Pro Se Action Website

By now, I had prepared two emergency motions, filed one, and had it dismissed.  I had faced a foreclosure that was postponed within 24 hours of the scheduled date.  And I also had a modification file open with Bank of America, with a foreclosure scheduled to occur in less than 30 days.

For the last week or two, I had been preparing my formal complaint.  And while I had found many causes of action, I was concerned that it might be dismissed again if I didn’t follow all of the court specific rules and procedures.

I decided to get some help.

I interviewed a couple of attorneys who had had some success in the courts (as evident in the open records in Cobb County), and I placed an ad for legal help in eLance.  I was hoping to find a local attorney who offered “unbundled services (where they help you prepare for your own case)” or a para-legal who could help me do the necessary research.

The local attorneys I called were open to representing me, but most wanted at least $5,000 to get started, and most did not offer unbundled services.

The eLance responses were better.  Not only did I find local attorneys who offered unbundled services, I also found experienced para-legals (both in and out of Georgia), as well as foreign based law firms who offered unbundled services at very competitive rates.

I decided to try the eLance approach, and contracted with several para-legals and a law firm that offered unbundled services.

I now had my full complaint prepared, along with an emergency motion for a temporary restraining order, and all other supporting documentation.  I also had the proper addresses and procedures for serving papers on the defendants, and was ready to file the complete lawsuit.

On October 21st, 2011, I formally filed my lawsuit, charging the bank with 13 causes of action, including Fraud, Bad Faith, Equitable Estoppel, and violating numerous state and local laws, including the Fair Debt Collection Practices Act (FDCPA), the Truth In Lending Act (TILA), and the Real Estate Settlements Procedure Act (RESPA).  I also charged the bank with violating the Cease and Desist Order that Bank of America had signed with the Comptroller of the Currency on April 13, 2011.

A complete copy is available for review here.

With a foreclosure pending on November 1st, I was hoping to get a Temporary Restraining Order (TRO) issued promptly.  Toward that end, I had included an Emergency Motion for a Temporary Restraining Order, along with an Ex Parte Order granting the motion, in my suit filed on October 21st.

When I filed my suit, I was instructed to take the motion and the order directly to the judge’s chamber for immediate consideration.  However, since the judge assigned to my suit only works Mondays through Wednesdays, I had to leave these documents with her clerk, who told me to check back next week for a response.

So I called in on Monday, only to find out that she had not yet ruled on my motion.  I called in on Tuesday, but again, no ruling.  I called in on Wednesday, fully expecting a yes or a no ruling.  Instead, the judge had left for the week without taking any action on my motion.

Personally, when given a choice, I usually opt to be fully transparent whenever possible.  That means going public with all that’s going on in my life, even when it is not popular, or likely to be misconstrued or misunderstood (for example, see my anti-war comedy routine during the Bush years)

On the other hand, my wife is a little more conservative.  Out of respect for her, I had been keeping this lawsuit thing pretty quiet.  But the more we got into it, the more we realized just how pervasive the problems had become.

In my role as business broker, I was seeing many small business owners experiencing extreme hardship, and going out of business as a result.  In my wife’s role as a residential realtor, she was seeing many people lose their homes to foreclosure, or being unable to sell because their home values had been impacted by the foreclosures around them.  And the longer we were involved, the more horror stories we were hearing from our clients.

Finally, I asked her if I could go public.  After some deliberation, we both agreed that our experiences might be helpful to others.

So, on October 27th, I set up two websites: OccupyTheCourts.org and ProSeAction.org, and issued a press release titled: Angry Homeowner Files Lawsuit Against Bank of America as a Pro Se Litigant

With my foreclosure now days away, and my assigned judge gone for the week without ruling on my motion, I was running out of time to stop the foreclosure with a Temporary Restraining Order (TRO).  As a last ditch effort, I decided to go to the courthouse and ask the “presiding judge” to rule on my TRO (the presiding judge is the court’s version of an on-call doctor).

However, the presiding judge on this Friday wasn’t around.  His clerk said that he hadn’t been in that morning, and wasn’t sure what time he’d be back, or even if he would be back.  She suggested that I ask one of the other judges to rule on my motion.

In Cherokee County, there are only three judges who could rule on this motion.  One of them was missing (the presiding judge), one of them was off (the assigned judge), and one of them was hearing a case on the bench.  As I walked from judge’s chamber to judge’s chamber, I was beginning to think this was hopeless.

Just then, I ran into an attorney that I know, and explained to him my predicament.  He was there for a hearing of his own, which had just broken for jury deliberations.  He didn’t know if it would work, but he suggested that I approach his judge, who was visiting from another court.

I then went back to the presiding judge’s clerk, described the situation, and asked if the guest judge could hear my case.  She told me to wait in the law library, while she checked things out.  Finally, she said the guest judge would hear my case.

The guest judge was a very nice man — someone who restored my faith in pursuing this lawsuit.  After asking me about the details of my case, and reviewing my motion and order, he agreed to sign the order.  He did warn me, however, that the other side might object, since he was only a guest judge.

Just as he was about to sign my order, my attorney friend walks in, and says that the other judge who had been busy on the bench had just become available, and was willing to hear my case.  With that, the guest judge stopped signing, and said I should let the other judge hear this case.

After waiting an hour or so, I finally entered the judge’s office, and handed his clerk my motion and order.  She asked me to wait, while she brought the documents back to the judge for review.

Unlike the guest judge, this judge was very intimidating, as I heard him back in his chamber.  “Is this TRO for a custody case?” he yelled at his clerk.  Not knowing whether I should reply or not, I yelled back “No, your honor.”  After a few more questions like this, I was brought back into his chamber.

“Why hasn’t your judge ruled on this motion?” he bellowed.  “I’m not sure, your honor.  I expected her to do so, but she left for the week without providing any response” I replied.  “I’m here today, because this foreclosure is expected to happen on Tuesday.”

“Well, I’m not about to rule on this without the other side having notice of this hearing” said the judge.  “Your honor, I notified the defendants this morning, as indicated in the attached Certificate of Notice” I replied.

From there, I got a long lecture on how I, as a pro se litigant, was not in a position to “certify” anything.  Only an officer of the court can do so, or a notary.  Either way, my certification must be sworn to under oath and penalty of perjury.  To which I replied “I’d be happy to swear to this now.”

Again, he countered that I had provided insufficient notice to the other side for this hearing.  I responded by showing him, in my original emergency motion, that the other side had receive notice of my intentions over a week ago on the prior Thursday.  I also reminded him that emergency motions are done with short notice and only one party represented all of the time.

With no other reasons given, the judge concluded by saying that this was not his case, and that I should come back on Monday morning and ask my assigned judge to rule on this matter.

Within hours of our press release going out, we had received many comments from other homeowners who had stories very similar to ours.  We were also contacted by members of the media (who have yet to cover this story), as well as by other activists involved in the foreclosure mess.

One of the contacts was by a group called Operation Restoration.  Not only were they based in Atlanta, but they had built up a good library of approaches to fighting foreclosures, along with a team of experts who could answer technical questions.  They suggested two new strategies that I was not aware of:

1. “Accept” the Warranty Deed on file with Cherokee County Records
2. “Revoke” the Power of Attorney granted in our Security Deed

While I’m not sure of the value of the first approach, the second approach would effectively cancel the Security Deed on our property, thereby prevent any non-judicial foreclosures.  These documents have been uploaded to the member’s area, and are available for download to members here.

While being yelled at by a judge is no fun, it was an excellent learning experience for me.

My case, as it turns out, had many documents that were titled “verified” and “certified,” when in fact, none of them were actually sworn to under oath and notarized.  (that’s what happens when you rely on other people’s filings to prepare your court case, and you don’t know what you don’t know.)

In order for my case to be valid and qualify, I had to swear to my filings under oath and penalty of perjury, in front of a notary.  I spent my day Sunday correcting this oversight, and preparing sworn statements that verified the documents filed in my case.

With less than 24 hours until our home is sold on the courthouse steps, I head over to the Cherokee County Courthouse in my last attempt to get a Temporary Restraining Order (TRO) to stop the foreclosure on our home.

Over the weekend, I had prepared sworn affidavits to correct the filings that needed to be verified and/or certified, I had prepared a Revocation of Power of Attorney to invalidate our Security Deed, and I brought copies of the Emergency Motion for a TRO and the Ex Parte Order for the judge to sign.

Once again, I enter my assigned judge’s office and approach her clerk with my documents.  Once again, she refused to do anything with the documents, other than take my name and promise to call me if the judge agreed to hear my case.

Not ready to give up, I then went to the receptionist and ask who the “presiding judge” was this morning — if my judge wouldn’t hear my case, well maybe the presiding judge would.  To my dismay, the presiding judge was … my assigned judge.

Now, officially out of options, I resign myself to pursuing backup plans B and C:

• Plan B was to follow-up on my mortgage modification application with the bank.  While it was a long shot, the bank had always stated that they would not foreclose if they had an active modification in review.  Mine was, so this was a possibility.
• Plan C was to file a Bankruptcy petition.  It wasn’t something I wanted to do, but it would immediately stop the foreclosure, no questions asked.  I had a petition prepared and ready to file, just in case.

So I called Bank of America and asked about the status of my mortgage application.  I had called on Friday, and I knew it was still active, but the foreclosure had yet to be canceled.   Today, however, I received good news — the foreclosure had been canceled.

Given the number of wrongful foreclosures filed in court records, however, I was not comfortable yet.  I needed to get something in writing, but Bank of America refuses to document anything they tell you over the phone.  My only choice was to call the law firm handling the foreclosure, and attempt to get verification in writing from them.

Now on this morning, the law firm’s phones were ringing off the hook, and no-one was answering.  Ring, ring, ring, only to roll-over to voice mail.  I kept calling.  Finally, after about an hour of calling I was able to get verbal confirmation that the law firm had also cancelled my foreclosure.   I asked for written documentation, but my contact made it sound highly unlikely that I’d get it anytime soon.

Feeling that I had done all that I could do, I left the courthouse hoping that the verbal assurances I had received from Bank of America and their law firm would be honored.  Instead of worrying about it, I went home for lunch and called it day.

Then, totally to my surprise, I got a call from the judge’s clerk about 2:30 in the afternoon.  The judge had reviewed my motion, and had agreed to a hearing the following morning.  At this point, I told the clerk that I thought the foreclosure had been cancelled, but I had not been able to get written verification of this.  If I were able to do so, the hearing would no longer be necessary.

At that point, I called the law firm pursuing the foreclosure, and informed them that we had a hearing scheduled for the following morning.  If they could provide me with written documentation that the foreclosure was cancelled, however, I would cancel the hearing.

Five minutes later, I had my written confirmation.  I then cancelled the hearing for tomorrow, and was finally able to declare this day a victory.  My house was safe for another month, and my case was finally getting some traction.

When I last spoke to the bank on October 31st, the contact who let me know that our foreclosure had been postponed also told me that the bank had changed their procedures, and we would now be assigned a single contact who would shepherd our modification application through their system.

Since we had heard this at least twice before, without any improvements in their process, we were not expecting much of anything to change.  However, this person sounded very confident that things would be better this time.

Today we received a written letter confirming that this had indeed happened, and introducing us to our new contact.  Instead of immediately calling our new contact, like I had previously, I decided to take a “wait and see” approach.  If things had really changed, it would be apparent soon enough.

On this day, we receive another Fair Debt Collection Practices Act notice.  It declairs that we owe a debt, and that we have 30 days to respond if we dispute the debt.

We’ve seen this one before.  It is the first of several that are sent leading up to foreclosure.  Like the ones before it, we’ll dispute this one as well.