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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GreenHornet
Does anyone know of any cases that have successfully fought a foreclosure judgment that was granted 2-3 years ago and they are still in the property?

Thanks!

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     I am working on several where a judgement was entered in 2009 and they
are still in the home.
     The key is to file Ch 7 and use the homestead exemption to wipe out the
judgment. (In Florida where the HX is unlimited). One plaintiff tried to force
sell one on the court house steps even after a complete discharge, claiming
they had a lien from the inception of the foreclosure so it merged with the
judgment and it was not necessary to record a certified copy of the judgment to perfect a lien.
      Our answer was that it was a MERS mortgage so the mortgage got
separated from the note at the very beginning. Also the Note was not a
negotiable instrument, so it could not be transferred by simple endorsement,
it required an assignment of the mortgage, which never happened.
      Many plaintiffs are passing off an endorsed Note as a negotiable instrument, when in fact they are variable interest rate, have late charges
and various other "baggage" which prevent these Notes from falling into the
class of a "negotiable instrument" that can be transferred by a simple endorsement. We may have to appeal one case to a higher court on this
issue. In another case, we did a Ch 13 after the Ch 7 wiped out the judgment and offered the plaintiff 50% of the value to try and settle the
matter. So far, they have not rejected the offer.
      My stategy is to try and vacate a fraudulent judgment at the State
Court level first. That way you can list it as disputed on the BK forms if
the Judge rejects the argument. Next you file Ch 7 listing the property as
Homesteaded and the judgment as unsecured (which it is because of a
bogus lien at the outset of the foreclosure and a failure to perfect the
judgment lien by recording a certified copy in official records). Most of the
time, the plaintiff never even attempts to lift the stay and you never hear
from them again (or at least not yet). The defendant obtains a complete
discharge of the bogus judgment and gets to live happily ever after. (At
least so far).
      This is from "real experience" not theory, in the State of Florida.
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William A. Roper, Jr.
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GreenHornet said:
Does anyone know of any cases that have successfully fought a foreclosure judgment that was granted 2-3 years ago and they are still in the property?


The short answer is simply, "No".

An elaboration would be that possiblity for relief from a judgment would be highly dependent upon the laws of the jurisdiction.

The preclusive effect of res judicata and the public policy imperative that favors finality of judgments is almost universal.  Turn the question around and ask under what circumstances the plaintiff ought to be permitted to file a new suit if you had already totally won the case with a dismissal on the merits.  How often must you endure relitigation?

When thinking about whether and how to attack a judgment already three years old, it is important to bear in mind that in most places such a judgment would tend to only be vulnerable to attack where it could be shown to be void ab initio, not merely erroneous.

Again, whether a judgment can be shown to be void ab initio is going to be a matter of the law of the jurisdiction where the judgment was granted.

Some of the types of defects which might give rise to a finding that a judgment was void ab initio would be where the court lacked jurisdiction over the party defendant, where the court wholly lacked subject matter jurisdiction, where the court wholly lacked the authority to enter the judgment and a handful of similar instances.

In the very first category, cases where a court lacked personal jurisdiction, would be those cases where there was such a defect in the service or process or citation that the defendant was totally lacking in notice of the suit.  Notice is usually a due process imperative under the 14th Amendment to the U.S. Constitution and related due course of law provisions of many state constitutions.

Where a defendant did not know about the suit and a plaintiff failed to follow the express requirements of law to bring the defendant within the court's jurisdiction, a judgment might be found to be void.

But it is important to distinguish that where the plaintiff used all of the correct procedures, including substituted service through publication, etc., a defendant may be found to have had constructive notice even if the defendant never actually learned of the suit.  And where the recitals within a return of service affirmatively show valid service, a defendant is going to have a pretty serious problem showing that the service was not effected in the manner shown in the return.

*

In cases where there was a lack of subject matter jurisdiction, usually this would result in a void judgment only where the defect in jurisdiction could be plainly shown from the face of the order and implicate the authority of a court to make the order rather than an issue that might have been raised at trial or on appeal, but wasn't timely raised.

For example, suppose that a Court in Pennsylvania issued an order purporting to foreclose on real property located in Florida.  The PA court would usually lack the jurisdiction to enter such an order and this would generally be readily apparent from an inspection of the order without reference to the underlying pleadings.

Similarly situations can occasionally arise when different courts within a state are assigned jurisdiction over different types of judicial actions.  For example, in Texas, cases pertaining to land and title to real property is vested in the District Court.  A Texas Justice Court can hear cases relating to possession of property (such as a landlord tennant eviction or a unlawful detainer ejectment action), but not matters pertaining to the title to the property.  Therefore, if a Justice Court were to enter an order which purported to vest title in a particular plaintiff, this would probably be a void order for want of authority.

Similarly, suit in foreclosure over property located in one county when the authority over real property for that county lies in a different court (for example in another adjacent county) might result in a void judgment. 

Another such situation can arise where a court has no authority to enter an order because it has lost jurisdiction over the subject matter of the suit.

For example, suppose that a court, which had properly obtained jurisdiction first entered an order fully disposing of the case and further suppose that the losing party let the appeal period and the period to set aside an erroneous judgment expire.  In many places, this would divest a trial court of jurisdiction to alter its own judgments.  If, after this period ran, the losing party went back to the court and showed the court the error of its initial judgment and sought a corrective order, the corrective order entered AFTER the court lost jurisdiction might also be shown to be void ab initio because the court lacked jurisdiction to alter its own orders after the statutory period affording the court jurisdiction ran.

*

In distinguishing whether res judicata applies, bear in mind that the bar is typically going to arise as to relitigation between the same parties over the same causes of action and, sometimes, facts arising out of the same cause of action.  It might not preclude bringing a suit against some other party.

For example, suppose that a mortgage trust had obtained a final judgment in foreclosure.  While that judgment might be unassailable, a defendant might still have a valid cause of action against the mortgage servicer, the foreclosure mill law firm and contract forgers and perjurers within their employ.  But this wouldn't usually be an action to set aside the original judgment but rather an action based upon one or more of the torts of those who have injured the borrower.

*

THE REAL BOTTOM LINE IS THAT YOU WOULD NEED TO PRESENT THE PARTICULAR FACTS OF YOUR CASE TO A QUALIFIED ATTORNEY FULLY FAMILIAR WITH THE LAWS OF YOUR JURISDICTION.  IT WOULD HELP TO HAVE ALL OF THE CRITICAL DOCUMENTS AND FACTS AT YOUR READY DISPOSAL TOGETHER WITH AN EXPLANATION AS TO HOW YOU THINK YOU HAVE BEEN INJURED AND WHAT RELIEF YOU BELIEVE YOU ARE SEEKING.

You need to bear in mind that some issues are deemed waived if not timely raised within the proceeding.  And, like complaining of some unfairness or irregularity after teh ball game is over, it usually takes a pretty serious defect to alter the outcome after the case (or game) and all the more so after the season has ended.

If you are trying to have the team's championship crown withdrawn two seasons after the crown is bestowed, you are usually going to need something a little more significant than a bad called out sliding into home plate during a non-title game.
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Bill
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  I am working on several where a judgment was entered in 2009 and they are still in the home.
This is from "real experience" not theory, in the State of Florida.


Could you please post some cases?

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In another case, we did a Ch 13 after the Ch 7 wiped out the judgment


How do you file chapter 7, wipe all the debt, then file chapter 13?  Which case was this?

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and the judgment as unsecured (which it is because of a
bogus lien at the outset of the foreclosure and a failure to perfect the
judgment lien by recording a certified copy in official records).


Could you please post the cases that support a mortgage you legally execute and is promptly recorded when purchasing a home is "bogus" and how you fail to perfect the judgment lien by recording a certified copy?

Thanks
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1. I saw few cases in Florida where Homeowner got a Jugdment, fought it with Motion to Vacate Judgement. Motion denied, he filed Motion to Reconsideration. It was denied.  The whole process took about a year. He then filed Appeal. It took 1 year or more  to get Appeal Hearing. He lost the Appeal, case thrown back to trial court. Then he filed BK, fought in BK for many months. The house is still his. Not sure for how long more.

2. Recently I saw many cases with Judgment which are at standstill since last year. The Homeowner filed Motion to Vacate Judgment  due to Fraud on the Court, the Bank don't want to set hearing or force the sale. I guess the banks is now trying to figure out how to handle the bogus documents they gave to the Court. If they go forward, they may be sued with Wrongful foreclosure lawsuit. My 2 cents.

3.  Many cases are being voluntarily dismissed without prejudice by the Banks or dismissed by the Court due to lack of standing, can't prove ownership of the note/mortgage. Probably they may refile the foreclosure whenever they can prove their standings in the future. Some people gets unknown settlements .  Well,  at least for now the Homeowners can survive in their houses  to fight another day !! I guess they have good attorneys to help them.
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To have more precise information  , go online to the Clerk of Court website and check the dockets of foreclosure cases without sale dates or court issued Title Certificate  since 2007 in your state. Once you see which ones survive so long, note the case numbers.
Then go to the Court house and read the case files. Case files are public information.
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  Bill   Due to the fact that many of my cases are on going. I can not give
details on most of them. However, here is a foreclosure case I stopped
last week in Hillsborough County Florida. It was such a blatant case of
fraud that the judge agreed with me and stopped the sale. 08-ca-008983
Here is another from Pasco County 51-2008-ca-004181 ES. I put them here
because they are very instructive for researchers and no harm can come to
the defendants.
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Ann wrote:
To have more precise information  , go online to the Clerk of Court website and check the dockets of foreclosure cases without sale dates or court issued Title Certificate  since 2007 in your state. Once you see which ones survive so long, note the case numbers.
Then go to the Court house and read the case files. Case files are public information.


Thanks Ann I am a research junkie, rubs crook of arm looks longingly at drip I.V. solution of research, and had not thought of that method for elimination of unwanted or unneeded material.

I usually have taken the long way around my elbow to my thumb and written some small batch file to do a sift and sort of material I download or copy and then have a result to look towards. Your method is so logical and simple....see what too MUCH of an education can do for you? That and ADHD can help even an engineer do it the hard way wow can't believe after all the time I have spent doing some things damn....lolololol
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Another way to check out if the attorney you want to hire is good or not : go online to the Bar website member seach, look up his Bar ID number. Then go to the Court House , ask the clerk to see his cases and read them. Sometimes you can get the cases online by attorney's  name or ID number. Then check how many cases he won on cases similar to your case. Read his pleadings to see the quality of his pleadings.

You can also ask the Court Clerk his Hearing Schedules then go watch him at the Hearing to see how he argues his cases. Court Hearings are public, every one can sit in and watch them.

Some pro-se people doing research by looking at the cases of top gun attorneys to learn their strategies and case law. Or read the cases from the same Plaintiff Bank. I found one super Foreclosure  Answer with CounterClaim last week I want to share, The case was dismissed WITH prejudice

 
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Bill

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Some pro-se people doing research by looking at the cases of top gun attorneys to learn their strategies and case law. Or read the cases from the same Plaintiff Bank.



I think Ann's suggestion should pretty much be a REQUIREMENT if you are unable to get an attorney and are trying to represent yourself.   While it is doubtful that you can use these pleadings directly for your case, an easy list of case law, how it's cited, in what context, and the format used is extremely valuable. 

Reading the cases from the same Plaintiff is also just as important but I would add to try to find cases with the same Plaintiff attorney just in case they changed to a different attorney.  Most of these pleadings will be very similar.  It will help you prepare your responses in advance and have an idea of what to expect.  For a Pro Se drafting EFFECTIVE pleadings is very time consuming.  Researching the Plaintiff's case law is just as important as researching a defendant's.
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