Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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same old thing

Going pro se into my case I found a lot of good information on this site and others.  I was pretty sure if I lost my motion to dismiss and lost my summary judgment I would at least have a good argument on appeal.  I just realized that I would have to post a bond to appeal.  Well, I really wouldn't have to post a bond to appeal, but if I didn't I couldn't get a stay of the judgment.  Where would that leave me???? If I get a judge that totally disregards the law (which we all know never happens) and I appeal, they sell my house, even if the case is reversed and remanded what difference does it make?  My house is sold.  This kind of takes away my due process.  While not restricting my appeal they really are because the appeal is meaningless if I don't have a house.  Anyone have any experience with the bond so they can get a stay for appeal?

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William A. Roper, Jr.
While it is usually necessary to post a supersedeas bond to STAY the enforcement of a judgment pending appeal, it is NOT usually necessary to post such a bond in order to file an appeal.  The distinction is important.

A STAY prevents the foreclosure sale from occuring.  Even IF the property is SOLD at a court ordered sale in conformity with the original order, your right to appeal usually survives as long as you timely file your notice of appeal and otherwise conform to the Rules of your jurisdiction concerning an appeal.

Bear in mind that foreclosure sales do NOT happen instantaneously.  Usually, a property must be advertised one or more times in advance of sale (typically three consecutive weeks).  AFTER the sale, the plaintiff very often has to come back into court to obtain an order confirming the sale.

I am aware of one pro se litigant who received a summary judgment order in June 2008 whose property has NOT been sold despite his inability to post supersedeas bond.  He filed a timely appeal, filed a TERRIFIC Appellant's Brief and now appears almost certain to prevail in his appeal.  He has continuously retained possession of his property throughout, though a Bankruptcy filing was necessary to stop a scheduled sale of the property.

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A well conceived and well executed foreclosure defense OUGHT to be effective at PRECLUDING a summary judgment.  NO ONE SHOULD EVER APPROACH SUMMARY JUDGMENT FROM THE PERSPECTIVE THAT THEY ARE PUTTING UP A DEFENSE THAT CAN WIN ON APPEAL, BUT WHICH MIGHT NOT PERSUADE THE TRIAL COURT.  A PROPER DEFENSE SHOULD LEAVE THE JUDGE WITH NO ALTERNATIVE BUT TO DENY THE MOTION FOR SUMMARY JUDGMENT.

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Once again, I would encourage Forum participants facing a motion for summary judgment to READ AND UNDERSTAND THE RULES of your jurisdiction.
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Same old thing

I would always hope that when you can show the facts the end will be the correct result but read over and over it is often not.  I have proof of the fraud.  I can't afford an attorney it is quite expensive to really find effective counsel.  I would rather lose my home then have an appointed attorney give it away because they don't care.  The real reason I've been looking at the bond is in order for the judge to deny my motion to dismiss and or grant summary judgment he would have to go against State Supreme and Appellate court decisions.  It's pretty well settled law.  They are painted into a corner, for the time being.   I really don't know how you can fix it.  Like in a mixed martial arts fight if you let it go to the judges you never know what the decision would be. 

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William A. Roper, Jr.
A common mistake of pro se litigants is failure to learn and understand the unique Rules pertaining to summary judgment proceedings and adherence to these Rules. 

The defendant is NOT going to get to testify at the hearing.  NO ORAL TESTIMONY IS TAKEN.

Everything is going to be decided based upon affidavits and discovery.  As you can see from the news, the foreclosure mills routinely present perjured affidavits in support of the foreclosure cases.  WITHOUT DISCOVERY, YOU WILL NEVER PROVE THE PERJURY.

Anyone hoping to beat the plaintiffs without effective discovery is delusional.
 
Only where the plaintiff's evidence is self-contradictory and when you draw a very bright and FAIR JUDGE would any defendant EVER stand a chance without good discovery.

An affidavit from the defendant is usually ineffective.  You usually need an affidavit from an expert witness.

If a defendant approaches the summary judgment hearing and doesn't already have discovery responses and affidavits to defeat the plaintiiff's case, the defendant is very likely to LOSE.

If you are able to effective DISPUTE the material facts, then the plaintiff CANNOT PREVAIL.

I have seen a few improvidently granted foreclosure summary judgments.  More often, the plaintiff wins because the defendant didn't understand the Rules and failed to properly marshall the defensive case.
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The Equitable One
It is not possible to read the rules too many times. I read various portions of my local rules at least several times a week, sometimes daily. There are sections I can quote from memory, and sections I know better than most attorneys.

Imagine trying to win football game if your team didn't know and understand the rules.

As for defeating summary judgment you must show there are facts in dispute. The strongest way is to present affirmative evidence yourself. The weaker, though still workable way, is to show that the evidence submitted by plaintiff is inadmissible, defective or conflicts with other evidence also submitted by plaintiff. If you can eliminate plaintiffs evidence then the court can't rule in its favor.

Understanding the rules relating to summary AND the evidentiary rules is crucial.

William A. Roper, Jr., posted a very accurate and informative piece a couple of months ago on personal knowledge, hearsay, conclusory averments and the best evidence rule. You will only help yourself by searching this forum and reading that piece.



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Has anyone ever encountered this .I was looking at my public recordsyesterday and i founda reccission/vacation of assignment of mortgage which reads through inadvertence and mistake the undersignedexecutedan assignment of mortgage recorded 11/10 /10  the undersignedherby cancelsand recinds the assignment to the same extent and effect asthough assignment had never been issued and recorded .the new assignment was issued with mers removed from it.i woul apreciate some guidence .the old assignment was issued durring my foreclosure case before dismisal with a lost note found then proven unoriginal by me .thanks john burko

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