I am now looking at an auction date of October 21,2014 and all financials submitted to attorney in early June were never submitted to bank. All financials were provided again last week yet still not submitted to bank. I went to palm beach county clerk and pulled file. Nowhere did plaintiff prove that they are legitimate owners of note. Original loan was WAMU then sold to chase(or given to chase) and now final plaintiff is now Wells Fargo. Again no where is there any original provided .Only proof plaintiff provides is the ,libor entry with clerk by WAMU in 2004. Defendants lawyer advises that all efforts were made and would lose trial. Advises to accept 120 days to sale date. Should defendant file motion to vacate foreclosure judgement and motion to reverse or cancel sale?, pro se?
It is unfortunate but you are going to lose your home. You hired a lawyer, apparently in the summer of 2014. It appears that in June the lawyer you hired consented to judgment of foreclosure (surrendered) rather than taking your case to trial and in exchange for a 120 day sale date. In all likelihood you made several mistakes that I will point out not so much for your benefit but for the benefit of those who might read your question. FIRST you most likely hired counsel way to late. If your sale date in October and we turn the clock back 120 days to June this means you had a June trial. The time to submit a loss mitigation to a bank is not on the eve of trial. The time to submit loss mitigation documents to a bank is usually early in the case unless at the inception of the case the borrower is unemployed. When a bank gets loan modification documents on the eve of trial they usually think (1) this is a stall tactic or (2) why did they borrower wait one, two, three years to be willing to start making some amount of payments again, and (3) now that we spent all this money of legal fees we may as well take the house and close the file. For many banks once the bank has a judgment loan modification submissions go straight in the trash as their file is effectively closed once they have a judgment.
SECOND you most likely hired the wrong firm. A firm that is going to accept a cases a month before trial and spend the time necessary to prepare the case for trial and attend the trial ( lets call that 10 to 20 hours at $300 to $450 and hour) is going to change $3,000 to $9,0000 to conduct the trial. If you a firm on the eve of trial for $500 or $1,000.00 it is unlikely that the firm planned to do anything other than surrender. If the firm could not show you are large number of trial judgments where they took a case to trial and won they were the wrong firm. While there are many lawyers who hold themselves out to the public as foreclosure defenses lawyers .. less than 25% of them actually regularly take cases to trial. To make matters worse the bank’s lawyers know which lawyers take cases to trail and which do not. Hire a lawyer who they know if going to surrender and there is no need to rush you loan modification package to the top of the bank’s pile to avoid the risk of the bank losing the trial.
THIRD you made a mistake involving the lawyer in loan modification process after he surrendered. If the bank needs a copy of your 2013 tax return which gets the job done faster. (A): You sending it to the designed point of contract directly or (B) You E-mail it to your lawyer…. Who hopefully sees it in his E-mail, then it hopefully goes in his to do pile, and then hopefully he faxes to E-mails it to the bank if you gave him the correct contact info. Then if the bank has a question. They call him, he eventually calls you. You eventually call him back and hopefully he calls the bank back. Of course if you case was OVER to your lawyer because he surrendered and you has no expectation of being paid any additional fees from you, do you think your file is the most important thing he has to work on. The fact that you realized that you gave documents to your lawyer previously that did not go to the bank on a timely basis and you did not remove him as a unnecessary wasted step was another mistake.
If you check our blog linked below you will see a large number of redacted loan modifications some obtained as quickly as 90 days after the cases was filed and others on the eve of trial. We avoid the problems you had by having hold the phones meetings with clients where the client comes in with the loss mitigation documents and while the client is in our office we review and correct their package, fax it it to the bank and hand the client a copy of the fax confirmation page while the client is in the office. Sadly in your case the time appeal has passed and you can’t appeal a voluntary surrender. You need to find a new home.
If you agreed to the final judgment in return for which the bank agreed to a 120 day extended sale [by statute, sale is to be conducted 25-35 days from entry of judgment] then what is the basis to set aside the judgment? You agreed to it.
You can file whatever you want. I am not G*d or a judge so I can not tell you with certainty how a judge would rule, but from what I have seen at the Courthouse I believe it unlikely the Court would grant you relief. The time to test the rights of the bank to foreclose is the trial. If you agreed to the judgment you waived the right to have all that proof; the judge will rely on the affidavits submitted by the bank.
You MAY wish to consider filing a bankruptcy. I say that not because I handle bankruptcy matters but to let you know that it is an option to consider. It may be good for you overall, especially if you have a lot of other debt, or it may be bad for you if you have asseets. But, you need to know that the filing of a bankruptcy will have the effect of canceling the sale. In Chapter 13 cases there is a mortgage modification program in place where the documents when sent to the bank through a special portal set up just for that program there can be none of that "you did not send this" or "you did not send that" as the mediator, you or your attorney and the bank's attorney can all see what was uploaded. However, the banks have gotten very good at saying they need more paperwork, and more, and more.
Remember, the banks have no obligation to modify, only to work with you to see if a modification would work--in their minds.
The first thing I would do is to meet with the attorney you hired and find out exactly what he did and what his advice is at this point. Some of the things you are saying do not make sense. It is unethical for the plaintiff's attorney to speak with you if you are represented. It is also very unclear what you mean by the Wells Fargo attorney telling you "all efforts were made and would lose trial." Efforts for what and who would lode a trial. I understand that this is confusing but the person you should be speaking with before doing anything else, is your attorney.
Have your attorney proved you with copies of what was submitted to your lender. You should be prequalified for a modification meaning the lawuer ran your financials and you qualified under NPV and the HAMP test. As to the foreclosure the original note must be provided which I am sure your lawyer has requested. Otherwise substitute lawyers to defend your rights and protect your house
Unfortunately, we hear reports like yours all the time. In your case, it does not sound like it would help you to file a motion to vacate the foreclosure judgment and to vacate the sale, unless there is far more to the story than you have said here.
There are so many attorneys who took on defense of foreclosure matters in Florida who should not have. I don't know if your attorney is one of them, however, I hear constantly about people being told by their attorney to agree to a consent judgment and a 120 day sale date because they will lose at trial. The problem is that, in West Palm Beach these days, there are senior judges presiding at trial who rarely if ever find for the Defendants, no matter how well their defense was made and no matter that the law supports them. Assuming that happens, which is likely, they will then normally not give an extended sale date, and the defendants' only options are to appeal and to seek a stay (which may or may not be granted) or to file Chapter 13, assuming they have not already made frivolous filings that were dismissed. Unless a good record was made in circuit court on which an appeal can be based and be persuasive and credible, then the only remaining choice is a Chapter 13. This is often though a really good option if you are looking for a modification, provided you utilize an attorney who really knows how to make this fly, because there is a program in the Southern District of Florida bankruptcy court to give you traction to at least force the plaintiff to give you a fair and thorough review for a modification, and you have administrative appeal rights now in that process.
Since you still have a couple of weeks, I URGE you to speak to an attorney who knows not only Chapter 13 and the LMM Program, but who knows how to aggressively navigate the channels to get you proper consideration. If you do file Chapter 13 before the sale, it will normally result in a stay of the sale. Again however, it is a MUST that you speak to someone who really knows what to do, now while there is still time to do it. Most bankruptcy attorneys do not do Chapter 13 cases, and most of those who do don't aggressively go after the banks when they don't adhere to their obligations to properly evaluate the borrower for a modification. We have had extensive success doing that, assuming the borrower has a financial position that is viable for a modification. Please don't wait, there is still enough time, but just barely.
If the lawyer consented to a foreclosure judgment but you never authorized him or her to do so, you may have an argument that the judgment is void under FRCP 1.540(b)(4). I have had a "consent judgment" vacated on those facts. However, if you took the bait and signed off on that judgment, there is not much you can do except to rush the loan mod to the bank and see if they are willing to consent to rescheduling the foreclosure sale.
If you are represented by an attorney, no, you should not file a pro se Motion to Vacate. If you disagree with the advice from your attorney, I suggest you ask them for clarification as they are basing their advice on their experience in this field.
