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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Adam
Argent mortgage failed to put the legal description of the property in the loan documents. It is not in the note nor the mortgage. Instead they used the street address.

The funny thing is there are three plots, one plot has the house, the other two are across the street and are undeveloped. 

The address is for one of the lots across the street.

Should make for an interested discussion of whether they have any rights to the house.


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Adam,

That's funny, I've been here all night reading, (not in regards to this post) about equitable rights and equitable liens. From my understanding of that doctrine or law they do have the right to perfect the lien to include the implied piece of property. The law allows for mistakes in paper work if they can show you were enriched by there equity. The hurdle of perfecting there interest is a matter of paperwork.

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William A. Roper, Jr.
Adam:

JF's take on this situation is pretty much dead on.  A Court, acting upon an application in equity can usually reform a contract to reflect the actual intention of the parties.

But the plaintiff still would need to put on that case and it could be messy and time consuming.

Moreover, it is unclear whether the plaintiff has even NOTICED this mistake, UNLESS you have brought it to the plaintiff's attention.

How to proceed depends heavily upon whether you are in a judicial or a non-judicial foreclosure state.  It also depends upon the statutes and cases of your jurisdiction.

You really need some good legal counsel.  But BEWARE.  There are MANY, MANY dishonest attorneys in addition to a few really capable an upright lawyers.

The lawyers in regular practice are very often going to view YOU as a single non-recurring client, while their relationship with judges and other attorneys with whom they regularly practice can be more important.  And you never know when an attorney you approach is going to turn out to be a roommate, law school buddy or fraternity brother of your adversaries!

CHOOSE YOUR LAWYER CAREFULLY!

My impulse would be to research the hell about the equitable aspects of reformation of the mortgage, while NOT bringing the defect to the attention of either the purported mortgage investor or the court.  To the contrary, UNLESS they have NOTICED the defect in the property description, I would tend to just let them bring the foreclosure action and then resist upon other grounds.

If they fail to NOTICE and appreciate the defect within the property description, at the very end of the foreclosure, they might discover that they have successfully foreclosed on a vacant lot.  ANd tehn they might need to start over again.  Moreover, some of the rules on mandatory claims and counterclaims could be used against them.

Bear in mind that your mortgage application, the appraisal and other loan documents can probably be used against you.  MOREOVER, YOU ARE PROPBABLY YOUR OWN WORST WITNESS IN RESPECT OF THE INTENTION OF THE PARTIES.  If the origination was in the name of another Lender or entity, particularly an entity now defunct, they will have a hell of a time authenticating documents and setting out what the original intention actually was.

So getting yourself through the discovery period WITHOUT having been subjected to discovery run by the plaintiff could be singularly helpful.  And, UNLESS subpoenaed, it is extremely DISADVANTAGEOUS for you to actually attend a civil trial on this matter.  Parties to civil litigation are NOT typically required to attend a trial UNLESS SUBPOENAED.  If you show up voluntarily and they put you on the stand, YOUR testimonial admissions are very likely to cure all of the evidentiary deficiencies of the case.

READ THE RULES AND CASES FOR YOUR JURISDICTION.  ASK YOUR LAWYER ABOUT THIS, BUT DO NOT EXCLUSIVELY RELY ON HIS UNRESEARCHED REACTION.  MOREOVER, NOTE THAT ALL IT TAKES IS HIS INFORMAL PHONE CALL TO THE PLAINTIFF'S ATTORNEY AND THE SUBPOENA WILL APPEAR.  THEN YOUR ATTORNEY AND THE PLAINTIFF'S ATTORNEY CAN GO GOLFING TOGETHER.

YOU NEED AN ATTORNEY OF THE UTMOST TRUSTWORTHINESS!

Note that there is language within both the promissory note and the mortgage or deed of trust that expressly states that these instruments reflect the entire agreement of the parties, etc., and that the instruments supersede any other oral or written representations.  At the appropriate time, you can interpose these provisions.

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You may want to carefully consider whether you want to CHANGE THE ADDRESS SHOWN on your property.  To the extent that you have been using the address of the property across the street and this is physically SHOWN on an address marker on the actual structure, you have set up the very best possible evidence for the other side.

A photograph of the address marker on your structure and the testimony of a real estate agent, appraiser and/or property inspector that upon visits to your property that they found the address shown within the instruments to be displayed upon teh structure and it seems to me that you have handed the plaintiff the evidence it needs to resolve the ambiguity.

IF you change the address, you might want to not only properly mark the lot which reflects the structure (possibly in more than one way), but also ADD an address for the two vacant lots.

It seems to me that it is more important that the properties be correctly marked than how conspicuous the markings are.

Changing the indications is a double edged sword, though.  It is not at all uncommon for the purported mortgage investor to hire an appraiser, real estate broker, property manager and/or inspector to periodically physically inspect the property and to report back on value and condition through a so-called "Broker's Price Opinion".

If the inspector/broker has difficulty finding the property OR notices a change in the address shown, this migth get included within the report.  Moreover, this inspector may be taking photos and the before and after photos could be used against you.

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I would be inclined to resolve this problem in several ways.  First, I would absolutely get the INCORRECT ADDRESS OFF THE LOT WHICH INCLUDES THE STRUCTURE.  I would ADD my NAME to the mailbox on the structure in a conspicuous way.  I would probably also ADD the street address to the structure in an inconspicuous way.

I would carefully notify all correspondents of the correct (new) address.  I would orally call the postman's attention to the new address.

I would be very careful about how many records I kept of the address change.  I would direct others to make the correction to the street address ORALLY whenever possible.  Take special care in changes to tax bills or utility statements which may in some cases be public records. 

I would think that a unified tax assessment or tax statement that charges taxes together on ALL of the properties while showing a single address (as it appears on the mortgage) would be particularly troublesome for you.

I would probably also mark the vacant lots with the address of each.  And I would consider setting up a MAILBOX on the vacant lot which reflects the address shown on the mortgage documents.

This makes it possible for you to receive mail misdirected to the address of the vacant lot.  It also rather starkly sets forth that this is a different property.

Bear in mind that none of this alters the INTENTION OF THE PARTIES at the loan closing, but it makes it far harder to make out a prima facia case that the loan documents describe the valuable lot with the structure.

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There are other PERILS to consider.  Many states have homestead laws that allow a particular property to be designated as a homestead and to qualify for homestead protection.  If the declaration of homestead was framed with respect to the INCORRECT address, you might have no homestead rights in the property containing the structure!  And a unified tax assessment or tax statement might be useful to keeping all three properties under a single homestead protection on the theory that this is actually all a single property bisected by a street.

Similarly, you DO need to verify that the property description is CORRECT on your DEED.  What is good for the goose is good for the gander.  You need to take care that your recharacterization or redesignation of the property address does NOT impair your valid ownership interest in the property OR the validity of your homestead expemption.

If the homestead exemption shows the incorrect property address you may have a very serious problem.  The extent to which this could be cured by a new and belated homestead declaration is UNCLEAR.

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Your ability to creatively react and respond to the situation also somewhat depends upon your actual default situation.  If I found myself in this situation, I would try to clean this up BEFORE default.

I would AVOID showing ANYONE YOUR CARDS and be particularly guarded about what information I shared or posted.  BE CAREFUL.  The sooner that the error is noted and addressed, the better the position of the mortgage investor.  AVOID CROWING ABOUT THIS.
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Adam
Thanks William for the sound advice...

My biggest battle at the moment is finding a qualified attorney.. The case has been removed from state court to federal... and the estimations of attorneys fees has gone from 5k to 40k... and lets face it.. if I had 40k.. then I wouldnt be posting here..

What a shame that in this country justice seems to be only for those that can pay the price..

So at the moment, we slug along... Going it on our own.. Praying that the landmines placed before us are not stepped on..

Prayers and any other advice is greatly appreciated.


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Adam
Just for clarification..


Property has been foreclosed on.. in a non-judicial format.. in a dual state.. Sheriff sale has already occurred.. Now in the 6 month restatement phase.

We are the plaintiffs.. sued the defunct mortgage company, servicer, trustee, securitized trust and the lovely lady who signed the assignment.. oh and also sued the foreclosure mill attorneys...

And defendants have removed the case to the federal court system. 

While looking for attorney that is willing to take the case, also doing extensive research on fed court rules and procedures to determine what the next step is.

Like I said before prayers and words of wisdom are both appreciated.
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Adam
Just for clarification..


Property has been foreclosed on.. in a non-judicial format.. in a dual state.. Sheriff sale has already occurred.. Now in the 6 month restatement phase.

We are the plaintiffs.. sued the defunct mortgage company, servicer, trustee, securitized trust and the lovely lady who signed the assignment.. oh and also sued the foreclosure mill attorneys...

And defendants have removed the case to the federal court system. 

While looking for attorney that is willing to take the case, also doing extensive research on fed court rules and procedures to determine what the next step is.

Like I said before prayers and words of wisdom are both appreciated.
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William A. Roper, Jr.
Adam:

If you are telling me that a non-judicial foreclosure of a property described within the deed of trust with only the property address of a vacant lot across the street from the structure has already occured, I am totally NOT GETTING why YOU are suing.

It seems to me that this is the WORST possible strategy, because YOU necessarily ASSUME the burden of proof as to your allegations.

A substitute trustee's deed which seems to only describe the property by the street address of a vacant lot seems to me to NOT give the plaintiff a very good title.

IF you are still in possession of the property and all they have is a substitute trustee's deed, I would be inclined to simply NON-SUIT the litigation and wait for them to try to bring an unlawful detainer/ejectment action.

IF I had already LOST possession of the property under these circumstances, I would probably withdraw the suit and go into a deep defilade and WAIT for the limitations period on a suit on the defaulted note to run.  AFTER limitations had run, I would bring a quiet title action to recover the property with the structure in respect of the defective substitute trustee's deed.

WHEN YOU BRING A LAWSUIT, YOU HAVE THE BURDEN OF PROOF.  WHEN THE PURPORTED MORTGAGE INVESTOR BRINGS THE SUIT, THEY BEAR THE BURDEN OF PROOF.  GETTING YOU EJECTED BASED UPON THE DEFECTIVE PROPERTY DESCRIPTION IN THE DEED SEEMS PRETTY SPECULATIVE.

NOTE:  I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE!!
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Adam
There are three lots, all under one deed..

While the Note and the Mortgage do not have the legal description of the property the Sheriff's deed does have the legal description.

YIC

Adam
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William A. Roper, Jr.
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Adam said:
There are three lots, all under one deed..

 
Are you saying that the deed TO YOU granting you the original interest in the property consisted of a single deed?
 
If so, this seems to me to be very bad for you!
 
Or are you merely stating that the Sheriff's deed grants all three parcels?
 
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Adam said:
While the Note and the Mortgage do not have the legal description of the property the Sheriff's deed does have the legal description. 
 
I am a little perplexed by your mention of a Sheriff's deed.  A Sheriff's Deed suggests some involvement of a public officer.  Most non-judicial sales do NOT use a Sheriff, but instead involve private sale by a trustee under a private power of sale.
 
A Sheriff's deed is more typical of the situation wherein there is a judicial foreclosure and after obtaining an order of sale the sale is accomplished by a sheriff rather than a master commissioner (Ohio) or a referee (New York).
 
Most private sales are totally reliant on the verity of the private sale process to the laws of the jurisdiction and the express terms of the deed of trust. 
 
In many places, a substitute trustee's deed would probably be VOID if it described a DIFFERENT property than that set forth within the deed of trust.
 
Where a Sheriff is involved, this is less clear.
 
Something about the facts as described seems inconsistent with the laws of most jurisdictions.
 
IF THE DEED CREATED THROUGH THE PRIVATE SALE IS VOID RATHER THAN VOIDABLE, YOU ARE VERY LIKELY GOING TO REALLY REGRET BRINGING THIS SUIT, AS, AT BEST, YOU HAVE PROBABLY ONLY TAKEN THE PURPORTED MORTGAGE INVESTOR TO SCHOOL SHOWING THEM HOW TO DEFEAT YOU.
 
By contrast, if the Sheriff's deed is actually VALID and only voidable rather than VOID, I would think that you now have quite an UPHILL fight on your hands and that the prospects are not very good.
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Angelo

Another great Roper lesson, thanks!

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