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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Ohio~help
We have been offered a lod mod after 2 years of fighting Homeq. We are represented by an attorney. The loan mod offered to us is totally rediculous, and will not beifit us in the long run.
 My question is to do a short sale( we have a contract ready to go)
Should we go through our attorney and or is this something they can even do?
Quote 0 0
Sara
And just what was the response from your attorney on this modification offered?  Is he trying to negotiate this matter in your favor of lowering the interest rate and monthly payments ?
 
S
Quote 0 0
Ohio~help

The modification did lower our rate and payment for 5 years, then back to original terms....arm, with 10,000. down. We had our house appraised on our own and we would be way underwater in the long run! Not worth it

Quote 0 0
Knows About Modifications
Your post contains so little meaningful information, that ANYONE at this site who tries to give you counsel is basing it on incomplete information.

You mention that you have been fighting HomeEq for two years, but it is unclear as to whether (a) you are already in default and/or foreclosure, (b) whether you are operating under the protection of a Bankruptcy Court, (c) the relative amounts of the outstanding mortgage balance and the present market value of the subject property, (d) the direction of market price changes in your area and the velocity of the price change (prices are still FALLING in most areas of the country), (e) the present terms of the mortgage which you find to be oppressive, (f) the alternative terms presented by the proposed loan modification.

You are RIGHT to look at the proposal with great skepticism.  Most loan modification proposals REQUIRE that you waive all of your rights to the fraud within the mortgage origination, the mortgage servicing fraud to date and any other claims you might have against the mortgage originator, investor and servicer.

Very often, the loan modification is merely a PRELUDE to the coming foreclosure.  They get you to WAIVE all of your rights and then still find a pretext to foreclose AFTER the modification agreement is signed.

Unfortunately, there are only a handful of consumer debt attorneys who really have the knowledge and skill to stand up to the servicer and get you a good deal.  Hopefully, you have found one of these.

Given that Forum participants CANNOT PRACTICE LAW and do NOT have the facts that you have presumably shared with your attorney, I would encourage you to REVIEW the many other general posts on loan modifications and to very carefully review the proposal.  I would write down the Pro and Cons of the modification.  I would even suggest that the attorney expain to you briefly IN WRITING why HE THINKS that this modification agreement is a GOOD IDEA.

In the end, I think that you probably need to FOLLOW YOUR ATTORNEY's ADVICE.  If you do NOT feel comfortable with this advice, you need to find and use a different attorney! 
Quote 0 0
Ohio~help
Knows About Modifications wrote:
Your post contains so little meaningful information, that ANYONE at this site who tries to give you counsel is basing it on incomplete information.

You mention that you have been fighting HomeEq for two years, but it is unclear as to whether (a) you are already in default and/or foreclosure,
 Yes we are in forclosure, went to mediations several time and then to magistrate for basically more modification.(b) whether you are operating under the protection of a Bankruptcy Court, NO
 (c) the relative amounts of the outstanding mortgage balance and the present market value of the subject property,
mortgage balance would be around 180,000. Value of property 115,000.

(d) the direction of market price changes in your area and the velocity of the price change (prices are still FALLING in most areas of the country),
prices are falling
(e) the present terms of the mortgage which you find to be oppressive,
The amount down and what the total value would end up being. Never would recover. After 5 yr we could never afford a payment based on the balance 
(f) the alternative terms presented by the proposed loan modification.
NONE, next step will be going to summary judgement?? Just tired of paying attorney fee's and life being upside down.

You are RIGHT to look at the proposal with great skepticism.  Most loan modification proposals REQUIRE that you waive all of your rights to the fraud within the mortgage origination, the mortgage servicing fraud to date and any other claims you might have against the mortgage originator, investor and servicer.

Very often, the loan modification is merely a PRELUDE to the coming foreclosure.  They get you to WAIVE all of your rights and then still find a pretext to foreclose AFTER the modification agreement is signed.

Unfortunately, there are only a handful of consumer debt attorneys who really have the knowledge and skill to stand up to the servicer and get you a good deal.  Hopefully, you have found one of these.

Given that Forum participants CANNOT PRACTICE LAW and do NOT have the facts that you have presumably shared with your attorney, I would encourage you to REVIEW the many other general posts on loan modifications and to very carefully review the proposal.  I would write down the Pro and Cons of the modification.  I would even suggest that the attorney expain to you briefly IN WRITING why HE THINKS that this modification agreement is a GOOD IDEA.

In the end, I think that you probably need to FOLLOW YOUR ATTORNEY's ADVICE.  If you do NOT feel comfortable with this advice, you need to find and use a different attorney! 

Quote 0 0
Knows ABout Deeds In Lieu
Ohio~help: 
 
Where you have NEGATIVE EQUITY of $65,000 (Mortgage Balance $180,000 Minus $115,000 VALUE of the property), it would seem to me that this would be a rather classic case where you would be looking to GIVE THE KEYS BACK to the lender!
 
I am UNFAMILIAR with Ohio law as to deficiency judgments -- the ability of the lender to obtain and enforce a judgment against you for the DIFFERENCE between the mortgage amount and the actual market value.  In most places, a deficiency judgment is likely to be an unsecured debt that can be discharged in a Bankruptcy proceeding.  Check with yor lawyer about this.
 
Mechanistically, a deficiency judgment would require that the lender purchase the property at its actual value, which is LESS than the mortgage balance.  If they BID the mortgage amount, then there is NO DEFICIENCY.  If you are fond of the house you could have a friend or relative bid and buy it for you AT CURRENT MARKET.  But if prices are dropping, it is UNCEAR whythis would be a good idea.
 
The mortgage servicer may very well be willing to accept a DEED IN LIEU OF FORECLOSURE.  This is something that your attorney could negotiate.  YOU SHOULD BE LOOKING FOR AN AGREEMENT THAT THE SERVICER NOT COME AFTER YOU FOR A DEFICIENCY.
 
*
 
The viability of a strategy of seeking to discharge a deficiency judgment in bankruptcy is wholly dependent upon your other financial circumstances.  If you have good cash flow and other assets, this may be less viable than if you are deeply in debt and facing great financial adversity.  Obviously, you would NOT want to file for bankruptcy lightly.  But for some, this is a compelling strategy.  This is something else you should carefully discuss with your attorney.
 
*
 
To the extent that the mortgage servicer is taking a tough tack and is unwilling to accept a deed in lieu, it may be to your advantage to gum up the foreclosure using some of the defensive strategies discussed at this site.  One of the FIRST THINGS you need to do is to carefully review the items already plead into evidence.
 
DO THIS YOURSELF.  Then DISCUSS these things with your attorney.
 
First check and see whether the alleged promissory note and alleged mortgage were attached to the original complaint.  If so, were these documents AUTHENTICATED in any way?  Very often, they are NOT.  And in such a case, they are not even admissible into evidence.
 
Next carefully check the alleged promissory note.  Is there an indorsement on the promissory note indorsing the note "in blank"or indorsing it to the party who is plaintiff in the case?  The indorsement will look like the indorsement on a check.  It will say "Pay To ........" with a signature and a title.  IF THERE IS NO INDORSEMENT, THEN THE PLAINTIFF PROBABLY LACKS THE RIGHT TO ENFORCE THE NOTE.
 
See the discussion relating to In Re Wells, as well as other posts found using search terms such as "UCC", "indorsement" / "endorsement" and "delivery" within this Forum.
 
Has the Plaintiff pled a mortgage assignment?  If so, in all likelihod it is a forgery and can be proven to be a forgery by a competent expert.
 
Is the assignment dated and/or recorded before or AFTER the date of the commencement of the suit?
 
If the plaintiff has already filed a motion for sumary judgment, take a look at any affidavit in support.  In particular, look for an affidavit authenticated by a notary in Dakota County, Minnesota, or in Duval County, Florida.  This is a signature of Fidelity National Foreclosure Solutions, Inc. / FIS Foreclosure Solutions, Inc. / Lender Processing Services, Inc (LPS).
 
IF the plaintiff is pleading evidence from Fidelity this could be your lucky day!  With a good attorney and a little effort you could WIN your foreclosure case and even get sanctions imposed upon the plaintiff!
 
*
 
Do NOT simply GIVE UP when faced with summary judgment.  Beat the plaintiff at the summary judgment or even get the case dismissed due to lack of standing and you will be in a far superior position to walk away giving only a deed in lieu and possibly avoiding bankruptcy.   
 
*
 
I would NOT simply agree to a loan modification under the circumstances described unless your financial circumstances are such that a discharge of a deficiency judgment in bankruptcy is NOT viable.
 
This is NOT LEGAL ADVICE.  Rather, it gives you some avenues for further exploration and discussion with yout lawyer.
Quote 0 0
Ohio~help
Knows ABout Deeds In Lieu wrote:
Ohio~help: 
 
Where you have NEGATIVE EQUITY of $65,000 (Mortgage Balance $180,000 Minus $115,000 VALUE of the property), it would seem to me that this would be a rather classic case where you would be looking to GIVE THE KEYS BACK to the lender!
 
I am UNFAMILIAR with Ohio law as to deficiency judgments -- the ability of the lender to obtain and enforce a judgment against you for the DIFFERENCE between the mortgage amount and the actual market value.  In most places, a deficiency judgment is likely to be an unsecured debt that can be discharged in a Bankruptcy proceeding.  Check with yor lawyer about this.
 
Mechanistically, a deficiency judgment would require that the lender purchase the property at its actual value, which is LESS than the mortgage balance.  If they BID the mortgage amount, then there is NO DEFICIENCY.  If you are fond of the house you could have a friend or relative bid and buy it for you AT CURRENT MARKET.  But if prices are dropping, it is UNCEAR whythis would be a good idea.
 
The mortgage servicer may very well be willing to accept a DEED IN LIEU OF FORECLOSURE.  This is something that your attorney could negotiate.  YOU SHOULD BE LOOKING FOR AN AGREEMENT THAT THE SERVICER NOT COME AFTER YOU FOR A DEFICIENCY.
 
*
 
The viability of a strategy of seeking to discharge a deficiency judgment in bankruptcy is wholly dependent upon your other financial circumstances.  If you have good cash flow and other assets, this may be less viable than if you are deeply in debt and facing great financial adversity.  Obviously, you would NOT want to file for bankruptcy lightly.  But for some, this is a compelling strategy.  This is something else you should carefully discuss with your attorney.
 
*
 
To the extent that the mortgage servicer is taking a tough tack and is unwilling to accept a deed in lieu, it may be to your advantage to gum up the foreclosure using some of the defensive strategies discussed at this site.  One of the FIRST THINGS you need to do is to carefully review the items already plead into evidence.
 
DO THIS YOURSELF.  Then DISCUSS these things with your attorney.
 
First check and see whether the alleged promissory note and alleged mortgage were attached to the original complaint.  If so, were these documents AUTHENTICATED in any way? 
Explain how to tell if they were authenticated? They filed the mortgage note, don't understand what you mean by promissory note? Don't mean to sound dumb, but when your trusting you attorney you would think they would know all this?
 
Very often, they are NOT.  And in such a case, they are not even admissible into evidence.
 
Next carefully check the alleged promissory note.  Is there an indorsement on the promissory note indorsing the note "in blank"or indorsing it to the party who is plaintiff in the case?  The indorsement will look like the indorsement on a check.  It will say "Pay To ........" with a signature and a title.  IF THERE IS NO INDORSEMENT, THEN THE PLAINTIFF PROBABLY LACKS THE RIGHT TO ENFORCE THE NOTE.
Where in the mortgage not would I find this??? Not sure where to look?
Have not seen any promisory note. just mortgage note and adjustable rate rider filed?
 
See the discussion relating to In Re Wells, as well as other posts found using search terms such as "UCC", "indorsement" / "endorsement" and "delivery" within this Forum.
 
Has the Plaintiff pled a mortgage assignment?  If so, in all likelihod it is a forgery and can be proven to be a forgery by a competent expert.
 
Is the assignment dated and/or recorded before or AFTER the date of the commencement of the suit?
 The assigment ment was recored  3 months after commencement of the suit. Some of it was hand wriiten and dated were typed in.
If the plaintiff has already filed a motion for sumary judgment, take a look at any affidavit in support.  In particular, look for an affidavit authenticated by a notary in Dakota County, Minnesota, or in Duval County, Florida.  This is a signature of Fidelity National Foreclosure Solutions, Inc. / FIS Foreclosure Solutions, Inc. / Lender Processing Services, Inc (LPS).
 Not notorized by any of theses.

IF the plaintiff is pleading evidence from Fidelity this could be your lucky day!  With a good attorney and a little effort you could WIN your foreclosure case and even get sanctions imposed upon the plaintiff!
 Don't wnat to give up , but we are spending money on our attorney that we could be saving for a mortgage or rent payment. Just to the point that we want it to be settled!!! Going into court will cost alot more too.
*
 
Do NOT simply GIVE UP when faced with summary judgment.  Beat the plaintiff at the summary judgment or even get the case dismissed due to lack of standing and you will be in a far superior position to walk away giving only a deed in lieu and possibly avoiding bankruptcy.   

 

 


 
*
 
I would NOT simply agree to a loan modification under the circumstances described unless your financial circumstances are such that a discharge of a deficiency judgment in bankruptcy is NOT viable.
 
This is NOT LEGAL ADVICE.  Rather, it gives you some avenues for further exploration and discussion with yout lawyer.

Quote 0 0
O -

City to make case against Wells Fargo - baltimoresun.com

Quote 0 0
Ohio~help

We are not dealing with Wells Fargo though.....we are dealing with Argent,U.S. national bank ass. as trustee for Homeq.

Quote 0 0
Knows About Notes
Ohio~help:
 
Quote:
Explain how to tell if they were authenticated?  They filed the mortgage note, don't understand what you mean by promissory note?  Don't mean to sound dumb, but when your trusting you attorney you would think they would know all this?

 
What you are calling the "mortgage note" is the promissory note.  It is a "negotiale instrument" under the Uniform Commercial Code.  Checks are also negotiable instruments under the UCC.
 
Suppose that John SMITH draws a check to Joseph JONES.  In order to negotiate the check, Joseph JONES must indorse the check.  Without this indorsement, under the UCC negotiation does not take place.  The ownership and the right to negotiate the check DEPEND upon both the indorsement and the delivery of the check.  Absent indorsement and delivery another person has no rights to the check.
 
The UCC covers the law relating to negotiable instruments and controls how the promissorynote can be enforced.
 
*
 
When speaking of authentication, I mean authentication of the exhibits to make these admissible as evidence.
 
The plaintiffs most often plead copies of the promissory note and mortgage.  The Ohio Rules of Evidence control the admissibility of various types of evidence into the record.  See http://www.sconet.state.oh.us/LegalResources/Rules/evidence/evidence.pdf
 
Evidence of this sort usually requires some sort of foundation witness.  That is someone who can attest that the documents ARE in fact what they purport to be.  Rule 901 discusses Authentication generally.  Typically, a correct admission of the record would involve someone in essence testfying, usually by affidavit that the promissory note was the instrument you signed on dd mmm yyyy at closing.  If a COPY instead of the original is pled, the plaintiff would also usually need to certify that the COPY is a TRUE and CORRECT copy of the original.
 
If there is no foundation witness to authenticate the instrument and/or attest to the correctness of the copy, the document would usually be INADMISSIBLE.  
 
The same holds for the MORTGAGE, EXCEPT that in the instance of the mortgage (a) the pleading of the original would tend to be self-authenticating under Rule 902 due to the authentication of the notary, and (b) a COPY would require only a certification that the copy was true and correct.  A certified copy from the county records would also tend to meet this requirement.
 
IF the plaintiff pled a COPY rather than the original and the copyis NOT certified, then it is NOT admissible.
 
This MIGHT get you past summary judgment.  It will NOT likely get you through the trial on the merits.
 
Quote:
Where in the mortgage not would I find this??? Not sure where to look?
Have not seen any promisory note. just mortgage note and adjustable rate rider filed?

 
Again, when looking for an indorsement, THINK ABOUT A CHECK.  In the case of checks, the indorsement is usually on the BACK of the check.  An indorsement of the promissory note can also be on the back, but it is more common for it tobe on the FRONT of the instrument on the last page below the signatures.
 
It will typically say "PAY TO: ___________" and contain a signature of an authorized officer of the payee.
 
If there is NO INDORSEMENT on the FILED COPY of the promissory note, then the plaintiff (other than the named "Lender" /Payee) CANNOT BE THE OWNER OR THE HOLDER.
 
That means that IF YOU GO TO SUMMARY JUDGMENT on THIS EVIDENCE you are entitled to WIN as a matter of law!
 
Moreover, you are probably entitled to a dismissal of the case, as the name plaintiff lacks standing
 
*
 
Quote:
The assigment ment was recored  3 months after commencement of the suit. Some of it was hand wriiten and dated were typed in.

 
The recording date of the assignment is NOT the critical thing.  The critical thing is the date of execution of the assignment.  The assignment would have to be notarized in order to be eligible to be recorded.
 
The KEY question is whether the assignment was recorded before or after the commencement of the suit.
 
When the assignment was recorded after commencement, you have a strong case for dismissal based upon lack of standing.  
 
Bear in mind that this is an additional defense.  ABSENT indorsement and delivery the plaintiff CANNOT BE THE OWNER.
 
* * *
 
Please understand.  I am NOT trying to create false hope here.  The defensive strategies described may very well get the suit dismissed without prejudice and set the plaintiff back several months.  But it is unlikely to result in an ultimate victory over the plaintiff.  The plaintiff will retreat, lick their wounds, get their evidence in order or forge some new evidence and come back for a rematch.
 
But if you get the matter dismissed, the plaintiff is far more likely to entertain your offer to give a deed in lieu.
 
There are some circumstances where the plaintiff engages in sufficient misconduct that you might be able to actually DEFEAT the foreclosure action.  But this is a 1:100,000 occasion.
 
I understand what you are saying about going out of pocket for the lawyer.  This is VERY EXPENSIVE.  It is especially expensive when the lawyer is UNFAMILIAR with the subject matter of your suit.  In such a case, you are PAYING HIM TO LEARN.  I made the mistake of paying lawyers to learn several times many years ago.  Ultimately, I found out that I could find the CORRECT ANSWER MYSELF at a fraction of the cost by doing my own research.  
       
You need to very carefully weigh the costs and expenses of various blocking and delaying strategies versus the costs of alternative settlements.
 
A settlement that involves giving a deed in lieu of foreclosure in exchange for the servicer agreeing NOT to come after you for the deficiency may be the BEST you can get out of this situation.  If the servicer will NOT entertain this settlement, then your other choices are to fight, acquiesce, and/or file for bankruptcy.
 
Hope this helps!
 
 
Quote 0 0
Knows About Notes
These UCC provisions might also help:

§ 3-201.  NEGOTIATION.
(a)  "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.
(b)  Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.  If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

* * *

§ 3-204.  INDORSEMENT.
(a)  "Indorsement" means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser's liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement.  For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.

(b)  "Indorser" means a person who makes an indorsement.

(c)  For the purpose of determining whether the transferee of an instrument is a holder, an indorsement that transfers a security interest in the instrument is effective as an unqualified indorsement of the instrument.

(d)  If an instrument is payable to a holder under a name that is not the name of the holder, indorsement may be made by the holder in the name stated in the instrument or in the holder's name or both, but signature in both names may be required by a person paying or taking the instrument for value or collection.

* * *

§ 3-205.  SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT.
(a)  If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a "special indorsement."  When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.  The principles stated in Section 3-110 apply to special indorsements.

(b)  If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement."  When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.

(c)  The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.

(d)  "Anomalous indorsement" means an indorsement made by a person who is not the holder of the instrument.  An anomalous indorsement does not affect the manner in which the instrument may be negotiated.

* * *

§ 3-301.  PERSON ENTITLED TO ENFORCE INSTRUMENT.
"Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d).  A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

See http://www.law.cornell.edu/ucc/3/ for the full text of the UCC.  Be sure to check your state's laws to verify that the provisions are exactly the same as the model national UCC.
Quote 0 0
Write a reply...