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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03/18/11 at 02:05 AM

A Key NJ Decision: Bank of New York, N.A. v. Raftogianis

 "I can tell you from my experience of this mess that the court room is always a double edged sword. Most of us want ALL the fraud out on the table but that has its consequences. If you keep the fraud out of your case and off the record they can’t prove much. No assignment, no note, no PSA, etc… then they have a hard time proving you’re in default. That is the object to everything approach.

 The other approach is to allow the plaintiff to submit and swear to, with their witness, the fraud and then attack from there.


 In these cases we are the defense, we defend. The plaintiff has all the burden of PROVING we are both in default and they have the right to foreclose. We as defendants have a curiously simple task of objecting and shifting the burden back to them.


 In my case I had conflicting information on legal strategies. I spent hours reading and talking to many intelligent folks. Many people make great arguments and there are many ways to skin a cat but in the end you need to be informed and decide how the law will best serve you. I had an attorney and thought it best to talk out the options and opinions of others and let him do the litigating for me.


 The idea of cherry picking cases and specific opinions of cases is a subjective thing. The problem that we all face is not the law itself, but in fact the judges and how they interpret the arguments and laws themselves. The judge decides the case based on the arguments presented, if you don’t argue your case well, you lose. No matter how right you are.


 The main issue that took a while to sink in was evidence. What does that mean and what is it? It is not having 100 documents with so-called robo-signers on them and claiming they also signed your doc’s. It’s not hearsay and what happened to someone else. It is not what is going on in the media with the attorneys generals. It is all about the documents in your specific case and how you can prove that there are inconsistencies that show fraud and wrong doing. So how do we do that? Expert witnesses, thorough discovery, depositions, finding case law to support your arguments and being informed and not mislead.


Best advice on this message board is hire a competent lawyer."
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Finding a competent lawyer may be a very hard thing to do. You don't know what have until after the damage is done if you get one that doesn't understand this mess. I had some help from an experienced person in this area and my lawyer was to arrogant to listen to this person or me. I have a summary judgement coming up soon and I feel like it is not going to go my way. As for the person that helped me. I made a mess of things by not getting control of my case, my lawyer or myself.
 I don't what to tell people on how to find a good lawyer in areas where it is hard to find a lawyer who'll take a foreclosure case in the 1st place. I found one with experience but that doesn't mean allot when you lose your case. I'll be a fricken miracle if I end up with a judgement in my favor.
I don't know if the person who helped me comes to this site. I want to thank you and am sorry for not following thru with what I should have done.

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Factman, you are absolutely correct.  YOUR CASE is what matters, good attorney, there's an oxymoron, good luck and who has that kind of money even if you find one?  What do you think and how do we push the jury trial demand.  I have yet to see these cases won by jury verdict, or am I wrong?
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Here is a suggestion: Go to the Clerk of the Court web page - review pleadings - look at the docket entries -- who is using discovery -- who is filing mtd -- who is fighting -- then go to the office of the clerk and get the file -- review the pleadings/motions etc --- this in my opinion is the ONLY way to protect yourselfselves!

Good Luck!

ps read Mr. Roper's post ie hearsay -- then when you go to interview an attorney ask him some questions re hearsay etc - then compare against Roper --
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Raftogianis and Ford were great decisions for defendants because they were saying that the holder of the note was the Party In Interest. Now, the N.J. Supreme Court is trying to say that because the (Servicer) is the holder of the note at the time the foreclosure was filed, they are allowed to have the authority to foreclose under the "administrative convenience" of the alleged, concealed creditor(FannieMae/FreddieMac). The N.J. Supreme Court is in violation of TILA 15 USC 1641(f)...Servicer not treated as owner on basis of assignment for administrative convenience. This came from the Guilluame Decision which was about remedy for an incorrect Notice Of Intent To Foreclose, but the court added that plaintiffs were "JUST" following GSEs Servicer Guidelines and are entitled to foreclose as Servicers because its in the "Guidelines." Not N.J. STATUES. Its wrong and should be repealed.
In Raftogianis, judge Todd stated that in securitization of a loan, it needed more discovery, but all of this was glossed over and forgotten. How convenient. He also mistakenly stated the the note and mortgage were not intentionally separated.
The reason why defendants are not able to find foreclosure attorneys is because they are also "officers of the court" and as such, their obligation is to the court first and then their clients. A case in point, there was an attorney in upper NW winning quiet title cases very successfully. Then for no unexplained reason, he stopped doing them. You figure it out. The same thing is happening here in N.J. and elsewhere and its not that hard to figure out.  
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Holder is an extremely technical term but if a valid servicer is "holding" the note for the holder then that is OK in my book.

Maybe I'm in the minority here, but I've always stood for the proposition that not only can the note and mortgage not be separated, but that's it IMPOSSIBLE for them to become separated.  Wherever the holder or other person entitled to enforce per UCC 3-301 is, THAT is where the mortgage is, and nothing else matters...

And if you can't prove holdership or other UCC 3-301 entitlement... Well then, nothing else matters...  Go bother somebody else...
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