Our home went to sheriff sale on 10/1/08. In Michigan, you have 180 days before the mortgage co can ask you to vacate; this put us to 4/1/09. On that date, a real estate broker came and gave/offered us a contract. It states, that if we leave the house clear of debris, and basically not destroyed by 4/15/09, they will issue us a check for $1500.00. They are supposed to come pick this contract up tomorrow (4/8/09).

Tonight, our tax preparer was at our home and suggested we find out if we are still able to force the mortgage holder to produce the original note. I had heard of this before, but I thought it had to be done on or before the sheriff sale took place. So that is the first part of my question... can this still be done?

Secondly, he advised us that the ACTUAL mortgage holder has to forclose. He says that a "Servicing Co" cannot forclose, it is fraud. They do not own the home, therefore they cannot take it. I have never heard of this.

Finally, the real estate broker is coming tomorrow morning. Are we jeopardizing any of our rights by signing the agreement to move out and accepting this money. We actually need it to move, so it is very confusing for us to decide what to do at this point. I can tell you more of what the agreement says if that would help, but it basically states that if we leave the house clean they'll issue us a check. That's it.

Thanks in advance for any help you can offer.

Hello M:

You're going to have to tell us more about the agreement... What connection does he have to the mortgage company, if ANY? Is he BUYING your house?? Is he RENTING it? What is he paying YOU for? For MOVING OUT?? That makes NO sense...

excon

Ok, well I thought it was more clear that the mortgage company had this realtor come out. He is going to be listing the house for them when we are gone. The realtor is not paying me, the mortgage servicing company is paying me upon my exit from the property.

The agreement states...

You may have already received, or will shortly receive, a notice to vacate or quit from the Owner/Servicer's attorneys, confirming that the Owner/Servicer is seeking to recover possession of the Property. The Owner/Servicer may also seek to recover from you the fair market value of the Property for the period commencing on the date of the foreclosure sale and ending on the date on which you vacate the property.

While the Owner/Servicer has the right to pursue these legal actions against you, the Relocation Program provides that in the event you vacate the Property on or before, 4/15/09 12:00AM (the "Delivery Date"), the Owner/Servicer: (a) will not file or will voluntarily dismiss, any legal actions against you for possession of the Property or for fair rental value payments, and (b) will make payment to you on the date on which you vacate the Property of $1500.00 ("Cash Incentive"). The Owner/Servicer's representative has no authority to increase the amount of the Cash Incentive @Sign Document, or to extend the Delivery Date.

If you vacate the Property by the Delivery Date, the Owner/Servicer's representative will make a final inspection of the Property. If you have returned all keys and have left the Property (including but not limited to interior, exterior, and/or any out buildings such as garages or sheds) in broom clean condition (meaning no remaining personal property or trash left on the property) and in no worse condition as they are now, ordinary wear and tear excepted, then upon signing a simple release form, the Owner/Servicer's representative shall pay you by check the entire Cash Incentive. The Owner/Servicer will be entitled to deduct from the Cash Incentive: (a) the cost of any repairs for damages caused by you between this date and the date you vacate the Property and (b) the cost of replacing any fixtures or property removed from the Property.

If you choose to participate in the Relocation Program, then until the Delivery Date, to the maximum extent permitted by law, you agree that (a) the Owner/Servicer will not be liable for any injury or damage to person or property on the Property (the same being at your sole risk) and (b) you agree to release, indemnify and hold the Owner/Servicer and its agents harmless from and against any and all claims arising out of the condition of the Property and/or your use and occupancy thereof.

You also agree to cooperate with the Owner/Servicer in allowing reasonable access to the Property upon at least 24 hrs notice for the purpose of inspecting, appraising, marketing, taking interior/exterior photographs and showing the Property to prospective purchasers.

IN NO EVENT SHALL THIS NOTICE CONSTITUTE AN ACCEPTANCE OF YOUR CONTINUED OCCUPATION OF THE PROPERTY, AND NOTHING HEREIN SHALL BE DEEMED TO CREATE ANY TENANCY. THIS PROGRAM DOES NOT PRECLUDE THE OWNER/SERVICER FROM INITIATING ANY EVICTION PROCEEDINGS PERMITTED BY LAW DURING THE TIME LEADING UP TO THE DELIVERY DATE.

End of agreement...

Hello again, m:

I got it now. Looks to me like they're offering some dough so that they get the home sooner. Since you need the money, and you're going to have to leave anyway, I'd take it.

excon

I was more concerned if it would affect me legally should I decide to look into making them produce my original note, or if I should try to prove them fraudulent in being a servicing company and not the actual mortgage owner. The contract seems pretty straight forward though, pertaining only to our occupancy of the home, not to our ownership rights

Hello again, m:

Legally?? What do you care? It's already on your credit report and they may get a judgment against you too. But, they're not going to throw you in jail for asking questions.

You were told these things by your "tax preparer", were you?? I wouldn't be getting my legal advice there. (Yeah, get it from an exconvict on the internet ;))

You had ample opportunity to contest the foreclosure before it happened. You didn't. Plus, you have no idea whether they COULD produce the original note, and I see no reason why they couldn't have if prompted.

Next, you're only assuming the servicer can't foreclose. He's foreclosing, so I'd assume he can...

Look, the bottom line is NOT your legal picture, but your financial one. Even if you could stir up the pot a little and prolong the inevitable, you're going to be giving up $1,500 for the privilege of doing so. And, you may be wrong and you'll have given up the money for nothing.

excon

Weell... I'm not afraid of them doing anything more to me! However, I have recently been made aware of certain things that could have stalled the procedure BEFORE it happened. I was wanting to know if it was still possible to pursue those things now AFTER it happened. I wanted to know if taking this money and signing the release affects anything we still may decide to do legally. If there even is anything that we could do. I am in the process of moving while all this is going on, with 3 small kids, so I didn't have time to make appropriate phone calls at this time! Thought maybe someone on here might have some idea. Thanks :o

I wanted to know if taking this money and signing the release affects anything we still may decide to do legally. If there even is anything that we could do.
you agree to release, indemnify and hold the Owner/Servicer and its agents harmless from and against any and all claims arising out of the condition of the Property and/or your use and occupancy thereof.Hello again, m:

The lower quote is from your agreement... It's clear. If you take the money, you give up ALL rights to do ANYTHING. If you don't take the money, I don't think you'll be able to do anything anyway, because if there was something you COULD have done, that time is passed...

But, I'm willing to be wrong. I hope you take the money AND get to stay in your home a little longer. I just don't think that's going to happen. And, if it COULD happen, you're absolutely going to need a lawyer to do it... You don't really think these people are going to stop the process because you write a letter telling them that they can't do what they're doing, do you??

Take the money and start again.

excon

Thanks for all the conversation about this... it's all been a learning experience for me that's for sure! In response to that last post, I do take this agreement to be limited to the moving and them paying us for that... I do not believe they can relate it to anything else except our time here under the agreement. Which is only about 7 days.

I could be totally wrong, but whatever. We have already lost it if I move out in one sense. Although we have received no communication that they have actually forclosed on us. I have literally gotten NOTHING from my mortgage company stating that they even did a sheriff sale, or forclosed. Until this real estate guy knocked on my door, all our communication has been from me calling them and asking for documentation (which I still haven't received).

I guess there are still some ways to fight after you've left the house. That is what I will continue to look into... after I get my family settled down in a new place. They are my biggest concern, I have tried to make this all as easy as possible on my kids and such. It's way too much for them to worry about.