I'm in the midst of chapter 13 filing and was wondering what are the chances of proving to the judge that my mortgage note holder (bank) is not the party of interest based on recently completed forensic examination of mortgage file. In other words, are judges wiling to look in depth in cases like this, where, either refinance or acquisition of mortgage was produced fraudulent way (electronic signatures, etc.). Thank you.
Chain of title is important. If you allege, and the mortgagee fails to show that they have standing, the bank would not be an interested party and that could effect a lot of things, including dismissal of the action.
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I believe that the court will consider your argument about the noteholder if you file an adversary proceeding objecting to the proof of claim filed by the lender. Generally, objections to proofs of claim are done by motion. However, judges in some jurisdictions require complaints when dealing with a mortgage or deed of trust rather than an ordinary unsecured debt. It might be difficult to handle this on your own so I would recommend finding a bankruptcy attorney who is also a litigator.
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Generally, all Judges take these matters seriously. If you object to this mortgage company's claim, the burden would pass to the mortgage company to prove their claim is valid. I don't think you need an Adversary to get that done.
This matters are complicated and generally require an experienced attorney. Are you attempting this by yourself? If you are, don't.
I hope this helps
Steven A. Leahy
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
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Chapter 13 Bankruptcy Attorney
I agree with my colleagues that judges do take this seriously. While I encourage you to pursue this action, beware that if your mortgage is invalidated and the court determines that you won your home free and clear, that the Ch13 trustee assigned to your case may then seek to have you pay the full value of your home, less whatever you can claim as exempt, to your creditors. You should seek the advice of competent counsel to assist you with this matter as while there would likely be great benefits to you if you prevail, there may be significant risk as well.
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