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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The NH laws make it tough to fight the banks... But I'm trying hard.  They had my sale scheduled for early September 2010 and I filed BK to stop it...  Now that I've got it stopped I have to figure out how to beat it.

    479:25 Sale Under the Power. – Instead of such suit and decree of sale, the mortgagee or his assignee may, upon breach of the condition, give such notices and do all such acts as are authorized or required by the power, including the giving of a foreclosure deed upon the completion of said foreclosure; but no sale under and by virtue of such power shall be valid and effectual to foreclose such mortgage unless the following conditions are complied with:
    I. Notice of such sale shall be published once a week for 3 successive weeks in some newspaper of general circulation within the town or county in which the property is situated. In the event that the mortgaged premises are situated in more than one county, publication in a newspaper of statewide circulation shall be sufficient. The first publication shall be not less than 20 days before the date of sale, calculated by excluding the date of publication of the first notice and the date of sale.
    II. A copy of said notice shall be served upon the mortgagor or sent by registered or certified mail to his last known address or to such person as may be agreed upon in the mortgage at least 25 days before the sale. The term "mortgagor'' shall include the mortgagor and any grantee, assignee, devisee or heir of the mortgagor holding a recorded interest in the mortgaged premises subordinate to the lien of the mortgage, provided that such interest is recorded, at least 30 days before the date of the sale, in the registry of deeds for the county in which the mortgaged premises are situated. Like notice shall be sent to any person having a lien of record on the mortgaged premises, provided that the lien is recorded at least 30 days before the date of the sale in the registry of deeds. The notice shall be sent not less than 21 days before the sale. Such notice of sale shall be sufficient if it fully sets forth the date, time, and place of sale; the town, county, street or highway and street number, if any, of the mortgaged premises; the date of the mortgage; the volume and page of the recording of the mortgage; and the terms of the sale. Any mortgagor or record lienholder who refuses to accept or claim mailed or served notice or who frustrates attempts by the mortgagee to give notice of the sale by failing to give or leave a forwarding address or by other act or omission shall be deemed to be notified of the sale, provided that such mortgagee shall have made a good faith effort to provide such notice. Notice of the sale as served on or mailed to the mortgagor shall include the following language:
    "You are hereby notified that you have a right to petition the superior court for the county in which the mortgaged premises are situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale.'' Failure to institute such petition and complete service upon the foreclosing party, or his agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure.
    II-a. No claim challenging the form of notice, manner of giving notice, or the conduct of the foreclosure sale shall be brought by the mortgagor or any record lienholder after one year and one day from the date of the recording of the foreclosure deed for such sale.

    III. The sale shall be held upon the premises except where a different place of sale is agreed upon in the mortgage. In the event that the mortgage shall contain more than one parcel of land, the sale may be held on either parcel as may be specified in the notice of sale.
    IV. No foreclosure sale shall be invalid or ineffectual to foreclose a mortgage pursuant to this section if any party entitled to be sent notice and not sent such notice shall, either before or after such foreclosure sale, waive its right to have been sent such notice, or if the lien or interest of such party in the mortgaged premises shall at any time be released or discharged. A waiver of notice authorized or validated under this section shall be recorded in the registry of deeds in the county where the property is situated.
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William A. Roper, Jr.
FnDoomed:

I think you are focusing on the WRONG paragraph.  Read again and start from the BEGINNING:
479:25 Sale Under the Power. – Instead of such suit and decree of sale, the mortgagee or his assignee may, upon breach of the condition, give such notices and do all such acts as are authorized or required by the power, including the giving of a foreclosure deed upon the completion of said foreclosure; but no sale under and by virtue of such power shall be valid and effectual to foreclose such mortgage unless the following conditions are complied with:

. . .
That provision would appear to me to pertain to irregularities with the notice and conduct of the sale by an entity with actual authority to conduct such a sale.

*

If an entity is NOT the mortgagee or the assignee of the mortgagee, a stranger to the title as in Ibanez, then the deed would probably be inherently VOID, not just VOIDABLE.

*

I would encourage you to go back and read the NH cases on fraudulent or void conveyances, including forged deeds.  I cannot do this for you.

Perhaps I am mistaken.

But I would definitely research and brief this issue if I had a property in New Hampshire subject to foreclosure.

And IF they were proceeding on absolutely defective authority, I MIGHT just decide to retreat and let them complete their invalid foreclosure and reclaim the property sans mortgage six years later.

Note that Bankruptcy TOLLS limitations statutes.

*

In YOUR CASE, the die may already be cast.  You are already in Bankruptcy Court and have begun taking a position.  You MIGHT already be barred by res judicata from contesting the substitute trustee's deed later in a suit to quiet title.  FOLLOW YOUR ATTORNEY'S COUNSEL.

*

It should probably also be noted that the choice as to whether to stand and fight OR to retreat and counterattack should probably also be made in consideration of not only the law and the basic facts in the case, but also the economic realities as to the value of the property and the extent to which there is surplus or negative equity.

Where the property appears to be worth well more than the outstanding mortgage amount, an intervening bankruptcy filing may give time to get other unsecured debt discharged, rearrange cash flows and to make a strategic sale of the property.

By contrast, where the property is deeply underwater in respect of the outstanding mortgage balance, hanging onto the property may not really make a lot of sense.  Anyone who is expecting a rapid rebound in real estate prices is in for a sore disappointment.  The market is very unlikely to bail out most underwater homeowners any time in the next five years.

A borrower is faced with the question of whether to throw additional money and time at defending the foreclosure action.  If the prospects of a successful outcome seem particularly slim, a strategic retreat and counterattack may make the most sense.

One can expend time and resources to simply DELAY an inevirable foreclosure.  And faced with homelessness or uncertainty, this has more than a little appeal.  But if you press all of the defects in various defensive actions solely to DELAY, you are very likely to find that issue preclusion will preclude the relitigation of the matter later after the limitations period has run out.  And even if you WIN on these issues in the short term, UNLESS you can convince the court of the full measure of the mortgage investors' criminal culpability, you are likely to simply face a renewed private sale in which the purported mortgage investor simply CLEANS UP the various defects you identify.

Why take them to school?  Maybe it is better to retreat and bring these points in an action later when it is TOO LATE for the purported mortgage investor to REFILE!
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Yup, yup.  That language and the objections thereunder all fall into the "leave it a little murky and let them lie" strategy.   You are spot on as usual.

And equity?   No, not for at least 10 years is my guess.  My goal was originally to strategically default and delay.  I've done fairly well (for NH) since August of 2009 when I made this decision.

Once I saw their "evidence" the strategy has changed just a little. 

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William A. Roper, Jr.

Find some old NH cases on forged or void deeds.  You may be surprised at the little nuggets of gold that await you!

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     New Hampshire has a Homestead exemption of $100,000. It also has both
Judicial and non judicial foreclosures.
     The best thing to do is to get it into a judicial determination of the issue,
ie the entry of a money Judgment.
     After a money judgement is entered, THEN YOU FILE cH 7 AND LIST THE
PROPERTY AS HOMESTEADED AND THE JUDGMENT AS UNSECURED.
     The Note and mortgage cease to exist after the judgment is entered, so
there is no lien against the property. The reason the lien disappears is so it
can be sold on the Court House steps with a clear title to the next owner.
A judicial foreclosure action is similar to an action to quiet title in that it
removes all liens from the property.
      In bankruptcy, if the house sells for say $200,000 and you have the
homestead exemption, you should be entitled to $100,000 as long as you
filed your forms correctly, ie homesteaded and the debt as unsecured.
      Where people make a mistake is by thinking that a judgment is a lien
like a mortgage so they list the judgment as secured. The creditor then files
a motion to lift the stay and it goes back to the State Court to be sold
on the Court House steps where you will get back nothing.
      Most lawyers are ignorant on this subject so the owner loses the benefit
of the homestead exemption which was created for deflationary times like
these.
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Say more Mike.  I'm not sure how to apply what you're saying.  I have this homestead exemption of 100K.  I'm fairly certain that I signed a waiver of homestead on the day I got my mortgage.  I'm also fairly certain that building and all of its records burned to the ground.

I have no idea how to put myself in a judicial foreclosure in NH.  You get late, they send you a nasty letter, publish in a newspaper for 3 weeks, and sell your house from your driveway. 

If I don't want this to happen then I file a motion to enjoin under RSA 479:25.  If won, then the bank can't sell the house.  If lost or when lost, the judge just lifts the injunction and they sell your house.

I can also file bankruptcy.  I can file chapter 7 or chapter 13, but sooner or later under either chapter the debt is discharged unless I drop and dismiss the bankruptcy, and any in personam liability against me is erased.  I am in chapter 13 now and floating an objection to disallow the claim of the note against my mortgage.  I'm aiming to have the claim disallowed.

Erasing in personam liability does not erase the mortgage, NOR does it erase in rem actions against my property.  That's why most BK's still end up in foreclosure.  A judgment as to the un enforceability as to the note will also help in an in rem defense.

How do I make this work?

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More:  I just went and read my mortgage paperwork - homestead is waived on this 2003 Freddie Mac Uniform Single Family Mortgage or whatever its called...
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George Burns
As far as I know there is no way to waive a statutory right/privilige, especially in the manner you described.

From ALL that you have posted in the various threads, it is my humble opinion that you have gone off in a number of different wrong and irrelevant directions, seemingly based on a total misunderstanding of mortgages, foreclosure defense and, most of all Bankruptcy.

I sincerely and strongly suggest that you immediately seek the services of a competent lawyer who can show experience in using Bankruptcy to protect from foreclosure etc. You will not be able to prevail on your own or by directing the lawyer.
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William A. Roper, Jr.
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George Burns said:
As far as I know there is no way to waive a statutory right/privilige, especially in the manner you described.


George: 

The laws of homestead vary considerably from state to state and there is no right of homestead at all in many states.

In some states, homestead proections are written into the state constitutions.  In other places it is a matter of statute.

In those places where such waiver is expressly permitted, the standard mortgage or deed of trust language usually includes such a waiver.  The precise legal effects of such a waiver in a bankruptcy setting are unknown to me.

I do NOT pretend to have any particular knowledge of the NH statutes cited, but I do NOT find the assertion made above to be surprising, irregular or necessarily erroneous (though I also do not know it to be correct).

I AGREE that it is important to obtain legal representation of an attorney when filing Bankruptcy.  For my own part, I have never been involved in ANY bankruptcy proceeding aside from some consulting work in supoprt of the trustee of a massive railroad bankruptcy more than three decades ago.  I am well familiar with mortgages, having been in the industry.

I suppose those who have been through more than one bankruptcy before might feel emboldened to know their way around the courthouse.  I readily recognize my lack of knowledge in this area and would want to take the risk if I were in such a tenuous situation.
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More.  NH just makes it tough. 

    480:4 Exemption. – The homestead right is exempt from attachment during its continuance from levy or sale on execution, and from liability to be encumbered or taken for the payment of debts, except in the following cases:
    I. In the collection of taxes;
    II. In the enforcement of liens of mechanics and others for debts created in the construction, repair or improvement of the homestead;
    III. In the enforcement of mortgages which are made a charge thereon according to law;
    IV. In the levy of executions as provided in this chapter.

I could only find 1 case out of the NH supreme court where homestead helped and that was some poor woman whose husband forged her signature on a mortgage.

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George Burns

Why are you not looking at Bankruptcy cases? Isn't that where your focus  should  be?

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Oh I am.  When I read mike's post I went straight to my statues, then case law, then talked to my BK attorney to see if there was any merit to the ideas.
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William A. Roper, Jr.
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George Burns said:
Why are you not looking at Bankruptcy cases? Isn't that where your focus  should be?


George:

I think your suggested research emphasis might be misplaced.  While Bankruptcy is directly controled by Federal Law and Court Rules, the Federal Courts rely very heavily on state law as to many of the substantive issues, including issues such as homestead.

It is not at all uncommon for a Bankruptcy Court to certify a question to the State's Supreme Court to ascertain an uncertain aspect of STATE LAW for which the case law is unclear.

For example, take a look at the decision of the Arkansas Supreme Court in the case shown below:
Wetzel v. Mortgage Elec. Registration Sys., No. 09-1410, SUPREME COURT OF ARKANSAS, 2010 Ark. 242; 2010 Ark. LEXIS 287, May 20, 2010, Opinion Delivered,  THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
http://scholar.google.com/scholar_case?case=6376440945681035355
Litigants should be researching U.S. statutes and case law as to the Bankrupcy Court's filing procedures and requirements, the specific mechanisms and rules.  They should be mostly researching the laws of their own state as to substantive issues relating to claims and indebtedness, etc., including homestead issues.

A U.S. Bankruptcy Court decision regarding homestead laws of another jurisdiction may be of almost no precedential value whatsoever except as to how the court approaches the issue.
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