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Just curious if anyone has had any experience defending against foreclosures in California or in any other non-judicial foreclosure state. I am currently 3 months behind on my first mortgage and have filed for Chapter 7 bankruptcy recently. The automatic stay is currently in effect, and the lender has not filed the motion for relief of stay (not yet). I have sent one QWR request and got the note, deed of trust and other basic stuff. I have also sent the loan modification docs, but was told not to expect too much to happen on it while I am in chapter 7. I have sent one payment this month (that's all I could do), but was told by the servicer that they need to consult with their lawyer to see if they would accept the payment. I'm not too optimistic that they will take the payment. Anyway, I am not really expecting much from the loan mod, and am trying to see what my strategies are to delay the foreclosure for as long as possible. I do have a BK attorney who has filed my case right before the lender got a chance to record a notice of default, so the foreclosure clock hasn't started yet. Once I get my debts discharged and the stay is lifted, I will still have those 90 days before the notice of Trustee sale, so I could try to catch up on my payments. My financial situation is such that I can keep making a monthly mortgage payment, but have hard time closing that 3 month payment gap unless I delay the foreclosure some 6-12 months out, which would give me a chance to catch up. My attorney has recommended filing a Chapter 13 in good faith shortly after Chapter 7 to save the house, but Chapter 13 is really my least favorite option, and I'd almost prefer to lose the house than to go through two bankruptcies in a row. I had to do chapter 7 because of various other debts (long story), but I realize that Chapter 7 only delays the inevitable (foreclosure) and is not really designed to fix it. However chapter 13 bankruptcies have such a high failure rate, so I didn't really want to go that route. With all the debts and high mortgage payments, it seemed like I would have had a really tough time surviving the 3-5 year payment plan. Now, I've seen a bunch of blogs online with people in non-judicial foreclosure states filing the Quiet Title complaints, other injuction actions, TILA actions, etc. etc. Has anybody here done any of it? I am trying to use my automatic stay wisely and read up on all defenses before the stay is lifted in my case. Also, I am seeing some of the securitization defenses, etc. but since my lender is a Credit Union, I am not really sure how to find out whether my loan has been securitized at all. I've tried searching through EDGAR, but there's nothing there. Apparently, with a credit union not being a public company, I am kind of a loss at how to even get a hold of the pooling and servicing (PSA) agreement for my mortgage. If I file any sort of lawsuit (quiet title) against my lender and do any discovery, they'll probably object the heck out of me trying to get a hold of the PSA. Does anyone know of any good foreclosure delay strategies? Anyway, I'm willing to fight it all the way through the unlawful detainer Court (if the lender forecloses), but would like to concentrate on all I can do to gain several more months of time before the foreclosure. Somebody here has commented that Unlawful Detainer Court is pure hell, so it'd be nice not to get there in the first place. Thanks.
I am doing more research into defenses against account stated causes of action; Some I am thinking of; 1. That it can be equally implied that failure to make a payment can be evidence that a billing statement was NOT sent to a party. 2. That an account stated that is implied by failure to dispute a billing statement is a non written contract and subject to the 2 year SOL in CA. and the shorter time in other states. 3. That the FCBA does not state that failure to dispute implies ascent to the billing amount. 4. That objecting to billing statements after recieving them in discovery constitutes a written dispute if it is alleged in the answer that you denied the claim that billing statements were sent to you. 5. That the shorter 2 year time would mean there is no duty to pay a debt a third paty alleges after a failure to dispute 6. that suing on an account stated theory after the two years SOL would constitute a FDCPA or state equivalent. 7. That just because a billing statement is addressed to someone does not mean that the addressee is a party or the debtor for a particular account. Billing statements lack significant identifying information. Also we need to look into how the billing statements are made what process and data are combined to make a statement. 8. That the use of discovery sanctions will be helpful in any suit, as pro pers cannot get legal fees the court would have to entertain exclusion of evidence in certain areas. 9. show that the account stated is not valid in credit card cases. 10. Show that credit card transactions are not accounts for purposes of but an extension of contractual conduct by the parties. and we must refute stuff like this: