despritfreya replied to jmw1212's topic in Foreclosures/Loan ModificationsEdt: JMW, Apparently I am posting this to a different thread you started. I cannot find the correct thread. Sorry for any confusion. Des. Sorry JMW, but the "show me the note" argument is and always has been garbage. It is and always has been only a delay tactic. I In fact, judges are finally getting tired of this crap, especially if the homeowner is represented by an attny. In my State, one judge awarded Counsel for the lender payment of its legal fees and those fees were assessed against the homeowner's attny who I am sure is now dealing with an investigation by the State Bar. Last month, a Federal District Court Judge in Minnesota awarded not only payment of legal fees but a $50,000.00 sanction against the homeowner's attny and has referred the matter to the State Bar for disciplinary proceedings. That attny will (hopefully) lose his license as he is a disgrace to my profession. In the words of this particular Judge: "A plaintiff bringing a show-me-the-note claim generally argues that, because the entity that holds her mortgage (say, MERS) is not the same as the entity that holds her note (say, U.S. Bank), the mortgage on her home or the foreclosure of that mortgage is invalid. This argument is frivolous when made under Minnesota law. Indeed, this argument has been rejected by the Minnesota Supreme Court, by the United States Court of Appeals for the Eighth Circuit, and by every federal judge sitting in Minnesota who has addressed the argument. All of these courts have held clearly, repeatedly, and recently that, under Minnesota law, the entity that holds the mortgage can foreclose on the mortgage even if that entity does not also hold the note. Unfortunately, neither the number nor clarity of these judicial decisions has stopped plaintiffs from continuing to bring show-me-the-note lawsuits. Many of these lawsuits are brought by plaintiffs who represent themselves. Some of these plaintiffs seem to be desperate homeowners who have searched the Internet for a way to save their homes from foreclosure, run across websites touting unconventional legal theories, and been persuaded of the merit of the show-me-the-note theory. Other plaintiffs seem to be homeowners who fully understand that the show-me-the-note theory is frivolous but who are simply looking for a way to tie up their mortgagees in court, postpone the inevitable foreclosures, and live rent-free in their homes for months or even years. In Minnesota, however, the bulk of the show-me-the-note claims that have recently been filed have been brought not by desperate homeowners representing themselves, but by attorney (Name Removed). In fact, (Name Removed) has made a cottage industry out of filing frivolous show-me-the-note actions. (Name Removed) attracts clients through a website that blatantly misrepresents Minnesota law and attacks the legal system, the banking system, and other targets. (Name Removed) has been quite successful in attracting clients, who either do not know or do not care that he has never actually won a show-me-the-note claim." I am still reading through this 54 page decision but I can tell you that I have been making the same arguments raised by this Judge ever since the "show me the note" theory materialized. It only delays the loss of the home. If you do not pay what is owed you do not keep the property - plain and simple. You can litigate all you want (until the judge gets pissed off enough to hit you in the pocket) but eventually the property is lost. There is no such thing as a "free house". Des.
My first suggestion is that you go back to those attorneys and have them put in writing exactly how the filing of a Chapter 7 will help you negotiate the modification of the loan. 1. Chapter 7 does not, I repeat, does not, help you save a home. 2. With the exception of a Chapter 12, none of the bk chapters can force a modification on a lender who is solely secured by the debtor's principal residence. Please do not get "modification" confused with stripping off a wholly unsecured junior mortgage through a reorganization bk. 3. Assuming you live in a state that does not have an anti deficiency statute, if you officially reaffirm the mortgage you will be sued down the road if you cannot make the payments. 4. A successful loan modification is not the same thing as Reaffirmation Agreement. 5. If you file a Chapter 7 and wish to modify your mortgage you are free to attempt such, but the fact that you did a bk, in my professional opinion, is not going to make it easier or harder to accomplish the modification. Just my take on this issue. Des.