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 Case Law Update

March 10th, 2010 · 2 Comments · Foreclosure

For a short period of time in Florida, pretender lenders and their attorneys had a field day in Florida courts, obtaining foreclosure judgments and title to property based on the flimsiest of evidence.  Now courts are aware of many of the problems with these files and lenders can no longer count on a free ride to the foreclosure auction.  Below is a sampling of case headnotes from recent circuit court opinions that denied foreclosure.  Judges in circuits across the state are now standing up for consumers (or at least for the rule of law) and requiring lenders to prove their right to claim the relief they seek.  A sampling of the headnotes follows:

Mortgages — Foreclosure — Stay — Foreclosure action is stayed until mortgagor has been afforded mitigation and modification opportunities of home affordable modification program

Mortgages — Foreclosure — Standing — Motion for final judgment of foreclosure denied — Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action — Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage — Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge.

Mortgages — Foreclosure — Complaint — Plaintiff has failed to state cause of action where partial terms sheet attached to foreclosure complaint omits details as to who gets paid, when and where payment is due, and amount of payment — Further, assignment that is dated after filing of suit is at variance with complaint — Complaint dismissed with leave to amend.

Mortgages — Foreclosure — Standing — Motion to dismiss is granted with leave to file new or amended complaint to allege that plaintiff is owner and holder of note and mortgage and to allege additional facts that support that allegation.

Mortgages — Foreclosure — Where note filed by plaintiff is endorsed but does not name entity to which it is made payable, plaintiff failed to plead in complaint that it is owner of note or mortgage, mortgage names entity other than plaintiff as mortgagee, plaintiff has filed assignment of mortgage executed and recorded after complaint was filed, and complaint does not demonstrate equitable assignment of mortgage to plaintiff before complaint was filed, plaintiff must amend complaint to allege that it is owner and holder of note and mortgage and identify documents upon which it relies to establish that it holds and owns note and mortgage

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2 Comments so far ↓

  • Greg


    Thanks for the re-cap. So many of the pleading deficits some Judges are only now catching simply did not exist before when foreclosure actions were fully pled and documented upfront. When I was involved in forclosure cases in the 1980’s and 90’s plaintiffs were proud to lay out their proof of loan ownership and their identity in the complaint. That they now play this game of hide and seek not only in their complaints but in discovery should alert any judge of serious due process problems that if ignored and not corrected will simply cloud our real estate title records. I call it “fundamental non-disclosure”. As a dirt lawyer writing title for the past 30 years the title defect caused by these deficit complaints are apparent on their faces and are never cured with the type of authentication necessary to clear marketable title standards. The conclusory form affidavit offered to and relied on by the judge, unwittingly, not only fails marketability standards, but fails to meet the test for admissability as evidence. Add this to the fact that the plaintiff never offers up proof of its chain of ownership of the mortgage loan in any other fashion and or fails to even sufficiently identify itself or it’s principal, the note owner, and the title to this property becomes even more obscured. Were I a judge I would simply make the plaintiffs, at inception of the suit, come out of the woods and declare themselves clearly and lay out the chain of mortgage loan ownership, with definition.

    That they don’t do it voluntarily, upfront – like the good old days -should be a warning, and a prompt for a judge to ask the simple and direct one word question: Why?


  • Ken

    I had a mediation last week in which the Plaintiff’s difficulty in proving its case went a long way toward settling the case. That wouldn’t have happened a year ago. In the end, both sides were happy. The rapidly evolving nature of foreclosure law makes these cases really interesting to mediate!


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Yesterday I posted that foreclosure filings in Pinellas County had declined significantly in February/March and frankly I wondered why….a colleague made a post elsewhere that smacked me between the eyes….
The Florida Supreme Court issued a rule, effective February 17, 2010, that required, among other things, that all complaints filed after that date be verified or signed before a notary public. (The Mills always used to plead, “Our complaint complies with the Florida Supreme Court Form 1.966 foreclosure complaint rule…..guess they’ll have to remove that paragraph from their form memo.)
As reported on my blog, the reason for this was the highest court in this land was sick and tired of the false representations of the mills. I’m going out of my mind because many of the firms are apparently just outright ignoring this order and they continue to file complaints that are not verified.
(As a ministerial matter, the complaints should be returned to the filing party by the clerk if they are not in compliance, no need for a motion…but if not the clerk, then certainly judges could return them and refuse to act on them.)
So I cannot figure out why the Court is just permitting their own rule to be ignored, but one thing is certain…in many cases nonone…and certainly not the attorneys filing these garbage complaints have the requisite personal knowledge to verify a complaint. One of the mills, Shapiro and Fishman in Tampa admits as much. They recently submitted comments to the Supreme Court admitting that they cannot find anyone with personal knowledge of the facts in their foreclosure garbage…stating:
“The loan servicer, would presumably, have that knowledge [as to the payment
status of the loan]… but likely would not have personal or direct
knowledge of other factual allegations [such as, who is the holder of the
The full comments submitted to the Supreme Court by Shaprio and Fisman are found here. As I’ve stated in previous posts, and I have posted the legal memos to that lay all this out, the “facts” that are being provided in support of Summary Judgment, specifically the allegations of amounts due and owing, are not “facts” that are based on the knowledge of the affiant–they’re inadmissible hearsay statements that are not even supported by copies of the hearsay evidence they purport to rely on.
This Shapiro and Fishman comments will be part of every affidavit challenge I raise against Shapiro and Fisman from now on….they should be in yours as well!


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messed over by L.L.C.

I was screwed over by Litton Loan Company I had a house they put it up for for closer after I had payed my notes. But according to them my notes made it late so It was returned back to me. So not only that but my loan was given to Litton from another company. When I was with that company my note stayed the same, but as soon as they transferred my loan to Litton Loan Company my payment went up every month where it became hard for me to pay and my late fee was constantly going up. So I lost my house.

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    05/10/10 at 10:28 AMReply with quote#1

hi my name robin and i,ve been fighting for my home since 2005 and i,m still in court as of today i have not payed a mortgage since 2005 cause of the thing i found out about my mortgage. at frist my mortgage was with airmortgage them they sold it to indymac and now i,m fighting my foreclosure to save my home. i have an attorneys who is doing great job, but sometime i think he is making deal with out me knowing about it,remeber i don,t know. the reson i,m wirting is to find more help to keep fighting my case, cause i,m running out of money but i,m not giving up nomatter what. what i need to do is open someone eye so they can see what is going on with my case their is so much fraud with this case that anyone can see it,but the thing i,m trying to do is keep this case going until someone notice what they did to me and my famliy i go back to to court on 7/22/2010 at 200pm in the daley build room 2801 so if their someone that can help i,welcome you. in my case i found out that i was over chager by 51,000 thousand and they i found out that me and my wife make,s 6,200 hundred a month but that not true i do my taxes with H & R BLOCK and one more thing the truth and lending
said we fail the loan three time so how did we get this loan, that what i like to know. well that all for now i,ll stay in touch and let you know what happen. call me if you what to know more 773-899-2404

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As a WAMU homeowner whose case was dismissed by tackling the WAMU fraud issues through Court Ordered Discovery and proper pleadings and affirmative defenses, knowing HOW TO WIN make the difference when fraud by the lender is involved.

Rob Harrington
Co-Founder - National WAMU Homeowners Support Group

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