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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Quoted (I think from the biggest fish in this pond:William Roper):

Related to the PSA, Discovery strategies, and the like:

"It appears that you are operating under the classic misconception as to WHY the plaintiff is stonewalling on the discovery.  You imagine this is because they do NOT have the necessary documents.
 
But that isn't the problem AT ALL.  The actual problem is that the production of the REAL documents will show the assignment to be a forgery.
 
They are NOT worried so much about proving their case.  That is actually pretty trivial.  Instead,  their big concern is how to prove the case without showing their criminal activity in the forgery, evidence fabrication and perjury.
 
When you can get your head around that and design effective discovery to really box them in as to their criminal behavior, you can WIN.  If you are focused on proving something that simply ISN'T TRUE -- that the transfer into the trust didn't take place at the trust closing -- then you will ultimately lose like most other pro se and represented litigants."

I could say that I almost "get it".

So this is all about how to ask the right questions. 

So far so good, but at this point: The specific questions must born from a very precise set of actual facts...My questions here is: Is there any "guide" to do this?,

Or its based in the specific case, one by one?

I am learning interesting stuff.    A little push here?

I assume that here will help a sound loan audit?, so I can ask the right questions
(or my lawyer can "ask the right ones")



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There isn't a single strategy guide because there isn't a single situation.  Everybody's situation is different and complicated by differing state laws.

I've seen a lot of confusion by people who think that proving the bank did something wrong will help them.  It won't.  The bank can foreclose on their ability to prove one fact.  Standing to do so.   They can acquire standing in a number of ways.  The good old fashioned way was to be the owner and holder of a valid promissory note that has gone into default.  All the frauds that you see are geared at presenting this illusion to the judge.

In my opinion, everything you do should be aimed at eliminating their standing.  The mortgage follows the note.  Period.  It doesn't matter what your mortgage says.  it doesn't matter who assigned what to whom.  It doesn't matter that transfers weren't recorded.  It doesn't matter if your mortgage was used to subsidize wall street or line the bottom of grand ma's bird cage.

So, they will present evidence to support their one fact.  Standing to foreclose.  Your game plan should be to refute that one fact.

This is another point of confusion that I see.  There is a difference between reality and facts.   Courts rule based on facts.   Facts need not have anything in common with reality.

Focus on the important facts in evidence.  The important fact is always "We have the rights to the note".  Nothing else matters.   If you're doing anything that is not aimed at eliminating that fact from the record then you are wasting your time, which can be a valid strategy but that's for a different thread.

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Bill
 
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In my opinion, everything you do should be aimed at eliminating their standing.  The mortgage follows the note.  Period.  It doesn't matter what your mortgage says.  it doesn't matter who assigned what to whom


While I agree with Doom, I think it is important to point out that a lack of standing will only DELAY a foreclosure.  This will not help you WIN your case or provide an incentive for the Plaintiff to settle in some form. 

IF you only focus on the Plaintiff's lack of standing AND are lucky enough to win this argument it will usually result in a dismissal without prejudice leaving the Plaintiff free to FIX their standing problems and refile with a stronger case.

If you can prove some kind of TILA violation or box in the Plaintiff in discovery to show they created fraudulent documents and presented them to the court to mislead you and the court it is possible that you will get a different result than a dismissal without prejudice.

Because the Plaintiff's procedures in transferring a note and mortgage to a trust are flawed, and they are lazy, the Plaintiff often has a PROOF problem.  This leads to the forgery and opens them up to attack on technical problems like capacity, conditions precedent, standing, ultra vi res, unclean hands,and many others.   




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Thank you for your response. I'm learning a lot

Your time and knowledge sharing is appreciated in great deal,

and Would be even better if William Roper shed more light in this.

(maybe I will need to beam a "batman-style reflector" in the sky to make
mr William Roper to participate here

All opinions are invaluable to me

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William A. Roper, Jr.
latavia:

It is ALWAYS essential to focus on the unique FACTS of YOUR CASE, the plaintiff's allegation and the laws of your jurisdiction.

There is no one size fits all defense to a foreclosure action.  And some strategies that might be effective may prove to be either uneconomic or unacceptable for a particular borrower/defendant because of differences in financial circumstances.

While most borrowers defending against a foreclosure are facing some economic distress, this is NOT universally true.  We have had several very vigorous MS Fraud Forum participants who faced neither financial adversity nor serious loss of value or equity, but rather were fighting a fraudulent foreclosure deliberately precipitated by criminal enterprises who manufactured a default (often through overpriced forced placed insurance or similar scams).

I am involved in a foreclosure in which the plaintiff and foreclosure mill law firms have made false pleadings, filed perjerous affidavits and engaged in other serious misconduct, but am in no financial distress at all.  Others would have mostly abandoned this fight some time ago.  I am resolved not only to WIN, but to see the perpetrators brought to justice and am doing pretty well!

*

Even when a borrower is faced with net negative equity, other borrower circumstances or ideosynchracies with state exempt property may make bankruptcy an unattractive or impossible alternative.

For example, since I am not in any financial distress, Bankruptcy is not a viable option for me at all!

Someone with reasonably good credit, net negative equity in a property and good cash flow may find it advantageous to strategically default and GIVE BACK a property, particularly when the property is NOT their residence.  Another borrower faced with a discontinuity in cash flow due to job loss or other adversity and the loss of their principal residence may want to fight for retention of the property for dear life, because the alternative is homelessness.

*

Note that these considerations are totally separate from the facts as to the execution of the mortgage, the nature of the default (if any), the purported mortgage investor's purported notices and satisfaction of conditions precedent, the allegations in a mortgage complaint and the laws governing foreclosure in that jurisdiction.

There are unquestionably circumstances where the borrower's best strategy is to simply walk away from the property.  And there are other circumstances where putting up a fight makes good economic sense.

*

There is an old adage about not throwing good money after bad.  The prospects of actually ultimately prevailing in a foreclosure defense are really very slim.  For a borrower facing economic adversity or distress, paying their last $$$ for a foreclosure defense lawyer when the outcome is likely to be the loss of the property can be an uneconomic proposition.

On the other hand, particularly where the value of the property is high and the equivalent rental would be quite expensive, some defense strategies which only DELAY rather than ultimately prevent foreclosure can be a fairly economic proposition where the cost of the defense in time and dollars is LESS THAN the equivalent rental cost of alternative housing.

Whether it makes sense to fight or give up can also be affected by both the likelihood of the plaintiff obtaining a deficiency judgment and the possiblity of ever colelcting on that judgment.  And the prospects for this vary a LOT from state to state.  And since such judgments can often be discharged in bankruptcy as an unsecured debt, for those who view bankruptcy as a reasonable alternative, the threat of a deficiency judgment can be pretty hollow.

*

The prospect of drawing out a foreclosure in judicial foreclosure states, through effective defense, bankruptcy and appeal, is actually pretty good in several of the judicial foreclosure states.  Prospects often are not as good in states where non-judicial foreclosure by private sale prevails.

*

I know of one Forum participant who lost a summary judgment in June 2008.  He appealed.  He has filed for bankruptcy twice, I believe.  He is still in his home and has won his appeal.  And we are coming up on three years since the judgment.  As I recall the allegation was that he had defaulted in the Autumn of 2007.

He has some pretty strong issues on re-filing if he can persevere and mount a successful defense in a renewed action.

This success in forstalling foreclosure is not without cost in terms of time, anxiety and disruption.  But from a purely economic persoective, his success as a pro se litigant is pretty striking compared to those who allowed a default judgment to be taken against them and dispossessed of their property in a matter of months.

*

Most active Forum participants haven't done as well.  A more common characteristic is those who drop in and out who have already lost their homes, but who share their insights and experiences.  If they had found the MS Fraud site and Forum sooner and taken greater care in their defense, they might still be in their homes.

Litigating pro se is quite a challenge.  For those who can afford a lawyer and who can find a competent foreclosure defense attorney, I would NOT recommend it.

Those who lack much formal education or who are less intelligent are going to have great difficulty in mastering the issues and the process in time to be successful.  Those who lack TIME, patience and discipline are going to have singular difficulty. 

By contrast, the bright, patient and disciplined who have an abundance of time may find a remarkable success.  Even greater success than the average foreclosure defense attorney!

I have recently been singularly impressed with several very recent Forum participants who have seemingly mastered a number of the arguments and who appear to be mounting particularly effective defenses.  I think that a couple of these will probably still be in their homes in a year or two and one or more might end up wining their cases outright, with a home free and clear of the mortgage.

This will require a remarkable amount of work, but I DO believe it to be possible.

By contrast, I have seen several Forum participants who were led down the path to slaughter by mediocre foreclosure defense lawyers with questionable judgment and poor understanding of the actual legal landscape.  I know of one who has apparently suffered a judgment in a case that should NEVER have been lost and which could probably be won on appeal by any really capable lawyer.

Regrettably, there are only a handful of really capable foreclosure defense lawyers and these are uncommonly busy.  So even mediocre foreclosure defense lawyers can be assured of a high volume of cases despite uneven results.

*

Keep the DETAILS of your identity and your CASE private.  But post questions which help you to obtain an understanding of your alternatives.  Read the older posts, even posts going back two to three years.  There is a wealth of useful material at the site.

There is also some uneven information, posts which are factually or legally incorrect, together with various conspiracy theories of all stripes.  Distinguishing the useful from the fanciful can be problematic.  But as you read and learn, the power of compelling ideas usually distinguishes these from the less compelling rants.  And when in doubt, ASK.  Watch as others take apart alternative arguments and implicitly VOTE on various conflicting interpretations.

What are your questions?
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That's what I am talking about.

So I assume that a Loan  Audit (from a respectable company), will likely to be fertile ground to make a good Discovery (assuming that such Audit will reveal enough
issues to do that)?

And assuming the Discovery will be done from a qualified person, in order to
"ask the right questions"

I am in the right direction?




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Speaking of excellent Foreclosure Defense lawyers, here are some elite Florida lawyers I know who are leaders in the Foreclosure Fights. Not only they win foreclosure lawsuits, they also know about Quiet Title :

Matt Weidner Esq., Graham Dillon Esq., Mark Stoppa Esq., Carol Ashbury Esq.,
Mike Wasylik Esq., Thomas Ice Esq.,Jacqulyn Mack Esq., George Gingo Esq., Chip Parker Esq.,Brian Korte Esq., Kevin LaMontagne Esq.  and many more. 

Talk to them before you make the decision to hire an attorney. First consultation is usually free.
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Ann:

By any chance do tou know any good lawyer in NY?

IN BROOKLYN AREA?
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I don't know very much about Foreclosure Defense lawyer in NY. My suggestion is that if you google Judge Schack rulings, look at the name of the Homeowner attorney in the case and call them. Or google "Foreclosure Defense lawyer" near you and talk to them. Go to interview them, check if they know about Foreclosure defense issues i.e securization, mortgage fraud etc.

After you narrow down to dozen good foreclosure attorneys, search their Bar ID number on the Bar website.  Then go to the court house and ask the clerk to let you see all their cases in the last few year. Lawsuit cases are public records. Read thru the files to see how they defend their clients and how often they win. Check with the clerk their hearing schedules and sat on few hearings to observe how they argue.

Still there is no guarantee that a good attorney can win your case. The outcome of a foreclosure lawsuit depends on several unexpected factors i.e the Judge, the attorneys and " favor du jour" (what is going on in the politics, the media etc). However, hire a foreclosure defense lawyer who "gets it " is a good start.

Best wishes.
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William A. Roper, Jr.
latavia:

If you are defending against a foreclosure in Kings County, NY, you are indeed FORTUNATE, as that jurisdiction is, without question, the single most foreclosure defendant friendly place in America.

Kings County is the location where Justice Arthur SCHACK sits on the bench.  But Justice SCHACK is NOT the only Kings County Justice who understands foreclosure fraud.  The entire Kings County Bench seems to fully appreciate the depth and breadth of mortgage servicer and foreclosure mill misconduct and criminal conspiracy in foreclosures.

MOST of the cases in which Justice SCHACK and other Kings County Justices have intervened have been UNDEFENDED with a borrower unrepresented by counsel, but this is NOT uniformly the case.  Many of Justice SCHACK's decisions are posted within the MS Fraud "Legal Lounge".  You can find other reported and unreported decisions online by searching the New York Courts decisions web site.

I would suggest that you READ these Kings County cases and see if a capable defense attorney is identified therein.  Separately, you might want to check the Kings Dockets for hearings involving foreclosures and simply ATTEND one or more such hearing.  If you can identify a date when several defended foreclosure cases are being heard, you could attend and observe the performance of one or more foreclosure defense attorney IN COURT.

*

Here are two additional critical points in respect of a NY foreclosure defense. 

First, DO NOT FAIL TO ANSWER the foreclosure complaint in a timely way.  If you fail to answer, a default judgment can be taken against you and it is exceptionally difficult to get a default set aside in NY State.

Second, when you answer, bear in mind that NY is one of several jurisdictions where the borrower is expressly required to raise any standing defense in their first defensive pleading.  IF YOU FAIL TO RAISE AND ASSERT STANDING, YOU MAY BE WAIVING THIS ISSUE.

FOR THESE REASONS, IT IS SINGULARLY IMPORTANT THAT YOU GET AN ANSWER FILED AND THAT THE ANSWER INCLUDE STANDING IF THIS IS TO BE ASSERTED.

NOTE:  I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE.  CONSULT A NY LAWYER IMMEDIATELY ABOUT YOUR RIGHTS! 
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