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Danielle Joyner Kelley

Danielle Kelley’s Answers

3 total

  • Using raised flaws and/or violations to state and federal laws in illegal foreclosure counterclaim (trial court)

    my question is...can i use the same issues presented to trial court to sue the lender for fraud and illegal foreclosure? say..motion included several FDCPA violations, uscode violations state laws and civil rules of p...etc.. or the new suit mus...

    Danielle’s Answer

    You should raise them as a counterclaim in the current suit you are in to avoid the issue of "claim preclusion" later meaning that you should have brought them when you first had the chance and now you are barred from a new suit. When you file your answer and affirmative defenses, you will also file a countersuit back against the lender in this case. Please seek the advice of an attorney before doing so. Many of the lenders have committed violations worthy of counterclaims, but an attorney would be best to advise you on the right ones. Should you file the wrong ones, and the Court dismisses them you could be liable for attorneys fees. Right now there are many violations occurring as you are aware. For example, many of the lenders are running afoul of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA) at the moment. When the attorney generals reached a settlement Massachusetts backed out and filed suit under their version of this act. Currently, recent opinions are showing that statements made to the homeowner by the lender can modify the contract (mortgage). For example, many homeowners were told to stop payment and go into default in order to obtain a modification. There are other counterclaims potentially as well, but without seeing your case it is impossible to determine what they may fall under. I would strongly suggest consulting an attorney before filing any claim against a lender.

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  • CAN I file actions against a lender for violating the mort contract in ref to my foreclosure

    five years ago my lender started foreclosure proceedings on my property but it has not been closed out yet.....all the foreclosure mess and so forth. Since then I have learned that my property didn't even qualify for a FHA mortgage. Plus they di...

    Danielle’s Answer

    I'm not sure what the Statute of Limitations is in your state on foreclosure, but I would check on that because it can be five years past default (the date you stopped paying). In that case, the foreclosure could be dismissed under the Statute of Limitations. As for suing the bank personally, you can file a countersuit if you are still in litigation (depending on what stage you are in and if the Judge allows it). If you do not raise these issues in your current proceeding, you could be barred from raising them in another new case potentially. You can do what is called "leave to amend" your Answer and file with your Answer and Affirmative Defenses, Counterclaims against the bank for the problems you outlined.

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  • How do I stop Writ of Possession in NJ on my home, when I was scammed and working with a lawyer?"

    Our home was in foreclosure and we worked with this group who ensure us > they will be able to assist. They scammed us our our money. Then sent us to a > lawyer who agree to help due to the scam. He was able to push back our > sale date ...

    Danielle’s Answer

    The only way I can see is to move to set aside the judgment, and the writ of possession. At this point, the court is likely to declare that you have potentially waived mediation if a Motion for Mediation was not filed. You can list the objections and what you have been through in a Motion to Set Aside the Judgment.

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