Well when I came back, no attorney was present so the judge signed a dismissal without prejudice. I did ask him to make it with prejudice, and he denied the request. Here we are again, and the same law firm representing the same JDB is suing me again. I haven't sent in my answer yet. I was planning on using the same arbitration defense, but after further review of the credit card agreement there is a note about "ordinary claims," and I just went through another case with that clause and was denied my MTC arbitration from the judge! Btw, this is in GA. The amount is around $1300. It's for First National Bank in Omaha that was defaulted around Feb 2016, maybe earlier. I'm really afraid that my MTC arbitration will get denied again because the judge is a JDB friendly judge. Do I have any other options to file my answer? I mean I am going to try to proceed as usual w/ my answer and then present my MTC at court, but because this has no mention of small claims court, even if I was denied, and appealed to a higher court it seems like that verbiage would still stand. Thoughts? Help? Below is the verbiage from a Q1 2016 agreement. And the bold is what I'm concerned about. So many of you have helped me dismiss so many cases over the past few years... I need some advice on this particular circumstance to see if anyone has any success with arguing this. THANK YOU!
  14. I got so flustered that I didn't even give him time to react after I handed him my counterclaim, which in hindsight I should have waited for! I just did NOT want to face that judge again. He scares me and makes me super nervous and I felt like if he asked me a bunch of questions about my counterclaim, then I would probably look like an idiot. I really thought about it and didn't even make a decision until I met with the attorney and just decided that I wanted this settled. I am happy with the results. You guys rock!
  15. UPDATE: First of all, can I say how much I love this board? It has been instrumental in helping me with so many of my cases. I really appreciate all the knowledge and advice that you guys so willingly share. Indebted (no pun intended)! So I went to court, and filed my counterclaim with the clerk immediately. The attorney was there for me and 4 other cases. Guess how many showed up? Just me. We go to talk in the hall. He tells me that his client agreed to settle for 65% and I can make monthly payments over 2 years. At our last hearing I tried to settle with them and offered $1000 right then, or 50% w/ payments (bc my MTC was denied, and I didn't know what else to do), and he called the client and they said no to that, and said the best they could do was like 80%. I told them no and we could go to trial, well that's when he got the continuance so he could go back to his client and discuss a 50% settlement, and they would let me know. Well at all of y'alls suggestions, I said no to the 65% settlement and that I had just filed a counterclaim against his client for malicious prosecution and violation of the Fair Debt Collection Practices Act. And that the most I could do was $500 and payments over 4 months. Then I said if he didn't agree to that, then we could go to trial and that I knew I would lose since the judge already denied my MTC, and I was already aware of that. However, I said I planned to appeal his decision and take it up in State Court. Then he told me to hold on, and he texted someone for a couple of minutes and said "ok the client has agreed!" So he pulls up a consent order, and then I told him that there has to be language in it that states that the case would be dismissed with prejudice and that my credit file will show "paid in full" for this account. And at first he said no, he has to do dismiss without prejudice and not to worry that they wouldn't go after me again. I told him no deal if it doesn't say WITH PREJUDICE. So he gave in. I know that I could have probably taken this to state court and been granted my MTC, but the appeal was going to cost me at least $217, and I figure another $283 to just settle this now and not have to go back to court was worth the anxiety that going to court always brings me. THANK YOU ALL SO MUCH! Another case with a successful outcome!
  16. Thank you @fisthardcheese that does make sense. I'd have nothing to lose then, so I might as well try. Can I bring my counterclaim to court on my hearing date (because of work I can't make it to the magistrate beforehand and it won't get there in time if I mail it now) or does it have to be filed before then? I may have lost out on that if it has to be filed before. I could probably go to the magistrate early and file it right before my hearing?
  17. @fisthardcheese I called the magistrate and it looks like it's a $217 filing fee, and not sure if they will require a bond. But I can submit my MTC once I get a state case number since I already have it done. Ok, well I wasn't sure how much the attorneys would cost, so if it's 50% then I might as well try the appeal on my own. If I lose in state court, then is it just a default judgement for the full amount at that point? Do I have no room to negotiate a settlement in state court? Is there a boiler plate counterclaim on this forum I can use? The only worry I have with this is that if I file a counterclaim, and we go to court on that, then this judge I have will seriously rip me to pieces. He will want me to show evidence, and documentation and expect me to explain it thoroughly and I am not prepared for that. I am pretty sure he'd dismiss my counterclaim on the spot. He was the same judge previously that told me "Well you sure knew how to write up this MTC, so I think you can figure it out," when I asked him something about arbitration before.
  18. @fisthardcheese If I file an appeal, I might just get a lawyer to help me in state court. I thought I saw you recommend a firm in GA (near Forsyth or Gwinnett county), but I can't find that post. Do you have a law firm you recommend?
  19. Oh wow, ok. Hmm, so if I lose my appeal then they get their judgement all at once. I've never bought a bond before. Do you know if I will have to post the same time I file the appeal in GA? Does anyone know my chances of winning this appeal? I think I'm still going to try to see if they will agree to settle for 50%, and if not then I will go the route of the appeal. I appreciate everyone's information, thank you!
  20. Ok, now I think I understand. I didn't realize you could appeal just a motion. I think my best bet then is to let the magistrate judge find for the plaintiff and grant their motion for default judgement for the full amount. Then at that point I can file for an appeal for the entire case to state court? When I do that, what happens to the judgement that was granted against me in magistrate? Does it still hold until I get an answer in state, or is the case dismissed in magistrate and reheard in state?
  21. I was just reading through some other posts, and was hoping @NormInGeorgia has any advice for Forsyth County in GA? I am referring to this below: If I file for an appeal to State Court, and I win, does it get remanded down back to magistrate court? Why would I file a stay of the case in magistrate if the judgement has already been made? If GA is "de novo" as @fisthardcheese stated, then it sound like my magistrate case is closed and wiped and I get a new case in state. I'm just confused whether I would get remanded back to magistrate and my original case would stay in "limbo" while my state case is heard. Do I have to file for a stay before a judgement is made in magistrate? Because the judge I have is not going to allow me a stay. Also, when I go back to court I plan to try to settle for a portion. Can I tell the attorneys that I plan to appeal and bring my motion to State to help persuade them to settle? Or should I keep that to myself?
  22. @fisthardcheese If I filed a counterclaim, what would I even file the counterclaim for? My judge for this case doesn't play around and will rip me a new one if I don't have anything to back up my counterclaim. I already have a trial date coming up bc the other attorney asked for a continuance. Could I present counterclaim then, or do I do it now? Also, the attorneys just sent me a Motion for Default Judgement for not filing an answer on time, which is total BS. I have a copy of my answer stamped from the magistrate court, yet they say they contacted the magistrate and have no record of it. I called them, they do have it. Plus the attorney told me they were asking for a continuance to discuss w/ their client on settlement terms and they'd let me know what those were by mail. Never got anything. My concern about appealing is this: If I do appeal to state court, what if I do lose the appeal? I don't know all the nuances and fees for Forsyth County, but that seems like if I lost then I'd end up paying more than if I settled. When I go into trial, then if the judge rules in favor for the plaintiff and signs an order, do I say that I want to file an appeal at that point, or do I even mention an appeal? Should I tell the attorney that I will file an appeal?