Guidelines for postpoining a foreclosure sale
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By following the guidelines below you will building a record to substantiate your claim to home ownership. Your biggest enemy is fear which can be controlled if you follow these guidelines; don't be afraid to defend yourself.
Answer all calls and letters from your lender. Do not ignore them as they will not go away; the sooner to deal with them, the better chance you will have to save your home.
When you have received a notice of default, or as soon as you are notified of a foreclosure sale:
- Call the lender and ask who holds the promissory note which is secured by the Deed of Trust that will be used to sell your home at a foreclosure sale. Make it clear that you need to know who the actual “holder in due course” of the note (including name, address, phone numbers, email - any and all contact information). "I/We demand to know the identity of the registered agent for the foreclosing entity." Usually the holder of the note is not same entity that is servicing the note, i.e. the entity to whom you have been sending the payments.
- Ask the lender’s representative for his/her name, specific employee identification, title or number, and record the time and date of your call(s), the number(s) you dialed, and the actual response(s) of the representative. Although you cannot record phone calls for use it in a court of law you can transcribe the recording to an affidavit on paper and get it notarized.
- If the lender’s representative says his company holds the note, ask him or her if he or she is certain of that because his or her entity is a loan servicing company. If in fact the lender’s representative is not a loan servicing company, i.e. if it is a bank such as Wells Fargo or Chase, there is reason to believe that the note was sold.
- Ask the lender’s representative to send you a certified copy of the front and back of the note which shows all the endorsements of the note, i. e. the physical transfers of the note which will tell you who actually owns and possesses the note. Ask the lender’s representative to send you a certified copy of the front and back of the note which shows all the endorsements of the note, i. e. the physical transfers of the note which will tell you who actually owns and possesses the note.
- "Please produce within ten (10) business days a certified and current copy of the front and back of the promissory note that you believe entitles the latest holder in due course to foreclose on the property. The borrower requests that they be allowed to view the mortgage note to verify the copy that we’re asking for as an actual copy of the original note. Also, please identify the entity that you believe to be the latest holder in due course. Please also provide the chain of transfers of the note to prove who is entitled to foreclose on the security. We request that the Custodian of Records be the person to certify the copy of the original note and that the said copy be notarized."
- If you don’t get a clear and affirmative answer as to who holds the note, call again, even later in the same day and again the next day to see if you get consistent answers. When the lender calls answer your phone because chances are they are going to be violating the law during the course of the call which could entitle you to receive money damages.
- Write to the Lender and the Trustee requesting that each of them send to you:
- a certified copy of the front and back of the promissory note that is being used to justify the foreclosure, and;
- ask each of them to send to you a to provide documentation of the chain of transfers of the note, and
- ask each of them to identify the person or entity that currently is the holder in due course of the note;
- and keep copy of each letter. Below is an example of such a letter. See Exhibit A, letter to Trustee, and Exhibit B, letter to lender. (Both are below.)
- Fax and U.S. mail (using return receipt) the letters to the Lender and the Trustee. Note the date and time you faxed the letters, and print a record from the fax machine showing the number, date and time of the fax. (All of this goes into the binder you are now keeping!)
- It is vitally important that you proceed on a rigid schedule (for example: every Tuesday and Thursday) continually contacting the lender’s representative and being persistent about determining the “holder in due course.” If you don’t get a satisfactory response from the lenders representative, demand to talk to his or her supervisor. Also tell them that you have previously called, written (by certified mail) and faxed this request and have yet to receive a relevant response. Demand that you be sent a certified copy of the promissory note as stated in the attached letters entitled Exhibit A and Exhibit B. Also it is essential for you to go to the County Recorder office as well as the Court Clerks office and check the appropriate files to make sure the lender hasn’t filed anything new without your knowledge.
- When you’ve been notified of your foreclosure sale, whether they’ve been postponed or not, be sure to attend the sale early with at least one witness (preferably non-family) but with as many witnesses as possible and notify the auctioneer that you are there to oppose any sale of this particular property and that there is a lawsuit pending. Also be sure to bring court documents that show a lawsuit pending and distribute them to prospective buyers to show them they are getting into a hornets nest. Observe anyone announcing the postponement, noting the time of that announcement, especially if such an announcement of a postponement is made more than a few minutes late. A late announcement may invalidate a later sale. (Bring a camera or use your cell phone . . . take photographs before you speak with anyone at the sale site. You do not want them paying attention to you while you take photos. Pictures ARE worth a thousand words; these may prove valuable later.)
After you have thoroughly documented your requests for production of a certified copy of the front and back of the note and a copy of the chain of transfers you will file an application for a temporary injunction postponing the sale until the lender has produced the note and verified its right to proceed with foreclosure sale.
The application for a temporary injunction must be accompanied by an application for an order to show cause. It must also include a legal brief and time line repeatedly requested documents including applicable points and authorities, a proposed order to show cause, a declaration that you sent relevant requests to all the interested parties, and how and when you sent the documents.
In addition, it is vitally important to know if the sale is scheduled before the court will rule on the application to show cause, then you will need to file an ex-parte application to shorten the time for the hearing on the application for a temporary injunction along with a declaration as to why the time should be shortened.
