We won our PMI case but**************

[JSAautomotive]

Myself and my fiance' bought a house in April of 05' for $540K. The property was appraised by the finance co. for $600k at the time of purchase. I gave a down payment of $160K outside of the mortgage directly to the owner of the house and we made a contract for that. My fiance' took out a loan in her name solely for the remainding balance of 380K through a 1st time home buyers program. So in other words we had $220K in equity the day we closed the loan.

We won our PMI small claims lawsuit against the mortgage company in California in May 06 but I think we made a mistake filing the complaint correctly. The judge only awarded us the refund of the PMI payments we made so far ($2909), but did not enforce the "automatic termination of PMI" provided by the Federal/Congressional law known as the "Homeowners protection act". We were looking for the refund AND the removal of the PMI altogether.

The mortgage company has appealed the verdict.

The original complaint filed by my fiance' said "I am being illegally charged a monthly fee of $264 for PMI in violation of the homeowners protection act."

So here's my question**************.....

Since there is an appeal at the Superior level now, will the case be completely re-opened and can we introduce the request of the "automatic termination of PMI clause of the Homeowners protection act" or must we vacate the judgement and refile the case at the small claims level (starting from scratch basically) OR can we file a motion to add a pleading to our case to be heard at this appeal??

Thanks in advance for any help.

 

[garrula lingua]

You don't ID your state ...

Small claims is for money judgments;
if you are looking for injunctive relief, sue in a higher court.

...Aren't you the one who gushed about pre-paid legal and how many hours you had, you could paper someone to death...
use that pre-paid legal (I've never seen anyone benefit much from it - I've heard a lot of defendants explain that the 'lawyer' they had thru ppl didn't show up & that's why they're appearing without an atty.)

Why not ask them (ppl) this question & ask them to resolve ?

 

[JSAautomotive]

I've had pre-paid legal now for 5 years and they saved me from this crazy person that was going around trying to sue several shops in my area. He was basically baiting car repair shops and saying the work he paid for was done incorrectly. Pre-paid legal only kicks in if you are sued, not if you are suing. It's been great for me and I was only suggesting to the other fellow on this forum if he wanted a cheap way to protect himself against his sister in the real estate deal.

But regarding my situation......

If you read my post you would have seen I did I.D. my state by reading this

"We won our PMI small claims lawsuit against the mortgage company in California"

2ndly************** I did contact pre-paid legal and they wanted to know all the companies involved, all the people involved etc so they did not comment on someone that may have been a pre-paid legal member (conflict of interest). I thought it was a hassle and decieded to post here since I've recieved great help in the past.

Thanks for you help.

 

[weenor]

Myself and my fiance' bought a house in April of 05' for $540K. The property was appraised by the finance co. for $600k at the time of purchase. I gave a down payment of $160K outside of the mortgage directly to the owner of the house and we made a contract for that. My fiance' took out a loan in her name solely for the remainding balance of 380K through a 1st time home buyers program. So in other words we had $220K in equity the day we closed the loan.

We won our PMI small claims lawsuit against the mortgage company in California in May 06 but I think we made a mistake filing the complaint correctly. The judge only awarded us the refund of the PMI payments we made so far ($2909), but did not enforce the "automatic termination of PMI" provided by the Federal/Congressional law known as the "Homeowners protection act". We were looking for the refund AND the removal of the PMI altogether.

The mortgage company has appealed the verdict.

The original complaint filed by my fiance' said "I am being illegally charged a monthly fee of $264 for PMI in violation of the homeowners protection act."

So here's my question**************.....

Since there is an appeal at the Superior level now, will the case be completely re-opened and can we introduce the request of the "automatic termination of PMI clause of the Homeowners protection act" or must we vacate the judgement and refile the case at the small claims level (starting from scratch basically) OR can we file a motion to add a pleading to our case to be heard at this appeal??

Thanks in advance for any help.

You should have asked for the termination of the PMI as part of the relief you requested. Generally new issues cannot be raised for the first time on appeal. However, if the mortgage appealed to the next court up...(circuit in my jurisdiction) all issues are heard de novo (in other words for the first time) and you would be able to bring up the issue...That's about as far as I can go..Look at your rights under RESPA and go from there.

 

[JSAautomotive]

Thanks Weenor.....

Yeah.... I thought so. As it was explained to me by a paralegal friend, she thought that the case basically becomes a new law suit and we get the chance to re-explain our position again. So hopefully the 'automatic PMI removal' portion of the 'Homeowners protection act' we asked the small claims judge to enforce can be enforced by the new Superior Court judge.

I took a glimpse at the RESPA law and saw that it basically talks alot about disclosure, which the mortagage co. and everyone involved did regarding the PMI. We signed and acknowledged the required (according to them) PMI payments when we bought the house, but we also asked them why we were being charged the PMI since we already had well over the 22% LTV by simply purchasing the property. They didn't hit us with the PMI thing until late into the loan process. They had us cornered and we had run out of time to complete the deal, so we signed the acknowledgement of PMI and decided to take it to court once we were in the house. Since we won the judgement in small claims for just the refund of monies, the $2909 was just the amount collected by lender. There is still another $1000 collected by the Mortgage co. that gave us the loan we need to go after. Since they are real estate pro's, they should have known that a house that was appraised by them for $600K with a 380K price tag should have never had PMI put on it as per the 'Homeowners protection act of 1978'. I just wonder how many other people have been screwed like me by these 'real estate pros' taking advantage of them while breaking a Federal law.

California no longer has Muni courts, it's all Superior now. Don't ask me why they did this. Small claims still exists, but under the Superior system. The judge that listened to our small claims case was a crazy woman. I've never seen someone so un-professional as she. She was treating people as if they were kindergarten kids rather than adults. Funny.... she had a presription bottle of zanex sitting right on the bench in plain view for everyone to see. Should have recused her based on the fact she was under the influence of presription drugs...... oh**************.. and that she was basically nuts. LOL!!

Thanks for your help again!

 

[garrula lingua]

Weenor, apparently, it's a bit different here ...

OP, on the day of the hearing, be prepared to prove up your case immediately. Go for the whole thing - the amount you've paid year-to-date, and your request to have the PMI clause stricken from the mortgage.

I don't do small claims, but, I believe the limit in small claims court is 7000 or 7500 and the court can only make a money judgment, based on liquidated damages.

The termination of future pmts would have surpassed that amt., and when you are asking the court to order the other party to do something that is 'injunctive relief'.
Injunctive relief is beyond the jurisdiction of the small claims court.

See if you can get the Superior Court Judge to order removal of future PMI ... it should, correctly, be filed in Superior Court, not small claims. Who knows ? Maybe this one will be on zanax, too.

 

[garrula lingua]

quote:
On January 1, 2006, the jurisdiction of the Small Claims Court will be increased to allow claimants to recover judgments of up to $7,500. However, the new law only applies to cases filed by individuals and does not apply small claims lawsuits filed by business entities such as corporations or LLCs. The new law provides for new training regulations for people who serve as judges in small claims lawsuits.

The old limit was $5000.

PS: OP, the only requirement for a small claims 'Judge" in Ca is to have practiced law for at least 5 years. They are usu. volunteer attorneys or paid Commissioners.

 

[JSAautomotive]

Thanks Garulla.

Are there any documents in which I need to file to request the PMI removal along with payment refund that was already granted before we see the superior judge?

Is there a way I can serve the mortgage company now and have them in court along with the lender/finance co so for the appeal hearing? That way I wouldn't have to back track and sue the mortgage co. for the $1000 or so $$ they took from us.

The judge we saw originally for small claims has been there for years. I already knew she was nuts. Once when I sued a manufacturer for a defective part I installed on a customers car, she awarded me my damages, but only gave me 1/3 of what I spent out of pocket to take care of my customer. I sensed her instability that day.

The day we went in front of her for the PMI thing she made us go outside to see if we could settle this (we already knew they weren't going to settle from talking earlier to the defendant). But she insisted we go outside again..... so we did. When we came back in, she stopped the court proceedings on another case to say, "what are you guys doing back in here?". We told her there was no settlement. Then she gets the arbitrator to talk to us, again no settlement. Then she says.... "approach the bench you two parties, I want to have a meeting about this"************** she says, "now I'm not hearing the case, but I want to know what's going on here". So we tell her and the other party tells their story. I whisper to my fiance' "we need to recuse her.... this lady is nuts". So when the judge asks do we want to have the case heard, my fiance' says "we'd like to respectfully recuse you**************." and before she could finish her sentance the judge says...... "no, no, no..... we've already started the hearing...... you can't do that".

I stood there in shock. I couldn't believe what I was hearing. This lady was skitzo.

 

[pojo2]

There is still another $1000 collected by the Mortgage co. that gave us the loan we need to go after. Since they are real estate pro's, they should have known that a house that was appraised by them for $600K with a 380K price tag should have never had PMI put on it as per the 'Homeowners protection act of 1978'. I just wonder how many other people have been screwed like me by these 'real estate pros' taking advantage of them while breaking a Federal law.

You still have lessons to learn

How Do You Cancel or Terminate PMI?

Cancellation

Under HPA, you have the right to request cancellation of PMI when you pay down your mortgage to the point that it equals 80 percent of the original purchase price or appraised value of your home at the time the loan was obtained, whichever is less. You also need a good payment history, meaning that you have not been 30 days late with your mortgage payment within a year of your request, or 60 days late within two years. Your lender may require evidence that the value of the property has not declined below its original value and that the property does not have a second mortgage, such as a home equity loan.


What If Your Home Value Has Increased?

If you think your home value has increased, you may be able to cancel PMI on your mortgage. Although the new law does not require a mortgage servicer to consider the current property value, you should contact them to see if they are willing to do so. Also, be sure to ask what documentation may be required to demonstrate the higher property value.


All as explained here

http://www.frbsf.org/publications/consumer/pmi.html#require