- C.V. [Resume] of Carl Person
- Litigation Strategy - Preliminary
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- Importance of Complaints, Answers, Counterclaims
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Wrongful Foreclosure Action or Quiet Title Action or Motion to Vacate Foreclosure Judgment - Your Primary Family Asset
From 2008 to the present, there have been about 4,000,000 completed foreclosures, many or most of which have been of questionable legality, judging from what has been appearing almost daily in the main media during the past 24 months (e.g., falsified foreclosure documents including affidavits, failure to follow state foreclosure laws (such as by failing to have completed assignments of interest), and lack of ownership and possession of the original "wet-ink" Note).
If you were the owner of one of the 4,000,000 properties foreclosed by the lender during this period, you probably have a meritorious claim for wrongful foreclosure or right to "Vacate a Judgment of Foreclosure and Sale" and should seriously consider commencing a wrongful foreclosure action against the lender or making a motion to vacate the judgment of foreclosure and sale (whether by default or not). The value of your claim could well exceed all of the other assets owned by you or your family.
A wrongful foreclosure action, quiet title action or motion to vacate a judgment of foreclosure and sale should not be expensive, and has the advantage that the bank cannot retaliate by foreclosing on your property. It has already done that, and probably (or possibly) wrongfully. There is also the possibility that, since about half of the foreclosed properties are still under control of the foreclosing bank, you could obtain recovery of your property as well as some damages.
One or another of (i) a wrongful foreclosure action (ii) quiet title action or (iii) motion to vacate a judgment of foreclosure and sale can be commenced in any State in the United States for an initial legal fee of about $6,000, plus court filing fees (about $300) and any fees for service of process (about $300).
The damages for wrongful foreclosure, particularly a wilful (or knowingly) wrongful foreclosure (in a non-judicial foreclosure state) can be quite substantial, including the loss in value of your property when it was sold at a distressed price, the costs to you of having a poor credit rating because of the foreclosure, the costs of moving elsewhere, the costs and loss involved in changing schools and neighborhood, emotional distress, and various other costs, including consequential damages which the bank could have foreseen when it wrongfully foreclosed.
But the most important recovery could be punitive damages, which is now limited by the U.S. Supreme Court to nine times ("single digit") the amount of the actual damages you prove at trial. Accordingly, if you can show $200,000 in actual damages, you would be entitled to a maximum amount of punitive damages equal to $1,800,000 (or 9 times $200,000).
The action would be triable to a jury, most of whom are quite familiar with your problem, and would probably be receptive to giving you a substantial recovery.
The expenditure of $5,500 to $6,500 to obtain the bank's reaction to your complaint or motion (which hopefully will be to try to settle the action, a response to be expected in proportion to the merits of your claims) is a small amount in comparison to the probable recovery, and seems to be a no brainer type of decision for most persons to make, who have suffered from wrongful foreclosure (or have grounds to vacate a judgment of foreclosure and sale with newly-discovered evidence such as bank fraud and robo-signing).
The key things to consider when evaluating whether you should do this are:
- The competence of your counsel
- The merits of your claims against the bank
- Whether you can afford to risk the cost needed to bring the action or motion against the lender
You should look at my 10-minute YouTube video # 42 (created 11/17/10) entitled Homeowners Can Sue Banks to Cancel Mortgage or for Wrongful or Fraudulent Foreclosure and Punitive Damages. The link is:
You should talk with an attorney experienced in defending foreclosures to have him/her explain to you, after hearing the facts from you, what claims you have against the lender, and the value of those claims. Also, you should discuss what happens if the bank refuses to settle or to enter into a reasonable settlement agreement with you after the suit has been commenced or the motion to vacate has been made.
I know that lawsuits are something that most reasonable people would like to avoid, but in order for you to obtain any recovery for the wrongful taking of your property, you need to file a wrongful foreclosure action or motion to vacate against the lender, and spell out the reasons why you are entitled to recovery, for both the judge as well as the lender to read. If your case is meritorious, you have good reason to believe that the bank will try to settle the case, to reduce its costs, liability and adverse publicity, and to settle for less than it might otherwise have to pay after a trial.
If you would like to discuss your own wrongful foreclosure or quiet title or motion to vacate possibililty with me - as a FREE consultation - please give me a call, to
212-307-4444or send me an email to email@example.com
This could be the way for you to recover the substantial loss you have probably incurred through the foreclosure, assuming it was wrongful or you have newly-discovered evidence as to a judicial foreclosure. Please call me to help you determine whether the foreclosure can be overcome.
Carl E. Person, attorney
P.S. I'm able to represent you in any State of the U.S. by use of "local counsel". I should be able to locate affordable local counsel in any State, subject to your approval.
Statute of Limitations in Non-Judicial States
An appropriate action for wrongful foreclosure may have more than one claim (such as in California, where there could be a variety of claims, each with its own statute of limitations). For example, claims for breach of contract, fraud, mistake, negligence and unjust enrichment will probably be included, as well as other claims. Each of these claims has a statute of limitations under state law, meaning that the claim cannot be brought after expiration of the statute of limitations for such claim. Judicial foreclosure states do not have "wrongful foreclosure" causes of action, because the foreclosure took place by court order, and if the homeowner failed to appear or failed to defend and appeal, this is not "wrongful". The remedy in judicial foreclosure states is to make a motion to vacate the judgment of foreclosure and sale, which is limited in number of years, according to the legal theory being used. In Nevada, a non-judicial state, there is a 3-month period of time in which to bring a wrongful foreclosure action, but I argue that if the bank was not in privity of contract with the homeowner because of failure to have title to the note - then the 3-month period would not apply because it was not a wrongful foreclosure but something else, such as a fraudulent sale or interference or unjust enrichment.
Carl E. Person
225 E. 36th Street - Suite 3A
New York NY 10016-3664