Soldier Sailor Relief Act Redux
Bought foreclosure @ courthouse 1/27/04.Was told maybe problem w/ sale
because both mortgageees in military in Europe and proper affadavit not filed on one of www.them.They gave me option to bail,proceed or bank wanted to give them until April 1 to bring current w/ my www.permission.I said to proceed.Sale ratified 03/26/04.now it seems bank emailed mortgagees and trustees that they wanted to give them until 04/08/04 to bring www.current.Now they are requesting rescinding ratification so exceptions can be filed and starting over. Both were active military @time of contract and house rented for more than mortg while www.deployed.they have my 11k www.deposit.Can I win this battle or should I bail.potential 35k profit in flip. Mortgagees also now have a contract for sale after auction date (set up by rental agent) and may appeal under Soldier Sailor Relief interesting stuff HUH ! Will current climate be condusive to their www.success.this deal was going to take me to full time investor.Dont want to lose.Any help?
The mortgagee certainly needs to confirm proper service... if the mortgagors (mortgagee is the lender) weren't lawfully served, the Sale could be reversed.
in these court matters until you have been released from these military duties. Please note that the Court will stay these legal matters only the service member is unable to appear or adequately participate in the Court case; just because the service person is unwilling to appear is not an excuse the Court will accept.
Were the premises leased before the mortgagors were deployed?
From a website:
Court actions in general: if you are on active duty, and get involved in a civil legal matter -- such as foreclosure actions, divorce proceedings or even bankruptcy -- and you can demonstrate that your military obligations interfere with your ability to properly participate in the litigation, you have the right to request a delay (called a "stay"
[ Edited by TheShortSalePro on Date 04/02/2004 ]
Sale was ratified 03/26/04. My understanding is proper notification was served. Trustee now wants to rescind ratification because bank had sent e-mail after sale before ratification that mortgagor could bring current. After property is foreclsed they have no right to make this offer, but trustee contends it may have influenced their decision to contest sale because they thought they could redeem. they now have contract of sale for property(arranged by RE agent that handled rental for them). Dont know if property was rented immediately upon transfer to new duty station in Europe, but its my understanding that has been rented pretty consistently the past 2 years for more than 1st mortgage amount.key points seem 1) both parties active duty when entered mortgage agreement 2) bank offered redemption by email but they no longer had right because I was now contract purchaser. could this have deterred them from filing exception. Thanks for your thoughts
Didn't we do this post a month or so ago?
The act has been changed, it is now the Servicemembers Civil Relief Act.
In general it provides more protection for service members. Instead of members having to prove they deserve a stay, the courts have to prove they don't. If members aren't available a lawyer must be appointed for them, if his first move isn't to get the stay he's not going to be a lawyer for long. If a member is overseas it's highly unlikely a stay would be overturned.
Sounds like people weren't up to speed on the new acts provisions.
I'll even take a shot in the dark and guess that one of the members is no longer in the military, and that is the one the affidavit is on, and the affidavit is to that effect. And it's not that an affidavit wasn't properly filed on the other, but that it couldn't be done because they were still in the military. Just guessing.
Mykle
Because both were active duty @ loan origination and both were still active @ time of foreclosure does this still offer protection. It seems proper notification of pending sale was given prior to auction.
I am far from an expert on the subject. I just know enough to make a screening of a situation, and then take the soldier to a lawyer if the situation warrants it.
My understanding is that the court is required to protect the member. If they received notice and ignored it, the court must appoint a lawyer to represent them. If a lawyer wasn't appointed, or the lawyer didn't request a stay they were not properly represented.
If they hadn't been in the military when they got the loan and later joined, a forclosure couldn't happen, period. Since they were, it can happen, but they still have other rights under the act.
What they received in rent could be used to show that they were not adversly affected by being stationed overseas, and the stay is not warranted. I don't know that it is relevant in any other way. I think that the fact that they are overseas would be enough to keep a stay from being lifted.
As I said, I'm far from an expert, and my opinions are worth exactly what I am charging you for them. I don't think you will get the level of advice you really need here, unless there is a lawyer lurking. If the soldiers were mine I would push them to fight it tooth and nail, and have them at the lawyers asap. You should probably do the same.
I will say, these people sound completely irresponsible from what you say. If I was you I would explore my legal rights, and persue them. I am a soldier, or rather, was a soldier, retired 2 weeks ago. What little I know is based on protecting soldiers. I've not stood on the other side, maybe the act is full off holes, a lawyer could tell you.
Mykle
PS, one last note, being stationed overseas is vastly different from being deployed. Being deployed infers that they are in a combat zone. Avoid that terminology unless it is accurate, it will hurt your cause. If they were actually deployed to a combat zone it's MY opinion you should give up now.
Mykle
Mykle,
much appreciated.