[JayinGR]

Well the judge didnt even let the other side respond...I just submitted it this week and he denied it.....

So at least I filed the lis Pendens

If anyone wants a copy of the three page order let me know and I will e-mail it

[JayinGR]

This is an action brought by pro se plaintiffs under the Fair Credit Reporting Act, 15
U.S.C. 1681-1681x, the Fair Debt collection Practices Act, 15 U.S.C. 1692-16920,

and analogous state law. The pro se complaint sets forth a sequence of events

surronding attempts by some of the defendants to collect a debt secured by a

real estate mortgage. Presently before the court is plaintiff's motion for a

preliminary injunction preventing defendants from selling, transferring, renting or

otherwise alienating the real property that is the subject of the mortgage.

Plaintiff's motion is not supported by any affidavit or other factual material. The

brief in support tells a confusing story, followed by a short analysis of the issues

of irreparable harm, harm to others and the public interest. Notably absent from

the brief is any discussion of plaintiffs' liklihood of success on the merits, a

principal inquiry whenever the court is asked to exercise its extraordinary

equitable power to issue a peliminary injunction. See Lorillard Tobacco Co. V.

Amouri's Grand Foods., 453 F. 3d 377, 380 (6th Cir. 2006); Abney V. Amgen,

Inc., 443 F 3d 540, 546-47 (6th Cir. 2006) As far as the court can tell, plaintiffs'

principal theory is that the foreclosure was illegal because one of the defendants

continued collection activity while the debt was in dispute. Plaintiffs cite no

authority that would allow a court to set aside an otherwise calid foreclosure

merely because the creditor violated the Fair Debt collection Practices Act in the

course of seeking (unsuccessfully) to collect the debt short of foreclosure.

Although defendants' actions may give rise to a claim for monetary relief, plaintiffs

have not demonstrated to the court availability of equitable relief on the facts

presented herein. After defendants have been served with process and have

answered the complaint, plaintiffs may be in a position to establish a more

substantial case for equitable relief. At present the court concludes that plaintiff's

have not met the high burden of establishing grounds for equitable relief.

Accordingly:

IT IS ORDERED that plaintiffs' motion for preliminary injunction (docket #4) be and hereby is DENIED.

I cited clear case law authority about continued collection and the brief was CLEAR AND CONCISE...

This is the judge that doesnt like consumer cases he feels they are beneith Federal Judge's...at least thats what he said in my last case

[jlynn]

It was as expected. It sounds like he believes that any claim you might have would be monetary in nature.


Jay - I really think the injunction is a dead end. Your damages are of a monetary nature. I suspect the Lis Pendens would be lifted (if motioned for) based on this ruling.

[JayinGR]

Thats what I thought to jlynn....I am very bummed...what the hell was I thinking suing these people I should have just let it go....

My brief was very clear and concise though....

I cited clear case law for continued collection

The way I read it is he thinks we dont have a case at all which is BS

[jlynn]

Jay, seriously, you need to sit down and read that ruling very carefully, minus the woo woo's and check your emotions at the door.

You cited the FDCPA which is a MONETARY damages statute. That's why I asked you sometime back if you could show that THIS house was the only asset attributable to the companies you are suing.

You need to carefully consider whether you even want that Lis Pendens on record or if you want to release it. You need to ask yourself some worse case scenario questions - here's one

What if someone wanting to buy that house backs out of the deal because they do not have the patience to wait for clear title? What if it then does sell later at less than the backed out of contract? You then potentially damaged both the seller, and the real estate agent (loss of income), especially in light of the denial of that injunction. A good attorney might argue that it was an attempt to circumvent said denied injunction.

Nobody said you shouldn't sue them, what we said is you have a very complicated case, one of which many issues need to all be factored in before proceeding. I even went so far a couple of times to ask you what the rush was on filing the LP, since it was only a Notice and not a Motion.

Have you heard from the BK attorney? Your wife has some real issues with the BK court if that house sold for more than the balance due on the loan. Sure, they may in fact be the mortgage company's issues, but until you hear otherwise, you need to assume that they are your wife's issues as well.

You cannot ignore things and wait until it actually comes up. You have to be 6 steps ahead.

I'm not saying these things to be mean....the things I say are meant only to make you think.

Lots of people (including myself) think I'm a naysayer or all doom and gloom. I only encourage people to look at the negative sides of things in an attempt to have people look at the full picture. A whole lotta pre-atta boys are not going to help you if you happen to find yourself all alone in a courtroom with negatives being thrown at you from your opponent.

[JayinGR]

Jlynn..Doom and gloom negative I dont care let me hear it all...


I talked to BK atty today...He told me that after the case was closed any proceeds from the sale of the house go to DW not estate..because if trustee thought there was equity in the house then she could have fought the exemtion of it being an assett

Jlynn...

You make an excellent point on the LP.....I am going to withdraw it on Tuesday because I dont need that....

Today when I got the judges answer I let my emotios get the best of me...

Which is hard not to in a case like this...

So I am going to take the weekend off and regroup and go back to working on it next week..

I will answer any replies though as I appreciate them.....

Jlynn....no doom and gloom just thoughts outside the box

[centex]

Originally Posted by JayinGR

The

brief in support tells a confusing story, followed by a short analysis of the issues

of irreparable harm, harm to others and the public interest. Notably absent from

the brief is any discussion of plaintiffs' liklihood of success on the merits, a

principal inquiry whenever the court is asked to exercise its extraordinary

equitable power to issue a peliminary injunction.

Clear and concise, with caselaw means nothing if there was not a showing of an expectation that you would prevail on the merits. Absent such a showing, no competent court is likely going to grant the MPI.

The denial of the motion does not mean that you would not prevail, but it does mean that you did not show enough of your hand to persuade a court of competent jurisdiction that intervention pre-verdict was required.

[JayinGR]

Thanks Centex...that makes me feel better...I felt as if the judge was stating I did not have a case...

My emotions came into play ya know...

[jlynn]

Originally Posted by JayinGR

Jlynn..Doom and gloom negative I dont care let me hear it all...


I talked to BK atty today...He told me that after the case was closed any proceeds from the sale of the house go to DW not estate..because if trustee thought there was equity in the house then she could have fought the exemtion of it being an assett

That's fine, but that's not what he told you the other day. Time to triple check...it wouldn't be the first time an attorney has made an error when talking, when they have umpteen clients.

[CtrlAltDelete]

Jay - go back to the basics - all payments were made and foreclosure was proceeded on stating Default due to payments NOT being made - so they stole the $8,400 and it's not accounted for anywhere - why withdraw the LP? Why take this set back as the outcome" I think you've got a strong case and should proceed to the end.

[CtrlAltDelete]

In adition, do I recall that you DV'd the law firm when you were first notifided of the foreclosure? If so, it's out - colntinued collection with NO validation.

[centex]

CAD...you don't seem to grasp the big picture here. Yes, the LP muddies the title and probably would forestall a sale. However, if Jay did not prevail in his action, that puts him and his wife squarely on the hook for damages associated with any losses incurred by the selling party and from the purchaser for potentially higher interest rates they might be subjected to by the delay.

This is not something where blind rah-rah encouragement is the best thing for non-licensed persons to be sitting on the sidelines and engaging in...while Jay may very well have a case that he prevails on, it is something where the consensus (including that of practitioners) has been that he ought to secure competent counsel and do what they say. Listening to some of those that think this is going to settle real quick is going to do Jay no good.

Counsel I work with was embroiled in litigation on a non-disclosure issue on their property and it was approximately three years before it resolved...and that was far less complex than what Jay is dealing with. And that was with retained counsel that specialized in the area of real estate law at issue...

In this particular case, Jay has since obtained other property. He needs to think long and hard about whether it is worth jeopardizing because he listened to internet rah-rah bullsh*t instead of looking at the big picture and considering ALL of the possible ramifications of EVERY action that could arise in this fiasco.

[Pale Rider]

The judge has given you a gameplan to follow.

Originally Posted by JayinGR

This is an action brought by pro se plaintiffs under the Fair Credit Reporting Act, 15
U.S.C. 1681-1681x, the Fair Debt collection Practices Act, 15 U.S.C. 1692-16920,

and analogous state law. The pro se complaint sets forth a sequence of events

surronding attempts by some of the defendants to collect a debt secured by a

real estate mortgage. Presently before the court is plaintiff's motion for a

preliminary injunction preventing defendants from selling, transferring, renting or

otherwise alienating the real property that is the subject of the mortgage.

Plaintiff's motion is not supported by any affidavit or other factual material.

Get an affidavit and/or factual material.

Originally Posted by JayinGR

The brief in support tells a confusing story, followed by a short

analysis of the issues

of irreparable harm, harm to others and the public interest. Notably absent from

the brief is any discussion of plaintiffs' liklihood of success on the merits, a

principal inquiry whenever the court is asked to exercise its extraordinary

equitable power to issue a peliminary injunction. See Lorillard Tobacco Co. V.

Amouri's Grand Foods., 453 F. 3d 377, 380 (6th Cir. 2006); Abney V. Amgen,

Inc., 443 F 3d 540, 546-47 (6th Cir. 2006)

You need

1 a less confusing story
2 a discussion of your success on the merits of the case
3 a copy of the case cited

Originally Posted by JayinGR

As far as the court can tell, plaintiffs'

principal theory is that the foreclosure was illegal because one of the defendants

continued collection activity while the debt was in dispute. Plaintiffs cite no

authority that would allow a court to set aside an otherwise calid foreclosure

merely because the creditor violated the Fair Debt collection Practices Act in the

course of seeking (unsuccessfully) to collect the debt short of foreclosure.

Either find authority that supports foreclosure being set aside due to FDCPA, or find another way to have the foreclosure set aside.

Originally Posted by JayinGR

Although defendants' actions may give rise to a claim for monetary relief, plaintiffs

have not demonstrated to the court availability of equitable relief on the facts

presented herein.

You did not get the injuction, but you can move forward on monetary relief issues.

Originally Posted by JayinGR

After defendants have been served with process and have

answered the complaint, plaintiffs may be in a position to establish a more

substantial case for equitable relief. At present the court concludes that plaintiff's

have not met the high burden of establishing grounds for equitable relief.

Accordingly:

IT IS ORDERED that plaintiffs' motion for preliminary injunction (docket #4) be and hereby is DENIED.

You need to wait for the answer, and proceed with discovery to gather facts to support your request for the injunction. Get with local lawyer and put your plan together to move forward if you choose to.


.

[Pale Rider]

I wanted to mention this also. There have been some comments that the payments were being made, and the mortgage was not in default. Is that really true? You need to get the mortgage out and read it thoroughly.

There was a thread some time back about universal defaults and acceleration clauses in mortgages. They may have been able to foreclose due to BK filing. They may have stated the wrong reason, but that may be a bona fide error.

[JayinGR]

Thanks all for the comments....I have been asleep for quite sometime due to a migrane...

Centex...I love your brash side

CAD you make valid points and like jlynn said I need to contact the bk atty...but he keeps telling me different stories so I am going to call different bk atty on tuesday

Centex...I cant find local counsel to take this case for less then about 5K...thats not an option right now as that would deplet my semester college fund and I do not want to touch my savings.. as most attys said around 5K retainer and then billed monthly...

PR....thank you for pointing it our the way you did...I should have listed ot everyone and waited...so I am going to sit back and try and re group as I took this personally today...(the order that is)

Thanks all for the support and comments.....

[CtrlAltDelete]

Jay, I agree Centex is cute when her professional feathers get ruffeled. Also, must be a football fan as she seems to like the phrase "rah-rah".
Centex FYI - I have brought a similar action and in Jay's state. I prevailed and had the foreclosure expunged. I did not have half the factual advatages I understand Jay has. Maybe I was just lucky or maybe I sling highly effective "bullsh*t". Regarding professionals, I PM'd Jay the name of a professional who specializes in consumer law on a contingency fee basis. Jay phoned and was very professionally screened by the receptionist who then mailed Jay some nice professional liturature regarding Jay's consummer rights. I then personnally spoke to said professional about Jay and to my knowledge neither has made an additional attempt to contact the other.

Regarding risk, I agree all should be considered and steps taken to minimize, that done, one needs to make a decision as to proceed or not. The LP is a statement that litigation is pending. That's true. What risks does Jay face if he does NOT file LP, someone buys house, not knowing about litigation, Jay wins, foreclosure is out and happy new owners lose their property and are evicted?

PR makes point I've heard before but not researched - they may have right to foreclose after BK rather than reaffirm. Mrs. Jay agreed to reaffirm, they asked Jay to go on note - this while Jay's asking "were's the $8,400 we sent you over the past 6 or 7 months and you claim you never got". Even if foreclosure for wrong reason is bonafide error, they stole $8,400. Don't know how they are reporting this on Mrs. J's CR - do know they published this lie repeatedly in newspaper, do know they showed up at a public auction and announced the same thing. These people are NOT righteous. For the record, this is all JUST a personal opinion.

[JayinGR]

CAD I did call Brian last week and left him a message on Thursday....

Also they are reporting to DW credit....135,8K balance 11,900 and some change behind..recent payment of 14...WTF?..

Its also reporting as a foreclosure redeemed on EQ