MSNB is reporting that there has been a very slow pace of loan modification despite governmental and private sector’s outcries. Here is the report
http://www.msnbc.msn.com/id/32281959/ns/business-real_estate/
These are the latest statistics which indicate the tide of rising foreclosure is not coming to an end.
http://247wallst.com/2009/08/13/foreclosures-make-huge-move-up-in-july/
This is an interesting article, published of course by California Bar Association mandating ethical practices both by California licensed attorneys as well loan modification agencies. Interesting, of course.
http://www.calbar.ca.gov/calbar/pdfs/ethics/Ethics-Alert-Foreclosure.pdf
Washington Post published an interesting article portraying that the lenders think the rising foreclosure is in their best interest. Shocking?They think homeowners eventually will self cure it.
Here is the link.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/27/AR2009072703065.html
This law office is always in the forefront of helping Nevada homeowners. We had been frequently contacted in the last few days about the form which is required for Nevada Mediation. The following is the copy of this form. Please reprint and use it as many times as required. This is part of the public record.
STATE OF NEVADA
FORECLOSURE MEDIATION PROGRAM
Election/Waiver of Mediation Form FMP Form 001.063009
ELECTION/WAIVER OF MEDIATION FORM
(To be filled out by Trustee)PROPERTY ADDRESS __________________________ TS # ___________________________________________________
_________________________________APN _____________________________________________
TRUSTEE _____________________________ DoT __________ Book/Inst _____________________
***ATTENTION—YOU MUST ACT WITHIN THIRTY (30) DAYS***
IF NO ACTION IS TAKEN, THE FORECLOSURE MAY PROCEED
You have been served with a Notice of Default and Election to Sell, a copy of which is enclosed, that could result in the loss of your home. You may want to consult with an attorney concerning your rights and responsibilities.
The State of Nevada has created a mediation program for homeowners whose owner occupied, primary residence is subject to foreclosure. Mediation is a process through which you and the lender meet with a neutral mediator to determine whether an agreement can be reached to cure any defaults in the loan or modify the terms of the loan to enable you to remain in your home. The mediator will be appointed by the Foreclosure Mediation Program Administrator. The mediator will not provide legal advice to either party. If you feel the need for legal representation, it is recommended that you retain an attorney to assist you in the mediation.
Your Name(s): ___________________________________________________________
Address: ________________________________________________________________
________________________________________
Phone No: ( ) _________________ (telephone)( ) _________________________ (cellular)
Email: ___________________________________________________________________
Co-owner’s Name: _________________________________________________________
Address: _________________________________________________________________
_________________________________________________________________________
Phone No: ( ) __________________ (telephone)_________________________________
( ) __________________ (cellular)
Email: ___________________________________________________________________
PLEASE SELECT ONE OF THE CHOICES BELOW AND RETURN COPIES IN ENCLOSED ENVELOPES.
_____ ELECTION OF MEDIATION The undersigned hereby request[s] that a mediation be scheduled to attempt to work out a resolution of the loan. ($200.00 Money Order or Cashier’s Check Applies – See Below) _________WAIVER OF MEDIATION The undersigned is/are aware of the right to seek mediation but have determined that I/we do not want to proceed with a mediation and hereby waive the right to do so.
The undersigned hereby certify under the penalty of perjury that I/we are the owner[s] of the real property that is the subject of the pending foreclosure and occupy the real property as my/our primary residence.
_____________________________________ ______________________________________
Signature of Property Owner Date Signature of Co-Owner Date
COMPLETE TWO COPIES OF THIS FORM AND FORWARD ONE TO THE MEDIATION ADMINISTRATOR AND THE OTHER TO THE TRUSTEE OF THE DEED OF TRUST. TWO UNSTAMPED, PRE-ADDRESSED ENVELOPES HAVE BEEN ENCLOSED.
IF YOU HAVE CHOSEN TO SEEK MEDIATION, YOU MUST SEND A MONEY ORDER OR CASHIER’S CHECK IN THE SUM OF $200 PAYABLE TO: “STATE OF NEVADA FORECLOSURE MEDIATION PROGRAM.” THIS PAYMENT MUST BE RETURNED, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WITHIN 30 DAYS OF THE DATE OF SERVICE OF THE NOTICE OF DEFAULT AND ELECTION TO SELL.
PAYMENT MUST BE SENT TO THE TRUSTEE IN THE ENVELOPE THAT WAS ENCLOSED WITH THIS FORM. DO NOT SEND PAYMENT TO THE MEDIATION ADMINISTRATOR. STATE OF NEVADA
FORECLOSURE MEDIATION PROGRAM Election/Waiver of Mediation Form FMP Form 001.063009
ELECTION/WAIVER OF MEDIATION FORM
Instructions
The Election/Waiver of Mediation is for owner-occupied residential property only. This form is not for use with vacation homes, rental property, or any other property where the owner does not live in the property as a primary residence. This form should come to you from the lender; you cannot begin this process yourself by using this form.
The ELECTION/WAIVER OF MEDIATION form has been provided to you in duplicate. (You may make
additional copies if needed.) You must fill out the forms in duplicate so that the same information is included on both copies of the forms. You must fill in the blanks on both forms and make your election to either request mediation or waive mediation.
Print your name and address in the spaces provided. Include your telephone numbers and your email address. If you have a co-owner, their name, address, phone numbers and email address should be included. This information will only be used for the mediation process.
In the designated location, you must select (with a check mark or “X”) one of two choices. You may only select one of the two options. Either select:
1. “___ ELECTION OF MEDIATION” if you choose to enter into the Mediation Program;
OR
2. “___ WAIVER OF MEDIATION” if you do not want to participate in the foreclosure Mediation Program.
You must then sign and date each form. NOTE that by signing the form you are certifying under penalty of perjury that you own and occupy the subject property as your primary residence.
Sign each form. One copy of the form must to be mailed to the Trustee of the deed of trust and one copy of the form must be mailed to the Mediation Administrator. The envelopes provided are preaddressed to the Trustee and Mediation Administrator. You must mail both envelopes by Certified U.S. mail, return receipt requested. You will need to pay the postage for the mailings. Do not mail your payment to the Mediation Administrator.
If you elect mediation, you must include the $200.00 mediation fee along with the form in the envelope addressed to the trustee. The $200.00 mediation fee must be paid in the form of a money order or cashiers check and made payable to: “State of Nevada Foreclosure Mediation Program”.
If you choose to forego or waive mediation, there is no need to send the $200.00 mediation fee. However, whether you elect to enter into the mediation program or elect not to participate in mediation, both forms should be mailed. If you do not mail the forms to the Trustee and the Mediation Administrator, you will not be allowed to participate in the mediation program and the foreclosure will proceed. This is your only opportunity to elect to participate in the foreclosure mediation process.
Feds are thinking and in some cases working on giving help to homeowners who have underwater mortgages. Here is the link.
Finally, federal authorities is waking up to the realty of controlling and stopping the non-attorney loan modification agencies from plying their fraudulent scam on innocent and needy homeowners.
Here is the link to the article.
http://www.msnbc.msn.com/id/32007521/ns/business-the_new_york_times/
Attorney Malik reviews basic wrongful complaint.
How to Write a Sample Complaint for Wrongful Foreclosure
[No legal advice intended. It is purely an academic exercise because of greater interest in such issues. Absolutely no legal relationship is created and no follow up questions entertained other than general issues.]
IN THE CLARK COUNTY
OF THE STATE OF NEVADA
FRANK SINATARA,
Plaintiffs,
v.
MILLSFARGO MUTUAL BANK, FA dba MILLSFARGO MUTUAL MORTGAGE
dba MILLSFARGO MUTUAL; PROFESSIONAL FORECLOSURE SERVICES
Defendants.
FIRST AMENDED COMPLAINT
Come now the plaintiffs, Frank Sinatara, by and through their attorneys of record, and for their First Amended Complaint against the defendants hereby complain and allege as follows:
I. PARTIES
1.1 Frank Sinatara are residents of Clark County, Nevada.
1.2 MillsFargo Mutual Bank, FA (hereafter “WMU”) does business in the state of Nevada and at relevant times serviced a loan acquired by MillsFargo Mutual and ultimately by the Federal National Mortgage Association.
1.3 Professional Foreclosure Services is believed to be a Nevadan corporation operated from California and is in the business of conducting non-judicial foreclosures in Clark County, Nevada.
II. FACTUAL ALLEGATIONS AND FIRST CLAIM: BREACH OF CONTRACT
2.1 On or about January 2005 the plaintiffs purchased a condominium and obtained a mortgage loan from the Johny Walker National Mortgage Company, Pahrump, Nevadain the approximate amount $265,000.00. This mortgage loan was eventually transferred for servicing to Milikan Mortgage Company (hereafter “Milikan”). On or about June, 2006, WMU acquired Milikan and began servicing plaintiffs’ mortgage loan. The exact monthly payment varied according to property taxes and other fees paid but a typical monthly payment was $1496.36 including reserves for the payment of taxes and insurance.
2.2 Beginning in February 2007 and continuing until July of 2001 the plaintiffs made timely payments to Lee National Mortgage until such time as the loan was assigned to Milikan Mortgage and, thereafter, payments were made to Milikan Mortgage.
2.3 Around June of 2001 the plaintiffs were notified that MillsFargo Mutual had acquired Milikan Mortgage and payments were to be made to MillsFargo Mutual prospectively.
2.4 On or about August 1, 2001 the plaintiffs, through their personal bank, MacMacMacPacific Bank, initiated an automatic bill payment service to automatically pay the MillsFargo Mutual home loan payment, which commenced on August 14, 2001. Initially, the payments were scheduled to be sent on or about the 14th day of each month in accordance with the loan agreement. Between August 14, 2001, and April 10, 2002 MacMacPacific Bank sent automatic payments to MillsFargo Mutual for the amount of the full payment each and every month in a timely fashion.
2.5 The automatic payments were received by MillsFargo Mutual within a few days of the transmission by MacMacPacific Bank, but not credited to their account.
2.6 Around October of 2007 the monthly statements from MillsFargo Mutual reflected that payments were not being credited. The Consumers promptly checked with MacMacMacPacific Bank to ensure that the payments had been sent and then supplied the requested information about the transmission and receipt of the payments to MillsFargo Mutual. The Consumers had MacMacPacific Bank produce canceled checks from these payments which were transmitted to MillsFargo Mutual whenever requested. In November, MillsFargo Mutual, without explanation, sent back the September payment to MacMacPacific Bank which credited it to the Consumers’ MacMacPacific Bank account.
2.7 On December 12, 2001 MillsFargo Mutual wrote to the Consumers indicating no payments had been received since October 1. MillsFargo Mutual assessed escrow expenses and delinquency charges and threatened to foreclose on the property.
2.8 The Consumers immediately responded to this, again supplying canceled checks and proof that MillsFargo Mutual had in fact received their payments.
2.9 In early 2002, despite repeated communication from the Consumers and repeated proof of payments made, MillsFargo Mutual hired Professional Foreclosure Services to commence foreclosure. On March 6, 2002, a Notice of Default was issued by Professional Foreclosure Services and approximately 30 days later a Notice of Trustee Sale scheduling a non-judicial foreclosure for July 19, 2002, was transmitted to the Consumers.
3.0 The Consumers continued to send letters and make phone calls to MillsFargo Mutual to no avail. As a result, in April 2002 adverse credit consequences occurred to the Consumers including a cancellation of a MacMacPacific Bank credit line and reduction of an American Express credit line.
3.1 MillsFargo Mutual and/or Professional Foreclosure Services has transmitted to various credit reporting agencies, including Equifax, false adverse information about the Consumers, causing their credit to be impaired.
3.2 In April of 2002 MillsFargo Mutual returned some of the payments and refused to take further payments made by the Consumers.
3.3 Beginning May 2002, the Consumers have made payments directly to MillsFargo Mutual payable to a bank account in a MillsFargo Mutual bank to show their good faith and intent to comply with their loan obligations.
3.4 The Consumers have contacted Professional Foreclosure Services to dispute the debt and request verification of the debt and have received no information whatsoever in violation of the Fair Debt Collection Practices Act and the Alaskan Collection Agency Act, as well as in breach of the duty of Good Faith and Fair Dealing implicit in contracts.
III. SECOND CLAIM: WRONGFUL FORECLOSURE
3.1 As a proximate result of the negligent or reckless conduct of MillsFargo Mutual and Professional Foreclosure Services the Consumers’ credit has been impaired and they are threatened with the eminent loss of their property despite the fact that they have made all payments in accordance with the loan agreement.
3.2 Unless enjoined, the plaintiffs will suffer irreparable harm and will not have an adequate remedy at law.
3.3 As a proximate result of the negligent actions of both defendants, the Consumers have suffered consequential damage and will continue to suffer additional damage in an amount to be fully proved at the time of trial.
IV. THIRD CLAIM: SLANDER OF TITLE
4.1 The defendants have caused to be recorded various documents including a Notice of Trustee Sale which has impaired the Consumers’ title which constitutes slander of title and the Consumers should be awarded resulting damages to be fully proved at the time of trial.
V. FOURTH CLAIM: VIOLATION OF THE CONSUMER PROTECTION ACT
5.1 The defendants have engaged in a pattern of unfair practices in violation of the Nevada Revised Statutes XXXXXX Consumer Protection Act, XXXX et seq. entitling the Consumers to damages, treble damages and reasonable attorney fees and costs pursuant to the statute.
VI. FIFTH CLAIM: SLANDER OF CREDIT
6.1 The Consumers allege that the actions and inactions of the defendants have impaired their credit causing them to lose the ability to have good credit entitling them to damages, including statutory punitive damages pursuant to state and federal law, all to be proved at the time of trial.
VII. INFLICTION OF EMOTIONAL DISTRESS
7.1 The defendants have intentionally or negligently taken actions which have caused the plaintiffs severe emotional distress.
Wherefore, having set forth various causes of action against the defendants, the plaintiffs pray for the following relief:
1.That this Court enjoin the foreclosure presently scheduled for July 19, 2005, conditioned upon the Consumers making payments as the have in the past in a timely fashion;
2. That the actions of both defendants be determined to be unfair and deceptive business practices in violation of UDAP Nevada;
3. That the Consumers be awarded punitive damages provided for in UDAP XXXX including costs and attorney fees;
4. That the Consumers be awarded consequential damages to be fully proved at the time of trial;
5. That the Consumers be awarded their fees and costs pursuant to the written loan agreements which bind the defendants; and
6. That the Court grant any other relief that may be just or equitable.
Attorney for XXXXXXX
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