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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SUMMARY JUDGMENT REVERSED – US BANK HAS NO STANDING TO FORECLOSE – LOST NOTES

BOOM!- Feltus v. US Bank, 2nd DCA Reverses Summary Judgment! Great Job Mack Law Firm!
October 19th, 2011 | Author: Matthew D. Weidner, Esq.
http://mattweidnerlaw.com/blog/2011/10/boom-feltus-v-us-bank-2nd-dca-reverses-summary-judgment-great-job-mack-law-firm/

We view U.S. Bank’s filing of a copy of the note that it later asserted was
the original note as a supplemental exhibit to its complaint to reestablish a lost note as
an attempt to amend its complaint in violation of Florida Rule of Civil Procedure
1.190(a). U.S. Bank did not seek leave of court or the consent of Feltus to amend its
complaint. A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy
should be determined based on the properly filed pleadings. Warner-Lambert Co. v.
Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983).

Before a court may grant summary judgment, the pleadings, depositions,
answers to interrogatories, admissions, and any affidavits must ” ‘conclusively show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.’ ” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8
So. 3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So. 2d 52, 54 (Fla.
4th DCA 2006)). The party moving for summary judgment bears the burden to show
conclusively that there is a complete absence of any genuine issue of material fact. Id.
The properly filed pleadings before the court when it heard the Bank’s
motion for summary judgment were a complaint seeking to reestablish a lost note,
Feltus’s answer and affirmative defenses alleging that the note attached to the
complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the
note, a motion for summary judgment alleging a lost note of which U.S. Bank is the
owner, an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of
the note described in the complaint, and U.S. Bank’s reply to Feltus’s affirmative
defenses asserting that it was now in possession of the original note, which it attached
to the reply. But the note attached to the complaint showed the lender to be
Countrywide Bank, N.A. And the complaint failed to allege that “[t]he person seeking to
enforce the instrument was entitled to enforce the instrument when loss of possession
occurred, or has directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when loss of possession occurred.”

§ 673.3091(a). In addition, the affidavit of indebtedness revealed no basis for the
affiant’s assertion that U.S. Bank owns and holds the note. The affiant is an assistant
secretary for the alleged servicing agent of the Bank, and she asserted that she had
personal knowledge of the loan based on the loan payment records. She did not assert
any personal knowledge of how U.S. Bank would have come to own or hold the note.
See Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When affidavits are
filed to establish the factual basis of the motion [for summary judgment], they must be
made on personal knowledge, demonstrate the affiant’s competency to testify, and be
otherwise admissible in evidence.”).
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/10/FELTUSvUSBANK.pdf

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Hi All


Home owners need to start a vigilant defense of their homes.

I have read that 95% of foreclosures that are awarded to the plaintiffs/banks are never contested in court.  Most folks bury their heads in the sand and move in the middle of the night.  This makes the job for the banks lawyers very easy. Homeowners need to fight.

1- Do not run away.

2- Answer the initial complaint through the court. A letter will suffice.

3- Any defense is better then NO DEFENSE

4- Make them prove standing 100%

5- Filing an answer to a complaint and appearing for a case management conference then going through mediation is not very expensive for the homeowner, these simple steps may buy you another 12-14 months in your home also may give you some leverage in obtaining a modification.

6- Stay in the Home

7- Make them work for your home. Dont make there job easy.

Just my 02 cents

Best regards

Acesfull



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I shamefully admit that I was one of those people who did not fight our foreclosure.  When you can't make your mortgage payments, what other choice do you have, right?  I found out too late about the fraud and it all started with the mortgage papers all the way through to the day we got kicked out of our home that we built.  If I knew then what I know now, I can say that I would have fought for my home.  Now I am angry and gathering up as much info as I can to fight the fraud.  No, I couldn't make the payments, but the bank didn't deserve it either because it was not theirs to take.  I say to all of you fight, fight, fight.


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Bill

acesfull wrote:
Hi All


Home owners need to start a vigilant defense of there homes.

I have read that 95% of foreclosures that are awarded to the plaintiffs/banks

are never contested in court.  Most folks bury there heads in the sand and move in the middle of the night.  This makes the job for the banks lawyers very easy. Homeowners need to fight.

1- Do not run away.

2- Answer the initial complaint Thur the court. A letter will suffice.

3- Any defense is better then NO DEFENSE

4- Make them prove standing 100%

5- Filing an answer to a complaint and appearing for a case management conference then going Thur mediation is not very expensive for the homeowner, these simple steps may buy you another 12-14 months in your home also may give you some leverage in obtaining a modification.

6- Stay in the Home

7- Make them work for your home. Dont make there job easy.

Just my 02 cents

Best regards

Acesfull




I am not an attorney and this isn't legal advice....

I agree that if people could raise the amount of contested foreclosures to 20-25% of the cases that are filed it would cause a huge problem with the business model for the Servicers and Foreclosure Mills.  

There are 2 huge problems with this,  they are time and information.  Most people do not know that they have some kind of defense and can add long delays to a foreclosure responding.  It is very difficult to get this information out to a large group of people.  If you have found this site and take the time to read the posts, you would have enough information to cause quite a bit of problems to any kind of foreclosure.  Not enough people know there is a way to fight.

The time that you have to respond is also a huge problem.  It takes a lot of time to learn and understand the local rules and procedures.  It takes a lot of time to learn how to find and apply case law.  It takes a lot of time to draft good effective pleadings.  It takes a lot of time to draft good motions/responses.  Most people will find without help, this is overwhelming when you are faced with a 20 day deadline to respond to a foreclosure complaint. 

I do think that your #2 is not correct.  A proper response to a complaint is NOT A LETTER.  THIS COULD BE REJECTED BY THE COURT AS AN ANSWER AND RESULT IN A DEFAULT JUDGMENT.  You could also be waiving many defenses by not asserting them in your answer.  You could be admitting the Plaintiff's claims by not denying them in your response.  You really have to read the case law for your local jurisdiction, but I have not seen one case that a letter is going to benefit the homeowner.  There are many BAD, generic answers, floating around on the net.  It would seem using one of these would even be better than attempting to just send a letter because they could be amended.  I don't know how you amend a letter to the court.   
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George Burns
I am only familiar with a few states and  Florida in particular but the Civil Procedures seem similar almost everywhere.

There is a  prescribed format (including type style and size) and minimum requirements for a response to a Complaint and a letter too the Court would not suffice.

Writing a letter to the court as a response to a foreclosure complaint seems like the surest road to losing. How would you be able to raise Affirmative Defenses, other defenses and other issues with a letter? 

A letter is NOT an acceptable response nor is it a defense.

Read the Rules of Civil Procedure and other court rules for your jurisdiction.

I am not a lawyer and this is not legal advice.
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Hi All

My mistake on my #2--   What I meant to  say was, send a letter to the court clerk and request the proper forms for addressing the complaint. Also call the clerk as a follow up to the letter. The clerk will then forward the proper forms to your address.

The whole point of my post was clearly to just try to get folks to respond to foreclosure complaints and not run away from the court process.

I apologize if I mislead anyone.

Best regards

Acesfull
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Check out http://www.foreclosureprose.com. Lots of info of how to fight for your home.
More info and legal pleadings samples at http://www.scribd.com/my_document_collections
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George Burns
acesfull

There are no proper forms which the Clerk can send to you. Also the Clerk cannot advise you or provide an opinion or legal help. All the Clerk can do is remind you of the deadlines etc.

Since the time in which to respond to a Complaint is so short, it would be dangerous and foolish to send a letter and wait on a reply. A Defendant's time would be much better spent doing other things.
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Dear regrets:

I like your new attitude and welcome you to the 5% who take control of their situation and decide to not only fight back, but fight for your rights and freedom to own property.

Now that you have now discovered that you were defrauded, the statute of limitations begin when you first discover the fraud.

In every action to foreclose on real property, the moving party MUST meet at least two criteria:  

1) They must produce evidence that they are the owner and holder of the original      Note
2) They must produce evidence that a default occurred

Some courts don't care about the Original Note - but you do!  If the moving party can't prove they own the debt then the court has a duty to stop them at the gate.  Some courts allow a "copy" of the Note - but you don't, so you OBJECT, OBJECT AND OBJECT, and you make it clear to the court that you will not allow a copy as evidence because you don't know where they got it or how they got it. There MUST be a paper trail that shows the transfers and the negotiation for value.  If the court still allows the copy into evidence, then you state to the court: "Defendant preserves her objection."

If you can afford it, ALWAYS take your own court reporter.  If you can't afford it, at least tell the court's reporter that you want a copy of the hearing transcript. You must preserve the record for possible appeal, and to do that, you want to make sure you state your objections and get as much evidence into the record.  In case of an appeal, you can only argue what is in the court record.  You cannot object to something on appeal, if you did not first object to it in the trial court.  It is better to object and be overruled - than to stay silent and lose your right to object on appeal.

If you object and the court asks: "On what grounds?", and you don't know, just tell the court: "I don't know - but something isn't right here and I need to find out what it is, so I am objecting."  You are not a lawyer and the court knows that.

As far as accepting a "copy" of the Note; anyone on this Forum can go down to your county land records and obtain a copy of your Note and put their name on it.  We can now prove that banksters do it every day.

Don't let the other side control the court by focusing on your (alleged) default. The default is not the issue.  The issue is, is this the true owner and holder with the legal rights to collect on the supposed debt?  Is the debt secured? or unsecured?, is a very important point.  If your can establish the debt is unsecured, then nobody can foreclose.

If I am trying to steal your home, I am going to focus on your alleged default and ignore the owner/holder issue.  Many people have unjustly lost their homes to these thieves because the clueless judge was duped into focusing only on the default. The court's reasoning is: If these people aren't paying for the home, then they need to leave.  Most court's don't want to believe that the party at the other table is nothing more than a thief, and is one of the players in this theft by deception scheme that caused our foreclosure/financial crisis.  

If the foreclosing party is not the true holder in due course, it doesn't matter whether you made a single payment or painted the outside of your home florescent orange or wallpapered your driveway. 

Check your property records and look for any suspicious filings.  In most cases, the key to winning your case is what is filed - or not filed - in your county land records.

To save money, access your property records online or in person.  If you find a faked document, ask the clerk to make you a certified copy of it.  If you need help to determine whether a document is faked or forged, come back here and ask for help.
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Digger
In the case of Gee v. U.S. National Association, as trustee,
the court reversed a summary judgment which was entered on grounds not
even raised in the summary judgment motion.177 In doing so, the court found
that the bank lacked the documentation to properly establish standing, finding
that “incredibly, U.S. Bank argues that ‘[i]t would be inequitable for
[borrower] to avoid foreclosure based on the absence of an endorsement . . .
.’”178 In reversing summary judgment, the Fifth District established that the
traditional argument made by banks that “the borrower defaulted so who cares if we have the right documents” will no longer prevail in foreclosure actions.179 Moreover, the issue of standing, particularly in securitized trusts, will now be front and center stage in foreclosure defense.
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Angelo

Just to add to this thread, most county court houses have a law library and have attorney's on staff that can help out with the process.  They cannot give you legal advice but can show you how to file correct papers.  And if your court doesn't have this get to a legal aid office in your area.

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Regret,
Depend on your foreclosure case , it may be possible that you can get the sale voided and the judgment vacated if there are serious frauds. Consult some prominent lawyers in your area to check out if they can help you to get the house back.
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anon
I am at the very end of my foreclosure defense. My case is in appellate court. Knock on wood. Its been six very long years. I was not in default when countrywide filed the foreclosure complaint. Defending even when you know you are right is hard. I could still lose. I got a letter from BofA in July '11 telling me that my loan was actually owned in a trust where Fannie Mae was the the trustee. Even with that I had a hard time, with Countrywide's attorneys dishing on that. I have left a lot of skin in courtrooms. With that I want to say that it is not easy to fight. Its easier now than it was six years ago but its still hard.

Most of this was a complete waste of time and money on countrywide's start. The only people that might have come out ahead were countrywide's attorneys. Its going to come down to an issue of standing. Six years ago countrywide had so much money to burn they would  file a complaint over nothing, a payment dispute. Six years later this economy is in ruins, there has been a lot of collateral damage. Over what. Nothing.

I am still in my home. It means something to me. It means nothing to countrywide.You can't blame anyone for not fighting. A few people told me they took the option of short sales. They are bitter over that. They felt if the banks were going to take a principle reduction why didn't they let them take the it instead of selling to a third party. If that option had been available to me at the time maybe I would have taken it. This took six years of my life. Those are six years I will never get back.

At some point this government not obama is going to have to take the position of letting people stay in their homes and doing principle reductions.This is called a contraction or a haircut. If dear old Obama took this position he would not have to worry about reelection. So what if the banks need to take pay cuts. They lived well for a very long time.Surely they have savings accounts. Oh I forgot they don't.

All this to say don't blame yourself if you didn't fight back. You may find in a couple of years that either the bank will have to make restitution because the title is not clear.  I know of a couple of people who had Linda Green sign their releases of mortgage.
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Hi,I was wondering if anyone has go against the bank before they were in forclosure. Where they had there morgage paper gone thru and finding breaks in the title or any other paper work issues

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George Burns
Jen

I hope that you do realize the danger of starting an action with the bank before foreclosure based on finding errors in the paperwork?

If you claim that the paperwork is defective and the bank agrees with you, it could mean that the whole transaction is null and void. That would mean that they rescind the loan and you give back the house to the previous owner. No loan, no mortgage, no purchase. Is that what you really hope for?????
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I haven`t started anything I was just questioning if anyone else had done anything.The error I have found are with the securitasation

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anon wrote:
I am at the very end of my foreclosure defense. My case is in appellate court. Knock on wood. Its been six very long years. I was not in default when countrywide filed the foreclosure complaint. Defending even when you know you are right is hard. I could still lose. I got a letter from BofA in July '11 telling me that my loan was actually owned in a trust where Fannie Mae was the the trustee. Even with that I had a hard time, with Countrywide's attorneys dishing on that. I have left a lot of skin in courtrooms. With that I want to say that it is not easy to fight. Its easier now than it was six years ago but its still hard.

Most of this was a complete waste of time and money on countrywide's start. The only people that might have come out ahead were countrywide's attorneys. Its going to come down to an issue of standing. Six years ago countrywide had so much money to burn they would  file a complaint over nothing, a payment dispute. Six years later this economy is in ruins, there has been a lot of collateral damage. Over what. Nothing.

I am still in my home. It means something to me. It means nothing to countrywide.You can't blame anyone for not fighting. A few people told me they took the option of short sales. They are bitter over that. They felt if the banks were going to take a principle reduction why didn't they let them take the it instead of selling to a third party. If that option had been available to me at the time maybe I would have taken it. This took six years of my life. Those are six years I will never get back.

At some point this government not obama is going to have to take the position of letting people stay in their homes and doing principle reductions.This is called a contraction or a haircut. If dear old Obama took this position he would not have to worry about reelection. So what if the banks need to take pay cuts. They lived well for a very long time.Surely they have savings accounts. Oh I forgot they don't.

All this to say don't blame yourself if you didn't fight back. You may find in a couple of years that either the bank will have to make restitution because the title is not clear.  I know of a couple of people who had Linda Green sign their releases of mortgage.

Hi ANON-- Great job. Standing up to the big bad wolf is not an easy task. Did you fight your fight Pro Se? Please look on the financial side of your fight. Six years of no mortgage payments is something to celebrate.

I hope you get the satisfaction you are looking to achieve. Keep up the good fight.

 

Best regards

 

Acesfull

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