Wrongful Foreclosure Module 6

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 are  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:

www.foreclosurelaw.org This is a great site.  Has all the relevant laws regarding foreclosures in your State.

www.law.cornell.edu

UCC Law Specific to your State << THIS IS REALLY IMPORTANT

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

You should consult with Legal Counsel about this however, what many homeowners do have been suing their Servicer as it is the Servicer that  did the foreclosing (in fraud).

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: BAC Home Servicing.  Or Wells Fargo FSB.  Make sure you get the name right.  If not, it will be tossed out and you will be forced to start all over again.

Should you name anyone else?  eg. The Trustee?  MERS?  That’s up to you.  It is better to over sue (ie. name everyone) than to under sue.  We recommend that you discuss this with an attorney if possible.

Should you name the CEO of the company?  I would not recommend it.  The CEO did not do anything wrong to you personally.  Only the company did.  If you were to sue the CEO, then you will need to service him/her personally.  It’s more challenging.

Just stick with the name of the corporation.

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.

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/

Step 1

Step 2

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.

Once you are ready to Serve the other party, hiring a process server means your case will be less likely to be tossed out due to improper servicing.  99% of cases are won or lost not because of the arguments, but through procedures.  So, it is important you get it right.

A Process Servicer is an Agent of the Court.  Once your paperwork is received by the Process Server, it is as if you delivered the documents to the court yourself.  There can never be any mistake or excuse that “they never received it”.  A Process Server is someone who will physically go to the agent and hand the papers to their face and testify it to be so.  She then go to court and submits a certificate of service for you (so you don’t have to).  Otherwise, you will have to go to court, get strip searched, and stand in line.  A process server typically charge you between $30 to $70 depending on location and how fast you need it done.

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.  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.

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).

Be sure to review the handy checklist we have provided for you in 008-Court Procedure Checklist.doc.

Print 3 copies of these.

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, 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.

0) Customize these if you haven’t done so.

Note: We can not review your pleadings. Connect with other people in the program.  If we do it, then we will be practicing law and can be thrown in jail.  THERE ARE OTHER PEOPLE IN THIS PROGRAM WITH THE SAME CHALLENGES AS YOU.  HELP EACH OTHER.  YOU ARE NOT ALONE NOW.

To Connect with others locally, come here to the Meet Up Directory.

NOTE: It is better to over service than to under service. Improper servicing will have your case dismissed.

Look, it is hard enough fighting the bank, but when it comes to getting real legal help, you don’t have time (or money) to spare to fight your own attorney who “poo poo” your arguments, telling you “this stuff never works.”

To make matters worst, these attorneys want to charge you $2000 up front just to LOOK AT YOUR ARGUMENTS.  This is something I’ve personally witnessed myself.  I’ve been trying to find a good attorney I can refer our people to besides prepaid legal…until now, it’s been a futile search.

The other problem with these attorneys is….they charge you between $250 to $450 an hour for this..and they expect you to put up a $5000 to $10,000 retainer to get started.  I don’t know about you, but if I am in foreclosure, I obviously don’t have that sort of money to throw around.  Besides, in a recent study, most attorneys fluff their hours and charge you their $250/hr fees for something they pay a paralegal to do.  It’s just so scary.  Their incentive is to spend all your money up.

We recently hooked up with a law firm who not only understands foreclosure defense, but can do it affordably.  Not only that, they can work with you on a payment plan!

I’ve personally talked to these guys, and I am giving them my personal endorsement.  These guys are attorneys with heart.  They care!  And that is very rare.

For more information about retaining this firm, click here.  Be sure to mention to them that you are a member of Consumer Defense Programs so that you receive a special member discount price.