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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A friend of mine filed Chapter 7 BK around Nov 30th. The trustee sent a letter stating that a Motion to Dismiss without Pred was filed and will be heard on Jan 17th. Because he filed too soon since his last BK. He was allowed to file Dec 11th. In the mean time his HOA filed a motion for relief of stay. Today was the court date for that. He went in front of the Judge and it was granted. He tried to tell the Judge about the Motion to Dismiss but the Judge wouldn't hear a thing from him.....

Does anyone know if a motion to apeal can be filed and where do we find the forms?

Any input will be greatly appreciated.

cmc
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Moose
Please realize this isn't legal advice but the first thing your friend should do is find a local bankruptcy attorney.

You can appeal anything and the "form" is a typical legal "notice of appeal" filing to your district's BAP (Bankruptcy Appellate Panel) if there is one or to the Federal District Court. 

But you only have ten days in most districts to file it and it has to be persuasive (see first sentence, above). There have to be adequate grounds to appeal the decision and you have to elaborate on what part of the decision your appealing did not comport with the law.

In some districts the appeal also creates another automatic stay.

A simple mistake here could doom him or her.





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Moose,

Thank You For Your Response..

He has a hearing for the motion to dismiss in Jan. In your opinion, Do you think that he should file an appeal or should he just refile his BK at that time?

cmc
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Moose
cmc wrote:
Moose,

Thank You For Your Response..

He has a hearing for the motion to dismiss in Jan. In your opinion, Do you think that he should file an appeal or should he just refile his BK at that time?

cmc


If the appeal isn't filed within the deadline set by the rules it's meaningless. Again, this isn't an area where non-lawyers should be trying to operate. If he doesn't do something before the hearing, the HOA could wind up foreclosing.

Moose



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Moose,

A follow up with my friend who filed ch 7. Well, he refiled and included his home as unsecured, disputed. He also added the investors from the pool his mortgage is in. It was addressed to the SEC in Washington Attn: All investors Lasalle Bank Na, etc......

No one filed a motion to lift the stay. No one even came forward. He was just discharged of all the debt.

Now his foreclosure case is still in the county court. My question is should we ask for a hearing to dismiss the complaint due to the fact that he was discharged. What do you think???

cmc
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William A. Roper, Jr.

cmc:

First, I am going to repeat the refrain given by Moose above.  In Bankruptcy, a debtor would be very well counselled to obtain legal representation from a competent lawyer specializing in Bankruptcy.

Second, as a lay, non-attorney pro se litigant, without having researched this point at all, I am disinclined to believe that any discharge of indebtedness in bankruptcy is going to be effective as to any secured creditor which is not explicitly identified within the fling and notified in writing with an opportunity to present a claim, appear and defend.

Identification of a creditor as c/o the SEC seems to me to be very unlikely to cut it.

I would think that the creditor is going to have a very strong due process argument that the indebtedness is not covered by the discharge.

While this might be an interesting additional means of notification, in addition to listing and notifying the Lender of record in the public records (very often the original servicer), the mortgagee of record in the public records (e.g. MERS), and/or the last known servicer (as shown in the most recent "Hello / Goodbye letter", the mortgage investor is almost surely going to seize upon any actual or perceived defect in the identification and listing of the debt and/or notice to defeat any discharge in bankruptcy.

*

One additional note is in order that also underscores one of the reasons WHY your friend ought to consult a lawyer.  Representations made within the Bankruptcy petition might very well come back and haunt a debtor in the foreclosure action itself!  The petition might be presented as evidence.

So your friend is walking a legal tightrope.  The identification probably needs to be specific enough to give lawful and effective notice of the possible claim, without actually admitting the claim (if you are disputing the ownership and plaintiff's standing).

Again, a LAY, uninformed hunch, without having consulted the law or cases, would be that identification of one or more possible creditors, expressly identifying these using language to show that this entity might be asserting a claim, but without admitting to the debt would seem to be indicated.  For example:


Option One Mortgage Corporation, a California corporation
The Lender named in an alleged promissory note and alleged deed of trust dated June 1, 2005, in the amount of $100,000

Deutsche Bank Trust Company, as trustee of the Soundview Trust 2005-OPT2
An entity asserting a claim in a complaint filed in the Florida Circuit Court ... based upon an alleged promissory note and alleged deed of trust dated June 1, 2005, in the amount of $100,000, made out in favor of Option One Mortgage Corporation

American Home Mortgage Servicing, Inc.
A purported mortgage servicer claiming to be acting on behalf of a mortgage investor ....

Basically, list all of the reasonably possible claimants under the alleged indebtedness.  If there is another claimant unknown to you which hasn't been named in a RESPA "Hello / Goodbye" letter or shown in the records as an assignee of record, I think that your friend would have a very strong argument for valid discharge.

 


*

I am not suggesting that naming all of these is necessary.  What I am saying is that if you are trying to get a recognition of a discharge in Bankruptcy (which seems unlikely to me unless the mortgage servicer makes an enormous mistake) they are almost certainly going to claim that you named or served the wrong entity.  And if you name a single entity in the bankruptcy filing without qualifying, it seems to me that you may be admitting that this entity owns the alleged indebtedness.  If you named a single entity while qualifying and asserting that this entity did not own the indebtedness, you are making it easier for the mortgage investor to succeed in asserting that the wrong entity is named (in qualifying YOU would be asserting that this entity doesn't own the indebtedness).  By naming each possible entity while adding qualifying language, you would seem to be covering all of the bases.

If you wanted to ALSO name the SEC, I see little harm in that, but doubt that this buys you much of anything.

*

A special note is in order relating to MERS.  Courts in Arkansas, Kansas, and New York have found that MERS is owed no notice at all as "nominee" where the named Lender is served.  If you are trying to cover all of the bases, you might want to name MERS in the petition.  If you are in one of these states, particularly Arkansas or Kansas (the appellate courts in NY haven't affirmed the trial court's decision yet), you could always just name the named Lender and simply ignore MERS, either relying on these decisions OR hoping to extend the law in other jurisdictions.

You will be in the strongest position where you are able to obtain a final judgment and the appeal period runs.  The court is going to be least likely to disturb the final order where arguably adequate Constitutional notice was given.  Where notice was Constitutionally deficient, the order is possibly void at least as to the unnamed party.

*

A final thought (and yet another reason to consult a lawyer) is that prematurely pleading discharge in bankruptcy might be a bad idea IF it is possible to draw the foreclosure out and then plead the bankruptcy later.

Again, this is a legal tightrope and would need to be executed with precision.  Orders from most courts are subject to both appeal as well as being set aside for certain periods of time.  After these periods run, the orders tend to become final and unappealable.  If your friend obtains a questionable discharge in bankruptcy and runs straight to state court with it, it is quite possible that the creditor is going to head straight back to federal Bankruptcy court and get that order set aside.  If your friend is able to draw out the state court proceedings through valid, purposeful discovery, filing and determination of preliminary motions, etc., in some jurisdictions the answer may be amended later adding the discharge in bankruptcy.  Waiting until after the appeal period runs therefore makes some sense.

CONSULT A LAWYER AND DISCUSS VARIOUS POSSIBLE STRATEGIES WHICH ARE CONSISTENT WITH BOTH FEDERAL BANKRUPTCY LAW AND THE LAW OF THE JURISDICTION WHERE THE PROPERTY IS LOCATED.     

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"he refiled and included his home as unsecured, disputed"

The above refiling has no impact on the secured interest held by mtg unless the Bk so ruled.  I fail to see how this will have any bearing on the creditors ability to foreclosure, not withstanding other usual and potential issues of typical fraud in a foreclosure filing.

The fact that a creditor doesn't answer with pleading in a Bk 7 case does not have the same impact of a creditor not filing an answer in a foreclosure case.  A non-pleading of a secured creditor doesn't eliminate the secured interest in the property, hence the right to foreclose still exists following the discharge in Bk court.  The discharge only affects the debtors obligation to pay the debt, it in no way discharges the secured mtg of record.
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Howdy,

Bifurcation of mortgage and negotiable instrument (note) makes the note unsecured and makes the due on sale clause and the mortgage moot.  UCC 3. 

Securitization without your signature.

Adversarial complaint against purported holder, asking for proof of claim.  The BK Trustee may see the light.  This may place  a hold on the foreclsoure action.  Provided your Trustee will work with you.

Just a couple of thoughts to try to help.  I am by no means an attorney, I am pro se in my litigation and these suggestions come from my research.  Best to try and find an attorney. 

Best,
Bob 
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I think he'll be lucky if they just don't take his home. The thing about chapter 7 is yes it'll wipe out the debt. Someone should have filed to lift the stay. Or put in a proof of claim to be paid.
 
At any rate they could just let it go for back taxes. Until he works this matter out it should remain in his name. Unless they start a complete foreclosure process. But they will have to show something even if its fraudulent.
 
Usually a debtor in an attempt to keep their home will file a chp 13 in an attempt to put their arreages into a repayment plan. The negative thing about chp 7 is there is no arreage plan. Everything is due. In a chp 7 they should of had him to a reaffirmation of his debt in order for him to still be liable for the debt since its discharged.
 
If the court doesn't force the issue and he can make what were his regular monthly payments until they do get their head out of their wazoo he gets the benefit of gaining equity in his property (and ability to sell and reap the rewards)w/o the hassle if he eventually decides he can't afford it and just walks away. They can't put it on his credit either if the bk is discharged.

 
I know this is how they say to do it now but just where will it finally unravel? Has he gotten a pacer account to make sure they don't do anything sneaky? or verify what has been filed? Or checked the county records?
 
To me the trustees are usually useless. This may even require the trustee being sued with the way their doing things...This is no easy feat. If you do file an adversary remember they do have minons in the court house to remove court documents. They don't have to let an adversary proceed. Even if you have a valid adversary from an attorney they will just remove it poof...
 
So please make sure he's prepared either way to go forward somehow. This was an interesting tidbit I found in the legal lounge...The players may of changed but you can't change zebra stripes...lol...
http://www.msfraud.org/LAW/Lounge/Standing/Jenny_Rivera.pdf

 



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It would seem that the ideal time to have pushed the envelope was during the Bk case, prior to his discharge.  The Trustee (via the Bk Judge) has the power of a Fed'l court to enforce issues that he may have trouble getting done in state court.  The mere notice (passive approach as an unsecured creditor in the case) to the world with no response in the Bk court by creditors doesn't impact the secured interest of lien holders, so it appears that one day the mtg holder (whoever it - or they - is/are) will take up the foreclosure case again and press the issue and the moment of Bk court enforcement will have been lost, post discharge.  The future doesn't seem to bode well for the friend, barring some astounding other discovery.

Just my limited view, of course.
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Just an update on my friend who filed chapter 7.

He was discharged. And just a few weeks ago the Plaintiff in his foreclosure case sent him a letter asking him to get in touch so they can talk about a principal reduction.

He filed the mortgage as unsecured and disputed. No one filed a motion to lift the stay nor did they show up for the creditors meeting. Now that he is discharged they want to deal with him. But in my opinion he is discharged from that debt. Correct?????
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Sara
I was wondering how this was going to end up.  Thanks for posting.

I would love to hear the answers on your last question.  Can the mortgage holder go back to court to amend this?  Do they have any type of legal recourse since they didn't even show up for the creditors meeting?

S


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Yes cmc, he is discharged from the debt, completely.  No personal liability to repay.  The fact that lender is interested in discussing a principal reduction doesn't change that fact either.  They are likely just being realistic about the FMV of the property and realize that they may be better off having someone occupy the property and pay something, as opposed to empty and pay nothing.  Even incurring additional expenses too.

The facet of whether the mtg has survived is debatable and would need to be resolved in a Quiet Title Action.  I wouldn't give that argument a good chance of success, but others here may differ on that aspect. 

If your fails to address the request of the lender to discuss the principal amount the lender will likely foreclose, IMO.  The mer fact of discussing the balance due doesn't re-obligate your friend for repayment of the note, so I see little downside to holding the discussion.  Lets hear what others say; we all have our slant on this topic it seems.
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Sara:

FYI - A secured creditor is under no obligation to show up or answer a meeting of creditors.  The fact the creditor was listed as unsecured in the Bk petition, doesn't automatically make it so.  That issue must be decided by another venue.  The creditor undoubtedly still has a recorded (secured) mortgage in the local county courthouse and until that is dealt with, to either expunge or release the mtg, or rule upon the the unsecured nature of the paper, then it remains a secured debt.  Of course the debtor simply has no obligation to repay the debt since the debtor was discharged in Bk.  The only place the creditor can now look for repayment is from the property that is secured by the mtg in public record, unless the Debtor can somehow prevail on the argument of the note being unsecured.

I would like to see more on this case, especially as to the details on bifurcation of note and mtg.  
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The originator is no longer in business. As a matter of fact they are still in Bk since 2006.

The foreclosure party has not proved chain of title in the civil court. As a matter of fact; a 30 page discovery has not been answered in civil court. The last motion filed was to enlarge time to answer. It has been in limbo since. Then the Bk came. The Plaintiff was added as an unsecured, disputed debt as well as the Servicer, Plaintiff's attorney, SEC C/O investors per certificate series XXX, etc... And keep in mind all were included as unsecured and disputed.

So in my opinion (I don't know if I am correct), I think that if the Plaintiff decides to proceed, than the Circuit Judge should go by the law of the Federal Court, which means that the debt is discharged and they had their chance in Federal Court to dispute it. Not to mention that when a creditor for a mortgage asks the court to lift the stay, they now need copy of title, chain of title, etc..... So after asking for all of this in Civil Court, why would they want to open a can of worms in Federal Court, knowing that they couldn't even answer in Civil???????

Any input would be appreciated.

I almost forgot to mention that the law firm is a known firm in Fl and they are in the headlines of "Fraud, etc..."

cmc
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cmc:

Sorry, the Circuit Court should not and will not go by any of the filings in the Bk case because there didn't seem to be a ruling that would apply to the foreclosure case.  The mere issue of the Debtor filing the Bk and listing the creditor/debt as unsecured is meaningless.  Now if the Bk Coourt would have ruled on the issue then it would have some merit.

The mtg creditor, or any other, is under NO obligation to answer the Bk case.  If a mtg creditor felt completely comfortable with their position being one that is secured, there is technically no reason to answer the Bk case.  Now I am not saying that this particular mtg creditor thought so, and therein didn't answer, but the fact that they didn't answer has no bearing whether this is truly a secured debt or not.  That has not been decided based on what I read in your posts here, and NO decision by the Bk Court simply means that it falls back to the State Circuit Court to decide what is what in the mtg foreclosure case, as it should be.  Foreclosures are handled in state court, not federal court; (part of why Federal Judge Boyko in OH ruled as he did, he didn't want the Plaintiff to bring the foreclosure case into Fed'l Court to begin with, made that clear to them in advance and they defied his wishes... So they got the harsh decision they received). 

Sure the debt is discharged by the Bk Court but that only applies to the personal obligation of the debtor to repay the debt.  The Creditor may now only look to their secured interest, if in fact they truly have one, for repayment of the debt.  The Creditor/Plaintiff in any foreclosure case will now have to prove that they have the secured interest in the property, since none of that was decided in the Bk case, as far I can determine from your posts.  So it is game-on, should the Creditor decide to pursue the foreclosure case in State Circuit Court.

What am I missing here cmc?  Either there is more to the Bk case that hasn't been posted, which leaves me short on the facts, or you are reading more into the discharge of debt/debtor than exists via the Bk case ruling.  Which is it?

The fact that the law firm is linked to some of the fraud investigations isn't going to hurt your friends cause any; the firm will have to go the extra mile to prove the chain of title, if in fact they are able to at all. 
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Varoom,

You are not missing anything more in the BK case. I have posted everything to be said about it. So maybe I am not as educated on this matter.

Maybe that is the reason that they will not answer or even ask to lift the stay. Because they don't want to air their dirty laundry in the Federal Court. Including the forged assignment and the forged note as well as the substitute plaintiff.....

I do know that in the civil court, they have not been able to answer the discovery as of today. It was filed (If I am correct) in January or February. As a matter of fact as I said earlier, they asked for more time to answer, and as of today "Nothing".....

I do appreciate what you have said. This is why I post and read this Forum. I have learned so much here. I don't think that there is another Forum out there than can educate you as much as this one.


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Cmc,
 
This is my 3rd attempt to get this posting up....Twice when I was almost done yesterday I lost the posting bcuz of the internet. Not sure if it was the storm somehow affecting underground optic cables or someone monitoring me....
 
At any rate you state this in your very 1st post.....
 
A friend of mine filed Chapter 7 BK around Nov 30th. The trustee sent a letter stating that a Motion to Dismiss without Pred was filed and will be heard on Jan 17th. Because he filed too soon since his last BK. He was allowed to file Dec 11th. In the mean time his HOA filed a motion for relief of stay. Today was the court date for that. He went in front of the Judge and it was granted. He tried to tell the Judge about the Motion to Dismiss but the Judge wouldn't hear a thing from him.....

Someone needs to verify if your associate was in a chp13 then converted to a 7 or what...I don't understand them saying the motion 2 dismiss w/o prejudice over filing so soon from the last bk....
 
I've sat here and reviewed this over and over last night...
 
I don't think the TRUSTEE filed a MOTION TO DISMISS W/O PREJUDICE. I BELIEVE THIS IS A JUDGES RULING...That somewhere someone put A PROOF OF CLAIM TO BE PAID INTO THE BK COURT.
 
I believe the PROOF OF CLAIM HAD ERRORS...I also believe someone filed an OBJECTION TO THE PROOF OF CLAIM. That even the OBJECTION WAS RULED ON AND WAS DISMISSED W/O PREJUDICE giving the other party the opportunity to AMMEND their paperwork.
 
Therefore, if this was determined and another bk was filed why would any-1 come back to court regardless of the secured/unsecured game. Bcuz some-1 was already dismissed w/o prejudice. After a dismissal w/o prejudice somehow your supposed to be able to make claims in state court for them trying to wrongfully foreclose.
 
While I agree foreclosure's are state matters when one is facing a FC thru the bk court and sme1 has been dismissed w/o prejudice if he filed a 2nd bk there would be nothing to refile as they were already dismissed w/o prejudice and don't have the paperwork to ammend so they don't DARE to refile anything.
 
What they did by being dismissed w/o prejudice is a criminal matter. They came to court and presented something to be TRUE FACTS. This was later found out to be FALSE. This is BAD BAD FOR THEM. 
 
When I did my own chp 13 I had all this happen for a 2nd lienholder. Unfortunately for me I trusted my attorney. But he's as big a thief as the bankers he works for. As even my 1st mortgage wasn't endorsed properly into the next person in chain on the promissory note. This therefore should of made any assignment invalid. See when ARGENT/AMERIQUEST endorsed they didn't put pay to the order of whomever...They left it blank so how could it have ever been trasferred adequately from the originating trust?
 
There's many facets here. If the HOA got a lift of stay they can foreclose but still will have to go thru the notification process and sale b4 they can. Even with a lift of stay from the bk court.
 
Now as far as state court proceedings on a dismissal w/o prejudice at the federal  level I'm not sure what they do. I myself ended up having my home, auto  stolen for the way I can pay my bills if you ask me.

I went to court to TELL THE TRUTH since my ATTORNEY REFUSED TO and has belittled me from day one. I tried to stop the nightmare we now know in this world. I only then and now wanted a way to pay my bills. Yet that takes having a BANKER WITH A VERIFIABLE PRODUCT THAT CAN BE SOLD...At all levels of banking all I have endured is corrupt officials.

To me there should be no REFORM NEEDED...Except UPHOLDING EXSISTING LAWS! Attorneys will do everything in their power to make you out to be nothing. Presenting THE TRUTH does make JUDGES RECUSE. But even if you get two of them all you need is another corrupt judge and it means nothing to attempt to do the right thing!
They will just pass and recuse until they get a judge in they can buy off. Trust me my case is a sample of this happening. They refuse to answer questions. 


Like how do they know their trustees aren't robbing them blind with the judges endorsement? How no one can verify if a banker qualifies to purchase non-performing assets they can't find a valid seller of product even by going to one of these top world banks. What qualifies to not be ripped off...My guy with $150,000 per month to spend wasn't spending enough Citi wanted him to spend $3-4m per month. Then the guys with alot of money to spend say $10-50m per month on deficiency balance notes couldn't buy either. Not because they didn't qualify banking wise. But because Citi wanted to still be paid on notes they SOLD...SO WHAT IS THE DEFINITION OF SOLD?

Seriously, let me sell u my car for $5,000 then you sell it bcuz its a nice car for $10,000 then I want $2,000 back! This is what Citi wanted of my buyer with the 10-50m per month on the worse notes possible!
 
Then forget finding any legitimate private offers for anything banking related bcuz everyone is a wanna be banker w/a product to sell until you really verify everything....Then their all gone when you continually end up nailing people who present fraud to you. The banking and justice system is now unfortuantely the BIGGEST FRAUD WE HAVE.
 
And I'm sorry for everyone that says hire an attorney I say find msfraud.org, livinglies.wordpress.com, suijurisclub.net, Matt Weidner Law Blog, Foreclosurehamlet.org, and Creditslips.org. These sites will give u the ammo to fight. But remember their the biggest crooks of us all. Tell the TRUTH AND YOUR FRIVOLOUS AND DENIED...So now I get to bash the judges who under estimated what I told them and will someday be heard!



 
 





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