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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Hi,

Do any of the TILA knowledge ones inthe group know the answer?

I am at a law library in California.  Huge place with lots of books. 

Can't find anything in the Practice and Pleading Guides on TILA or under Truth in Lending Act.

Does that mean the issue cannot be tried in a state court?


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ED
Barbie wrote:
Hi,

Do any of the TILA knowledge ones inthe group know the answer?

I am at a law library in California.  Huge place with lots of books. 

Can't find anything in the Practice and Pleading Guides on TILA or under Truth in Lending Act.

Does that mean the issue cannot be tried in a state court?




TILA is a federal law. Even if you filed a TILA action in a state court they'd remove it to federal.



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TILA is a federal law. Even if you filed a TILA action in a state court they'd remove it to federal.


Hang on, that's not necessarily accurate.  Even if a pleading has Federal subject matter jurisdiction, "if"' you have a local Defendant, i.e., one who is a resident or citizen of the State, yuo can not always remove at will.

Of course, if it is removed, you just motion to remand and show that the 'local Defendant' wasn't fraudulently joined for the sole purpose of precluding removal.  If you have a legitimate local Defendant, say, a mortgage broker, real estate agent, etc., who is involved in the matter, it either stays in State Court or you argue for a remand back to state court after it is removed.

A significant number of Federal Judges are on to the practice of Defendants fraudulently removing cases to Federal Court; if for no other reason than to cause increased costs to the Plaintiff (assuming YOU are the one who filed the complaint).  Likewise these same Judges are watching for fraudulent joinder of Plaintiffs so the issue of removal and remand goes both ways.

One gotcha.  Normally a Defendant has 30 days after service of the complaint to remove to Federal Court.  The gotcha comes as the case wears on, if you end up dismissing local Defendants and your remaining Defendants are diverse (Defendants out of state), then the time period to remove extends to one year from the date of service of the complaint.


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Thank you for the response.

I am plaintiff in process of getting my elements completed to draft my lawsuit.  Defendant is a non-licensed land-baron, or if they are licensed, they did the loan in their personal name only, and they are a resident of the same county I live in, the property in question is located, and the loan agreement was consumated, and they had me make all loan payment checks out to them, personally.

Do you happen to know where I would locate a Practice and Pleading Guide that would have TILA?  

See, I'm really confused how to do the wording if it is strictly a federal law for federal court and all my other causes of action are state law issues. 

I looked all through the law library and did not find any PPG for federal, but then if I did, how would I make that transition to my state lawsuit?



Thanks,

Barbie




Ken wrote:


Even if a pleading has Federal subject matter jurisdiction, "if"' you have a local Defendant, i.e., one who is a resident or citizen of the State, yuo can not always remove at will.

Of course, if it is removed, you just motion to remand and show that the 'local Defendant' wasn't fraudulently joined for the sole purpose of precluding removal.  If you have a legitimate local Defendant, say, a mortgage broker, real estate agent, etc., who is involved in the matter, it either stays in State Court or you argue for a remand back to state court after it is removed.

A significant number of Federal Judges are on to the practice of Defendants fraudulently removing cases to Federal Court; if for no other reason than to cause increased costs to the Plaintiff (assuming YOU are the one who filed the complaint).  Likewise these same Judges are watching for fraudulent joinder of Plaintiffs so the issue of removal and remand goes both ways.

One gotcha.  Normally a Defendant has 30 days after service of the complaint to remove to Federal Court.  The gotcha comes as the case wears on, if you end up dismissing local Defendants and your remaining Defendants are diverse (Defendants out of state), then the time period to remove extends to one year from the date of service of the complaint.


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Just cite the Federal Statutue as a separate cause of action.  Here is an example.

COUNT III

(TRUTH IN LENDING ACT,  15 U.S.C. § 1601 et seq. )

All Defendants)

1.                Plaintiffs repeat, re-allege and incorporate by reference the foregoing paragraphs.

2.                Defendants failed and refused to give notice of their alleged assignment of the Deed of Trust to Plaintiffs. Defendants have transferred title of their real property to the Defendants.

3.                Defendants violated the TILA and Regulation Z § 226.18 which require a creditor to disclose among other things, Annual Percentage Rate calculated using the methods prescribed in the Regulation Z, the amount financed, and the total finance charge.

4.                Defendants violated the TILA and Regulation Z § 226.23 which require a creditor to give the notice of right of rescission to the consumer.

5.                Defendants may have violated other provisions of TILA.  This allegation will be supplemented after discovery.

6.                Defendants may have violated other statutes and regulations.  This allegation will be supplemented after discovery.

7.                Had Defendants made the full disclosure as required by TILA, Plaintiffs would not have entered into the unconscionable financing arrangement.

8.                Had Defendants made the full disclosure as required by TILA, Plaintiffs would have made other available arrangements such as financial assistance from relatives and/or sale of his house to stop the foreclosure process.

9.                Plaintiffs have been harmed and suffered actual damages proximately caused by the conduct of Defendants.

WHEREFORE, Plaintiffs request that judgment be entered against Defendants as follows:

A. Judgment canceling or rescinding the contract and restoring the parties to the status quo ante;

B.         Plaintiffs be awarded actual damages suffered as a result of Defendants’ conduct;

C.        Judgment for Plaintiffs’ attorneys’ fees and costs;

D.        Interest on the judgment rendered herein at the maximum lawful rate from the date of its rendition until paid in full; and

E.         Such other and further relief as this Court deems just and proper.


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Bless you, Ken.

I was up until 1:30 scouring the internet looking a sign a hope.  Had given up thinking I would have two seperate lawsuits.

I cannot even begin to express my gratitude.

Thank you,

Barbie



Ken wrote:
Just cite the Federal Statutue as a separate cause of action.  Here is an example.

COUNT III

(TRUTH IN LENDING ACT,  15 U.S.C. § 1601 et seq. )

All Defendants)

1.                Plaintiffs repeat, re-allege and incorporate by reference the foregoing paragraphs.

2.                Defendants failed and refused to give notice of their alleged assignment of the Deed of Trust to Plaintiffs. Defendants have transferred title of their real property to the Defendants.

3.                Defendants violated the TILA and Regulation Z § 226.18 which require a creditor to disclose among other things, Annual Percentage Rate calculated using the methods prescribed in the Regulation Z, the amount financed, and the total finance charge.

4.                Defendants violated the TILA and Regulation Z § 226.23 which require a creditor to give the notice of right of rescission to the consumer.

5.                Defendants may have violated other provisions of TILA.  This allegation will be supplemented after discovery.

6.                Defendants may have violated other statutes and regulations.  This allegation will be supplemented after discovery.

7.                Had Defendants made the full disclosure as required by TILA, Plaintiffs would not have entered into the unconscionable financing arrangement.

8.                Had Defendants made the full disclosure as required by TILA, Plaintiffs would have made other available arrangements such as financial assistance from relatives and/or sale of his house to stop the foreclosure process.

9.                Plaintiffs have been harmed and suffered actual damages proximately caused by the conduct of Defendants.

WHEREFORE, Plaintiffs request that judgment be entered against Defendants as follows:

A. Judgment canceling or rescinding the contract and restoring the parties to the status quo ante;

B.         Plaintiffs be awarded actual damages suffered as a result of Defendants’ conduct;

C.        Judgment for Plaintiffs’ attorneys’ fees and costs;

D.        Interest on the judgment rendered herein at the maximum lawful rate from the date of its rendition until paid in full; and

E.         Such other and further relief as this Court deems just and proper.


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Moose
Barbie - something to consider in TILA cases is the fact that courts will act to put the parties in the position they were in at the time of the closing. You get back anything you've paid but the "lender" still owns the house.

In other words, to stay in the house you may have to show the court that you're prepared to immediately replace the bogus loan with a new one from another source. Some rulings have even required a bond to be presented at trial.

Moose




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AMEN on the bond issue.

Not knowing all the facts of your case, IF you believe they attempted to foreclose on you improperly, be SURE to include a claim for the TORT of the illegal foreclosure.  That will elevate your claim to something higher than just a situation where you don't want them doing what they are doing.  If you are requesting an Injunction to STOP a foreclosure, just about any Court will require a bond. 

It could be anything from as small as $ 500.00 all the way up to a bond for whatever may be due plus an ongoing requirement to post payments with the Court.  However, most bonds I have seen are 'de minimums', i.e., just something to comply with the rules about requiring a bond.

Obviously this is not legal advice.

Good luck.


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Thanks guy, for the 411.  

Yes, Moose, you are correct.  I read all the case laws sited on WJFA and it states that courts will expect the homeowner/borrower to have a new loan in place.


Ken,

I already lost my home.  I found at the law library, case law on wrongful foreclosure citations.  I still have to find it in the Practice and Pleading Guides.

As a side note:  The foreigner that came to this site about usuary violations was a light bulb moment for me because it was similar to what my lender did to me.   I researched it at the law library, and figured that with the extra unexplained undisclosed cost put on the loan at the last minute, bumped up the interest rate to 12%, which is exceeds the limit allowed by California Law.

It states that the borrower is entitled to treble damages of the interest charged.  But when I looked in the Pleading and Practice Guide last Friday, it said the borrower can only get for the two years prior to filing the lawsuit.  So, I got to go back to library and research that some more for clarity.

FYI:  Yes I know that lenders and real estate brokers are exempt from Usury Laws, but not private lenders for a home purchase or refinance loan.


Question:  Is the bond typical if the home is already in the ownership of the lender?





Ken wrote:


IF you believe they attempted to foreclose on you improperly, be SURE to include a claim for the TORT of the illegal foreclosure. 

-----------------------------

Moose wrote:

Barbie - something to consider in TILA cases is the fact that courts will act to put the parties in the position they were in at the time of the closing. You get back anything you've paid but the "lender" still owns the house.

In other words, to stay in the house you may have to show the court that you're prepared to immediately replace the bogus loan with a new one from another source. Some rulings have even required a bond to be presented at trial.


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If you already lost your home then you won't be asking for a temporary restraining order to stop the sale.  Thus, no bond.  It seems what you have to do is just pursue your tort claims in Court.

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