NM Bankruptcy Information On YouTube — Part One

This starts a series of occasional posts about good New Mexico bankruptcy information available on YouTube.

The Bankruptcy Court for New Mexico said yesterday that it has set up a YouTube video presence! Hurray for good use of social media — new tech as well as old!

Here’s their announcement:

The United States Bankruptcy Court for the District of New Mexico has established a YouTube channel to improve communication with the public.

http://www.youtube.com/user/NewMexicoBankruptcy/videos

The YouTube channel will be updated regularly with short, informative videos that help customers learn about various topics, including how to get to the courthouse and information on bankruptcy procedures. Though the Court is using YouTube as a medium for providing information to customers, the Clerk’s Office continues to be aware of the prohibition to provide legal advice to parties (both self-represented parties and to attorneys). The YouTube channel will allow us to consistently and clearly provide the same information we currently provide at the front counter via the Internet. We feel this is a critical element of customer service in a geographically large district like the District of New Mexico. We welcome your feedback on this new service, including suggestions for topics.

And they will, welcome your feedback, that is. The Clerk of the Bankruptcy Court for New Mexico is smart and always willing to listen to more ways to provide better service.  I haven’t looked at their YouTube site or the videos there yet, but am glad to see they are doing this. I’ll check it out and let you know more about what’s there.

PREVENTING DEFAULT IN A FORECLOSURE LAWSUIT PART 4

This concludes the series of guest posts by foreclosure defense attorney N. Ana Garner. The earlier posts in the series are here, here, and here.

 

 

HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU FOR FORECLOSURE

By N. Ana Garner, Esq.

4.  At the end of the answer, you can assert defenses. An important  defense is standing (the bank lacks the legal right to foreclose on your home, because it isn’t the right party); violations of TILA and HAMP laws  (especially if you applied for and never received any loan modification); unjust enrichment; unclean hands; predatory lending practices; failure to state a claim for which relief can be granted.  Number each of these separately under the centered words

“AFFIRMATIVE DEFENSES”.

5.         At the end of your affirmative defenses, you can put a statement of the relief you want the court to grant you. A short statement like this will do the trick: “Defendant requests that this Court dismiss the complaint, nullify the mortgage and note, and quiet title in the name of Defendant, and whatever other relief the Court deems just and proper.”

6.  Sign the Answer, putting your current mailing address and telephone number, and email if you use that.

7.  You’ll also need a statement of how you served the bank’s attorney at the very end: ” I certify that I (mailed/emailed/faxed) a copy of this pleading to Attorney X, at this (address/fax number) on __ day of ___ month, 2012.”

8.   Send one copy to the court by mail and one copy to the attorney who signed the complaint.  To serve the attorney, you may do this by fax, mail, or email attachment to the attorney.  Unrepresented people with a civil case can file the answer by presenting it at the court clerk’s window or mailing it to the court clerk. Be sure and mail an original and one copy of the Answer, plus a self-addressed stamped envelope, to the Court Clerk, with a cover letter asking them to return the endorsed (stamped) copy back to you.  This step is necessary to give you proof of when the Answer was filed in court. (Attorneys are required to use the e-filing system, however, “self-help” folks do not file papers this way).  Santa Fe District Court even has a self-help line: 505-455-8146.

Following these steps exactly are enough to prevent a default judgment.  This will buy you time to prevent a default judgment, and possibly find an attorney to help you.  Whatever you do, DON’T IGNORE A FORECLOSURE LAWSUIT!! MAKE SURE YOU FILE AN ANSWER WITHIN 30 DAYS IF YOU DON’T HAVE AN ATTORNEY!

 

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

Ms.  Garner will return with more guest posts later this year.

PREVENTING DEFAULT IN A FORECLOSURE LAWSUIT PART 3

Lawsuits can continue like a river … don’t let a foreclosure lawsuit carry you too far downstream ….

This continues the series of guest posts by foreclosure defense attorney N. Ana Garner. The earlier posts in the series are here and here.

 

 

HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU FOR FORECLOSURE

By N. Ana Garner, Esq.

 Here’s how you file an Answer [there are 8 points total here but the series breaks them up, so come back].

 1. Time: You have 30 days from the time you received the packet to file it with the District Court clerk and send a copy to the bank’s attorney. The Summons will have the address of the Court  where you will need to send the Answer. Now, I’m not going to be able to give you enough information to make your answer sound like something from an attorney. That doesn’t matter. The important thing is that you DO IT.

2. Look at the first page of the Complaint. Everything above the words “Complaint” or “Complaint in Foreclosure” is called the caption or style of the case.  You must type that in exactly as it appears, making sure the number is exactly the same. This is essential to make sure the Answer is filed in the correct court file. Instead of “Complaint”, you’ll type ANSWER, preferably centered.

3. Each paragraph of the Complaint must be admitted or denied. Deny the paragraph if any part of it is untrue. Number your answer by the same numbers as each paragraph in the Complaint.  If you don’t have enough information to admit or deny a paragraph, state: deny for lack of sufficient information.

A word of caution about admitting anything. You may think you should admit you executed a note and mortgage. We know you signed something. What we don’t know is whether that Note and Mortgage are enforceable, nor do we know whether the copy of the Note attached as an Exhibit is a true and correct copy of your current original note. Sure, it looks like the one you signed years ago. But in the interim, it may have collected various endorsements by being transferred and sold numerous times, endorsements you won’t see on the copy attached to the complaint.  So, don’t admit that it is a true copy of the “original” Note. The “original Note” isn’t the one you signed, it’s the current negotiable instrument that has been sold many times over.

Also, in the complaint where bank or servicer claims to be the holder of the Note, definitely deny that. Make them prove it. Many times, they can’t.

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

This continues the new series of guest posts by foreclosure defense attorney N. Ana Garner.   Please come back tomorrow for more in the series.

PREVENT A DEFAULT JUDGMENT AGAINST YOU IN A FORECLOSURE LAWSUIT PART 2

Remember, don’t keep your head in the sand….

This continues the series of guest posts by foreclosure defense attorney N. Ana Garner. The first in the series is here.

 

 

HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU FOR FORECLOSURE

By N. Ana Garner, Esq.

 Why do so many people let a default judgment happen to them? The reasons vary. A common one is shame at not being able to live up to their obligations, so they just “walk away” (slink away is more like it). Fear of being suddenly evicted and feeling powerless makes some people feel more empowered to just walk away from the home on their own schedule. Some people fail to file an Answer because they don’t know what to do, or believe they can’t afford an attorney to help them. Some fail to file an Answer because they have already abandoned their home, and never even received the paperwork.  This article is addressed to anyone who has received foreclosure lawsuit paperwork within the last 30 days, or thinks they are about to get served with a lawsuit for foreclosure. It also applies if you received paperwork more than 30 days ago, but no Motion for Default Judgment has been filed by the Bank. You won’t know that, because they don’t have to send you anything if you never file anything indicating you are contesting the lawsuit.

 I’ll reiterate an important message in my prior articles about the subject of foreclosure: DON’T ABANDON YOUR HOME.  I’ll go so far as to say that it’s your duty to your neighborhood and community to continue living in the home and taking care of the home and landscape to make sure your neighbors’ homes don’t plunge in value because there is an abandoned neglected home on their street.  We need to understand that what we do affects those around us, so please, please, stay in the home. You and your family have to live somewhere- what better place that the home you’ve loved and taken care of for years?

NEXT: Here’s how you file an Answer.

 

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

This continues a second series of guest posts by foreclosure defense attorney N. Ana Garner.   Please come back tomorrow for more in the series.

HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU IN A FORECLOSURE LAWSUIT PART 1

The prior 3 posts concluded the first series of guest posts by foreclosure defense attorney N. Ana Garner. (Those earlier posts in the series are here, here, and here.)

Ms. Garner now begins a second series — there is some overlap, but good information bears repeating!

HOW TO PREVENT A DEFAULT JUDGMENT AGAINST YOU FOR FORECLOSURE

By N. Ana Garner, Esq.

 Foreclosure lawsuits are rising alarmingly in Santa Fe County.  Chances are that you or someone you know is about to go into foreclosure, or has already been “served” (delivered) the papers showing the lawsuit has been filed against them. These papers are the Summons, Complaint in Foreclosure, and typically, at least two exhibits to the complaint, the Note and the Mortgage.  You can always hire an attorney to help you. For those of you who want to do it yourself (which I don’t recommend, but sometimes it’s the only way), the purpose of this article is to tell you why it is critical that you file an Answer, and secondly, how to do it. Nothing is sadder to me that seeing a default judgment entered against someone when it DOESN’T have to happen that way.

First, a little background about foreclosure suits. Did you know that the majority of foreclosure cases are easily won by the bank, without trial or proof of one thing, simply because the homeowner didn’t even file an Answer to the Complaint?  The statistics are that approximately 85% of all foreclosure cases filed in New Mexico, as well as the rest of the country, result in a Default Judgment entered by the Court.  A “Default Judgment” is one that the Court is forced to grant to the Bank because the homeowner didn’t even file an Answer to the Complaint, and of course, never appears to contest the Bank’s motion for default judgment. They don’t even have to give the homeowner notice of this motion if the homeowner didn’t file an answer.  If no one utters a peep, what is the Court to do? THE ONE SURE WAY TO PREVENT DEFAULT JUDGMENT OF FORECLOSURE IS TO FILE AN ANSWER.  I’m going to show you how, below.

Why are default judgments something to avoid like a bad disease?  First off, you will get evicted from your home within short order, typically a couple of months (assuming you haven’t moved out already). You can also be left with a huge deficiency judgment, which is a judgment against you for the difference between what your mortgage balance plus costs are, and what the bid on your home is. A deficiency judgment hangs over your head legally for up to 14 years. This means that wages can be garnished; liens can be placed on any other property you or your spouse may own, and bank accounts can be seized.  This is the worst possible outcome to the financial struggle that led to falling behind payments. The only way out is bankruptcy and that may not be a good option for everyone.

 Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

This begins a new series of guest posts by foreclosure defense attorney N. Ana Garner.   Please come back tomorrow for more in the series.

NEW MEXICO’S FORECLOSURE PROCESS

This continues the series of guest posts by foreclosure defense attorney N. Ana Garner. The earlier posts in the series are here, and here.

 

 

UNDERSTANDING THE FORECLOSURE PROCESS IN NEW MEXICO

By N. Ana Garner, Esq.

The most important event to avoid is a deficiency judgment.  A deficiency judgment is the difference in the amount the bank bids on the home at the foreclosure sale, and the amount of the mortgage balance with accrued interest, fees and costs. This amount can be substantial, and subject you to personal liability for that amount, leaving you facing bankruptcy as the only way out.)  Avoiding a deficiency without bankruptcy can be accomplished a number of ways, including loan modification, short sale, giving the bank the deed before foreclosure sale, or “cash for keys”.  Some second mortgage holders will negotiate down their interests, substantially. Some banks will allow families to continue living in the home on a “lease-back” after getting the deed, at reasonable rents.

So many foreclosure suits are being filed, that you may have years from the time suit was filed to when the Court orders a sale, particularly if you have a knowledgeable attorney helping you from the beginning. Educate yourself  about your rights, and go into foreclosure with a sense of confidence and peace.  Losing your home is a tragedy for all the members of the family, and not to be taken lightly. You do have options which can make the situation more controllable in terms of timing, allowing you and your family time to plan for the smoothest transition possible, and possibly even a more favorable outcome.

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

Ms. Garner’s series continues here tomorrow.

NM FORECLOSURE ASSISTANCE SERIES CONTINUES PART 2

 

This continues the series of guest posts by foreclosure defense attorney N. Ana Garner. The first in the series is here.

 

 

UNDERSTANDING THE FORECLOSURE PROCESS IN NEW MEXICO

By N. Ana Garner, Esq.

Typically,  you will receive telephone calls from the servicer (the company to whom you make payments) very soon after missing your first payment. These calls will continue, sometimes daily,  with aggressive bill-collectors badgering you to make your full payment now. The only way to stop the phone calls is to request in writing that they not contact you by telephone,  but only in writing.   If the loan is FHA-insured, many lenders are required to accept partial payments. Before making any partial payment, confirm whether this applies to your loan, otherwise, your partial payment isn’t applied to the loan, nor is it returned to you.

You will probably start getting letters from the servicer stating that you can apply for one of the programs designed to keep people in their homes. I encourage my clients to participate in this process, even though the results are less than satisfying for most. Who knows, you may get lucky and get the modification you need to afford to stay in your home. If your loan was a no-doc, with no income verification, it seems odd that the bank is now asking for documentation of your current income and expenses to modify an oppressive loan that required no such documentation originally.  At the very least, this process can buy you another couple of months before the inevitable foreclosure suit. There are certain regulations a lender must follow before filing suit, and by participating in the loss mitigation process, you may have defenses available to you for the servicer’s failure to follow applicable laws. The servicer who files a foreclosure suit while you are being considered for a HAMP modification is in violation of the servicer’s contract with the  U.S. Treasury and program guidelines. Keep copies of all paperwork generated in this process for later review by your attorney.

After several months of correspondence and documentation has been submitted, you will receive a letter from an attorney for the servicer or bank. When you receive the first letter from an attorney, you’ll know you are getting close to the foreclosure suit being filed. The attorney  will give you a notice of default and intent to accelerate, which means that if payments are not caught up within 30 days, the full amount will become due and owing.  This is a good time to hire an attorney if you want to live in your home for a while. You may get a second letter in 30 days stating that the note has been accelerated, or you may just get a stranger at your door who asks you if you are “Mr. X”, at which point, they hand you a fat envelope. That envelope will contain a Summons, Complaint in foreclosure, and attachments to the Complaint. You have 30 days to file a formal answer with the court, and send a copy to the bank attorneys.   DON’T IGNORE THESE PAPERS!  You must file an answer to avoid a default judgment and imminent sale of your home.  Banks count on most of these foreclosures being granted as a default judgment because most homeowners don’t even bother to file an answer, mistakenly believing there is nothing they can do about the situation.  Why be one of these statistics when you can fight for your home?

In cases where the bank knows it lacks the proof of standing (the legal right to file suit because they are the owner of the Note), just having an attorney file an answer for you may cause some of these cases to wither away.  If the plaintiff (the party who started the lawsuit) fails to take action that moves the case towards finality, the judge may dismiss the action after 6 months of inactivity, for lack of prosecution.  However, the bank can have the case reinstated within 30 days, or it can refile a new lawsuit at a later date.

Aggressively defending the case may put you in a better bargaining position when the case is scheduled for settlement conference.  Many foreclosure defense attorneys are getting good results at mediation, typically far better than the loan modifications that were offered before suit was filed.

Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

 

The series will continue here tomorrow.

 

NM FORECLOSURE ASSISTANCE SERIES PART 1

From time to time, other attorneys guest post here. Today begins a series by foreclosure defense attorney N. Ana Garner, who represents homeowners in the Santa Fe and Albuquerque areas.

UNDERSTANDING THE FORECLOSURE PROCESS IN NEW MEXICO

N. Ana Garner, Esq.

Have you missed a mortgage payment? Here’s a guide about what you can expect.  This article is designed to demystify the foreclosure process in New Mexico and discuss the timing  that is usually involved.

We all know the economy is tanking, following the housing bubble and subsequent crash of property values.   The downward spiraling of our economy is directly traceable  to the culture of legislated greed in banking and mortgage industry.  The biggest recurring payments most families make is the mortgage on their home. With real estate prices plunging, especially when the mortgage balance is more than the value,  paying good money after bad doesn’t seem fiscally wise.

 New Mexico is a judicial foreclosure state, which means that after you have missed many payments, the bank , or someone claiming to having the legal right to foreclose, will file a foreclosure suit in the state district court in which your home is located. Depending on the bank, and the type of loan (whether  insured by FHA, or conventional) suit  could be filed from 4-12 months after  your last payment.

 Know that even after missing payments, you have options. One of those is staying in your home, taking care of it, and preparing for a later orderly departure.  I DO NOT recommend slinking away from your home in shame, abandoning it to become another blighted home in your neighborhood. This brings down values of homes for your neighbors and town. You and your family have to live somewhere.

If you love your home and neighborhood, as well as the schools, you can stay in the home sometimes for years.  Contrary to myth and rumor, you will NOT get evicted suddenly without warning, locked out of your house by the sheriff, and thrown out onto the streets.  This will happen only if you ignore the complaint and summons you were given by a process server.  Don’t let the time go by for filing your answer, even if you are in negotiations with the bank. By having an attorney, you WILL get plenty of advance warning before having to move your family from the home.  The banks operate differently when you are represented.

 Ana Garner, Attorney at Law, represents only homeowners in the Santa Fe and Albuquerque areas.  She has 30 years of litigation experience in N.M. courts. Her mission is to protect the integrity of the judicial process in foreclosure actions and expose the fraud being perpetrated on the courts and citizens.  Her contact information is garnerlaw@yahoo.com; telephone 505 474-5300. She will review foreclosure lawsuit documents at no charge if they are scanned and e-mailed to her with the subject line, Free Review of Foreclosure docs.

Ms. Garner’s guest post continues tomorrow …

FREE NM FORECLOSURE ASSISTANCE WEEKEND

Starting tomorrow, March 15, 2012 and continuing through Sunday, March 18, 2012, there is a free, four-day foreclosure assistance event taking place at the University of  New Mexico School of Law in Albuquerque.  It is free and open to the public, and no reservations are needed. For more information, visit

 

helpingnmhomeowners.com, or email info@helpingnmhomeowners.com.  The event is sponsored by the New Mexico Attorney General’s Consumer Protection Office, the United South Broadway Corporation/Fair Lending Center, and the UNM School of Law.

For more free foreclosure assistance, return to this blog tomorrow for the start of a series of guest posts by foreclosure defense attorney Ana Garner.  As her posts will make clear, if you remember only one thing, remember that the most important event to avoid in a foreclosure action is a deficiency judgment.

Better Financial Organization in 2012

So many demands for our scare resources!

I subscribe to the New York Times online, including its Your Money newsletter. The current issue features several articles on “resolutions” (I think we can safely still call them “New Year” even while January is passing as quickly as any other month), which are worth checking, including:

— Tara Siegel Bernard’s Resolution: Become a Mint.com Power User. (Mint.com is a money tracking website that lets you  keep close track of your spending.)

— Ron Lieber’s Resolution: Better Personal (and Financial) Organization. (to waste less time looking for things and beng able to put that time into something constructive, even profitable)

I’m going to do something from both of these!