OK, sorry for all the posts, but the majority of posts on this thread refer to questions about HOW to stop foreclosure.
I'm not sure about non-judicial foreclosure, because I'm involved in a judicial foreclosure. I was railroaded in a summary judgment hearing that the judge just granted to the bank, without allowing me to go to trial.
I just woke up to the reasons why, and it is all PROCEDURAL. What I mean by this is that the summary judgment process is governed by the local (in my case) or federal rules of civil procedure. I now understand what happened to me after reading over and over again the local statute (which basically mirrors federal statute) that governs summary judgment hearings.
In short, it disallowed me to present witnesses and proof of my counterclaims against the plaintiff, which is against the 6th amendment of the US Constitution, as well as violates our state constitutional rights to a trial to have our case heard.
Secondly, the closest thing to testimony brought forth by the Plaintiff's is affidavits. As I understand it from Cornforth in the Tinsey v Pagliaro case (which I cannot find on lexis or caseclerk by the way), competent witnesses must be sworn in and give testimony (and examined) to support any documents and their authenticiy (which I have challenged in my pleadings).
Because I opposed the veracity of the affidavits presented by the Plaintiff, their so-called "evidence" cannot be used to substantiate any final decision.
THE FOLLOWING IS IMPORTANT
Because there was NOBODY from the bank who was present when the documents were signed, NOBODY from the bank has personal knowledge as to whether or not I signed the PN or DOT. Additionally, I believe the bank would be hard pressed to produce someone who understands ALL the material facts in the agreement, or more importantly is the actual person who drafted the PN or DOT. If you challenge (or object) to the affidavits or any testimony by the person(s) from the bank who signed the affidavit(s) who say they have "personal knowledge" of the PN and DOT, you ask them these two things; (1) Were you present during the signing of any documents by us? and (2) Did you draft the PN or DOT yourself?
If the answers to both these questions are "NO" (and I can't believe they would be otherwise), then their affidavits are without personal knowledge and they should not be considered a competent witness.
So the question would then be, "Does the bank have any competent witnesses that they could bring forth to testify to the validity of the PN or DOT, or to the fact that you signed them? The only person usually at the closing is a title officer who notarizes any signatures. But what can they testify of? The fact that you put your handwriting to documents? Did they construct or draft the PN or DOT? Do they have personal knowledge of the contents of the documents? Then can they attest to your agreement or intent to authenticate the document? Did they know that the bank was going to create money from depositing the PN into a transaction account in the bank without your authorization? Did they know (and bring up various other points of the contract... and breach thereof). The point is that the title officer only witnessed you put your handwriting on pieces of paper they call a PN, DOT, and several other documents.
The bottom line, is that the lower courts will usually rule against you in a summary judgment hearing BEFORE any trial can be had, because they do not want witnesses to be deposed or examined with the questions you will ask that they cannot answer without giving testimony to their fraud (See
www.bankhonest.com and Tom Schauf's 3 manuals).
Without allowing you the opportunity to depose witnesses, requests for admissions, request for documents (originals), or Interrogatories, you have been denied due process. You can file a request for a new trial, but will probably be denied since you are asking the judge who railroaded you in and out of the summary judgment hearing anyway. But at least you have asserted your objections to the form of testimoney submitted by the plaintiff, the court's denial of your right to due process, etc.
If you are in a non-judicial foreclosure, take it into court and make it judicial by filing a claim against the bank. Be careful you don't claim that they defrauded you. Fraud is very difficult to prove. Claim that the breached the agreement by.... (read Tom Schauf's books)
I've listented to Cornforth's first recording (in download section on this site) and he talks about filing a Motion for Preliminary Injunction, as well as a Lis Pendens. It is my understanding that all the Lis Pendens does is create a cloud on the title that will prevent any title company from issuing title insurance on the property for anyone wanting to purchase the property LATER. This (as I understand it) will NOT stop foreclosure. It WILL, however, piss the bank off, and cause them to try to get it taken off.
What Cornforth doesn't say is how it should get recorded. If you have pending litigation (which is one of the requirements for filing a legitimate Lis Pendens), it gets filed in the judicial case file, but title companies do not research the court files (as I understand it) when doing a title search, and therefore would not find it. So I would ASSUME that we would attempt to have the county recorder's office officially record it.
Doe anyone have a form that they have used for filing a Lis Pendens????? This would be helpful in the download section.
Also, if the court (and odds they will) decide against you, and you haven't had your day in court to deny that you "signed" the documents presented in court (as defined by the UCC and your local statutes that mirror the UCC), then you have many grounds for appeal.
Most people stop and give up after the trial court makes a judgment. Just make sure you assert the proper questions and objections during litigation in the lower court. Otherwise, you can't bring up new issues when you appeal. Appellate court usually only deal with the record of the lower court and do not decide on any new issues.
Any thoughts on these issues would be greatly appreciated in some substantive form that would help people like Bowman, Onemaster, and others (like myself) who are presently in foreclosure.
