Author Topic: Answer to Foreclosure Summons - Critique Please  (Read 3348 times)

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WesternFront

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Answer to Foreclosure Summons - Critique Please
« on: February 13, 2012 02:13:16 AM »

IN THE DISTRICT COURT OF  COUNTY
STATE OF
MORTGAGE CO., INC.,

Plaintiff,

vs.

You and Yours, et al.

                                Defendants   


COMES NOW the undersigned Defendant(s), jointly and/or severally, for our/my Answer to Plaintiff's Petition, alleges and states as follows:

1)  I have insufficient information to admit or deny the allegations contained in each and every paragraph of Plaintiff's. Therefore, I explicitly deny all of said allegations and demand the strictest proof thereof, except as may hereinafter be specifically admitted.

2)  Notwithstanding the foregoing denial allegations. I admit that I signed a Note and Mortgage. However, I deny that Plaintiff owns any interest in said note and mortgage. I further deny that the note and mortgage attached to the Petition are copies of the ones I personally signed.  I object to the copies provided and assert their inadmissibility as evidence since they are clearly marked UNOFFICIAL. I demand the Plaintiff be required to produce the original mortgage note, wet-ink signed contract upon which it bases this action.

3)  Notwithstanding the foregoing denial allegations, I specifically deny that I have defaulted on the note and mortgage at the time you filed the foreclosure, and demand the strictest proof thereof in the form of a verifiable and complete accounting of all debit and credit transactions related to said account from the inception of said alleged note and mortgage to the date of foreclosure filed.

4) Pleading in the affirmative, I allege that I have attempted to resolve this matter with Plaintiff and its servicing agent CitiMortgage, but Plaintiff and the servicing agent have failed to exercise good faith and are in material breach of their contract with the Defendant(s).  Specifically, Plaintiff and CitiMortgage Inc. are under contractual agreement with Defendant(s) to provide Pre-Foreclosure Sale Program (PFS) options pursuant to the terms of 6(a) of its Stipulated Special Forbearance Plan Agreement which it entered into with the Defendant on 09 Sep 2011 (See Attached Exhibit “A” – STIPULATED SPECIAL FORBEARANCE PLAN AGREEMENT).  The Defendant has multiple times notified, in writing, to the assigned CitiMortgage Homeowner Support Specialist, Stephanie M. Todd, of their agreement and desire to apply for the Pre-Foreclosure Sale Program (See Attached Exhibit “B” – Homeowner Support Specialist Ms. Todd, & Exhibit “C” Defendant’s Pre-Foreclosure Sale (PFS) Application Emails to Ms. Todd).  However, Plaintiff and CitiMortgage continue to ignore the Defendant(s) PFS application requests in material breach of contract and exert undue influence upon the Defendant(s) per 15 O.S. §61(3).

5) Pleading in the affirmative, I allege that Plaintiff/servicing agent has caused the alleged default by misapplying negotiated payments and by ignoring the Defendant(s) requests for Pre-Foreclosure Sale under its Stipulated Special Forbearance Plan Agreement and agreed contract payments outlined therein; and/or by re-establishing payment dates or refusing to adjust the monthly payment date to correspond with the receipt of my payments; and/or by improperly imposing late payment penalties; and/or by force applying insurance when it was not necessary; and/or by assessing unjustified and unreasonable fees and charges and/or by failing and refusing to comply with the provisions of the Stipulated Special Forbearance Plan Agreement, subject note, and mortgage.

6) Plaintiff lacks the capacity to sue in this action.

7) This Court lacks jurisdiction over the subject matter.

8) Further pleading in the affirmative, the following defenses are asserted:

a. Duress
b. Estoppel;
c. Failure of Consideration
d. Fraud
e. Illegality
f. Payment
g. Breach of contract
h. Lack of standing to sue in this matter; and
1. Such other affirmative defenses that may be revealed through Discovery.

     WHEREFORE, having fully answered Plaintiff's Petition (and/or Amended Petition), I/we pray that Plaintiff be denied any relief, that I have judgment against Plaintiff for a sum in excess of $10,000 for actual and punitive damages, that any interest claimed by the Plaintiff/its servicing agent in and to the subject property be quieted, and that I/we have such other relief as may be just and proper.

REQUESTS FOR ADMISSION

     The undersigned Defendant(s) respectfully request that Plaintiff (referred to herein as "you" or "your'') respond to the following Request for Admissions by responding "Admit" or “Deny" to each numbered request as required by the provisions of the Oklahoma Discovery Code. Your failure to timely "Admit" or "Deny" any of the stated Requests within thirty (30) days of your receipt hereof shall be deemed an admission of each such Request not addressed. PLAINTIFF SHALL PROVIDE RESPONSES TO THE FOLLOWING REQUESTS IN ACCORDANCE WITH THE REQUIREMENTS.

REQUEST FOR ADMISSION NO. 1.  Admit that you exercise bad faith, breach the contractual agreement between you and the Defendant(s), and exert undue influence upon the Defendant(s) when you willfully failed to comply with the Defendant(s) application to the Pre-Foreclosure Sale Program (PFS) pursuant to the terms of the Stipulated Special Forbearance Plan Agreement which you entered into with the Defendant(s) on 09 Sep 2011.

REQUEST FOR ADMISSION NO. 2.  Admit that you cannot immediately produce for physical observation and inspection by me or my representative the actual ORIGINAL blue ink promissory note and mortgage upon which you are basing this mortgage foreclosure action.

REQUEST FOR ADMISSION NO. 3.  Admit that you are unable to find the ORIGINAL blue ink promissory note upon which you are basing this mortgage foreclosure action. No copy of the Note is attached to the petition. Please get one to us.

REQUEST FOR ADMISSION NO. 4.   Admit that you do not know the whereabouts of the ORIGINAL blue ink promissory note upon which you are basing this mortgage foreclosure action.

REQUEST FOR ADMISSION NO. 5.  Admit that you are precluded from receiving the foreclosure relief you seek in this action since you cannot produce the actual ORIGINAL blue ink promissory note.

REQUEST FOR ADMISSION NO. 6.   Admit that you cannot or will not produce a complete, month to month itemization of all payments and credits from the inception of the note and mortgage to the date of your response upon which you are basing this mortgage foreclosure action.

REQUEST FOR ADMISSION NO. 7.   Admit that a part of the records showing a payments and credits from the inception of the subject note and mortgage to the date of your response are lost, misplaced, or cannot be found.

REQUEST FOR ADMISSION NO. 8. Admit that it is not possible to determine that the subject note is in default if any payments and credits from the inception of the note to the date of the filing of this action are not available for review and/or audit.

REQUEST FOR ADMISSION NO. 9. Admit that it is not possible to determine how much is actually owing on the subject note if all payments and credits from the inception of the note to the date of filing this action are not available for review and/or audit.

REQUEST FOR ADMISSION NO 10. Admit that you and/or your attorneys failed to determine, before this action was filed, whether the ORIGINAL blue ink promissory note was available for production.

REQUEST FOR ADMISSION NO. 11. Admit that as of the date you filed this foreclosure action as plaintiff: there exists no document filed of record in the county clerk's office of the county where this action is pending showing you to be the owner or assignee of the mortgage that you seek to foreclose.

REQUEST FOR ADMISSION NO. 12. Admit that you or your attorneys did not examine the abstract of title covering the property that is the subject of this proceeding before initiating this action.

REQUEST FOR ADMISSION NO. 13.  Admit that as of the date of filing of the lawsuit, the land records in the county where this lawsuit was filed did not show you as the owner of the subject mortgage.

REQUEST FOR ADMISSION NO. 14.  Admit that as of the date of the filing of this lawsuit, you and/or your attorneys knew that the land records in the county where this lawsuit was filed did not show you as the owner of the subject mortgage.

REQUEST FOR ADMISSION NO. 15. Admit that you, or others acting on your behalf, have committed fraud in the process of filing this lawsuit and/or in the servicing of the note and mortgage that you seek to foreclose.

REQUEST FOR ADMISSION NO. 16. Admit that the subject note and mortgage were not in default as of the date that this action was filed.

REQUEST FOR ADMISSION NO. 17. Admit that you did not conduct an audit of the account associated with the subject note and mortgage to determine its correctness prior to filing this action.

REQUEST FOR ADMISSION NO. 18. Admit that since the filing of this action, you have not conducted an audit of the account associated with the subject note and mortgage to determine its correctness as of the date of the filing of this action.

**************************************
COMBINED DOCUMENT PRODUCTION REQUEST/ REQUEST TO PERMIT INSPECTION AND COPYING/ AND INTERROGATORIES

     The undersigned Defendant(s) respectfully request that Plaintiff (referred herein as ''you" or "your") provide the documents and information herein requested in accordance with the Oklahoma Discovery Code within thirty (30) days of the date hereof by mailing a copy of the requested information to me at the address shown below following my name. All responses to interrogatories in bold print shall be made under oath by a representative of Plaintiff. These Discovery Requests are continuing and you are requested to supplement your responses anytime there are changes that occur that make your initial responses untrue or incomplete.

REQUEST NO. 1:  Please make available CitiMortgage’s record of actions pertaining to the Defendant’s multiple requests for Pre-Foreclosure Sale (PFS) application pursuant to the contractual agreement with Defendant under the terms of 6(a) of CitiMortgage’s Stipulated Special Forbearance Plan Agreement which it entered into with the Defendant on 09 Sep 2011.

REQUEST NO. 2: Please produce documentation itemizing all sums that you claim is required to be paid to bring the subject note and mortgage current. Include in the itemization an explanation of each item and how it was determined.

REQUEST NO. 3: As to any items paid out by you regarding subject note and mortgage for which you intend to charge me, please provide supporting invoices or other records justifying such expenditures as being expenses that I should be required to pay under the provisions of the subject note and mortgage.

REQUEST NO 4: Please produce a month to month detailed accounting of all debits and credits related to the note and mortgage sued on commencing with the execution and delivery of said note and mortgage to the date of your response to this Request, which information you have used to determine that I am in default and the sums you claim is owed as stated in your petition. Also, provide all information as to codes used in said accounting to enable me or an auditor to understand the accounting provided.

REQUEST NO. 5. Please provide a readable copy of each and every endorsement or assignment of subject note since its inception to the date that you respond to this Request.

REQUEST NO. 6. Please provide a readable copy of each and every FILED assignment of subject mortgage since its inception to the date that you respond to this Request showing the specific date and time that each assignment was duly filed in the office of the county clerk of the county where the property is located.

REQUEST NO. 7. If you have caused the abstract on the property to have been updated, or when you do so, please provide me copies of all documents contained in said abstract commencing with the subject mortgage through the end of the abstract, including its latest certification.

REQUEST NO. 8. If a title opinion has been rendered on the abstract on the property that is the subject of this action, please produce a copy of that opinion. If a title opinion has not yet been rendered, please explain why one has not been rendered. (If and when a title opinion is rendered, please immediately provide it to me.)

REQUEST NO 9. Please provide a copy of all notices allegedly sent to me regarding any change of ownership or servicing of the note and mortgage, if any.

REQUEST NO. 10. Please provide all Annual Escrow Statements and Servicing Transfer Statements that have been sent to me since the date of closing.

REQUEST NO. 11. If you are suing as a Trustee, Successor, or in behalf of another entity, please provide a copy of the trust indenture or other authority through which you have sued me in this matter.

REQUEST NO. 12. If not provided through other responses to these Requests, please provide the readable documents, if any, that show you are the beneficial owner/holder/holder in due course of the subject note and mortgage.

REQUEST NO. 13. Please provide documentation detailing the exact sums that you require that I pay to satisfy the subject note and mortgage in full as of the date of your response to this request along with a per diem interest accrual sum on the subject note. {The sums provided shall be the same exact sums as of the date of your response that you would provide as "payoff" figure to a requesting closing company if the property were to be sold to a third party.)

REQUEST NO. 14. Please provide a printout of the entire history, including the telephone logs, of any and all contacts made by me with you or by you with me since the inception of the loan.

REQUEST NO. 15. Please provide a copy of all correspondence sent to me by the mortgage holder(s), each of them, concerning the alleged default on said note and mortgage.

REQUEST NO. 16. Please provide the blue ink ORIGINALS of the note and mortgage sued upon as the attached copies of said documents to the petition are marked UNOFFICIAL and are not admissible as evidence or to substantiate this claim of action. (Please make the ORIGINAL DOCUMENTS available for inspection by me or my representative.) If you cannot IMMEDIATELY produce said document(s), please so state and explain why. (If you actually have the requested ORIGINAL documents, I invite you to let me know in your response as to when I, or my representative(s), will be permitted to inspect said document(s).)

REQUEST NO. 17. Please identify the name of the person or persons with your company who has full knowledge of the status of the subject note and mortgage, and the persons who will execute an affidavit herein or will testify herein in support of your petition. As to said person(s), state his or her office, position or status with your company.

REQUEST NO. 18. Please provide me with the name and all contact information for the person employed by the Plaintiff or its servicing company with whom I can directly communicate to discuss the possible resolution of this matter.

REQUEST NO. 19. If you are not a legally recognized federal bank, produce documentation showing that you are legally authorized by the Oklahoma Secretary of State to conduct business in the State of Oklahoma or an explanation as to why you are not required to be so authorized.

REQUEST NO 20.  If there is private mortgage insurance (PMI) on the subject loan, please so state, provide me with a copy of the policy, and any claim that has been filed on it. If a claim has not been filed, please so state and explain why. State how much money has been paid on the PMI claim, if any, to whom, and how much more is payable and when it is payable.

REQUEST NO. 21. If you have failed to unequivocally "Admit"' any of the foregoing Requests for Admission, state UNDER OATH, all the reasons or excuses you have or may have for your failure to "Admit" each such request(s).

REQUEST NO 22. Have you exercised good faith in your providing all the responses to the foregoing discovery requests? If not, then why not?

REQUEST NO. 23. Identify each person who will be used by you at the trial of this matter, and as to each person, state his/her name, where he/she offices, and the subject that said person will address in his/her testimony.

REQUEST NO 24. Have you provided answers to each of the above interrogatories in bold print under oath? If not, why not?

CleaningUp

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #1 on: February 13, 2012 02:24:37 AM »
I'd take the facts an put them in an affidavit.

Why?  Two reasons:  1) It cleans up the complaint so the court sees clearly what the legal issues are, and 2) It puts your facts in a form in which they are facts before the court.

Pleadings are not evidence, they are pleadings.  Affidavits are evidence.


WesternFront

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #2 on: February 13, 2012 02:31:47 AM »
Do you mean take the Requests for Admission and place them in an affidavit?

Fighting Irish

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #3 on: February 13, 2012 03:18:45 PM »
Yes.

And don't request, don't say please.

This is a lawsuit. You get to demand.
Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

WesternFront

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #4 on: February 17, 2012 07:17:21 AM »
Retooled the Summons and removed all the Requests for Admission and Requests for Production of Documents.

Here's the Affidavit I'm submitting. Critiques are most welcome.

AFFIDAVIT

     COMES NOW, Defendant and after being duly sworn states as follows:
1.  Plaintiff and CitiMortgage, Inc. (CMI) cannot produce the original signed, wet-ink mortgage for my inspection.

2.  Plaintiff and CMI have proffered inadmissible evidence in the form of unofficial copies, marked “UNOFFICIAL” in lieu of the wet-ink signed original mortgage note. See Exhibit “A”.

3.  I have no written agreement to enter into UNOFFICIAL mortgage with CMI or its assigns.

4.  I have a written contract agreement between CMI and myself whereby I agreed to apply for Pre-Foreclosure Sale (PFS) in the event I cannot reinstate my loan.  See Exhibit “B” - Stipulated Special Forbearance Plan Agreement.

5.  I did not reinstate my loan under the reinstatement options and submitted two (2) written PFS requests to the assigned CMI Homeowner Support Specialist, Ms. Stephanie Todd.  See Exhibit “C” – Assignment of Homeowner Support Specialist & Exhibits “D” & “E” – Written PFS Requests to Ms. Stephanie Todd).

6.  CMI breached the written agreement under the Stipulated Special Forbearance Plan Agreement when it ignored my written Pre Foreclosure Sale application requests and continued foreclosure actions.


CleaningUp

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #5 on: February 17, 2012 03:27:47 PM »
Affidavits are for the submission of facts, not the making of argument.

1.  Your fact states that they cannot provide.  That may or may not be correct, but you are stating a conclusions.  The only FACT you have is that they have not produced the document.

2.  Evidence is admissible until the court decides that it not.  You are stating a legal conclusion that has yet to be established.

3.  OK, but there is a strong hint of a legal conclusion in it.

4   oK

5  OK, but not useful without context.

6.  Your are making a legal conclusion.  Anyway, isn't your complaint about breach of contract?



The role of the affidavit is to establish facts not to argue.


If this is how you expect to go about fighting the mortgage company, I expect your loss to be fairly swift and complete.

You REALLY need to have an attorney working on this for you.



WesternFront

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #6 on: February 17, 2012 06:21:24 PM »
The role of the affidavit is to establish facts not to argue.


If this is how you expect to go about fighting the mortgage company, I expect your loss to be fairly swift and complete.

You REALLY need to have an attorney working on this for you.

Thanks.  I appreciate your advice.

I'm not looking to fight the mortgage company as much as I am trying to get them to honor their agreement to "short-sale" the home.

I entered into a Stipulated Special Forbearance Agreement Plan with them back in Sep '11.

The Plan Agreement states I am to apply for Pre Foreclosure Sale Program if the loan is still delinquent.

I have sent 2 written requests for the Pre Foreclosure Sale Program but they have gone unanswered.

Here's the retooled version based on your critique:
-------------------------------------------------------------------------

     COMES NOW, Defendant and after being duly sworn states as follows:
1.  Plaintiff and CitiMortgage, Inc. (CMI) have not produced the original signed, wet-ink mortgage for my inspection.

2.  Plaintiff and CMI have provided unofficial copies, marked “UNOFFICIAL” in lieu of the wet-ink signed original mortgage note. See Exhibit “A”.

3.  I have a written contract agreement between CMI and myself to apply for Pre-Foreclosure Sale (PFS).  See Exhibit “B” - Stipulated Special Forbearance Plan Agreement.

4.  I submitted two (2) written PFS requests to the assigned CMI Homeowner Support Specialist, Ms. Stephanie Todd.  See Exhibits “C”, “D”, & “E”.

5.  CMI did not respond to my written Pre Foreclosure Sale application requests.

Fighting Irish

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #7 on: February 17, 2012 08:07:32 PM »
There is a very good chance that the company does not legally own your mortgage.

Read about robo-signing, about failure to file mortgage transfer liens.

You don't want to "stiff" them, but why would you want to pay an organization that you don't owe money to?
Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

CleaningUp

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #8 on: February 17, 2012 10:30:07 PM »
What law states that there is a requirement for them to present the wet-ink document? 

Did you request it in accordance with that statute?

Wouldn't that be a fact?



HarryC

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #9 on: February 18, 2012 04:27:44 AM »
Personally, I think it is terrible.  It is unlike any other answer I have seen.

Best advice, get an attorney.

2nd best, find some foreclosure pleadings and use them as an example of how to draft yours.

I agree that you will lose very quickly with what you have so far.
I'm not a lawyer and I'm not even very smart.  You'd be well advised not to listen to anything I have to say.

bigjoe

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #10 on: February 18, 2012 10:10:02 PM »
The judge is going to look at you and ask you did you fail to pay, yes or no?  Get some real legal help on this.

A foreclouser is pretty cut and dry, did you pay or not?

WesternFront

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #11 on: February 20, 2012 11:47:09 PM »
I appreciate the constructive criticism. 

My favorite thus far is the "terrible" one;  perhaps it's just my twisted sense of humor that it appeals to.

I've filed this answer already and have researched many foreclosure responses in my area.

This, believe it or not, got Citimortgage to back off and dismiss this particular case.  One out of the 500 or so I researched.

Most were lame responses and got put to the wayside rather quickly.

I'm also in the process of home loan modification.

I'm to be hired in the first week of March into a government job at a decent rate of pay.

This is a VA guaranteed loan and I hate to let them file a claim against it but it appears there is little other avenue should the foreclosure proceed.

I'm buying time now.  I plan upon using the Chapter 7 card since I more than qualify, and for that I will retain legal counsel.

My overall plan is:

1.)  Attempt to modify the home loan with my new job as the basis for qualification - Citimortgage rep told me they are looking for 31% of my Gross.

2.)  Barring the modification, I'd like to get the court to make them process my Pre Foreclosure sale application and sell the home.  We entered into written agreement under a Stipulated Special Forbearnace Plan Agreement whereby it states I -must- apply if the loan is still delinquent. 

I submitted (2) written requests, which they ignored.

3.)  Allow them to get Summary Judgment, set a sale date and then a few weeks just before sale date hit them with the Chapter 7 Automatic stay to delay the Sheriff's sale.

All told, we're just buying as much time as possible to save money for a good rental in the state of our choice.  We hate Oklahoma with a passion;  we're not from here, and we'd recommend never moving to this backwater state.  The military brought us here.

Fighting Irish

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #12 on: February 21, 2012 03:43:30 PM »
If I were you, the last thing I would be considering is a loan mod.

I would take the money I was saving on my mortgage payments, and pay an attorney to help me research some of the issues above.

It's very likely that their documentation is lacking.

But if you proceed with the loan mod, which has an enormous chance to even further damage your credit, and then not, in the end, be approved, you will have given them permission to remedy the poor documents.

They backed off.

Now is the time that you can attack.
Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

deepkimchee

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Re: Answer to Foreclosure Summons - Critique Please
« Reply #13 on: February 21, 2012 06:48:51 PM »
[/]]The judge is going to look at you and ask you did you fail to pay, yes or no?[/quote] 

There is nothing in a mortgage that says you have to pay.........it just states that if you don't pay they can take their collateral.  The Problem for them is if they are going to take THEIR collateral YOUR home, they better PROVE it's theirs.

This is one reason I think home mod is a bad idea, a whole new re-fi, now that is a different story.
I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice