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
I have this idea that's been nagging at me, and this is for information and entertainment purposes only, so please don't kill me for voicing it, but:

Let's say I'm not in any trouble yet, but I can see it coming down the road at me.  I read the news.  I know a little about MERS and whatnot.  I read somewhere that as many as 20 million mortgages were SHREDDED.  I'm thinking that maybe mine was one of them.

Before the trouble gets here I want to do something a little proactive.  Think of it as a reconnaissance mission.

Can I file a quiet title just to test the waters?  I'm thinking I can go to court and file quiet title and wait for the initial evidence to come in and get a look at it, for "free". From that point I can hire some experts to look it over and tell me if I have a winning case or not.   If the answer is not, can I just say nevermind, carry on folks, and dismiss my case?

This seems like a good way to get the information I need (whether or not I can win) without actually being in the fight, all for the cost of some legal fees when the other lawyers bill me for wasting their client's time...

Thoughts ?

Quote 0 0
This is an Arizona perspective only.

While a quiet title lawsuit can be an invaluable tool in eliminating title defect issues on real property, it is not without risk to the Plaintiff. No one can guarantee that any lawsuit, no matter how meritorious, will be won. Even if a Defendant does not contest the lawsuit but, instead, appears and disclaims all right and title adverse to the Plaintiff, then pursuant to A.R.S § 12-1103 the Defendant shall recover his costs.

Fortunately, Arizona Law provides a procedure to minimize the risk of a Defendant recovering his/her costs. Plaintiff should comply with A.R.S. § 12-1103 (b) which allows the sending of a letter twenty days prior to the initiation of the Quiet Title lawsuit. That letter should enclose a quitclaim deed to the real property and the sum of Five Dollars. The letter demands that the Defendant execute and return the Quit Claim Deed. If this twenty day letter is sent and the Defendant does not return the signed Quit Claim Deed, then the Plaintiff is protected from an award of costs in favor of the defendant and the Court may award the Plaintiff in addition to ordinary costs, some or all of the Plaintiff’s attorney’s fees should a lawsuit be needed to resolve the issues.

I echo other commentators on this forum.  Why would you want to stir up a hornet's nest and give a nascent lender or agent a head start? 







Quote 0 0
Moose
NotSoQuietAnymore wrote:
I have this idea that's been nagging at me, and this is for information and entertainment purposes only, so please don't kill me for voicing it, but:

Let's say I'm not in any trouble yet, but I can see it coming down the road at me.  I read the news.  I know a little about MERS and whatnot.  I read somewhere that as many as 20 million mortgages were SHREDDED.  I'm thinking that maybe mine was one of them.


IMHO, and this is not legal advice, I would not gamble with your current residence on that assumption. I believe that number of shredded loans you cite is mythological with the exception of some percentage of fraudulently created loans.

In other words, depending on the originator, the appraiser, the RE agent(s) and the closing entity, you MIGHT have a fraudulently created loan that no one wants to "find."  That also begs the question of your potential involvement in obtaining that loan - especially if it was made on a now hugely upside-down property, if that is the case.

NotSoQuietAnymore wrote:
Before the trouble gets here I want to do something a little proactive.  Think of it as a reconnaissance mission.

Can I file a quiet title just to test the waters?  I'm thinking I can go to court and file quiet title and wait for the initial evidence to come in and get a look at it, for "free".


Again, this isn't legal advice, but that QT action won't be "free."  As soon as you file a QT action in state court, the servicer will automatically have their local foreclosure mill file a mortion to have the case removed to federal court. You may soon find yourself out-lawyered and exposed to paying their VASTLY INFLATED attorney fees.

NotSoQuietAnymore wrote:
From that point I can hire some experts to look it over and tell me if I have a winning case or not.   If the answer is not, can I just say nevermind, carry on folks, and dismiss my case?

This seems like a good way to get the information I need (whether or not I can win) without actually being in the fight, all for the cost of some legal fees when the other lawyers bill me for wasting their client's time...

Thoughts ?



You're not alone in this theory of how to find out if your enemy is armed and maybe even what they're armed with.  It seems so attractive that there are people promoting "how to" packages.

But there's only so much you can do with allegations couched in "upon information and belief"-styled allegations. A half-competent attorney will deny, deny, deny and demand "strict proof thereof" for each and every allegation you make.

How do you prove a negative?  Discovery is probably not as simple and straightforward as you might think.

The phrase "failure to state a claim for which relief can be granted" is probably one of the most common cut-and-paste phrases in the foreclosure-mill's word processors for cases where they're called on to defend the servicer; a pro se borrower in federal court is playing with super glue - the unexpected results can be damn near permanent.

Moose







Quote 0 0
Thank you for being kind.

Aren't I demanding that THEY prove something and it's me who can deny, deny, deny and tell them to show me their proof ??  And if they can't...

Also bear in mind that I'm not in trouble yet.  There are other roads open to me as well, I just like to think of all the options.  This one seems easy.   I know I'm completely ignorant about the law, but I'm an idea guy.

I like to pursue the ideas, hire the architect to draw the plans, hire the builder to build the plans, etc... If there are how too packages available maybe I can find something on the net that will let me assess the idea...

Thanks again
Quote 0 0
When you file a lawsuit (complaint), you have to allege various causes of action.  There is ample case law which requires you comply with certain pleading and notice requirements; i.e., the Defendant has to be able to determine from your pleading what your complaints are and what damages you seek.

You can't file a complaint that simply denies something.  For example, if you believe a lender or someone else has a claim to your property, you have to be able to affirmatively state WHY that person makes the claim they do and why your title is damaged.

Although other forum participants have stated your case would end up being removed to Federal Court, I respectfully disagree as the quiet title is a state statutory issue and would most likely be remanded back to your local court.

In any event, a QT complaint that does not give proper notice of your claim would promptly be dismissed upon motion of the defendant for failure to state a claim. 

As for discovery and a fishing expedition.  Won't happen.  In virtually all jurisdictions you have to at least get past the initial pleadings before another party is forced to bear the expense of discovery.

Because the QT is a statutory claim, you also face the prospect of a Defendant filing a motion to dismiss and demanding fees and costs.



Quote 0 0
Bill

NotSoQuietAnymore wrote:
Thank you for being kind.

Aren't I demanding that THEY prove something and it's me who can deny, deny, deny and tell them to show me their proof ??  And if they can't...

Also bear in mind that I'm not in trouble yet.  There are other roads open to me as well, I just like to think of all the options.  This one seems easy.   I know I'm completely ignorant about the law, but I'm an idea guy.

I like to pursue the ideas, hire the architect to draw the plans, hire the builder to build the plans, etc... If there are how too packages available maybe I can find something on the net that will let me assess the idea...

Thanks again


I think if you are planning on "PLAYING LAWYER" you are going to be in for a rough, EXPENSIVE, ride.  There is a huge difference between having no other option, defending yourself Pro Se rather than not show up and being a Plaintiff in a suit where the other party is well represented and you are not.  While most jurisdictions HOLD A PRO SE LITIGANT TO THE SAME STANDARDS AS AN ATTORNEY very often when you are the defendant they are hesitant to violate your due process rights and will listen to what you have to say.  A great number of Pro Se litigants are unprepared and do not understand the basics of the court procedure or what the judge NEEDS to make a ruling in their favor which causes a quick demise.  As the Plaintiff you are not going to get the same consideration.  If you fail to follow ALL of the rules, your case will get quickly thrown out by the opposing counsel and most likely you will be paying their fees which as Moose said could be considerable. 

It would seem to make more sense to HIRE A COMPETENT attorney to represent you and follow his advice, then waist the money Pro Se on filing fees and paying your opposition's attorney fees to "feel out" the bank/servicer.

I am not an attorney and this is not legal advice. 
Quote 0 0
Write a reply...