Pro Se Action Website

Today I got a call from our new, new bank contact.  Things started off friendly enough, with her assuring me that things would be different this time, and that she was there to make sure that my application got proper attention.

She then asked me for some documents that we had just sent about a month earlier to our prior contact.  She apologized, and said that she had no record of those documents being received.

I then asked her if she had any record of my prior contact, which she did.  I asked her if she could find out what had happened to my prior documents, and she said she would look into it.  I also asked her what had happened to the mortgage modification that we were approved for over the phone, and why we never received the written proposal as we were told we would.  Again, she said she didn’t know, and that she would check it out.

I finished up by asking for her direct number and email address.  To my surprise, she once again reverted to the standard Bank of America response:  we aren’t allowed to give you that information, and the only way you can reach me is by entering your loan number in our 800 number system.

At this point, I shared with her my frustration with this policy, and how it sounded to me like *nothing* had changed.  After venting a little, she reminded me that our home was scheduled for foreclosure on January 3rd, but I didn’t need to worry:  as long as we had a mortgage modification in process, the bank wouldn’t foreclosure.

Now I was very upset.  We had heard this one before — and learned the hard way that it wasn’t automatic, and that we probably wouldn’t find out until hours before the scheduled foreclosure whether or not it would be postponed.

She finally admitted that the bank could still foreclose, even with an open file, and that she should have told me as such.  We ended the call with her agreeing to send me a list of the remaining documents required, after she attempted to track down the ones that were missing.

We ended the call with my expectations near zero.

With our first hearing coming up on December 6th, I was busy preparing for the next stage of our lawsuit when I got a call from a law firm who was representing Shuping, Morse & Ross (SMR), the firm who had been attempting to foreclose on our home.

I was told that they had been retained by SMR, and they wanted to know if we would consider dropping them from the lawsuit.  The reason given is that the foreclosure had already been cancelled, and they weren’t a party to the rest of the complaint.  I informed them that while that was true, we had just received a new notice from SMR indicating that they had started another foreclosure action against us.

The attorney responded that that notice was probably in error, as foreclosures are not typically pursued when there is active litigation pending.  She said she would check it out, and let me know the current status.  About an hour later, she confirmed that foreclosure action was in error, and was no longer in their system.

Based on this, I agreed to remove SMR *if* they documented this fact in writing, and *if* removing SMR didn’t impact the remaining case against the other defendants.  She said she would draft the legal documents required, and would forward them for my approval within a couple of days.

Today we got a call from someone who claimed to be assisting our new, new dedicated bank contact.  While she was nice enough, she didn’t seem to know what was said or agreed to in our prior conversation.  After going around in circles, she said she would follow up with a letter.

The whole conversation was very strange.  I believe it might have been someone trying to find out more about our lawsuit.  Again, not impressed, with expectations close to zero.

Later that day, we also received a new package from Bank of America.  Their list of missing documents wasn’t really a list — it was a completely new application package!!!  Instead of asking for a few documents, they were asking us to complete the entire application process again, starting from scratch.

Not sure if we’re willing to play this game again.  Instead, we might be better off just focusing on our lawsuit.

The firm representing Shuping, Morse and Ross (SMR) had promised to provide drafts of the documents required to remove SMR from the lawsuit within a couple of days.  Today it was going on one week, so I called to find out the latest.

I was told that the reason for the delay was that the other parties had to agree to remove SMR from the lawsuit.  I was also told that the other parties intended to remove the case to federal court on Wednesday.  As a result, the motion to remove SMR would be better served in federal court.

For these reasons, the draft documents would be ready by Thursday.

With less than a week until our first hearing, today I received the draft motion to remove Shuping, Morse and Ross from the lawsuit.  Unfortunately, it did not include the required documentation that the pending foreclosure action had been cancelled.

Later that day, I also received the Motion to Remove the current case from state court to federal court.  I soon learned that this was an automatic, and that I’d have to file a motion to get it returned to state court.

Effectively, this tactic delayed my hearing, and moved this case to a more formal venue, one that is a little more difficult for pro se litigants.  Not to be dissuaded, I took this as an opportunity to learn about the differences between state and federal court.

Since the draft documents to remove Shuping, Morse and Ross did not include written verification that our pending foreclosure had been cancelled, and since I only had 30 days to respond the Fair Debt Collection Practices Act notice, I needed to send out my reply by the weekend.  You can see a copy here.

On Sunday, I then notified the firm representing SMR that they had not included verification that the foreclosure action had been cancelled, and I copied them on the Demand Letter.

Over the last couple of days, I’ve had multiple phone calls and email exchanges with both law firms.  The firm representing Shuping, Morse & Ross (SMR) has provided the draft motion, written documentation and assurances required to release them from the suit.

The firm representing Bank of America and Bank of NY Mellon has also been in touch.  Their conversation was much like that of Bank of America’s collection department: “Now that we are working with you, we will help shepherd your application through the process, etc.”  What they really wanted, however, was an extension of time to file their response to our complaint.

By now, we have decided that these are simply delaying tactics, and we should just get on with the lawsuit.  The day concludes with our agreeing to release SMR from the lawsuit, and a request from the firm representing the other parties for our settlement terms.

Today, the banks filed their formal reply to my complaint, which included three motions:

• Motion to Dismiss
• Motion to Exceed Page Limitation
• Motion to Stay

In their Motion to Dismiss, they alleged, in part, that the Plaintiffs used a “shotgun” approach in their Complaint, and that it relied on a “hodgepodge of legal and factually insufficient claims challenging the chain of title related to the Property.”  They asked the Court to dismiss Plaintiffs’ case “for failing to provide a short, plain statement of the claim” and “for failing to state a claim upon which relief may be granted.”

In their Motion to Exceed Page Limitation, they asked the court to allow their Motion to Dismiss to exceed the normal page limit for motions, “due to Pro Se Plaintiffs’ Complaint being comprised of over 20 pages of often confusing legal and factual assertions and numerous theories of liability spread among 13 separate causes of action that required individual analysis and briefing by Defendants.”

In their Motion to Stay, they asked the court to “stay certain pretrial deadlines and discovery pending a ruling on the Motion to Dismiss filed on December 7, 2011.”

Time to do more research …

By now, I have received printed copies of all of the Defendant’s filings, as well as a document titled “Notice to Pro Se Parties” issued by the local federal court.  In this document, the court acknowledges our right to proceed pro se, then goes on to strongly encourage us to seek legal representation.  It also provides us with links to the local court rules, and some online resources that might be helpful.

In addition to the rules for local procedure and evidence, it also introduces us to PACER, a way to access federal court documents online.  The good news is, I now have online access to my case (unlike my case in Cherokee County), as well as every other federal court case in the nation.  The bad news is, they charge a fee of $.08 per page displayed.

After doing a little research, it looks like I have 14 days to respond to the Defendants’ Motion to Dismiss.  This gives me until December 21st to reply.  Time to get busy …

P.S.  All of these documents have been uploaded to our Bank of America folder.

I’ve now had a chance to look through other court cases involving Bank of America filed in the same court district as my case.  As I had done before, whenever I see a case that looks similar to mine, where the Plaintiffs’ have either had some success or done an especially good job of filing their documents, I’ll call the contact involved.

Today I learned that the judges assigned to my case may be biased against homeowners.

Now, ever since I first went public with my lawsuit and announced OccupyTheCourts.org, I had heard allegations like this before.  However, given that every court case has a winner and a loser, I had to expect that some of these complaints were normal for a losing party.

To get to the bottom of this, I asked many attorneys who work in the courts.  The most common response was that going to court is a crap shoot, and no matter how strong or weak a case you may think you have, you may be surprised by what happens in court.  That said, most attorneys didn’t believe that judges were biased as a rule.

What I learned today, however, is that both of my judges had spoken at events attended by the big banks, discussing how they could defend against foreclosure litigation.  A quick check online confirmed that my judges had indeed been speakers at these events.

Now I need to decide what to do about it, if anything.