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
Just got in the mail today that the plainitiff deisres to vacate the foreclosure judgement in order to resubmit its motion for judgement.  It also mentions restoring parties to the positions they occupied prior to the entry of the judgement, including defendant's rights of possession and plaintiff's security interest in the underlying property.
 Any one ever hear of this before? If so how did they handle it?
I am making an appointment with my lawyer asap.
Quote 0 0
ka
Bruce:

BE CAREFUL!  If it is necessary to file a notice of appeal within a certain time period OR to extend the time for filing a notice of appeal by a timely motion to set aside the judgment, be sure that you do NOT let any deadline pass while you await the disposition of this new motion.

MAKE SURE that this motion was actually filed by the plaintiff.  Talking to the lawyer is a good idea.

But bear in mind that if YOU MISS A DEADLINE, even relying upon some representations in a letter, you may have WAIVED ANY RIGHT TO APPEAL, etc.

In many jurisdictions, the deadlines to file a notice of appeal or otherwise perfect an appeal are jurisdictional.  That means that in many instances, the appellate court cannot even consider an untimely filed appeal.  Also, most motions can be withdrawn.

So the plaintiff could file such a motion, let the deadline pass and then simply withdraw the motion.  DO NOT UNDERESTIMATE THE DISHONESTY OF THE FORECLOSURE MILL LAW FIRMS.

If the plaintiff is sincere in seeking the vacation of a judgment, your attorney can probably collaborate in submitting an agreed order.  Courts usually will sign agreed orders.

Bear in mind one other thing.  Trial courts also lose jurisdiction to alter or vacate judgments after a certain amount of time.  Also, in some places, court rules provide that post judgment motions are overruled by operation of law if not acted upon within a certain amount of time.

So if the plaintiff files a motion to vacate and you let the appeal period run, all the plaintiff has to do is let the time run on the motion, never actually scheduling it for a hearing.  The motion is then overruled by operation of law, the judgment becomes final and unappealable and you have been totally screwed!

If the offer is REAL, then the plaintiff will probably want to submit an agreed order to the court.  If they are NOT willing to present an agreed order, then the whole thing probably stinks to high heaven.

It IS, however, unusual for a plaintiff to actually seek to vacate an order of foreclosure UNLESS there has been some agreed modification, etc.  The only other circumstance where I have seen this unilaterally done is where the subject property has some major liability.

Most home owners are not aware, but real estate CAN have negative values!  Under Federal environmental laws, a property which has certain environmental hazards can subject the owner to the cleanup of the hazard.  By way of example, suppose that you had sprinkled radioactive cesium or plutonium across the property (NOT a real example, but colorful).  This would tend to render the property a toxic site and the OWNER could be held responsible for the costs of cleanup, etc.  (More common everyday example might be a leaky fuel tank at a retail service station or some other similar chemical waste.)

The cost of the cleanup can, in some instances exceed the otherwise fair market value of the property.

So IF there was some real and known hazard to the property, then a lender might be foolish to foreclosure, because the foreclosure would impose upon the foreclosing entity the cost and responsibility for cleanup.  This is a RARE occurrence.  But it is still illustrative.

A similar problem could arise if the foreclosing lender had a junior lien.  Suppose that the first lien was for $100,000 and the second lien was for $50,000, while the property was no worth only $75,000.  A foreclosure of the 2nd lien would tend to be subject to the senior lien.  (This is easier to contemplate in a non-judicial foreclosure setting.)

If the 2nd lienholder proceeds with a foreclosure of the second lien, taking subject to the senior mortgage, the equity is just going to get wiped out anyway.  Maybe the 2nd lienholder could justify bidding $1 at a private sale.  But even this can be problematic.  The second lienholder now owns a $75,000 property with a $100,000 outstanding first mortgage.  There is little upside to this position.

Now consider the downside.  With the completed second lien foreclosure come some other liabilities.  The real estate taxes will need to be paid.  Hazard insurance needs to be paid.  There is probably even some minor maintenance cost associated with the property and liability for failure to maintain (this is most easily seen in urban areas in the snow belt where municipal ordinances require owners to shovel sidewalks after a snowstorm, etc.).

A second lienholder acquiring the property through foreclosure subject to the senior lien has all of the liability associated with the taxes, insurance, snow removal, repair, etc., but is ultimately going to lose the property to a foreclosure by the first lien holder.

This would present a rather stark valid reason for a lender to retreat.  Re-read the plaintiff's motion for summary judgment carefully, but especially re-read the judgment critically.  From your post, this seems to be more than merely a request for the correction of the judgment.  IF REAL, it is more suggestive that the law firm KNOWS that it used perjured, forged or otherwise fabircated evidence and that this could be proven.  So look especially carefully at the evidence itself. 
Quote 0 0
Bruce
There are no 2nd lien holders.  Why would a bank vacate this? Was a mistake made and found by some other party such the OCC to which I filed a complaint with. But on my end when the OCC sent a letter to me they only addressed the loan mod.
Quote 0 0
ka
Bruce:

I think that you have answered your own question.  Your complaint to the OCC probably triggered a review and those conducting the review likely discovered that the judgment was obtained using perjured, forged or otherwise fabricated evidence.

If you conducted effective discovery in your case, you may now have the means of understanding the nature of the tainted evidence.

It is likely that the lender will seek only to vacate the judgment, but will then proceed with a foreclosure which doesn't rely in the same way on the tainted evidence.  You should carefully review the rules in your state, including the attorney disciplinary rules.

Attorneys have some duty to inform the court when they learn that evidence presented in a proceeding is tainted (duty of candor to the tribunal).  If you fail to press, you will at best achieve a delay.  By contrast, pressing the matter might very well result in some favorable settlement, since an aggressive exploration of the misconduct could result in some serious discipline of the attorneys involved. 

Misconduct of this sort could also result in a dismissal of the case with prejudice.  Although this is an exceptionally rare outcome, victims of this sort of abuse have in rare instances ended up with a free house.  (See In Re Sharon Diane Hill.)  Since it is the plaintiff voluntarily coming forward with the request to vacate the judgment, I am doubtful that this is a likely outcome, but this really depends upon (a) the temperment of your judge, (b) the nature of the fraud, (c) how you play your cards and the effectiveness with which you pursue the matter.
Quote 0 0
Thanks KA . What is interesting is in my complaint to the OCC I talked about how the bank has made a joke of the HAMP program. It was a statement not the complaint.  My actual complaint was about who actually owned the loan. They completely side stepped it. No mention of the actual complaint at all.  I sent a letter to another agency to try and get info on my loan. I have yet to hear from them. I do have confirmation that they received my request. I made absolutely no reference to a loan mod in it.

 I have a lawyer and I am meeting with him soon.  I am thinking about the best way on how we can handle this. 

Quote 0 0
bobbief
About 'free houses'. There is no such as a free house.  If a homeowner is responsible,
even in default, they have invested taxes, maintenance, and labor into the property.
The only time a house is free, is when an entity that has no skin in the game garners
enrichment through foreclosure on properties it does not have a right to.

Quote 0 0
Good point. I have been in my home for over 12 years and have had to refinance it twice and have made changes with additions too.. The 1st mortgage was a land contract. I was hoping that I would get some options from the brains in this forum. I don't know what my lawyer has in mind until I meet with him. This vacate request from the bank came as a surprise so we have to rethink things.  I know I should make my lawyer work for his money but this is my home I am trying to save and would like as many positive options as I can get to examine everything and then make an educated choice. Remember positive GB.
Quote 0 0
bobbief
Read all of your origination papers carefully,  as well as ALL documents after closure.
Check your local laws, regulations, and cases that are associated to yours in terms to
see if you can see where the foreclosing entity is headed.  Educate yourself, so you can
help your lawyer as much as possible.

This is not legal advice.

Quote 0 0
PMBVA
ka

I lost a Summary Judgement this week.

 I was the Plaintiff and the The Pretender lender and Foreclosure Mill were the defendants. I had representation  and filed a a law suit  prior to foreclosure being   completed . They foreclosed anyway and there  were no bidders and it went back to pretender lender. Judge ruled against us in this non-judicial state..

I have proof the foreclosure was recorded ( FRAUD ALL THE WAY) months ago and yet when the Judge asked if there had been a foreclosure the Defendant attorneys lied to the Judge! They said the home had not been foreclosed on...more to the story but is this enough for appeal?

Next they will file for unlawful retainer and eviction.



If I  have proof the attorney's lied in the case can I appeal ?



Quote 0 0
Bruce
I wish you the best. I have no answers for you. Wish I did.
Quote 0 0
ka
Quote:
I have proof the foreclosure was recorded ( FRAUD ALL THE WAY) months ago and yet when the Judge asked if there had been a foreclosure the Defendant attorneys lied to the Judge! They said the home had not been foreclosed on...more to the story but is this enough for appeal? 


One of the nuances about summary judgment is that in determining a MSJ, no evidence is usually permitted to be taken at the hearing.  All of the evidence is to be by affidavit or discovery responses, as well as the pleadings themselves.

So normally, something said by an attorney as to facts in a case before a court on a MSJ, is not admissible evidence.

It is unclear to me why this misrepresentation by the attorney would have been significant or material to the case.

If the case turned on this point, then an appellate court, reviewing the MSJ de novo in a properly filed and argued appeal ought to give this assertion no evidentiary value whatsoever.

Generally, if there was some point of evidence that you needed to have before the court in opposing the MSJ, you needed to get it in via affidaivt or discovery response.

That is to say that if there was a prior foreclosure, but you didn't submit any evidence of such foreclosure, then it didn't happen.  One key question is who had the burden of proof on the existence of the prior foreclosure.  If YOU had the burden of proof and failed to get any evidence into the record, then you could LOSE the case due to the absence of affirmative evidence as to this point.  If the lender bore the burden of proving that there was no foreclosure and failed to get evidence into the record as to this point, then the plaintiff might lose for failing to prove this point if it was a material central issue on which the plaintiff bore the burden of proof.

Attorneys have a duty of candor to the court.  An attorney usually cannot tell the court something representing it to be a fact if the attorney know it to be untrue.  But unless the attorney is under oath, the statement shouldn't be taken as evidence anyway, particularly in a summary judgment proceeding where there is no testimony taken.

If the attorney violates his duty of candor to the court and makes false statements in argument, in most places this is unlikely to form the basis for an appeal or the vacation of a judgment except in extraordinary circumstances.  By contrast, if it can be shown that false testimony was given under oath in an affidavit, deposition, interrogatory response, etc., this is usually a valid basis for getting a judgment vacated pursuant to Federal Rule 60 or its state equivalent.

One could separately file a disciplinary complaint against the attorney if he made palpably fase statements to the court, knowing these to be untrue.  You probably need to get a transcript of the hearing right away.  You also may find that the foreclosure mill law firm has fractionalized the case between two or more attorneys or similarly split the legal work between multiple law firms, giving the attorney the plausible deniability that he was unaware of the completion of the foreclosure which he will attribute to others, pleading ignorance.

I am not an attorney and this is not legal advice!  
Quote 0 0
Bruce

HMMM I think my post got hijacked

Quote 0 0
Experienced
Bruce and any other defendant faced with a situation where a plaintiff seeks the vacation of a judgment need to be keenly aware that if the court sets aside the judgment and restores parties to their previous positions, this almost immediately puts the defendant in a new precarious position.

For the defendant who failed to answer, the deadline to answer may well be long passed.  Only by the equivalent of a Federal Rule 6(b) motion or its state equivalent would an answer be accepted by the court at all.

Discovery periods are likely to have passed, as well.

While being given a second chance by the voluntary vacation of a judgment seems like a terrific opportunity, for anyone who failed to skillfully litigate their case prior to the original judgment, it also portends the possibility that the defendant is restored to circumstances quite dire, due to having missed prior critical deadlines.  These don't just go away.

Faced with these circumstances, anyone who fails to obtain counsel of a qualified attorney skilled in foreclosure defense, is a fool.  It is bad enough that a defendant faces long odds against a well funded, experienced and well represented adversary.  If deadlines have already been missed, it is like a little league team playing the World Series winners, spotting the major league team 20 points and then resuming the game in the 9th inning.

While winning may seem like an impossibility, little league players have very small strike zones.

GET A LAWYER!  FILE AN ANSWER WITH APPROPRIATE MOTION TO ENLARGE THE TIME.  INTERPOSE A MEANINGFUL AND EFFECTIVE DEFENSE.   
Quote 0 0
I do have a lawyer and he is filing and amended answer. No action from the bank since the vacate order was granted and the case was reopened. My lawyer has experience in foreclosure and fighting them but any suggestions would be welcome as we go along. I tried (before I hired the lawyer) to get the bank to tell us why they vacated the judgement but their lawyers sent a letter with an uncertified assignment of mortgage but did not answer my question.
 My case is somewhat ambiguous because I did file something that the court treated as an "answer".  Also, there was some discussion of a "summary judgment", which should mean that the case was originally contested. 
Quote 0 0
I have looking thru the past posts in this forum and still have not found a similar case to mine. Just wondering if any one knows of one. I am guessing having a bank vacate a foreclosure judgement is pretty rare. If one has happened before I would like to know the outcome or if they are farther along in the case I would like to follow it.
Quote 0 0
Write a reply...