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A Fresh Start

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  1. I called several attorneys from the link you provided, but was only able to leave a message. No call backs as of this evening. If I don't hear back in the next few days, I'll send off the letter you supplied. Looking at the letter, I don't believe it was even looked at by an attorney. It's in form letter format and not actually signed.
  2. I've asked to have this moved. Thanks again for all your help! The TAXES may be an issue could the bank sue for unjust enrichment if they've been paying the taxes all these years, even thought they can't foreclose? Not sure. This is something to ask the attorney.
  3. This is an interesting idea that may be worth looking into. The discharge removes liability from us and if the foreclosure is outside the SOL, it would basically remove the threat of judicial foreclosure (only type allowed in NM) against the house. most foreclosure attorneys are going to take the creditors side, cause that's who they work for predominately..... Sorry, I misspoke. I meant foreclosure defense attorney - find a FDCPA lawyer - A quick search reveals slim pickings in NM it seems your old BK Attorney should know, or know of someone Unfortunately, he's no longer available for a 500K Action, I would spend a few grand on an attorney, let them handle the Foreclosure attorney that judge probably refused to reopen the case based on the case law I cited - you should get certified copies of all the actual papers filed. from the clerk of courts While searching for an attorney, I did run across the following interesting item from the New Mexico Law Review
  4. I'll look for an attorney Monday. Should it be a foreclosure attorney or ??? We have a friend go to the house a couple times a week to check on it. Keeps vandals away. I wouldn't mind selling it, but according to the letter we got from the attorney, we now owe $500k on it! Original mortgage was $375k. We would need to somehow quiet title to remove the lien. Not quite sure how to go about that one.
  5. Hi ICANHASMUNY, First off, thank you so much for your research! I truly appreciate it. Looking up the case online, it appears I was off on my timeline. I'm not sure if that makes any difference for SOL purposes. 08/01/2008 - First payment missed 08/29/2008 - Filed CH.13 09/22/2008 - Converted to Ch.7 01/05/2009 - Ch7 Discharge 05/14/2010 - foreclosure complaint filed 02/18/2013 - Dismissal for Lack of Prosecution 06/04/2013 - Order Denying Plaintiff's Motion to set aside Disposition Order for Lack of Prosecution We did not reaffirm or make any payments to anyone. In fact, we haven't talked to anyone other than attorneys via the courts regarding this mortgage.
  6. Hello fellow CB'ers, I need some help on an SOL question. We took out a mortgage in 2004 on a home in New Mexico. Along came 2008 and all the problems that followed. We were forced to close our business and filed ch7 in Sept '08. Last mortgage payment was made in Aug '08. BAC filed foreclosure action in 2009 or 2010 (don't have the paperwork in front of me). We decided to fight the foreclosure and went to court. We asked for documents related to our mortgage, the note, endorsements etc. The case was dismissed by the court for lack of prosecution in 2011. BAC attorney motioned to have the case reopened, we responded and motion was denied. We haven't heard anything more from anyone on this until a few days ago. We received a new letter from another law firm stating they intended to foreclose. My first reaction was to send them an FOAD letter as everything I've read stated the SOL on written contracts is 6 years in NM. I thought I'd better get some advice on this before I jump off the deep end. I was going to use a modified version of Radi8 letter found here: https://creditboards.com/forums/index.php?showtopic=278917 Does the SOL in NM apply to mortgage notes and if so, is that the correct letter to use? Is there a better option to handle this? Any help is much appreciated
  7. No, we moved to AZ in 2011 and are renting it out. The bottom of the letter reads as follows: This communication is form a debt collector as we sometimes act as a debt collector. We are attempting to collect a debt and any information obtained will be used for that purpose. However, if you are in bankruptcy or received a bankruptcy discharge of this debt, this letter is not an attempt to collect the debt, but notice of possible enforcement of our lien against the collateral property. They probably covered themselves since they clearly state that they aren't attempting to collect. I wouldn't classify that disclosure as "blah, blah, blah". A legal consult is probably in order, but I'm pretty sure the lien-holder retains the right to foreclose after bankruptcy; they just can't sue you for any balance owed. I saw the "This communication is from a debt collector" and stopped reading, assuming it was the standard "blah, blah, blah". Bad on me to assume, I know. No, we moved to AZ in 2011 and are renting it out. The bottom of the letter reads as follows: This communication is form a debt collector as we sometimes act as a debt collector. We are attempting to collect a debt and any information obtained will be used for that purpose. However, if you are in bankruptcy or received a bankruptcy discharge of this debt, this letter is not an attempt to collect the debt, but notice of possible enforcement of our lien against the collateral property. They probably covered themselves since they clearly state that they aren't attempting to collect. I wouldn't classify that disclosure as "blah, blah, blah". A legal consult is probably in order, but I'm pretty sure the lien-holder retains the right to foreclose after bankruptcy; they just can't sue you for any balance owed. it certainly was a notice that a debt was owed, and that they were a debt collector. notice that Seterus was taking over servicing. We received a letter from Seterus stating we owed them $445k on a $280k mortgage. There is the mini Miranda about being a debt collector, contact us within 30 days if you dispute the debt, blah blah blah I THINK that this AZ statute Applies. 12-544. Bond to convey realty; partnership account; account between merchants; judgment or instrument given or made without the state; four year limitation 3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state. This paragraph does not apply to a judgment for support, as defined in section 25-500, and to associated costs and attorney fees. there is the BK and tolling provisions that need to be considered, along with AZ SOL. ( filing suit tolls the SOL, the dismissal without refiling in 6 months may have operated to reset it back to the original SOL of 2008 ) On December 15, 2010, the Attorney General enacted a rule that requires demand letters to contain the following language based upon its interpretation of the Unfair Practices Act, NMSA 1978 § 57-12-1, et seq. (1967). WE ARE REQUIRED BY NEW MEXICO ATTORNEY GENERAL TO NOTIFY YOU OF THE FOLLOWING INFORMATION. THIS INFORMATION IS NOT LEGAL ADVICE: THIS DEBT MAY BE TOO OLD FOR YOU TO BE SUED ON IT IN COURT. IF IT IS TOO OLD, YOU CAN'T BE REQUIRED TO PAY IT THROUGH A LAWSUIT. YOU CAN RENEW THE DEBT AND START THE TIME FOR THE FILING OF A LAWSUIT AGAINST YOU TO COLLECT THE DEBT IF YOU DO ANY OF THE FOLLOWING: MAKE ANY PAYMENT OF THE DEBT; SIGN A PAPER IN WHICH YOU ADMIT THAT YOU OWE THE DEBT OR IN WHICH YOU MAKE A NEW PROMISE TO PAY; SIGN A PAPER IN WHICH YOU GIVE UP (“WAIVE”) YOUR RIGHT TO STOP THE DEBT COLLECTOR FROM SUING YOU IN COURT TO COLLECT THE DEBT. But you're not in NM anymore, and AZ doesn't have a corresponding regulation I would check with an AZ lawyer on this before any reply to Seterus; I'll suggest Floyd Bybee. I will contact Mr. Bybee. Thanks for every ones help.
  8. No, we moved to AZ in 2011 and are renting it out. The bottom of the letter reads as follows: This communication is form a debt collector as we sometimes act as a debt collector. We are attempting to collect a debt and any information obtained will be used for that purpose. However, if you are in bankruptcy or received a bankruptcy discharge of this debt, this letter is not an attempt to collect the debt, but notice of possible enforcement of our lien against the collateral property.
  9. Thanks for the replies. Is a lawyer the best way to go or???
  10. Long story short, we filed bk7 in 09/2008. Mortgage with Countrywide then B of A. B of A foreclosed in 2009, court dismissed for lack of prosecution. Never heard another word from B of A. We recently received notice that Seterus was taking over servicing. We received a letter from Seterus stating we owed them $445k on a $280k mortgage. There is the mini Miranda about being a debt collector, contact us within 30 days if you dispute the debt, blah blah blah. The statue of limitations in NM (where the house is) is 6 yrs on written contracts. Our DOFD was 08/2008. The mortgage was included in our bk and we didn't reaffirm. Is there anything we should do with this or just wait and see if they file and than hit them with collecting a time barred debt in court? Thanks in advance for any insight

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