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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                   Foreclosure Defense Resources

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1.    File a Motion for Time Extension at the Court House before the 20 days Summons deadline to ask the Judge to give you  additional time to  search for the right attorney. Judge usually will give you 20 days or maybe more to answer to Foreclosure Lawsuit.

 

2.     Check out these Websites for more info and Foreclosure Defense Strategies

-         http://www.foreclosureprose.com ,  http://www.msfraud.org

-         http://livinglies.wordpress.com for  free legal advices and Filing samples

-         download this Foreclosure Defense Manual for free at http://www.msfraud.org/LAW/Lounge/BasicForeclosureLitigationDefenseManual.pdf. ; free legal advices at http://www.avvo.com

-         download samples of  Foreclosure Legal filing samples for free at http://www.msfraud.org/LAW/Lounge/DeutschevMassey/DeutschevMassey.html

-         Check out this Website http://www.foreclosure-fight.com for 23 Legal Foreclosure Defenses to beat the bank. If you order, use code 7KJ2JBE3 to get 30% discount. Wonderful book for Foreclosure Defense Strategies, Loan Audit .

 

3.  After reading  n. 2, you will have a general knowledge of the Foreclosure process, Foreclosure Defenses and all the Legal Options you have to go select your lawyer. Then interview several Foreclosure Defense Lawyers, ask them to give you details of what they are going to do for you for the Legal Fee they ask you to pay i.e Motion to Dismiss; Answer with Affirmative Denfense & Jury Trial;  Discoveries; TILA, RESPA Mortgage Forensic Audit  to find Bank Violations;  Opposition to Summary Judgment etc.

If the lawyer you interview only file a simple Answer , and go to the hearing on your behalf for Summary Judgment , it is not Foreclosure Defense, it is a waste of Money. A simple Answer does not stop the bank to proceed to get the Summary Judgment to sell your house at court auction. You want to have the chances to defend your home from foreclosure. You need a REAL Foreclosure Defense Lawyer with  solid strategies to defense you i.e Motion to Dismiss of Bank lack of standing, lack of jurisdiction,  Bank do not own the original note, the mortgage has been securitized etc,. ASK the lawyer for his   Foreclosure Defense strategies he uses to defense his clients.

 

Ideally, look for TRIAL Lawyer who has extensive experience in Real Estate lawsuit at circuit court, Appeal Court and Federal court. The possibilities and abilities of your Lawyer to bring the Foreclosure Lawsuit to Appeal Court and Federal Court will be a big PLUS for you to negotiate with the bank for whatever option you choose i.e loan modification, loan forbearance, short sales ; and maybe mortgage cancellation if there is violation of Consumer Federal Mortgage law from the Bank.

4.  If you don’t have money to hire a lawyer,  look for Legal Aid or  defend yourself Pro se. The Constitution allows you to defend yourself in court. It is better to file a Motion to Dismiss or an Answer with Affirmative Defenses than do nothing. Check the book “23 Legal Foreclosure Defense “and http://livinglies.wordpress.com , http://www.foreclosureprose.com; http://www.msfraud.org/LAW/Lounge/DeutschevMassey/DeutschevMassey.html   for free legal advices and samples of legal filings you can use. REMEMBER,  whether you hire a lawyer or choose to defense yourself Pro Se, always go to Court Hearings with your Court Reporter to document the Hearings in case you want to appeal later.

If you do nothing, you will lose your home. Fight the lawsuit,  you may have your chance to negotiate other options i.e loan modification, mortgage forbearance etc and maybe able to keep your home. Good luck. My e-mail is ocean11@the-beach.net   My Florida Foreclosure Defense Lawyer is Mr. D. Graham Esq.   Tel 305-445-9185.

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Foreclosure Pro Se.com

Leading Online Resource For Foreclosure Pro Se Litigants

Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning "for oneself". This status is sometimes known as propria persona (abbreviated to "pro per").

Florida is a judicial state when it comes to foreclosure. That means your lender has to sue you in court in order to foreclose on your property. In a non-judicial state such as Georgia, the mortgage document contains a "power of sale clause". The clause gives the lender pre-authorization to sell your property without a court order.  If you've just been served a foreclosure summon, do not panic. Your worst mistake would be to ignore it. If you do not respond to the complaint, you've given an easy victory to the mortgage company. Usually you have 20 to 30 days to respond; if you do not respond, a default judgment will be entered against you, and eventually you will lose your house. You must file an answer within that timeframe. Most people are intimidated by the judicial system. If you can overcome your initial fear, you will be immensely rewarded regardless of whether you win or lose. You must be prepared to leave behind the idea that a) the law is about justice b) that all attorneys are honest and follow the law c) that judges must take the side of justice. U.S judicial system is based on an adversarial contest between the plaintiff and the defendant. The judge has to be impartial to both parties. If the plaintiff cheats and lies in court, don’t expect the judge to raise the matter. It is the responsibility of the defendant to raise the issue. For that reason, you must be vigilant at all time and never trust the authenticity of anything the plaintiff attorney presents. Your weapon is the law.

To buy time, you can file a Motion for Enlargement of Time or a Notice of Appearance. You can ask for 20 extra days to file your answer. Sample pleadings are available on the Pleading section of this web site.
Call your county courthouse and get the contact info of the judge assigned to your case. Write down the name and address of the Judicial Assistance of the judge and the recording office of the court. Some courts allow you to file by mail; you can also go directly to the courthouse to have your documents filed. A copy of each filing must be sent to the plaintiff attorney and in some cases to the judge office. Call the judicial assistance for more information.

 

Anatomy of A Foreclosure Complaint

You've been served a foreclosure summon. That means the bank is suing you to get the property that secured your loan. With the summon, you will find the complaint detailing what you're being sued for.

The foreclosure complaint is made of several parts.

  1. Style of the case: this is the section that list the plaintiffs and the defendants. For example  "BANKSTER BANK VS JOHN SMITH";
  2. The case number;
  3. The title;
  4. An introductory  paragraph;
  5. Numbered paragraphs;
  6. Demand for relief;
  7. Certificate of service;
  8. A signature block.

How to Find a Competent Foreclosure Attorney

If you can afford an attorney, it is advisable to hire one to defend your foreclosure. The big “if” of course is affordability. Having said that, we should keep in mind that all attorneys are not created equal. An incompetent attorney can cost you money and your case; there are enough of them to be wary. Here is some advice in finding a good foreclosure attorney.

Once the initial foreclosure complaint is filed by the plaintiff, your name and address will become public record and will be available for mass mailing. You will certainly receive numerous solicitations from local attorneys. Armed with the solicitation letters, go to your county clerk web site and do a party search on some of the attorneys on your list. Some counties’ system allows you to do searches by parties; some systems do have that functionality. Once you’re able to pull a list of cases with the attorney as a defense counsel, check the docket entries. Has the attorney been fighting vigorously for his/her clients?
By reviewing a few cases, you can determine how good an attorney is.
Has he files any pre-answer motions?
Has he filed any affirmative defenses and counter –claims?
Was he persistent in his discovery method?
What is his win/lose ratio?

If you want more information beyond dockets review, go to the court house and request to see the files you’re interested in. Read the pleadings filed by the attorney. You can even make copies to take home. Once you feel comfortable with an attorney’s competence, then you should make the jump. There is no guaranty, but at least you made an educated guess.

Get Organized

As a pro se defendant, you can easily be overwhelmed by the sheer amount of information and papers being generated about your case. If you don't manage the flow of information efficiently and in a systematic way, you could make serious mistake down the road. One should purchase a) 1 1/2 binder b) 3 hole paper punch.
When you receive any document, punch and file it in the binder. That way you have everything in one place and easy to browse. You're going against professionals, so be professional in your organization.

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I am a legal assistant in a law firm in NY City that
"GET IT" EXCEPT # 6, 8, and 10 we are doing all the
points I would like someone to tell me what are points
6,8 and 10 and how to use them successfully. Someone
received today a notice of appearance from a law firm
although the foreclosure was filed on 09/29/2009 by a
Rochester NY law firm. The new law firm has 1100 attorneys
in 27 countries and is located in Manhattan NY It seems
to me that the first law firm is loosing and the new one
will follow the same path. Thank you to anyone with
helping hands for # 6, 8 and 10
Emmanuel

Foreclosure Defenses

1) Ask for the original mortgage and promissory note

2) Make sure a cost bond has been posted

3) Check that attorney has authority from the plaintiff

4) Challenge plaintiff standing

5) Check if plaintiff is registered to do business in your state

6) PLAINTIFF IS A TRUST

7) No Assignment was pleaded in the complaint

8) HOMESTEAD DEFENSE

9) Chain of title

10) No credit given on HUD for pre-paid tax and insurance

11) No disclosure of the real party funding your loan

12) Incorporation by reference is prohibited in Florida
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Emmanuel,
6. Plaintiiff is a Trust.
I guess that if the Plaintiff is a Trust, the Foreclosure lawsuit is illegal as Trustee does not have standing to sue.

Trustee for Investors: Powers and Limitations (with livinglies annotations)— Critical in Your Presentation in Court

The complete Trustee powers from a standard Pooling and Servicing agreement:

Section 8.01 Duties of the Trustee. The Trustee, before the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. In case an Event of Default has occurred and remains uncured, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments {items for discovery} furnished to the Trustee that are specifically required to be furnished pursuant to any provision of this Agreement shall examine them to determine whether they are in the form required by this Agreement. The Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order, or other instrument.{Thus the Trustee cannot vouch for any allegation or fact or instruction issued with regard to delinquency, default or foreclosure}

No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct.{This is why the Trustee can and should be named as a potential defendant in a demand letter and defendant in a lawsuit}

Unless an Event of Default known to the Trustee has occurred and is continuing:

(a) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Agreement, the Trustee shall not be liable except for the performance of the duties and obligations specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee, and the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and conforming on their face to the requirements of this Agreement
which it believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;

(b) the Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it is finally proven that the Trustee was negligent in ascertaining the pertinent facts; and

(c) the Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken by it in good faith in accordance with the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Agreement.{authority required from certificate holders — the real holders in due course}

Section 8.02 Certain Matters Affecting the Trustee and the Custodians. Except as otherwise provided in Section 8.01:

(a) the Trustee and the Custodians {note the TWO parties distinguished: Trustees and Custodians} may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties {items for discovery} and neither the Trustee nor the Custodians shall have responsibility to ascertain or confirm the genuineness of any signature of any such party or parties;{this means that nobody from Trustee has authority to sign a sworn affidavit or give sworn testimony in court since they need know nothing in their own personal knowledge, can rely on the statements of others (hearsay) and are not bound by the truth or falsity of any fact.}

(b) the Trustee and the Custodians may consult with counsel, financial advisers or accountants and the advice of any such counsel, financial advisers or accountants and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel; {more items for discovery}

(c) neither the Trustee nor the Custodians shall be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;{so they are admitting that if there is any break in the chain of title, any defect in the securities, negotiability of the instruments, or any payment received that occurred between any party on behalf of the borrower to any party on behalf of the investor, they will not and cannot vouch for authenticity of the alleged default, but they can “say” it. This is the difference between a letter and a sworn document or testimony}

(d) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by the Holders of Certificates evidencing not less than 25% of the Voting Rights allocated to each Class of Certificates;{Discovery item: did the Trustee make any investigation? If yes, what did they find out? If Yes, why did they do so despite the clear wording that says they didn’t have any obligation to investigate and obviously were not expected to perform one? If no, then are they not admitting they don’t know the status of the loan, ownership of the note, enforceability of the mortgage  or existence of the obligation?}

(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, accountants or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agents, accountants or attorneys appointed with due care by it hereunder; provided, further, the Trustee shall not be responsible for any act or omission of any Custodian;{Discovery: who were the agents, accountants or attorneys appointed? Who is responsible for the negligence, fraud or malpractice of the agents, accountants or attorneys? If there was such an appointment by this Trustee, how was it done? Where is the document that shows that? How do we know the lawyer in court is actually representing the Trustee, the Investors, the servicer or someone else?}

(f) the Trustee shall not be required to risk or expend its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it;{so how did the Trustee get its authority to proceed? Who gave it the authroity? Who is paying the Trustee, its agents, accountants and attorneys? Where are they getting the money for these payments? Is there any undisclosed third party involved (Champerty and maintenance, — yes it still exists)}

(g) the Trustee shall not be liable for any loss on any investment of funds pursuant to this Agreement;

(h) unless a Responsible Officer of the Trustee has actual knowledge of the occurrence of an Event of Default, the Trustee shall not be deemed to have knowledge of an Event of Default, until a Responsible Officer of the Trustee shall have received written notice thereof; and

  • (i) the Trustee shall be under no obligation to exercise any of the trusts, rights or powers vested in it by this Agreement or to institute, conductor defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificate holders, pursuant to this Agreement, unless such Certificate holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby. {THUS since the Trustee is NEVER deemed to have actual knowledge because the Trustee is required ONLY to rely upon the representations of others without doing any investigation on its own, it may never, in its own name bring a foreclosure action or order the foreclosure sale of any property. The certificate holders, unless they have received information from a source other than the Trustee (hearsay) are getting their information from the Trustee. Thus they are in no better position than the Trustee to know anything. This brings to the forefront the most basic rule of evidence: a witness must take an oath, have perceived something by their own senses, recall what they saw, and be able to communicate it. The real parties are the investors and the borrowers. Everyone else is just a middleman and none of the middlemen are taking responsibility for knowing anything, doing anything or vouching for anything. Only a party who can offer admissible evidence may sue for any relief. In no case we have seen so far, has any party ordered a notice of sale or filed a foreclosure suit with the ability to offer admissible evidence. They are using conventional thinking to get around the rules of evidence. And they don’t want anyone in court who really knows because if they tell the truth, the testimony will be that the parties in court have all been paid in full, received fees that were never disclsoed to the borrower or the investor, and that they have no idea whether the ivnestor has been partially or completely paid through reserves, colalteralization, insurance, credit default swaps or government bailouts. }

Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the statements of the Depositor and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or related document. The Trustee shall not be accountable for the use or application by the Depositor, the Securities Administrator or a Servicer of any funds paid to the Depositor, the Securities Administrator or a Servicer in respect of the Mortgage Loans or deposited in or withdrawn from any Collection Account or the Distribution Account by the Depositor, the Securities Administrator or a Servicer.{This is your authority for saying these people need to be brought to court to account for the money that was paid by the borrower and third parties and to account for the alleged assignemnts or negotiation of notes, whose terms were changed by the very act of pooling and then collateralizing within the Special Purpose Vehicle}

The Trustee shall have no responsibility for filing or recording any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder (unless the Trustee shall have become the successor servicer).{Trustee cannot even vouch that the security still exists, ever existed or whether it is still enforceable}

Section 8.04 Trustee May Own Certificates. The Trustee in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if it were not the Trustee.{Discovery item: did this happen? Where are these certificates now?}

Section 8.05 Trustee’s Fees and Expenses. As compensation for its activities under this Agreement, the Trustee shall be paid its fee by the Securities Administrator from the Securities Administrator’s own funds pursuant to a separate agreement. {Discovery Item} The Trustee and any director, officer, employee, or agent of the Trustee shall be indemnified by the Trust Fund against any loss, liability, or expense (including reasonable attorney’s fees) resulting from any error in any tax or information return prepared by any Servicer or incurred in connection with any claim or legal action relating to (a) this Agreement, (b) the Certificates or the Interest Rate Swap Agreement, or (c) the performance of any of the Trustee’s duties under this Agreement (including any unreimbursed out-of-pocket costs resulting from a servicing transfer), the Certificates or the Interest Rate Swap Agreement, other than any loss, liability, or expense (i) resulting from any breach of any Servicer’s obligations in connection with this Agreement for which the related Servicer has performed its obligation to indemnify the Trustee pursuant to Section 6.05, (ii) resulting from any breach of any Responsible Party’s obligations in connection with this Agreement for which the related Responsible Party has performed its obligations to indemnify the Trustee pursuant to Section 2.03(j) or (iii) incurred because of willful misconduct, bad faith, or negligence in the performance of any of the Trustee’s duties under this Agreement. This indemnity shall survive the termination of this Agreement or the resignation or removal of the Trustee under this Agreement. Without limiting the foregoing, except as otherwise agreed upon in writing by the Depositor and the Trustee, and except for any expense, disbursement, or advance arising from the Trustee’s negligence, bad faith, or willful misconduct, the Trust Fund shall pay or reimburse the Trustee, for all reasonable expenses, disbursements, and advances incurred or made by the Trustee in accordance with this Agreement with respect to:

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Judge dismissed Foreclosure Lawsuit brought by Trust for lack of standing and not a party of interest. Click on this link.

http://www.foreclosuredefensenationwide.com/files/Judge_Schack_Decision_Wells_Fargo_v_Farmer.pdf

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Sara
Wow, this is a powerful thread!!!

S
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Emmanuel,
Your post point 9: Chain of Title. Maybe the following info will clarify this point.
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I have received a number of reports that “outsource providers” are servicing the foreclosers by creating color copies of documents and submitting them as originals. One report is that the “original” was examined at the courthouse and found to be a printout from a very good color printer. It’s a neat trick and one that has probably worked many hundreds if not thousands of times.

This is in addition to the simple ABC’s of chain of title where these service providers create documents signed in one place, witnessed in another place and notarized in another place purporting to transfer a note, mortgage or obligation. You can usually tell that these were not created on the dates they purportedly show they were executed, if nothing else than by noticing dates or breaks in the chain of title. If Joe Smith owns the note and Mike Jones signs an assignment to Mary Simpson, there is a break in the chain of title. Get it?

The dates are important because many of the mortgage “originators” are bankrupt or out of business. The dates often conflict with their non-existence at the time of execution. Thus the person signing on behalf of that company could not possibly have had any authority to do so, the witnesses are probably faked and the notarization is obviously wrong or fraudulent. Some simple checking will probably yield the fact that someone in some unrelated company, possibly the law firm pursuing the foreclosure, signed on behalf of the mortgage originator as a “limited signing officer”.

Usually any signature on behalf of MERS is procured the same way since MERS has no procedure to verify the authority of anyone signing on behalf of MERS on any deed, assignment, or or any other document. From reports received, we believe that MERS has no more than 20 employees, virtually all of whom are IT people maintaining the database and processing or inputting data.
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        ANATOMY OF A FORECLOSURE
        -----------------------------

Watch this Powerpoint for info on Trust, assignment, chain of title etc
      http://www.foreclosureprose.com/storage/forms//ForeclosureFraudAnatomy.pdf
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