VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

ALAN J. HOWAR, )
)
Plaintiff, )
) Case No.
v. )
)
PROFESSIONAL FORECLOSURE )
CORPORATION OF VIRGINIA )
)
AND )
)
NATIONSTAR MORTGAGE LLC, )
)
Defendants, )

EMERGENCY PETITION TO STAY FORECLOSURE SALE

COMES NOW, ALAN J. HOWAR, Plaintiff in the above-styled action and moves this

Court to stay the sale of the subject property known as 504 Creek Crossing Rd. NE, Vienna, VA

22180 scheduled for November 8, 2017 at 2:30 p.m., and as grounds therefore says Defendants

do not now and did not, at the time of the foreclosure, own the mortgage, the mortgage note, any

security agreements, nor have the requisite power to represent the real party in interest, nor did

the Defendants allege facts in support thereof. This Emergency motion is not filed for the

purposes of delay.

1. Plaintiffs loan is a FHA loan, and as such, it is governed by the United States

2. Paragraph 16 of the Deed of Trust (Exhibit A), specifically states the Security

Instrument shall be governed by federal law and the law of the jurisdiction in which the Property

is located.
 3. Therefore, the Security Instrument is subject to 12 C.F.R. 1042(g) which

specifically states:

Prohibition on foreclosure sale. If a borrower submits a complete loss mitigation

application after a servicer has made the first notice or filing required by
applicable law for any judicial or non-judicial foreclosure process but more than
37 days before a foreclosure sale, a servicer shall not move for foreclosure
judgment or order of sale, or conduct a foreclosure sale, unless:

(1) The servicer has sent the borrower a notice pursuant to paragraph (c)(1)(ii) of
this section that the borrower is not eligible for any loss mitigation option and the
appeal process in paragraph (h) of this section is not applicable, the borrower has
not requested an appeal within the applicable time period for requesting an
appeal, or the borrower's appeal has been denied;

(2) The borrower rejects all loss mitigation options offered by the servicer; or

(3) The borrower fails to perform under an agreement on a loss mitigation option.

4. The foreclosure of Plaintiffs Property is invalid because the Deed of Trust

is subject to 12 C.F.R. 1042(g) and Plaintiff did submit a complete loss mitigation package more

than 37 days before the foreclosure sale which prohibits foreclosure of the Property.

5. Plaintiffs Security Instrument is also subject to 24 C.F.R. 203.604(b) which is

unambiguous in its requirement that the mortgagee, [in this case Nationstar Mortgage must have

a face-to-face interview with the mortgagor [the Plaintiff], or make a reasonable effort to arrange

such a meeting, before three full installments due on the mortgage are unpaid. The regulations,

specifically 24 C.F.R. 203.604(d), is quite clear in stating that A reasonable effort to arrange a

face-to-face meeting with the mortgagor shall consist at a minimum of one letter sent to the

mortgagor certified by the Postal Service as having been dispatched. Such a reasonable effort to

arrange a face-to-face meeting shall also include at least one trip to see the mortgagor at the

mortgaged property, unless the mortgaged property is more than 200 miles from the mortgagee,
its servicer, or a branch office of either, or it is known that the mortgagor is not residing in the

mortgaged property.

6. Mortgagee did not comply with 24 C.F.R. 203.604(b) by not conducting a face to

face meeting with Plaintiff prior to foreclosure.

7. A trustee's power to foreclose is conferred by the deed of trust. Fairfax County

Redevelopment & Hous. Auth. v. Riekse, 281 Va. 441, 445-46, 707 S.E.2d 826, 829 (2011). That

power does not accrue until its conditions precedent have been fulfilled. See Bayview, 275 Va. at

121, 654 S.E.2d at 901. The fact that a borrower is in arrears does not allow the trustee to

circumvent the conditions precedent.

8. Conditions precedent have not been met by Defendants prior to foreclosure or

sale.

WHEREFORE, Plaintiff prays that this Honorable Curt will stay the sale, deny any

motion or petition for eviction on the grounds of lack of jurisdiction over the parties or the

subject property, order Defendants meet conditions precedent, refer this matter for changes in the

rules of civil procedure, and grant such other and further relief as the court may deem just and

proper.

Respectfully Submitted,

Alan J. Howar, Pro Se

504 Creek Crossing Rd. NE
Vienna, VA 22180
 CERTIFICATE OF SERVICE

I certify that on this day of 2017 a copy of the foregoing answer

was sent by U.S. first class mail to the following:

Shapiro & Brown LLP

10021 Balls ford Road Suite 200
Manassas, VA 20109
(703) 449-5800

Alan J. Howar, Pro Se

504 Creek Crossing Rd. NE
Vienna, VA 22180
EXHIBIT A
VIRGINIA:

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

ALAN J. HOWAR, )
)
Plaintiff, )
) Case No.
v. )
)
PROFESSIONAL FORECLOSURE )
CORPORATION OF VIRGINIA )
)
AND )
)
NATIONSTAR MORTGAGE LLC, )
)
Defendants, )

ORDER
This cause having come on to be heard upon emergency motion of the Plaintiff and the

court having reviewed the documents regarding the subject property, and taken judicial notice of

the context of the great number of foreclosures of primary residences in the State of Virginia,

and the Court being otherwise fully advised in the premises, it is accordingly

ORDERED AND ADJUDGED:

1. This Court reserves ruling and reserves jursidiction to enter such orders on

Plaintiffs motion and matters attendant to the Motion and other issues presented in this Order.
 2. The sale of the subject property is stayed under further order of this Court. The

sale date is hereby cancelled.

3. Plaintiff is ordered to maintain the property, pay the utilities and taxes, and to

provide proof of same to the Trustee every month.

4. Upon motion of the Trustee, in compliance with the legal requirements of

standing, competence, and proof of facts, the Trustee may apply for hearing on motion to lift the

Stay herein and reset the sale date if the Plaintiff can be shown to have failed to adequately

maintain the property, reasonable wear and tear excepted, pay the utilities and taxes, or upon

entry of an order by this or an appellate court vacating this Order and remanding the case for

further consideration.

5. The Trustee shall produce original documentation to the Court proving standing

and authority to proceed under Virginia statutes within ten (10) days from the date of entry of

this court in the Court records. Time is of the essence. Failure of the trustee to file said

documentation, including all original assignments or sales of the risk, security or debt

specifically and expressly connected with this Plaintiff and this Subject Property shall

automatically constitute a dismissal with prejudice of the foreclosure, the sale, the eviction and

any claim for past due payments from this Plaintiff and shall relieve the Plaintiff from the accrual

or payments for principal or interest to any party until such original documentation is produced.

6. The parties are ordered into mediation within 180 days at which the Trustee shall

provide proof which maybe used in these proceedings showing the compliance or lack thereof

with the applicable laws and rules of the State of Virginia, the Federal government or any agency
in connection with disclosures concerning, risk, fair market value, true cost of the loan, the true

ultimate source of capital to fund the loan, and any changes in underwriting standards that were

not disclosed to the Plaintiff/Buyer and such documents shall also be filed with the Court at least

ten (10) days prior to actual mediation. Failure of any affected party to appear at said medication

shall constitute a waiver of any claim for payment, and claim for security or any other rights

under the original transactions by which the loan documents were produced. The failure of any

affected party to produce a person at the time and place of the mediation (which shall be set by

order of the mediator) who is authorized to make a final decision regarding settlement shall

constitute a non-appearance under this paragraph.

7. The mediator shall submit a written report of the agreement(s) of the parties

which shall be approved and made binding by order of this Court upon proper notice and hearing

of the parties.

JUDGE