YB77 Posted May 30, 2013 Report Share Posted May 30, 2013 TIMELINE- A "BRIEF" SUMMARY OF A COMPLEX CASE 08/2005- my parents bought a home and signed a contract with a bank , of 130k09/2009- short sale settlement for 73K, deed of trust released for property to be sold12/2009- father purchased a piece of land under bankruptcy for 40K cash. 01/2010- father puts that property into an LLC, solely owned by him.01/2011- father dies. no will...supposedly, Half sister becomes administrator of estate07/2011- above bank files complaint for difference between original 130K and 73K lien short sale settlement, alleging fraudulent conveyance..thus alleging father intended to use LLC to hide money. complaint filed against my mom and half sister as administrator of estate. 09/2011- bank awarded default judgement ordered on mother and half sister as administrator, AND.. property was flipped back into father's name out of LLC secondary to fraudulent conveyance.04/2013- bank awarded default judgement ordered on half sister...breech of payment03/2013- bank filed complaint against me, half-sister, half-brother who are now "legal heirs" secondary to judgement of 09/2011, in their attempt to force sale, now reporting monies owed are well above 100K. 1. I was never served this complaint, nor did I receive a notice of hearing. I now live in the Florida Keys, and bank has always been aware of my address.04/2013- bank requested a hearing for 06/24/2013...still no notice of hearing served to me05/01/2013- received by mailing from bank's firm notice of motion for guardian ad litem for my brother who is presently incarcerated THIS was my first notice of complaint.05/06/2013- contacted bank's firm over telephone, reporting never being served or any knowledge of case. two hours later, I was served the complaint at my home in Florida. still no notice of hearing.05/08/2013- i received five items in the mail. Original lawsuit complaint, three judgement orders, copy of qualification papers of my sister as admin, and proposed settlement agreement. My goal is to maintain this land. I plan on acting as pro se. I am in need of clarification of what my strategic moves should be, and the order of filing motions to support my argument. I. My arguments - any validity? A. SOL- statue of limitations in Virginia for written contracts is 5yrs. Their argument is only based on the "fraudulent conveyance" which happened in 09/2009 (time of short sale) or 12/2009 (purchase of land), reporting they only did the short sale because my father conveyed he had no other money. But they are trying to enforce the original amount owed from written contract of 2005. If they filed in 2011, is my argument viable? 1. if yes, then would i file a "motion for dismissal" based on failure to state a claim...as evidenced by SOL ? B. Negligence- breech of duty based on never being served complaint within 21 days required. nor ever a notice of hearing. Link to comment Share on other sites More sharing options...
shellieh98 Posted May 30, 2013 Report Share Posted May 30, 2013 I can't help you a whole lot except to say the SOL would start when the default took place, not when the contract was entered into. So if the short sale was in 2009, it would not expire until 2014. But if they are not suing on breach of contract, Ido not know if that would come into play. Hopefully someone with more real estate knowledge will come along. Clydesmom appears to know quite a bit about legalities and real estate, you might try to PM her.Direct her to this thread, so we can all learn. Link to comment Share on other sites More sharing options...
YB77 Posted May 30, 2013 Author Report Share Posted May 30, 2013 I can't help you a whole lot except to say the SOL would start when the default took place, not when the contract was entered into. So if the short sale was in 2009, it would not expire until 2014. But if they are not suing on breach of contract, Ido not know if that would come into play. Hopefully someone with more real estate knowledge will come along. Clydesmom appears to know quite a bit about legalities and real estate, you might try to PM her.Direct her to this thread, so we can all learn. Is the short sale considered the default? or when payments first stopped being paid? Should I request a bill of particulars?Thanks for the referral, I shall seek the mom of Clyde Link to comment Share on other sites More sharing options...
willingtocope Posted May 30, 2013 Report Share Posted May 30, 2013 this is complicated enough that you might want to check if there are any www.naca.net lawyers in your area that will advise you. Link to comment Share on other sites More sharing options...
neweuquol Posted May 30, 2013 Report Share Posted May 30, 2013 I am an attorney and my mind is blown by this factual circumstance and would need more information before I could even wrap my head around this situation. I agree you should probably at least consult with a NACA member in your area. Link to comment Share on other sites More sharing options...
neweuquol Posted May 30, 2013 Report Share Posted May 30, 2013 I would point out that depending on what your father signed before the short sale, him being able to purchase land for $40,000 cash is highly problematic. Link to comment Share on other sites More sharing options...
Clydesmom Posted May 30, 2013 Report Share Posted May 30, 2013 Thanks for the compliment. I will give it a shot but the attorney who just responded is probably right. First problem is Virginia does allow recovery of deficiency balances in foreclosure or short sale. So the $57,000 deficiency with the short sale they can collect on. Second problem is that if Dad had $40,000 to buy another piece of land 9 months after short sale which was predicated on his declaring he had no assets to pay the mortgage then he lied in the short sale process for whatever reason to walk away from the home. Third: He tried to hide the entire deal in the LLC and it didn't work. As some point after his death without a will (further complicating things) the bank filed to over turn the purchase under the LLC back to Dad's name in order to recover the deficiency balance. The executors failed to answer the suit and the bank got a default judgment. Now the heirs are being sued to force the sale of the property to cover the debt. This is NOT a pro-se case at all. One needs a thorough understanding of real estate, financial, and banking law to unwrap the mess Dad created. I would try the NACA website referred to in the other post or this organization which helps distressed home owners: http://civiljusticenetwork.org Link to comment Share on other sites More sharing options...
YB77 Posted May 30, 2013 Author Report Share Posted May 30, 2013 A family friend obtained a mechanic's lean, deposited the money in their account, wrote a check to my father of which he deposited. What if I can show this paper trail? I contacted the firm which was handling the trust amount for the short sale. I was able to obtain the HUD settlement statement, and affidavit of satisfaction of the total amount of the note, and the loan payoff letter. Link to comment Share on other sites More sharing options...
YB77 Posted May 30, 2013 Author Report Share Posted May 30, 2013 I would point out that depending on what your father signed before the short sale, him being able to purchase land for $40,000 cash is highly problematic. Should I request a bill of particulars or what evidence the bank has showing his agreement to disclose funds and/or inability to pay? Link to comment Share on other sites More sharing options...
debtzapper Posted May 31, 2013 Report Share Posted May 31, 2013 I seem to recall from another VA poster that it's difficult to find NACA attys in VA. If you can't, try www.attorneysforconsumers.com, www.lemberglaw.com. Besides the cite Clyde's Mom mentioned, you could also look attys up fromthe American College of Mortgage Attorneys. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted May 31, 2013 Report Share Posted May 31, 2013 Honestly, this is way too big for yourself to handle pro se. if you truly want the land you are going to have to pay for an attorney. your fact circumstances are way beyond the scope that anyone on this forum can help you with (even the attorneys here). The fact that your father bought land for 40k cash less than a year after a shortsale does set off red flags that the short sale was most likely a fraudulent conveyance. Link to comment Share on other sites More sharing options...
YB77 Posted May 31, 2013 Author Report Share Posted May 31, 2013 Any thoughts on if a 1099-C was filed by the bank? Link to comment Share on other sites More sharing options...
willingtocope Posted May 31, 2013 Report Share Posted May 31, 2013 If they're still trying to collect, its unlikely they've filed a 1099c. If you do go to court, and win on the SOL, that's one of the IRS triggers that will force them to issue one. Link to comment Share on other sites More sharing options...
YB77 Posted May 31, 2013 Author Report Share Posted May 31, 2013 If they're still trying to collect, its unlikely they've filed a 1099c. If you do go o court, and win on the SOL, that's one of the IRS triggers that will force them to issue one.I'm rummaging around to see what I can find. My bet is they filed the 1099-C for the 09 year since the short sale was at the end of the year. They only filed because they are using the "fraudulent conveyance" as a breech of contract of the short sale, Link to comment Share on other sites More sharing options...
BV80 Posted May 31, 2013 Report Share Posted May 31, 2013 @YB77 Regarding the SOL, you need to see when a right of action accrues. In the case of a contract, the SOL wouldn't begin when the contract was signed. It would begin when the contract was breached, an injury occurred, etc. Also, see if there's a difference in the SOL for a secured contract. In my state, the SOL for a contract is 3 years. However, a contract secured by property is longer. Link to comment Share on other sites More sharing options...
nascar Posted June 2, 2013 Report Share Posted June 2, 2013 @neweuquol, I'm with you. The more I think about this, the more issues arise. This case potentially affects way more than than the land at issue. @YB77, you really must consult with an attorney in your state. This strikes me as a case of "be careful what you ask for." 1 Link to comment Share on other sites More sharing options...
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