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BTO429

Illegal foreclosures

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This is for discussion purposes.

 

Situation:

While on active duty SM house was foreclosed on. SM's father filed BK. $ years before SM was deployed mother and father bought a new house and gave their other house to SM and his family by a quit claim deed. Before SM was deployed he added parents to title by quit claim in case any thing happened to him. SM is unmarried but has a son that was 12 when he was deployed.

 

Parents had to file bk the house that was quit claimed was brought into the suit because the parents still had a mortgage on the property but did not tell son. Son was told while on active duty that parents were filing BK and his house was ok. Son was also told that he was not a party in the foreclosure suit.

 

Son was never served nor was an affidavit of non military status filed. Only affidavit of military status was done on father, mother passed away before the foreclosure started. Sm house was foreclosed on and so was fathers house.

 

Son did not return from Afghanistan until after the foreclosure was finalized and he lost the house. father told son he was not mentioned as a party in the case and it was because of the bk that they took both houses. Father told son that they took his home because fathers name was on the title also, as the atty told him.

 

7 years later father is sick, son is going through his fathers papers to get things in order just in case he looses his father. Son discovers a copy of the case filed on the foreclosure and his name was on the suit as a defendant. 

 

SM realizes he had defenses he could have asserted over SCRA and other state laws. SM has talked to several attys but they all say he has waited too long to file a suit.

 

We all know SOL restrict when a person can file suit, but are there ways to beat the SOL on when he can file a suit?

 

I have some theories but wanted to start a discussion on this because it happens to a lot of people, even in debt collection they find out too late that the Plaintiff filed motions and they waited too long but they also were never informed.

 

 

 

 

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Gunny, I would think that the fact you were deployed and not privy to this information should help you. In some states the fact alone that a person becomes aware of the act, they then have a certain time in order to clear it up. I would think your being deployed would help toll the situation.

This is off the wall, but in a sex abuse case of a person that has no memory of the act, once they have counseling and are made aware of the fact are allowed to have the statues start then, if I recall that law. I would think that law is law. If one was not aware of the fact at the time, they should be allowed to seek retribution. Just a thought.

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Gunny, I would think that the fact you were deployed and not privy to this information should help you. In some states the fact alone that a person becomes aware of the act, they then have a certain time in order to clear it up. I would think your being deployed would help toll the situation.

This is off the wall, but in a sex abuse case of a person that has no memory of the act, once they have counseling and are made aware of the fact are allowed to have the statues start then, if I recall that law. I would think that law is law. If one was not aware of the fact at the time, they should be allowed to seek retribution. Just a thought.

This is not about me, I have my own case over some thing similar, as a lot of SM's do.

 

I am trying to show people on the board that a statute of limitations is not written in stone, there are ways to challenge a SOL. There are also ways to challenge a court rule for filing deadlines. A court deadline is a court rule that creates a SOL.

 

I have seen so many posters on the board that find out years later they have a judgement, and they are told there is no way to fight it, except lack of service, there are more ways to challenge this.

 

There are so many ways for a plaintiff to prove service, and the courts accept this crap, it aint funny. But they need more than one argument in their case, so if lack of service does not stand up they still have a case. They only have one chance to prove to the court that they should be allowed to challenge a default judgment that was entered when the defendant had no idea of the case.

 

We need to start fighting back, and making these plaintiff that use underhanded techniques to get a default pay for what they do to the consumers. They do as they please and there is no recourse for consumers. Consumer get hit hard, and the plaintiffs that lie and are sneaky get away with it. We need to start claiming more than just lack of service, we need to start hitting them with fraud, fraud upon a court, illegal repo laws, conversion, theft, violating our constitutional rights, etc etc.

 

Consumers need to draw a line in the sand and say cross it, I dare you. I am lobbying with some friends right now to get these substituted service laws changed. We are also calling for sewer service to be illegal and punishable. We argue that a process server should be an officer of the court ONLY.

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I am trying to show people on the board that a statute of limitations is not written in stone, there are ways to challenge a SOL. There are also ways to challenge a court rule for filing deadlines. A court deadline is a court rule that creates a SOL.

 

The time limit provided by a court rule for vacating or appealing a judgment is not the same as the SOL for filing a cause of action. 

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The time limit provided by a court rule for vacating or appealing a judgment is not the same as the SOL for filing a cause of action. 

I understand this,,,,I am trying to show people that there are arguments for when a person finds out he/she has been sued but its after the the court imposed time limits. We need good arguments to beat these rules.

 

Dirty sneaky attys know how to get a case in court and sneak buy and get the default, we need some good arguments to convince the court they should not be subjected to a rule when they had no idea the case had been filed until they get the notice of foreclosure, levy, or repo or what ever the case may be.

 

I am tired of seeing posters with this situation and they can't get any help. Most attys wont even touch a case in this position.

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For arguments sake, lets explore equitable tolling.

 

First what is equity, Equity law stands for that which is fair and just.

 

Equitable tolling can be used based on a Plaintiffs inability, or wanton disregard to  comply with the rules of civil procedure. Disregard does not have to be intentional. Failing to properly serve a defendant is disregarding the rules of procedure. A defendant may move to dismiss a case by arguing that the plaintiff ran afoul of a statutory time limit on filing the suit, filing a motion, properly serving a defendant, or adding an indispensable party.

 

Therefore, the time limit imposed on a defendant to file an objection to a levy, In vacating a default judgment, or filing state authorized exemptions before the time limits have expired are equitably tolled due to the plaintiffs actions in not performing due diligence when properly serving the defendant.

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Equitable tolling has to do with the PLAINTIFF's discovery of a cause of action.  It's not about the DEFENDANT's discovery of a judgment.  Discovering a cause of action (plaintiff) and discovering a judgment (defendant) are not the same at all.

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This is much ado about nothing. If a default judgment was obtained improperly, Rule 60 (or your state's equivalent) is all you need. If a defendant can show he was never served, the Court will vacate the judgment if the evidence indicates.

 

The issues with "sewer service" notwithstanding, lots of folks who claim they were "never served" were indeed served, maybe not the way they think they're supposed to be, but served nonetheless. In those cases, most judges have a pretty keen ability to separate the weed from the chaff.

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Most people expect service to be sufficient to let them know about the lawsuit.  Unfortunately, legal rules don't always ensure that.

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