[22554home]

We have a property in virginia (nonjudicial state) in which we have been paying our mortgage on time and in full. Our mortgage bank is foreclosing, refusing proof of payments and charging us fees, etc.

How do I fight this? I have talked to lawyers but they want too much money ($2000-$4000). I know we have been violated under RESPA but how do I file a civil suit? State, federal?

We are open to any suggestions.

[ScottGem]

What grounds are they giving for foreclosure if your payments are up to date? If they are refusing to accept payments, place them in an escrow account to prove that you have tried to make them.

Has a hearing been scheduled? Go to the hearing with proof that your loan was up to date and that the lender is refusing to accept payments.

[22554home]

The bank states that we are 5 months behind on our mortgage payments. We have submitted proof of payments; our banks have also faxed copies of payments. The bank does not respond other than to say we are in default and want $5500 to prevent foreclosure.

[excon]

Hello 22:

It's a shame that you find yourself in this situation... But, you're going to have to do some math. If a lawyer only costs $4,000, and you have $20,000 in equity in your house that you could lose, it seems that spending $4,000 to save $20,000 would be a good investment.

But, that's just me.

excon

[AK lawyer]

... I know we have been violated under RESPA but ...

You say Virginia is a non-judicial foreclosure state. My experience with non-judicial foreclosures has to do with deeds of trust. If this were the case, I would suggest you submit your proof of payment to the trustee. If the bank can do it's own non-judicial foreclosure I guess you would have to go to court to stop it.

What exact provision of RESPA has been violated? RESPA provides that an action under that statute "may be brought in the United States district court or in any other court of competent jurisdiction"; in other words, in either state of federal court. An attorney there would have a better idea of which would be better.

[ScottGem]

I've just done some research on VA Power of Sale foreclosures (non judicial). The process is very clear but nothing I saw specifies a way for the owner to fight this.

So I see you have two choices here. First you can consult with an attorney to determine how you file a protest against the institution of foreclosure. Or you can pay the alleged arrears then sue the lender for falsely claiming you were in arrears and any expenses you incur in protecting your property.

[AK lawyer]

I've just done some research on VA Power of Sale foreclosures (non judicial). The process is very clear but nothing I saw specifies a way for the owner to fight this.

Is there a link?

Never mind. http://leg1.state.va.us/cgi-bin/legp...04000000000000 It's apparently usually a deed of trust.

[ScottGem]

Yeah, it appears that sections 58-65 cover this issue. But I don't see anything that says what the owner must do to stop the foreclosure other than paying the arrears.

[AK lawyer]

Right. It doesn't seem to specify a remedy.

The OP/trustor/mortgagor could go to the foreclosure sale and announce to all potential buyers that he disagrees with the alleged default. That way, the buyer at the foreclosure sale would not be a bona fide purchaser without notice. Then, when the buyer seeks to evict you, you would have a good argument that the foreclosure was invalid, and that therefore the buyer doesn't have title.

[ScottGem]

Another thought would be to file a Lis Pendens against the property, forcing the lender to deal with the issue.

[AK lawyer]

Another thought would be to file a Lis Pendens against the property, forcing the lender to deal with the issue.

Yes, assuming that OP is actually filing a lawsuit, filing a LP would for sure be one thing on your "to do" list.