Foreclosure Defense: Module 7

Servicing and Filing Your Case

This module talks about initiating a civil action against the bank.
Look getting involved in litigation is a serious matter.  The odds are stacked against you.  The Judge is often ignorant of the law (funny but true).  This is particularly true in Judicial States like Ohio, and Florida..where Judges have hundreds of foreclosures to “rubber stamp”.  They have a duty to provide you a fair trial…but they don’t.  It’s up to you to remind them of this and hold them to their Oath of Office.

By now, you’ve been introduced to a number of important topics regarding the law and the litigation process.  In this module, we’re going to go further to help you better understand how it works.

To file a civil action “in pro se” (in California it is “pro per”) means in person.  By yourself.  Not re-presented by an attorney.

Once you have read through these handbooks, go research your local State or District court house’s own rules.  They should be very similar, but some local variance are abound. Next, I want you to listen to this audio about getting help.

Here are a couple of cool websites I use for my law research:

Who to Sue and Who to Service

Obviously, it is important to know who to name as a Defendant in your civil action.

You should consult with Prepaid Legal about this however, what many homeowners do have been suing their Serviceras it is the Servicer that is doing the foreclosing (in fraud).  Basically, attack the person who is attacking you.  Your current servicer.

You should name the company you are suing properly.  Many of these companies are so big, there are so many entitles that are similar.  For example, it is not Bank of America, but instead the proper name is: Bank of America Residential Mortgage Corporation.  Or Wells Fargo FSB.  Make sure you get the name right.  If not, it can be tossed out.

Should you name anyone else?  eg. The Trustee?  MERS?  That’s up to you.  Again, consult with Prepaid Legal.

We HIGHLY RECOMMEND that you also name the Trustee of the Trust.  If you have received a Notice of Substitution of Trustee, then name this party also.

Just stick with the name of the corporation.

IMPORTANT: YOU MUST Serve your defendants at their proper office address and/or registered agent. Improper service can have your case dismissed.

Proper Servicing is a constitutional right.  If I were to sue you, and send the notice to Africa, is that fair?  No.  Will any court accept that?  No.  If you do not serve your defendant properly, then your case will be dismissed.

Who should you service and Where?

If possible, you should ALWAYS service the Registered Agent of the Corporation in YOUR STATE.

To do this, go to the Secretary of State’s website for your state.  You should then find the Defendant’s registered agent.  Next, you should hire a process server to serve your defendant.

Here’s a great site to look up proper serving procedures/protocols for your state: http://www.serve-now.com/

What if the Servicer does not have a Registered Agent in my State?  If this is the case, then find the Registered Agent in the Servicer’s State’s –  Secretary of State’s website.

What is a Process Server?

You will also need to prepare the Summons.  A Summons is a formal cover sheet and Notice to give fair warning to the other party that you are suing them, and they have X days to respond.  The specific language of the Summons is covered in your State Civil Procedure.  This is very important.  Be sure to look it up.  Without a Summons, you do not have proper service…and your case can be dismissed.

In some States, a Summons is provided as a cover sheet that is given to you when you file the Action in court.  In most other States, you will need to include and create your own.  Check with your State Civil Procedure to confirm.  Seriously, this is important.  You must have this exactly right.  It will only take you about 5 mins to confirm.

Also, be sure to double check with Prepaid Legal to make sure.  Again, if you don’t do this properly, your case could be dismissed.

Customize 004b-Summons.doc just to be sure.

Yes, this is bullshit.  Yes, there’s so many ways you can trip and mess up.  If you should fail in any of these tiny steps, your case could be dismissed and you will need to start all over again.  It is a pain…but, the law is the law, and you have to follow the law.  Welcome to the game. That is why having Prepaid Legal behind you and coaching you on the process is $16 well spent.

The Lis Pendens

The Lis Pendens notice is designed to give everyone notice that your house is now part of a civil litigation.  If an investor wishes to pick up your house on the cheap through an auction, he does so knowing full well that he may have to give it back because the house is being fought over in court.  It also give the Trustee notice that you are fighting this case in court and he may not sell your house.

A LIS PENDENS CAN ONLY BE FILED WHEN YOU HAVE A PENDING CIVIL ACTION!  Filing one without a civil action amounts to filing false documents and can subject you to fines.

In California, you may have to get leave from the court once you file your action.

Customize: 005a-Lis Pendens.doc

What Venue?

Determining which court system to use is just as important.  If you are in California, AVOID SUPERIOR COURT at all costs.  You will never win.  If you can “afford” to do so, we HIGHLY recommend that you use the Federal Bankruptcy Court system.  For more information about filing an Adversary Proceeding (which is a Civil Action in BK), go to Module 0.  Otherwise, file your case in Federal Court.  To file your case in Federal Court, take our template and customize the Header for your local Federal Court.  Under the section called Jurisdiction and Venue, you will want to claim jurisdiction under “Interstate commerce”.

In other words, you will say “The Defendant is a national bank that does interstate banking.  As such venue is appropriate under interstate commerce.”

In most other states, State Circuit Court should be fine.  We advise you talk to an attorney or Prepaid legal to discuss this matter.

Filing Your Case In Court

Once you have completed the following documents:

And are satisfied with them, having double checked them with your Study Buddy, consulted Prepaid Legal and you are ready to proceed, then take these to your closest Circuit Court (or Superior Court in California).
Print 3 copies of these.

 

1. For the Court
2. For the Defendant
3. For Your own Copy in case you need to re-service the Defendant in the future for whatever reason

Once you are in the Court house, ask where to find the “Clerk of the Court to file a civil action”.  You will find a counter where you will submit your documents and the Clerk will give you a Case Number.  WRITE THE CASE NUMBER DOWN.  This is a very important number.

You will need to pay for Court fees.  Fees vary from state to State.  However, if you can not afford to pay Court fees, you can ask the court to waive your fees. You can file for what’s called “in forma pauperis” in which you pay very little or free for your court fees. Please ask prepaid legal about this.  To apply for in forma pauperis, customize this document and submit it with your civil action. 004a-In Forma Pauperis Application.doc

You will want to write this case number on all the cover sheets of the 2 copies (the Clerk will stamp the Court copy).  ie. The Summons, the Request for Admissions and the Request for Production of Documents.

You will then take the second set of copies and send it via Fedex/UPS to your Process Server.  Be sure to contact and communicate with your Process Server for instructions.  Be sure to get the address of the Registered Agent correct.

Once your process server receives your packet, then they will service your Defendant.  This moment/date is known officially as the “Commencement Date“.  This is an important date.  This is the date where the clock starts.  In other words, they will have 30 days to respond from the date of commencement.

Next, take your Lis Pendens and go to your County Recorder’s Office and file it with the County.  In some States (California for example), you may need to get leave from the court.  So, before you leave the court house ask about getting a confirmation of Les Pendens..

Next, go to a coffee shop and chill out.  You’ve pulled off a major ordeal.  Congratulations.  You deserve a pat on your back.  You’ve fired your first shot.  The War has begun.

Action Items

The next module will be released to you tomorrow.