Mediation during foreclosure

[Maggiejae]

What is the name of your state?What is the name of your state?Idaho
We are presently involved in a foreclosure and went to mediation to try to settle this out of court. We have a lawsuit filed because we feel it was an illegal foreclosure. We went to mediation October 22/03, signed paperwork and the bank was to comply by January 1/04 with the appropriate paperwork for a refinance, etc. They did not provide us with the paperwork, and to this date, we still do not have it. We went to court March 7/05 and the Judge gave them no later than April 1/05 to have it finished. They sent our atty. paperwork on April 5/05 that was not what we agreed to, (a modification of the note, not a refinance as agreed to) and it was incomplete with a note that they are expecting a reply from their clients shortly. The Judge stated in court that we did not have to accept the paperwork and could declare a breech. When we informed out atty. that we wanted to declare a breech, he waited 3 months and withdrew as out atty for "ethical" reasons , stating he could be called as a witness for the bank to testify that we signed the mediation agreement. That was never the issue. Of course we signed it. They did not adhere to the agreement. We cannot get another atty to handle this, (One stated we had to realize that Bank of America was the law, and made the law) so we filed Pro Se as our own attys on September 23/05. We have not the faintest idea on what to do next, so I am going to try to draft a motion to set aside the mediation agreement, hoping this is the correct thing to do. Any information that would help us on how to proceed would be deeply appreciated. The mediation was 10 hours long, and we were informed we had no rights, etc. We were informed our Title papers did not protect us against foreclosure in Idaho because of "applicable law" so our atty sat and read Idaho law books. The mediator stated the bank sold our home in spite of the fact we had a restraining order preventing them to do so. He advised us to settle to save our home. We walked into mediation owing them 107 thousand dollars. We walked out owing them 122 thousand. They were suppose to explain this when we signed final refinance papers. We agreed to it all because we wanted it over and done with and to save our home.
Maggiejae

[pojo2]

Could you explain "illegal foreclosure"?

[Maggiejae]

Idaho :We got behind in our mortgage payments. I talked to the bank rep. and informed her we would have all payments current and by what date. She stated that would be fine. We sent the amount due, with appropriate late charges. We also sent that months payment along with a fax both times informing them as to what we had done. Two weeks later they sent a woman to our home to do an occupancy inspection. When asked why she was here, she stated the bank was going to file a foreclosure against us. She had no record of the payments. Our atty contacted the bank's atty. He stated it was a mistake and they would place our loan in "reinstatement status". A few days later we were served with 10 foreclosure notices. Then a letter stating there was no such thing as reinstatement status. Then they returned our money stating we did not send enough. When asked how much was enough, the reply was "I don't know". The money returned was bank drafts from BOA payable to BOA. We couldn't cash them, so sent them back. We continued to make the payments each month at a local branch in cash. They sent our money back again. Then we were given a figure to reinstate the account. We had already paid 7 dollars more than what they said was due. Then they said to take the bank drafts back and give them 7 thousand dollars to reinstate. The bank drafts were "stale dated" and represented nearly 6 thousand dollars in payments. They were adding late charges and fees in spite of the fact that they already had the money. They even added "projected late fees". Then we were told it was the local branches fault because they didn't send the money in time and they would "eat" any and all fees, and that we didn't owe any more money.Then the bank's manager said he wouldn't take our money any more, and if we tried to make any more payments at the local branch, we would be removed by the police. We mailed the payment the next month and it was returned to us. In two months, I contacted their atty., the litigation dept., the foreclosure dept. more than 15 times all together, and our atty. sent each of them a registered letter with copies of the bank drafts. Each time I asked how much money I needed to pay. Each time I was told "I don't know". The notice of foreclosure was in the local newspaper. The amount due on the loan, as stated in the newspaper, was the amount after the payments were applied. So, they applied the payments and foreclosed on us anyway refusing to give us an accurate figure as to what it would take to reinstate the loan prior to foreclosure, as stated in applicable law. We were also informed that according to applicable law, they did not have to notify us of their intent to foreclose, they could foreclose on us at will,that our title papers did not matter and we were not protected in any way with them. I could not find that law anywhere.
Maybe all of this wouldn't have happened if we had not fallen behind in our payments, but sometimes bad things happen to good people. I am certain that at one time or another, a good many people have found themselves in a position where they just do not have enough money to meet their obligations, but eventually know they will. It doesn't make us bad people.
So, that is my definition of illegal foreclosure.

[seniorjudge]

If you will read your mortgage, you will find that it says that once you are in default, then nothing that the lender does necessarily forgives you of that default.

In other words, once you are in default, there is no way to "reverse" it.

The lender doesn't lose any rights by talking to you or negotiating with you.

Unless you amended the mortgage in writing, the original mortgage is still there in full force.

[Maggiejae]

Idaho: The only thing our papers (and applicable law) states is that if we are in default, the lender has to give us a figure to enable us to cure the default prior to the foreclosure date. If we pay the amount prior to the foreclosure date, they are to treat it as if no default had occurred.
Therefore, if they state we don't owe any more money, paid more than they stated was due, or if the amount to pay is "I don't know", how does one, according to law and their title papers, cure the default prior to the foreclosure date?
We went to mediation to settle this, agreed to everything they wanted to save our home. They agreed to refinance for a lower rate of interest and were to have refinance papers for us by January 1/2004. To date, we still do not have the paperwork.
I also cannot find anything in our paperwork or the law that states they can return all money, threaten us with police removal if we try to make our payments, and continue to charge late fees and additional interest on money they already have.
I appreciate your input and I thank you for it.

[HomeGuru]

Originally Posted by Maggiejae

Idaho: The only thing our papers (and applicable law) states is that if we are in default, the lender has to give us a figure to enable us to cure the default prior to the foreclosure date. If we pay the amount prior to the foreclosure date, they are to treat it as if no default had occurred.
Therefore, if they state we don't owe any more money, paid more than they stated was due, or if the amount to pay is "I don't know", how does one, according to law and their title papers, cure the default prior to the foreclosure date?
We went to mediation to settle this, agreed to everything they wanted to save our home. They agreed to refinance for a lower rate of interest and were to have refinance papers for us by January 1/2004. To date, we still do not have the paperwork.
I also cannot find anything in our paperwork or the law that states they can return all money, threaten us with police removal if we try to make our payments, and continue to charge late fees and additional interest on money they already have.
I appreciate your input and I thank you for it.

**A: it appears that this case has a long standing issue of noncommunication and miscommunication sprinkled with errors and mishandling, ignorance of the procedures and laws and personality conflicts. Although we have not heard the complete and unbaised story, there appears to be some hint of predatory lending practices. Notwithstanding, if the loan is in default, there remains the issue of the mortgage lender always having the upper hand.

[Maggiejae]

Idaho : Please define predatory lending practices.
Also, by upper hand, do you mean they can bend the law to suit their purpose? I thought there was one law for all.
Also, when you file a motion to vacate the mediation agreement, what other paper do you file for the Judge to sign?
Maggie