From: "Tim"
Subject: Re: Foreclosure Case Dismissed!
Judge denied them the power to foreclose on the property. Small win, but a win none the less.
They tried getting someone on the phone, I'm assuming someone from the previous lender Ocwen, to get them as a witness, but were unable to get ahold of them. The judge had a trail after this hearing, so said he couldn't wait, attorney would have to go with what he had.
I wasn't expecting to be put on the stand though, I'd have to
say.
Swore me in and asked me questions about "did you sign the deed of trust." yes,
"Are you so and so, did you sign a loan agreement with Ocwen", yes.
"Was the monthly payment in the amount of $1xxx.00?" I don't have my financial records with me, but that sounds about right.
"Did you make payments on the loan"
I don't have my financial records with me, but I belive I made all the payments required until the payoff was sent.
"Do you have proof of this payoff amount?"
As I already stated, I do not have my financial records with me.
Pretty much tried to wrap it up there, stating I testified that
I did not make payments after March, 2003 occording to their
records as well, and I was in default. The judge actually
corrected him, and said that the witness testified he did not
have his finanacial records.
After that, I didn't even get to say anything. At that point the
Judge denied them the right to foreclose, case dismissed.
The attorney tried to talk to me afterwards, about if I'd just
"cure the default", and "send in a check". I stated that the
debt was already discharged by Ocwen's refusal to tender the payment or notify of dishonor within 30 days, as stated in my paperwork. "You sent alot of paperwork, that didn't make sense." I suggested that maybe they should put it before someone with commercial law experience. If they could prove otherwise, by law or with evidence, I'd be more than happy to submit the payoff again, if they would process it as instructed, not refuse it.
He tried telling me I need to send in certified funds, which I
said was against public policy? What public policy? HJR-192, to require payment in a particular kind of coin or currency. He brought up the deed of trust, and I related that the contract did not stipulate certified funds or specific coin or currency required for payoff "instead of a bill of exchange to the Treasury", as that would be against public policy as well.
He told me this wasn't over, they'd get what was owed them. He suggested I get legal counsel. I thanked him for his suggestion and left.
So, can they do this again with another case? Won't that be
difficult as this one has already been dismissed once about the same issue? Can they appeal this?
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Kingsman Funding wrote:
yes and you need to be sure they are aware of that.that they have not shown anything about what they did with what you gave to pay the debt in discovery . Get all you oral argument in that will prepare you to argue from there, see attachment for reminders. make copies of the follow along sheets if you need to get into defending the discharge.
----- Original Message -----
From: Ender Wiggin
Don't they have a responsiblity to repond to the request for
discovery though?
Yes, about two months ago looked it up and forwarded on the info I think. Colorado is one of those states where they have to go to court to get the okay to foreclose on a property before they try and sell it off. Or in other words: "The scope of inquiry at such hearing shall not extend beyond the existence of a default or other circumstances authorizing, under the terms of the instrument described in the motion, exercise of a power of sale contained therein, and such other issues required by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended"
Rule 120. Orders Authorizing Sales Under Powers
Motion; Contents. Whenever an order of court is desired
authorizing a sale under a power of sale contained in an
instrument, any interested person or someone on such person's behalf may file a verified motion in a district court seeking such order. The motion shall be accompanied by a copy of the instrument containing the power of sale, shall describe the property to be sold, and shall specify the default or other facts claimed by the moving party to justify invocation of the power of sale. When the property to be sold is personal property, the motion shall state the names and last known addresses, as shown by the records of the moving party, of all persons known or believed by the moving party to have an interest in such property which may be materially affected by such sale. When the property to be sold is real property and the power of sale is contained in a deed of trust to a public trustee, the motion shall state the name and last known address, as shown by the records of the moving party, of the grantor of such deed of trust, of the current record owner of the property
to be sold, and of any person known or believed by the moving party to be personally liable upon the indebtedness secured by
the deed of trust, as well as the names and addresses of those
persons who appear to have acquired a record interest in such real property, subsequent to the recording of such deed of trust and prior to the recording of the notice of election and demand for sale, whether by deed, mortgage, judgment or any other instrument of record. In giving notice to persons who appear to have acquired a record interest in real property, the address of each such person shall be the address which is given in the recorded instrument evidencing such person's interest, except that if such recorded instrument does not give an address or if
only the county and state are given as the address of such
person, no address need be stated for such person in the motion.
The clerk shall fix a time not less than 20 nor more than 30
days after the filing of the motion, and a place for the hearing of such motion.
Hearing; Scope of Issues; Order; Effect. At the time and place set for the hearing or to which the hearing may have been continued, the court shall examine the motion and the responses, if any. The scope of inquiry at such hearing shall not extend beyond the existence of a default or other circumstances authorizing, under the terms of the instrument described in the motion, exercise of a power of sale contained therein, and such other issues required by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The court shall determine whether there
is a reasonable probability that such default or other
circumstance has occurred, and whether an order authorizing sale is otherwise proper under said Soldiers' and Sailors' Civil Relief Act, as amended, and shall summarily grant or deny the motion in accordance with such determination. Neither the granting nor the denial of a motion under this Rule shall constitute an appealable order or judgment. The granting of any such motion shall be without prejudice to the right of any person aggrieved to seek injunctive or other relief in any court of competent jurisdiction, and the denial of any such motion
shall be without prejudice to any right or remedy of the moving party. The court shall not require the appointment of an attorney to represent any interested person as a condition of granting such motion, unless it appears from the motion or other papers filed with the court that there is a reasonable probability that the interested person is in the military services.
(e) Hearing Dispensed with if no Response Filed. If no response has been filed within the time permitted by section (c), the court shall examine the motion and, if satisfied that venue is proper and the moving party is entitled to an order authorizing sale upon the facts stated therein, the court shall dispense with the hearing and forthwith enter an order authorizing sale.
(f) Venue. For the purposes of this section, a consumer
obligation is any obligation (i) as to which the obligor is a
natural person, and (ii) is incurred primarily for a personal,
family, or household purpose. Any proceeding under this Rule involving a consumer obligation shall be brought in and heard in the county in which such consumer signed the obligation or in which the property or a substantial part thereof is located. Any proceeding under this Rule which does not involve a consumer obligation or an instrument securing a consumer obligation may be brought and heard in any county. However, in any proceeding under this Rule, if a response is filed, and if in the response or in any other writing filed with the court, the responding party requests a change of venue to the county in which the encumbered property or a substantial part thereof is situated,
the court shall order transfer of the proceeding to such county.
