nnr0704

Removing/Vacating a Non-Judical Foreclosure (Military Implications)

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I wasn't sure if I should post this here or in "Legal Issues" but I hope someone can help.

 

My husband & I  purchased a "deeded" timeshare in FL. Almost immediately after, after my husband began ship rotation & extended deployment (Active Duty).  After my husband left the ship, he had a change of assignments and my job was eliminated leaving us with significantly lower income. We had trouble paying. I tried to sell it to no avail, give it away, ebay, all a no go. Last year, I called the company about a "deedback" only to be told they could not while there was still a balance but could work out a payment plan with them.

After 6 months of payments they stopped taking the auto payments out. I called and was informed my account was sent to the foreclosure department. Apparently, the maintenance fees were not part of the payment plan I had been paying.

The foreclosure dept. ended up being a title insurance company in Nevada that refused to accept partial payments and wanted the entire amount immediately.

 

Bottomline, it foreclosed in less than 6 mos. & reported it on credit reports as "closed, foreclosed".

 

There are no public judgements on file and when I looked up the public records, I discovered it was a non-judicial foreclosure by a "trustee foreclosure process". A new law in Florida enacted to speed up the foreclosure process on timeshares only.

 

After doing some research, I also discovered Section 521 of the SCRA (Servicemember Relief Act) provides all service-members protection against default judgments while on active duty and if I am reading it correctly, a creditor cannot foreclose/repossess property for active duty service members without a court order. Wouldn't an expedited non-judicial foreclosure violate this law?

 

The last letter I received from them did have a clause from the Florida Statue that read "If you do not object to the use of the trustee foreclosure procedure, you will not be subject to a deficiency judgment even if the proceeds from the sale of your timeshare interest are insufficient to offset the amounts secured by the lien."

I did not object but I am pretty sure they skipped a couple of steps by notifying us after it was already filed.

They are not currently trying to collect on this and I don't want to, necessarily, awake a sleeping dragon but wish there was a way to get them to change the status on our credit report. My husband is retiring soon and I am nervous this will hurt his security clearance.

 

Tell me if this is stupid or not:

 

I want to send the creditor some type of letter informing them that they have violated SCRA. They can keep the timeshare but I want the tradeline deleted from our credit reports.

 

Is this a bad idea?

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While I definitely second the recommendation to consult with LawKitty, I would caution:

 

The SCRA does provide relief, but only on debts taken prior to active military service.  If your husband was in the military when you purchased the timeshare, it most likely will not fall under SCRA protections.

 

The SCRA was mainly written for national guard or reserves, someone who being called up would force them to leave another job & take a probable pay cut.  If your husband was non-reserves, i.e. in the military but just got shipped out or change of duty stations, I doubt it would cover, but I could be wrong.

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@Rogue198 Thanks, Rogue, for the response. I did reach out to LawKitty as suggested.

After reading the statute and talking to Navy Legal today, I am pretty sure SCRA (in this matter) is applicable to all Active Duty military members. You are right though about the "debts prior to military service" but that only applies to the interest rate caps and related debt relief.

 

I also spoke with a consumer attorney briefly today but honestly, he kind of scared me throwing out words like FDPA, TCPA, FCRA violations. He was really gung-ho (which isn't necessarily bad) but he is defintely anti-timeshare industry. He mentioned "sticking it to them" multiple times which scared the bejeezus out of me. I really don't want a drawn out court battle.

I am working a lot of hours to pay down our debt, I am in school and my father is dying....I really don't think I have the energy to make this any bigger.

 

I just want to know if I can use their SCRA violations (if they did violate them) as leverage to remove the tradeline or have them voluntary vacate the foreclosure and then do a deed-in-lieu.

I don't want any money out of them.

 

Thanks again for responding.....

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@nnr0704

 

@Rogue198 Thanks, Rogue, for the response. I did reach out to LawKitty as suggested.

After reading the statute and talking to Navy Legal today, I am pretty sure SCRA (in this matter) is applicable to all Active Duty military members. You are right though about the "debts prior to military service" but that only applies to the interest rate caps and related debt relief.

 

I also spoke with a consumer attorney briefly today but honestly, he kind of scared me throwing out words like FDPA, TCPA, FCRA violations. He was really gung-ho (which isn't necessarily bad) but he is defintely anti-timeshare industry. He mentioned "sticking it to them" multiple times which scared the bejeezus out of me. I really don't want a drawn out court battle.

I am working a lot of hours to pay down our debt, I am in school and my father is dying....I really don't think I have the energy to make this any bigger.

 

I just want to know if I can use their SCRA violations (if they did violate them) as leverage to remove the tradeline or have them voluntary vacate the foreclosure and then do a deed-in-lieu.

I don't want any money out of them.

 

Thanks again for responding.....

 

Also keep in mind, many of the SCRA protections are not automatic, you have to have invoked them, similar to SOL defense, you have to present it for it to be used.  Again, I'd be thrilled to be wrong on this and I hope I am.

 

I'd say let the attorney through everything including the kitchen sink at them.  It only increases your leverage to get what you want out of this.

 

When I was sued and got an attorney, I'd have been thrilled with a mutual walk-away, everything else was just gravy.

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