I just rechecked the legal notice sent to me by Wachovia’s attorneys yesterday.  At first, when I read that, I thought it said that all litigation must stop pending the bankruptcy.  Today, when I read that, it actually says, all litigation by the defendant (Wachovia) must stop against the debtor until the bankruptcy is resolved.  Big difference.

When looking at this, I have to respect the law firm retained by Wachovia.  They are actually doing the right thing.  However, I think they might be miss interpreting the law…the law says they must cease litigation (meaning if they are the plaintiff suing me).  It does not say they have to stop defending themselves as the defendant.

This has given me hope.  I was going to file an objection to their notice.  I don’t have to.

Yippie.  One less document to file and deal with.

Sincerely

George

As you recall, I had my default judgment set aside due to improper service.  Yesterday, I was going to reservice Wachovia on my 3 properties via process server to their registered agent in Oregon.  I had everything prepared but had a change of heart.  Looking over my petition that was made in June, it was just not legally sufficiently.  It was poorly constructed because I didn’t know what I was doing then.

Instead of risking it demurred, I decided to take the plunge and amend my petition again to reflect my most recent knowledge and skill of building legal arguments.  Boy, was it was a lot of work.

Today, I rebuilt my pleadings for all 3 properties using Oregon specific ORS statutes to make it more relevant to Oregon.  I updated and researched to make sure the law applies to jurisdiction for my Utah properties to be tried in Oregon.  It does apply, so thank God!

Next, I rebuilt the request for Admissions from the ground up to fine tune the admissions to support my arguments in my pleadings.  I discovered in Oregon’s Civil Procedures that you can include the Request for Admissions with the summons and petition.  Sweet!  This means that in 30 days, if they don’t answer, then they admit all the clauses/questions/allegations in this document.

Finally, I created a new document called Request for Production of documents (the original wet ink signature promissory note), quoting specific laws that requires them to produce the evidence.  In Oregon, we have this nice rule called the Uniform Trial Court Rules 0.026:

2.060   ENTERING JUDGMENT ON FACE OF NEGOTIABLE INSTRUMENT

(1)   In all cases when a judgment is to be based on a negotiable instrument, the party with custody of the original instrument must tender such instrument to the court before the entry of judgment, and the court must enter a notation of the judgment on the face of the instrument.

(2)   The trial court administrator shall return the original instrument only after filing a certified copy of the instrument.

Re-read that again. The party with custody of the original instrument must tender such instrument to the court!  (Be sure to check with your State’s Court Rules to see if something similar applies to you).

So, lessons learned here are:

1) We want to use a process server from now on.  Certified mail is not going to cut it.  Even if you do everything right, the judge can (and will) require physical service, so you might as well do it right.  It only costs about $40 to $70 to do it via process server.  Don’t cut corners.

2) Always name the company as the Defendant (not the CEO), but service the registered agent.  You can find the registered agent either at your state’s Secretary of State’s website or the state of their main corporate headquarters.  The reason you want to service the registered agent and not the CEO is because to serve the CEO, you might have problems getting to him and in my experience the court requires you to service THE PERSON (and not his/her secretary)

3) If you can include the Request for Admissions and Request for Production of Documents, then do so with your service.  This will accelerate the timeline of the civil action in your favor.

4) Be sure to build a proper legally sufficient argument/pleading.  The bank’s favorite tactic is to issue a demurrer to kick your case out of court before you see the light of day.  A demurrer attacks your pleading for legal insufficiency…like a) failure to state a claim b) failure to state a cause of action c) Failure to fulfill the elements of a cause of action.  Those are the biggest ones.

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These things take so much time to create, double check, print, compile and make enough copies.  I’ve literally killed a small forest today with the amount of paper I’ve used up.  Tomorrow, I will be filing these new docs with the court and will be sending these off to the process server in Portland and they will likely service the registered agent the day after that.

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Wish me luck.  Please learn from my mistakes.

Sincerely

George

Well, firstly, the bad news.  I apologize for the delayed post.  It’s been very hard on me emotionally over the last few days.

I received notice from the court that all 4 of my cases have been set aside by the judge for improper servicing.  So, all those judgments you see on the front page are no longer valid.  I will need to amend that soon.

And, while it SUX, it is fair…and “shame on me”.  No one’s fault but my own.

Here’s the story.  I am/was very poor.  I wanted to save a couple of bucks for my mailings…so when I sent my servicing and summons, I only sent it one way…and got the confirmation on the internet.  I printed the confirmation off the internet and included this as my certificate of service.  Apparently, you need the greencard to make it legal.  Live and learn.

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Of course, this sent me on an emotional spin.  Frankly guys, I’ve been quite devastated…I feel like vomiting every day since last Wed when I found this news.  I did not have the energy to make any updates on this site…I’ve honestly been near the brink of tears.  (yes, I know.  I am a woosey.)

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I have 2 properties in Utah going on sale tomorrow (Aug 17, 2010 at 8.30am and 11am).  This has gotten me into a massive spin.

Today, I filed for Chapt 13 Bankruptcy to stay the sale to give me more time and to see if I can also use the BK platform to demand the creditors provide valid proof of claim (as I’ve been asking all along).

Filing BK was actually quite easy.  I spoke to a lawyer.  Went to his office on Friday.  When I told him my situation, he wanted to charge me $3000 to do my BK.  He had originally told me $2000.  To him, it seems very little difference between $2000 and $3000.  For someone in my (and your) situation, the difference of $1000 is no small thing.  So I said, “screw it, I’m just going to do it myself”.  Well, I spent this weekend studying up on the BK process and completed my filing today.  It really is not that hard.  The hardest parts about the BK process is:

1) The emotional issue.  Being all tied up in my gut from the fear and emotion is the biggest problem and hurdle.  This is not fun stuff guys.  But it has to be done.  It is a do or die situation…so I had to pull myself up and just “eat that frog”.

2) Having to list all my assets and debts on a schedule in such short notice.  It’s a lot of work just compiling all the right numbers.  It’s important to get these right because you always want to be true and accurate…especially when dealing with the courts.

Other than that, it’s pretty simple.

So, now that I’ve filed the BK, I’ve faxed and called (and certified mailed) the Trustee.  They have confirmed verbally that they will stop one (said they will have to check on the second tomorrow).

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Now what?

Well, as you recalled, I have 4 loans…3 with Wachovia in Utah and 1 with Bank of America here in Eugene.  The one in Eugene, I had my friend physically serve a branch manager on June 18, 2010.  So, 30 days have past on that one.  And according to Oregon Rules of Civil Procedure, I can “service an agent in this county”.  A branch manager would qualify as that description.  So, on Friday, we filed our updated certificate of service and motion for a default judgment.  So, hopefully, in a couple of weeks, we will get good news on the Bank of America deal.

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The 3 in Utah were freaking me out.  The biggest fear I had was because when I started this journey, I was ignorant of the law.  I filed a civil action for my UT properties in Oregon.  So, as far as I can tell, opposing counsel can easily file a motion to dismiss: Jurisdiction/Venue Challenge.

Well, I just checked the Oregon Civil Procedures this weekend and was GREATLY relieved to find that jurisdiction is valid for a corporation which does extensive business in this county.  So, I guess I am safe after all.  The beauty with Oregon Jurisdiction is we have this wonderful Uniform Trial Court Rules 2.060:

2.060 ENTERING JUDGMENT ON FACE OF NEGOTIABLE INSTRUMENT

(1) In all cases when a judgment is to be based on a negotiable instrument, the party with custody of the original instrument must tender such instrument to the court before the entry of judgment, and the court must enter a notation of the judgment on the face of the instrument.

(2) The trial court administrator shall return the original instrument only after filing a certified copy of the instrument.

So, with 3 default judgment (4th one on its way) under my belt, I’m scratching my head…is it real? Can they reverse it? Did I do something wrong? Why didn’t they respond? Is it a freaky coincidence?

It’s not.

My friend in Utah just filed his Default Judgment and should be getting his signed this week.

My associate here in Eugene will be filing TWO Default Judgments using my process tomorrow.

Another friend down in California will be filing for a Default Judgment today.

All no response.

Is it a coincidence?

I’m getting a pretty good batting score of 100%. This can’t be real…

Here’s a few reasons I think why they did not respond:

1) They have a low chance of success due to the arguments. Why throw good money after bad money on the 1 in a 1000 consumer who threw up a fight? It costs them $10,000 plus to retain a defense attorney for every action.

2) If they win, and the homeowner appeals…it will make it into the appellate court for Case Law for the rest of the State. This will be really bad for them.

3) The private administrative estoppel worked. They had a chance to be in honor and they chose not to, so now they can not. ie. no chance of winning.

What if they do a Motion to Set Aside?

Well, it might be possible. But the case will still need to be fought. The case is not over or nullified. The Set Aside only removes the Default Judgment. It will re-open the case for litigation. The rules of court and rules of evidences is still in force. Show me the original promissory note with the wet ink signature as required by Oregon law before a judgment can be entered in their favor.

So, I am feeling pretty good.

Your comments? Thoughts?

Sincerely
George