Joshua Andrew Smisko’s Answers

Joshua Andrew Smisko

Mission Viejo Estate Planning Attorney.

Contributor Level 11
  1. Mortgage servicer Nationstar Mortgage will not acknowledge its accounting errors and is seeking more money than it is owed. HELP

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Kevin Arnold Spainhour
    2 lawyer answers

    This is a common error I have encountered with loan servicers. Sometimes the only way to get their attention is do what my colleague suggested and file a lawsuit. You may also just employ an attorney to send a letter on your behalf and that may get the ball rolling.

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  2. My Meet and Confer with Defendant (financial institution: foreclosure fraud case) is next week; how do I proceed with discovery?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Neil Pedersen
    2 lawyer answers

    For starters, this is advanced litigation so you should really have a lawyer helping. As far as the discovery requests, you can submit fairly basic requests to the defendant requesting all of these items. I'm not sure what you mean by meet & confer meeting. The court would set a case management conference and you're supposed to have a brief conversation with the other side prior to filing your CMC statement but you do not need to provide much detail. Just state to them that you intend on...

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  3. What is likely going on with my strategic foreclosure/default situation?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Devin Sawdayi
    3. Antoinette Cara Liewen
    3 lawyer answers

    It sounds like your loan was service transferred. Loans are bought and sold between lenders and loan servicers. Several servicers (Ocwen and Nationstar) have bought out the servicing rights from many other servicers and loan portfolios that are no longer in business. Your loan may have been charged off as well. If you have not received any documentation from a new servicer trying to collect your mortgage, I would either hire an attorney or go to the Los Angeles County Recorder's office and...

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  4. My property has been foreclosed. What are the redemption laws in California.

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Carl H Starrett II
    3. Janet Spiro Martin
    3 lawyer answers

    I would agree with my colleague above. You most likely received a non-judicial foreclosure thus your options are limited to filing a wrongful foreclosure suit against the lender, loan servicer and trustee, assuming there are valid claims. If the bank told you, your options are reinstatement or redemption, they are seeking payment of the arrearages at the very least and possibly legal fees and foreclosure fees. If you were able to pay this and reinstate your loan, the lender would file a...

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  5. If there is no proof from which account the down payment on joint tenancy co -owned house came from how can you split it?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    1 lawyer answer

    Review your documents and prepare them for the mediation and probably consult with an attorney on some basis. Find your condo sale documents, the closing forms, bank account statements that show where the money went, etc. Paper it the best you can with as much evidence as you can find. If you don't have it on hand, possibly consult with the escrow companies as they may have copies or the lenders. Your bank statements should be helpful though.

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  6. Do I need a real estate attorney? Is it possible there was some error in my foreclosure?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Keefe Erik Roberts
    2 lawyer answers

    Yes it would also show up in the public records. Go to the County Recorder or contact a local attorney and have a title search run on the property. If they foreclosed there should be a Notice of Default, Notice of Sale and Trustee's Deed Upon Sale all of record in that general time period.

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  7. If a lender sells a foreclosed house at auction, but did not adhere to CA §2923.5, could that contribute to fraud claim?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Michael Raymond Daymude
    3. Linda Calderon Garrett
    3 lawyer answers

    If you can prove the lender violated 2923.5, while it may be too late to stop the sale, you could win damages against the lender. If the property went REO (back to the lender) the lawsuit and threat of these claims could enable you to negotiate a resolution with them where they rescind the sale and give you a mod or something else. You should hire a lawyer though as doing this on your own will be a lot harder to prevail.

    2 lawyers agreed with this answer

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  8. I am behind on my mortgage and will attempt to have a short sale but I have a few problems associated with that. I have liens.

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Antoinette Cara Liewen
    2 lawyer answers

    I would agree with my colleague. The HOA will be tough to get to release the lien. They make take a settlement of around 50% of what is owed but you will have to make the offer and see what they counter with and will approve. You may also negotiate a type of cash for keys/deed in lieu of foreclosure with your mortgage company. See if they will give you 60-90 days to relocate inexchange for you agreeing to sign the property over to them but also request $5,000 or so for doing this. Then...

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  9. Could I sue the Bank for the mistake on the loan modification?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Kaivan Harouni
    3. William Emil Cassara
    3 lawyer answers

    You would want to consult with an attorney and tell them all the facts and history but it sounds like you may have a claim or two you could put forward. Depending on your sale date, you may also need to file an injunction to stop the sale.

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  10. If my brother does not have enough income to refinance his home, can he quit claim half to me and I become a co-borrower?

    Answered over 1 year ago.

    1. Joshua Andrew Smisko
    2. Sagar P. Parikh
    2 lawyer answers

    You can only become a "borrower" if a lender is willing to add you to the loan and you assume the loan or you help obtain a new loan in your name as well. As to the tax issues, as my colleague said, you need to consult an AZ attorney.

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