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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yes I am in Bankruptcy not a popular choice but getting the job done aurora is not getting the house yet, my question is can someone give me the BK code to show that when a motion to lift stay is filed do they also need to file a proof of claim at some point? Also I have been reading some attorney sites that explain certain requirments  must be included with the motion to lift stay, like an affidavit from the lender or agent that has personal knowledge as to the claim asserted in the motion and an appraisel on the property if they are asking for abandonment claiming the mortgage is more than the property value. any BK codes posted for these things would be greatly appreciated, I have a couple of weeks to file my objection. I have been going through BK law school 101 and just need a little help.

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   Your question is confusing. Did you file Ch 7 or 13? Did you file prejudgment
or post judgement?
   Abandonment means the Trustee is abandoning the property and returning
it to the debtor not the other way around as you seem to infer.
   If the property is Homesteaded, my opinion is that you are better off filing
a Ch7 post judgement if you qualify, because if the judgment is more than
the value of the property, you can list it as unsecured and disputed on the BK forms.
   In this way, if the Homestead Exemption is greater than the value of the home, you get to keep your home! The money judgement gets wiped out by
a discharge and the stay never gets lifted.
   Filing Ch 7 prejudgment is futile because the mortgage lien still exists and
the plaintiff will just file a motion to lift the stay and if they have any case
at all, it will be lifted. If they have a weak case, there is no point in filing
BK. Just fight it out in State Court until it gets dismissed.
    if you don't qualify for Ch 7, then Ch 13, prejudgement makes sense.
You might be able to negotiate a "cram down" of principal while being
allowed to make catch up payments over a 3 to 5 year plan. This could
occur if the property is worth much less than the Note. It is all negotiable.
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sorry I thought the question was very clear, but to answer your reply, I am in a 13 until sept.22 then I either have to convert or dismiss on my own or the BK court will dismiss they ruled I filed my petition in bad faith because when I filed my schedules I only listed 25.00 on my plan because I claimed I don't owe anyone until they prove up with claims, the BK court was not happy with that so they said amend the schedules and change my plan or we will dismiss.

to answer your other questions I am in ohio my house has already sold, but I am still in possession, I have a judge that will not rule at all against the bank I have filed motions to vacate the void judgment and he just keeps denying them, the servicer came in without proof ,I proved to the court they never owned the note they never filed the proper proof, it is a mess so the day before they were going to move me out I filed a BK, the court even went so far as to alter the records by placing whiteout tape over some of the banks motions then re-time stamping them to make them appear the banks attorney filed timely because they didn't answer my motion to vacate and I requested default on them.

In ohio the allowed exemption is less than the property value so the idea you have won't work for me, the state court is biting at the bit to just get this back so they can continue the fraud on me.

What I am looking for is the rules in my prior request as I am going to file an adversary complaint asking for declaratory judgment among other things, along with the objection on the fact the foreclosure was fraudulent, there are several cases one in particular in MA. in where even though the house sold the BK will not lift the stay if the proper party is not before the court as is in my case as was in the state case also, but the judge had his eyes closed to the attorney foreclosure mill that files several a day in that court.

See after i filed BK I found out that the servicer didn't own the mortgage and note fannie mae did, but the state court still will not listen they are nothing more than common criminals.

SO when I file my objection to the lift stay I want all the ammo I can get into it.
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William A. Roper, Jr.
ohio guru:

First, this is NOT legal advice.  I am NOT an attorney and am NOT qualified or elgible to counsel you as to legal matters.  Moreover, I have never been personally involved in any bankruptcy matters, EXCEPT as a technical consultant in some railroad bankruptcy matters almost three decades ago.

This having been said, permit me to share a couple of lay impressions.

First, under the Rules of the Federal Bankruptcy Court as well as other Federal and state courts, parties usually have a duty to avoid making false averments in their pleadings and filings.  (Sure, I KNOW that the sleezy foreclosure plaintiffs do this EVERY DAY, but it is still impermissible.)

So right off the bat, IF you file schedules which contain palpably false information, you are probably going to create at least some friction with the Federal Bankruptcy Judge and trustee.

Bear in mind that in contested Bankruptcy settings, you may also be subject to written and oral discovery, and you would be required under the Rules to answer sworn interrogatories or deposition questions truthfully.

There is a distinction between making legal arguments and making factual representations, though even with legal arguments ethical and court rules often preclude making arguments which are without foundation in the law (or fail to at least be grounded in reasonable extensions of well established legal guidelines).

*

While I understand that you do not desire to unilaterally concede the validity of the debt or the ownership or holdership of the debt by the creditor/plaintiff, if you represent to the court that there is NO debt, where you actually signed a promissory note or other primary obligation, you may find at a minimum that you are wearing thin the court's patience.

There may be a middle ground which allows you some defensive latitude without making any major concessions.  This would be in showing various possible owners or holders of the alleged debt, without actually conceding either the validity of the debt or your view as to the correct owner thereof.

Suppose, for example, that you had executed a promissory in the primcipal amount of $100,000 in favor of Ultra Subprime Mortgage Company ("USMC", no offense intended to the Marine Corps).  Further suppose that MERS is named as nominee and mortgagee in the mortgage security instrument.  Finally, let us suppose that prior to an alleged default that this alleged mortgage has been serviced by First Criminal Servicing Corp.

First Utah Criminal Servicing, of Utah, has arranged with a contract forger and perjurer to manage the foreclosure and this MN entity has employed the law firm of Dewey, Cheatham & Howe to file suit.  The suit is brought in the name of Duche Bank, which claims to be the trustee of the certificate holders of the "USMC Residential Mortgage Backed Series 2005-FUCS-U".  You subsequenly file for bankruptcy protection.

If your schedules show you debt free, this seems to be at a minimum misleading, as it fails to inform the court of the dimensions of the possible dispute.

By contrast, suppose that you listed :

  • Ultra Subprime Mortgage Company, as a possible claimant of an alleged promissory note dated dd mmm yyyy in the amount of $100,000. [1]
  • MERS, as alleged owner of the alleged mortgage dated dd mmm yyyy which was purportedly security for the alleged promissory note in favor of USMC.
  • First Utah Criminal Servicing, of Utah, as a possible owner, holder or servicer of an alleged promissory note dated dd mmm yyyy in the amount of $100,000 made out in favor of USMC. [1], [2]
  • Duche Bank, as trustee of the "USMC Residential Mortgage Backed Series 2005-FCS", an entity unknown to the debtor which has alleged an ownership and/or holdership interest in the promissory note dated dd mmm yyyy in the amount of $100,000. [1], [2]
  • Other.  IF the alleged instrument made out in favor of USMC is valid and has been negotiated to another entity other than the entities shown above, some other entity unknown to the debtor might be a claimant and prospective creditor.  [1], [2]

    [1] The debtor is unsure whether this is a secured or an unsecured transaction, since the alleged mortgage security instrument is made out in favor of an entity other than the Lender shown in the alleged promissory note.  The debtor will prepare an appropriate memorandum of law or brief discussing the bifurcation of the alleged promissory note and mortgage if and when a claimant presents a claim and sets forth the alleged facts supporting such claim. 

    [2] This is the SAME alleged indebtedness shown as a possible claim by USMC.

Note that this informs the court and the trustee as to the identities of several possible creditors without either conceding the validity of the debt OR taking a position as to the actual owner or holder.

I DO NOT KNOW WHETHER THE SCHEDULE SET FORTH ABOVE IS A GOOD OR A BAD IDEA OR WHETHER THIS WOULD BE PERMISSIBLE UNDER THE BANKRUPTCY CODE OR COURT RULES.  BUT IT IS AT LEAST HONEST, CONSISTENT WITH THE FACTS AND INFORMS THE COURT OF POSSIBLE PROSPECTIVE PARTIES.

It seems to me that such a schedule challenges the alleged debtor to come forward and present its claim and to make a proof of claim.  Similarly, any entity seeking to obtain a relief of stay would need to come into the Bankruptcy Court and show the Court WHY they are entitled to a relief of stay.

Dewey, Cheatham & Howe might find this vexing, since the Federal Bankruptcy Courts have shown some tendency to stand up to entities which plead false and forged documents!

I WOULD DEFINITELY NOT FILE SOMETHING LIKE THE ABOVE WITHOUT FIRST SHOWING IT TO AND DISCUSSING IT WITH A QUALIFIED ATTORNEY IN YOUR JURISDICTION SPECIALIZING IN CONSUMER DEBT ABD BANKRUPTCY.  THIS SHOULD BE USED SOLELY AS A BASIS FOR INQUIRY AND DISCUSSION RATHER THAN AS A TEMPLATE.

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Ohio Guru,

I went to a bk site this is what it said about the proof of claim....

What is a proof of claim and why should I file one?  File a proof of claim.  It is the creditor’s proof of claim that will govern unless specifically objected to by the debtor.

In a Chapter 7 no-asset case, proofs of claim need not be filed. There will not be any distribution of funds to any unsecured creditors.  A no-asset is a case where all the assets of the Debtor were protected by law (exemption property).  The majority of all chapter 7 cases involving individuals are no-asset cases.

In all other Chapter 7 cases and Chapter 13 cases, a creditor must always file a proof of claim to participate in any distribution.

In a Chapter 11 case a proof of claim is not required if the claim is accurately listed in the schedules and is not scheduled as disputed, contingent or un-liquidated.  

 

 

 

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ohio guru

William, your suggestion is exactly what I did in my chap. 13 the trustee had a problem with it although it being the truth, when you have 4 to 5 fictitious entities claiming the same property it gets complicated maybe to complicated for the BK courts, I am converting to a chap. 7 and filing an adv. complaint for illegal foreclosure among other things, its pay back time for all of them, I have talked to couple of max gardners boot camp grads this week, they gave me some good pointers, I will be using. I have learned a lot through my foreclosure and made several great friends, that is the only good thing that ever came from my ventures. But the fat lady will be singing soon LOL. lots of luck and love to all you fighting for your homes and rights. don't give up I have been at it for over 2 years and still learning. I can't even find an attorney willing to take my monster of a case on, too bad cause there's lots of money to be found here, sooooo off to court I go.

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Some info and advices on BK

http://livinglies.wordpress.com/2008/05/23/foreclosure-defense-strategic-bankruptcy-options/
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