stevet1 Posted March 9, 2005 Report Share Posted March 9, 2005 Please, PLEASE reply if you know something. My dad owns property in PA (a piece of land). He bought it in 1981. He paid off the loan in 1986, but has no proof of payment - all his records were lost by a moving company or UPS in 1999 when he moved to California, and we haven't been able to locate them. In addition, my dad's bank says that they destroy all records after 7 years, so he can't get any records of any payment of this loan. Now a lawyer representing Wachovia Bank (not the original creditor) is trying to foreclose on this property which is worthless to my dad. My dad actually would not mind giving up this deed. They claim that no payments have ever been made. There has been no attempt to collect on this supposed debt ever since my dad paid it off in 1986. Actually, my dad is pretty old and doesn't really care what happens to his credit report. I'm interested mainly in protecting his current assets. We sent a debt validation letter yesterday. Apparently the loan is way past SOL.Q1: If Wachovia cannot produce validation of debt, can they still foreclose? (i.e. Isn't foreclosing on the property considered continued debt collection activity?)Q2: I understand that after foreclosure, Wachovia can try to seek a deficiency judgement in the state of PA. Can we win a deficiency judgement case based on the SOL being expired?Q3: Basically, I'm asking, if we forget about the credit report problems that occur from the foreclosure, is there anything that Wachovia can legally do to collect on this debt?Q4: What course of action would you pursue if you had the same goals as my dad (really just asset protection)? (i.e. pursue deed-in lieu of foreclosure, file bankruptcy, do nothing, etc.)Thank you for taking the time to reply to my questions.Steve Link to comment Share on other sites More sharing options...
DocDon Posted March 9, 2005 Report Share Posted March 9, 2005 Assuming the bank was the OC, if they destroyed all the records, how is it they were able to sell this alleged debt to Wachovia? I would have some choice words for a few people.One thing to understand - it's not up to you to prove the debt isn't yours - it's up to them to prove the debt is yours. Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 Oops, sorry about that. My dad's bank (Citibank) destroyed his old checking account records. We were trying to obtain old statements from Citibank and hoping to get old cancelled checks to prove that he paid off this loan.Wachovia is the bank trying to foreclose on the property. What happened was that OC sold loan to First National Bank of Allentown, which was then bought out by Wachovia.Sorry for any confusion, and hope this enables someone to answer my questions. Thanks again! Link to comment Share on other sites More sharing options...
DocPC Posted March 9, 2005 Report Share Posted March 9, 2005 Does he have the deed? That should prove it was paid off. Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 DocPC,Now you're exposing my limited knowledge of real estate. Well he has a deed, I don't know what kind of deed. He got it very soon after purchase, dated in 1981. I'm sure that his lien/mortgage was valid during the time he was paying the loan from 1981-1986. He never received a free and clear deed or title or whatever it is he was supposed to get when he paid off his loan. My dad was a poor decision maker and record keeper during that time, and I was only a little kid. He didn't think anything wrong when he didn't receive his free and clear deed/title/etc? because the loan holder at that time (First National Bank of Allentown) stopped sending him bills/ payment coupons once he paid off the loan.I know it's almost ridiculous and hard to believe, but my dad really doesn't have any proof that he paid off this loan, because it happened so long ago. Assuming that no documentation is coming, is it possible for Wachovia to go after his current assets and legally collect anything? Link to comment Share on other sites More sharing options...
DocDon Posted March 9, 2005 Report Share Posted March 9, 2005 Check county records. Should be public record??? Link to comment Share on other sites More sharing options...
DocPC Posted March 9, 2005 Report Share Posted March 9, 2005 Check county records. Should be public record???Start there (public record), but you may need a Lawyer at this point. This is a tough one... Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 DocDon,Checking county records is how this mess all started. My dad thought he owned the property free and clear back in 2002. He tried to sell it, but was unsuccessful. He then tried to donate the land to the homeowner's association. They accepted, and did a title search. However, the title search revealed an outstanding lien on the property. We thought that must have been a mistake and started inquiring about who held the lien, We found out it was now Wachovia, and they said he owed this huge amount of money because he never paid a cent on his original debt. This occured in 2003, and my dad kind of just ignored it at that point in time. He was hoping that since it was such an old loan, they would just forget about it.Well, we didn't hear anything from them until the end of Feb 2005, when a lawyer representing Wachovia sent us a letter claiming default and intention to foreclose. Funny thing is that none of this is on his credit report. Link to comment Share on other sites More sharing options...
KentWA Posted March 9, 2005 Report Share Posted March 9, 2005 In an undisputed foreclosure it may be a cake walk for them. If you contest it, Wachovia is going to have egg all over there face when they try to tell the judge they waited 20 years of non-payment before foreclosure.I will bet that Wachovia does not have document one to prove there was no payments. Most likely all records were lost, or destroyed and they are going by some electronic record.Are they threatening to foreclose, or have they begun procedings? If they have started proceding you need to work the legal process and DV will do you no good. You will want to sue them for intentional infliction of Emotional Distress. If protecting assets is a priority and it should be as those are the things that makes life livable in later life, do not let it go. I am sure the land value has increased substanually since he purchased it. Link to comment Share on other sites More sharing options...
DocDon Posted March 9, 2005 Report Share Posted March 9, 2005 I wonder if the attorney is aware of that (looking at the documentation) and just figured he'd go after a senior citizen....Why not get the AARP or someone like that onboard? Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 DocPC,We have started prelim. discussions with a local lawyer in CA. Do you think we need to find a lawyer cross-country in PA?Also, remember, I'm thinking that my dad doesn't really care about the foreclosure itself, but we're mostly concerned about a possible deficiency judgement. Are you telling me that the SOL won't prevent him losing a deficiency judgement even though the loan is 19+ years without any activity (actually 24 years from Wachovia's point of view)? Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 In an undisputed foreclosure it may be a cake walk for them. If you contest it, Wachovia is going to have egg all over there face when they try to tell the judge they waited 20 years of non-payment before foreclosure.I will bet that Wachovia does not have document one to prove there was no payments. Most likely all records were lost, or destroyed and they are going by some electronic record.Are they threatening to foreclose, or have they begun procedings? If they have started proceding you need to work the legal process and DV will do you no good. You will want to sue them for intentional infliction of Emotional Distress. If protecting assets is a priority and it should be as those are the things that makes life livable in later life, do not let it go. I am sure the land value has increased substanually since he purchased it.Thanks for your reply. Well, from what I've learned, Pennsylvania has something called Act 91. Act 91 forces them to notify the debtor that they PLAN on foreclosing on the property, and that the debtor has 30 days to pay off the creditor, meet with a credit counseling/repair agency, apply for emergency mortgage assistance, etc. So from what I can tell, they cannot start foreclosure until after that 30 day period. We sent in the dispute of debt and request for validation well within the 30 day period, but I'm not sure that this will help since the county records still show them as the lien holder.Wachovia is pretty much national. Do you folks on this good board think we have a case here to really sue them for their actions? If so, is it possible to sue them locally (here in CA) rather than in PA. It would be much easier for us if we didn't have to retain counsel across the country. Link to comment Share on other sites More sharing options...
stevet1 Posted March 9, 2005 Author Report Share Posted March 9, 2005 I wonder if the attorney is aware of that (looking at the documentation) and just figured he'd go after a senior citizen....Why not get the AARP or someone like that onboard?Hmmm, I hadn't thought of this. How would one go about doing this? Do they have a program to help seniors in this way? Thanks again for all your replies. Link to comment Share on other sites More sharing options...
codename_fortyseven Posted March 9, 2005 Report Share Posted March 9, 2005 Steve, don't be afraid of a big, bad bank. I tell you who I'd call: the media!Get on the horn to your local TV station, radio station, muckraker, and raise hell! Show your poor old dad who is getting beaten up by this big bad bank that thinks they are above the law. Contact your state banking agencies or mortgage banking agencies. I know in Tx there is a statute of limitations to force a foreclosure, I think it is 4 years from the date of the deficency. You are talking almost 20, so if there is something like that in your state, you could offer a defense. I would fight this tooth and nail, and I think you should have some defenses here. When was the lien placed? For what reason? What is the land worth, and how much are they asking?I'd also contact Wachovia directly, get in contact with their executive desk and let them know you are pissed and will fight this. Let em know you'll be suing for wrongful foreclosure. I don't think they can foreclose if they can't validate the debt, and yes foreclosure is an attempt to satisfy a debt. I know in Tx, there is a seperate SOL for deficency judgements. For instance, Bank A has 4 years to foreclose after a defaulted loan. After the foreclosure sale, they have 2 years to seek a deficency judgement, so you may have 2 SOL's to work with. Depending on what sort of assets your dad has, they could try to go after those as well. I would not do a deed in lieu, I would not file BK, and I would definately not forget about it and do nothing. Understand that mistakes happen, and with a vacant piece of land, perhaps they filed the lien incorrectly. Perhaps they ment to place the lien on a similar piece of land, and since it IS vacant land, it isn't like you can exactly tell that it is the 3rd house on the left. Perhaps the survey is screwed up and lists more or less land than appropriate. SOMEONE should have the title recorded as far as who had it and when. Link to comment Share on other sites More sharing options...
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