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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floridapathy
If I stop paying, I am served with foreclosure for not living up to the "agreed upon terms of the contract."

But what if the lender has not fulfilled the agreed-upon terms of the same contract. Why is it that my rights expire and theirs do not? They retain the right to foreclose indefinately if my performance is lacking, but what about theirs? Isn't a contract between two parties valid until it is extinguished?

Oh, some here say I can challenge this against the original lender, but the statute is expired. What about that? The contract says the original lender will collect the final payment of the mortage too, and that all transferees must honor all terms of the agreement. What if the contract lacks mutual ascent? What if I can show it does? What if the new parties have breached the contract? What is my recourse? Please stop saying I can't do anything, because the statute of limitations ends when the payments end.  
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ka

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If I stop paying, I am served with foreclosure for not living up to the "agreed upon terms of the contract." 

 

floridapathy,

 

You seem to have failed to notice that neither the promissory note nor the mortgage, deed of trust of other security instrument is a bi-lateral contract.

 

To the contrary, each is a unilateral undertaking.  Each is signed only by the maker(s)/borrower(s) in the instance of the note and the grantor(s)/mortgagor(s).  The Lender does NOT sign either instrument.

 

Go back and read the instruments, Sherlock!

 

There are ways to use this to your advantage, but you seem to be unaware of these.  Instead you are off again in la-la land of wingnut theorists!

 

Why don't you go back and read some of Mr. Roper's posts?  You seem to have fallen into very bad company and seem to be solely enchanted by LOSING ARGUMENTS.  More troubling, you seem to be more interested in helping find ways for swindlers to profit than in having any real consideration for other distressed borrowers who might become confused or befuddled by your constant stream of useless posts!

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George Burns
floridapathy

Can you list a few of these " agreed-upon terms of the same contract" that a lender might not fulfill?
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Bill
George Burns wrote:
floridapathy

Can you list a few of these " agreed-upon terms of the same contract" that a lender might not fulfill?

I would like to see what he is referring to also.  Most recent notes are a Fannie/Freddie Uniform Instrument, which has been accepted by the banking community as standard.  This increases the marketability of the note but also means that aside from some nuances, the language is the same in all of our notes.  While some sub-prime lenders had notes with LESS covenants that are beneficial to the borrower, I have not seen any with MORE covenants that are beneficial to the borrower.  You would be doing everyone a service if you could find a FLAW in the language of a Fannie/Freddie Uniform Instrument, but I think you will find that the REASON this example is used is because it has ALREADY been challenged in every way, and shown to be a quality example of a binding note.  

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What if the contract lacks mutual ascent? What if I can show it does?

Please show us an example of a "lack of mutual assent" in your contract.  Are you sure you know what "mutual assent" means?

I personally would also like to know HOW the note holder breached the contract.  



  


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floridapathy

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Mutual assent or meeting of the minds is destroyed by such actions as fraud, undue influence, duress, mutual mistake, or misrepresentation. 

-Wiki.


1. In the Final closing documents, the proposed new payment is compared side-by side with the existing payment (pre-refi).

a. On this document, there are separate boxes to break down the payment and escrow.

b. The existing payment was broken-down to show escrow, interest, and principle.

c. The new payment was simply shown as a sum, thereby concealing the fact that it was not an accurate comparison of both payments because it did not include the information required by the instructions listed on the document.

d. The closing contract lacked "mutual ascent" first, by including all parts of the existing payment, and second, by excluding those parts from the new payment.

e. This exclusion of important information, or misrepresentation had the effect of making the new payment appear to be more affordable (the point of refi).

f. If the new payment "properly" included the same amounts as the existing payment by comparison, it becomes obvious there was no "Net benefit" to refinancing.

g. The false comparison of payments, or misrepresentation of the total payment amount enabled the lender to collect $18,000 in closing costs without providing any benefit over the existing loan for the borrower.

2. The Initial GFE (before closing), offered a loan at XXX, and closing costs at XXX, with a stated discount fee of 1.5-points or approximately $2,500. The final HUD1 shows an increase of this fee to 2.5-points or approximately $4,500, without any justifiable change in interest rate or closing costs over the initial GFE.

a. The false comparison of payments, or misrepresentation of the total payment amount enabled the lender to deceptively increase the $4,500 loan discount fee or "settlement charges", by allowing the borrower to rely on a false payment comparisons that made the charges less significant when considering the month to month affordability of the loan.

b. The lender failed to deliver the closing documents in a timely manner that would have allowed borrow to thoroughly research these charges. Instead, the borrower was rushed to the closing table under misleading instructions by the lender affixed to the opening page of the closing documents. The instructions read:

Quote:

--To make your closing easy, we have prepared the following documents for you:

- Two complete closing packages

-one for you to open and review prior to your closing

-and one your closing agent to open -please keep this package sealed until your closing agent arrives

So here's what happens next...

At the scheduled closing meeting, the closing agent will open their package and review all of the documents with you. The mortgage documents are signed and any monies due are collected. The entire loan closing normally takes 30-45 minutes. That's all there is to it!

If you have any questions the closing agent cannot answer, they may contact us at 1-800-xxx-xxxx.

c. Prior to loan closing the loan representative informed the borrower that the closing agent would review and explain all the closing documents, and answer any question that might arise. Affirmed by the aforementioned disclosure in the closing package, the loan representative also stated that in the event the closing agent could not answer any questions they would contact the lender and verify.

d. At closing, the closing agent simply open the closing documents and began making on dozens of pages. Borrowers friend (not an attorney) also reviewed a separate closing package (there were 3) while borrower signed as instructed. While borrower signed x, x, x, etc. Friend, attempted to ask closing agent questions, to which closing agent sighed, showed obvious frustration, began flipping pages faster, and finally responded in a sarcastic response, "I am not allowed to answer any questions concerning the mortgage." Closing agent appeared with her husband(whom also slaimed to be a notary) in borrowers home for closing. Borrower paused the closing for a brief phone call to the loan rep., and lon rep. stated that he would be happy to answer any questions. The closing agent would not answer questions, and was very rude when confronted with the loan rep's statement that they would answer questions. The loan closing took approximately 30 minutes, and not a single page reviewed, or question answered.

e. Despite the lack of transparency and the closing agents' obvious need to get through with the closing, borrower feared postponing the closing because borrower had lost a $400 deposit with a previous lender when they were unable to come to closing after 30+ days of negotiation. Borrower feared losing her current $350 deposit in the same circumstances if closing was not completed, and therefor postponed questions with the expectation that the loan rep. would fulfill his promise to clarify, explain, or ratify any errors or misunderstandings after closing.

3. The Lender agreed to provide $3,000 cash at closing for the purpose of paying an upcoming property tax assessment (Not lien). The taxes were not delinquent. Through false representations, the lender claimed that a request for cash-out disqualified borrower from obtaining a 30yr. traditional fixed mortgage.

a. The contract lacked mutual ascent because the lender misrepresented the Fact that up-to $3,000 cash-out is allowable on a 30yr. fixed-rate mortgage.

b. The contract lacked mutual ascent because the lender used the cash-out stipulation as a pretext for disqualifying the borrower on a 30yr. fixed rate mortgage. However, just hours before closing, the lender informs borrower that lender decided to roll-in the tax payment as part of closing costs added to the cost of the loan, and would issue a check for $3,000 instead for borrower to use for any other purpose. This change in mutual agreement was not negotiable.

c. The loan rep misrepresented, that even if the borrower had not opted for the cash-out option, a 30yr. fixed-rate mortgage would still be unobtainable because such a program would require a 20% down payment.

4. The Lender misrepresented the initial payment term of the loan by promising 5yr's interest only, implying that payment would be fixed for the initial 60 mos of the loan.

a. The closing documents payment schedule shows the initial interest-only period of 54 mos. The lender was contacted during closing and informed of this problem. The lender insisted this was the "standard" and that the initial interest only period could simply be extended the full term. or 60 mos. by paying an additional $200 per month.

b. These representations made by the lender were completely lacking any truth in an obvious attempt to convince borrower to finish signing the closing documents, under the duress of the two closing agents (husband and wife) sitting across the table insisting they were in a hurry and needed to finish closing.

c. This serious issue and misrepresentation was exacerbated by the fact that borrower was not afforded the required 3-days to review closing documents and uncover any problems with the agreements and was forced to resort to a last minute phone call to the loan rep for answer.

5. The contract lacked mutual ascent because the borrower relied on a fraudulently appraised value given to borrowers home.

a. The appraiser relied on false representations of the home's value, size, condition and amenities.

b. The appraiser also choose unrealistic comparables, some far outside subject neighborhood without explanation required by USPAP.

c. The appraiser misrepresented amenities that were actual offered in comparables, and not available in subject property, i.e. swimming pools, car washing facilities etc.

d. The appraiser grossly inflated the cost to rebuild value of the subject property by ignoring current insurance estimates used in borrowers home insurance policy and increased the rebuild cost by 62%, thereby arriving at the lender's predetermined value needed to achieve the required level of equity. Note: The appraisers rebuild value was the exact amount of the lenders ALTA loan policy amount, or negative amortization ceiling.

The note holders breach of agreed upon terms in the contract.

6. The original documents signed at closing state that any subsequent transferee of the mortgage will honor all terms and conditions of the mortgage and note. The only exception being an interest rate recast, or increase or decrease in escrow.

a. The principle balance of the loan was increased several hundred dollars, with no corresponding increase to the amount of interest, interest rate, or missed mortgage payment. There is no explanation for this loan balance increase.

b. As a result of the increased loan balance, the monthly interest payment has increased to reflect the additional, undisclosed loan balance increase.

c. The loan balance increase and monthly interest increase are in breach of the closing documents agreed upon terms.

d. The loan balance increase and monthly interest increase upset the anniversary dates of the loan's interest rate recast dates, by causing the loan to reach its negative amortizations ceiling prematurely, and cause the loan balance to exceed its ceiling which increases the amount of interest paid over the life of the loan.

e. The increase to the balance of the loan is in violation of the Truth in Lending disclosed amount of interest, and triggers the TILA's "interest rate disclosure tolerance."

7. The note holder, and or, lender failed to timely respond to a properly documented and served "Notice of Borrowers Right to Cancel" sent prior to the 3-yr anniversary date of the mortgage.

a. Notice was sent, and parties failed to respond within the time limit, by

b. finally responded after the time limit, but failed to respond as is required under TILA by providing borrower with the accurate disclosures that were required at closing, or

c. failing to respond as is required under TILA by not taking action to reflect a cancellation of their security interest in the borrowers property.

 

Perhaps mutual ascent is a stretch of my understanding of the legal definition of it. There are more circumstances that I have not listed to save some anonymity in my case. This is just what I could think of, off the top of my head. I am not saying i have a case for breach of contract, and in no way am I implying these are causes of action. I'm simply highlighting a few of the issues regarding my situation in hope of answering your earlier questions, and receiving your feedback. -floridapathy

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floridapathy

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Mutual assent or meeting of the minds is destroyed by such actions as fraud, undue influence, duress, mutual mistake, or misrepresentation. 

-Wiki.


1. In the Final closing documents, the proposed new payment is compared side-by side with the existing payment (pre-refi).

a. On this document, there are separate boxes to break down the payment and escrow.

b. The existing payment was broken-down to show escrow, interest, and principle.

c. The new payment was simply shown as a sum, thereby concealing the fact that it was not an accurate comparison of both payments because it did not include the information required by the instructions listed on the document.

d. The closing contract lacked "mutual ascent" first, by including all parts of the existing payment, and second, by excluding those parts from the new payment.

e. This exclusion of important information, or misrepresentation had the effect of making the new payment appear to be more affordable (the point of refi).

f. If the new payment "properly" included the same amounts as the existing payment by comparison, it becomes obvious there was no "Net benefit" to refinancing.

g. The false comparison of payments, or misrepresentation of the total payment amount enabled the lender to collect $18,000 in closing costs without providing any benefit over the existing loan for the borrower.

2. The Initial GFE (before closing), offered a loan at XXX, and closing costs at XXX, with a stated discount fee of 1.5-points or approximately $2,500. The final HUD1 shows an increase of this fee to 2.5-points or approximately $4,500, without any justifiable change in interest rate or closing costs over the initial GFE.

a. The false comparison of payments, or misrepresentation of the total payment amount enabled the lender to deceptively increase the $4,500 loan discount fee or "settlement charges", by allowing the borrower to rely on a false payment comparisons that made the charges less significant when considering the month to month affordability of the loan.

b. The lender failed to deliver the closing documents in a timely manner that would have allowed borrow to thoroughly research these charges. Instead, the borrower was rushed to the closing table under misleading instructions by the lender affixed to the opening page of the closing documents. The instructions read:

Quote:

--To make your closing easy, we have prepared the following documents for you:

- Two complete closing packages

-one for you to open and review prior to your closing

-and one your closing agent to open -please keep this package sealed until your closing agent arrives

So here's what happens next...

At the scheduled closing meeting, the closing agent will open their package and review all of the documents with you. The mortgage documents are signed and any monies due are collected. The entire loan closing normally takes 30-45 minutes. That's all there is to it!

If you have any questions the closing agent cannot answer, they may contact us at 1-800-xxx-xxxx.

c. Prior to loan closing the loan representative informed the borrower that the closing agent would review and explain all the closing documents, and answer any question that might arise. Affirmed by the aforementioned disclosure in the closing package, the loan representative also stated that in the event the closing agent could not answer any questions they would contact the lender and verify.

d. At closing, the closing agent simply open the closing documents and began making on dozens of pages. Borrowers friend (not an attorney) also reviewed a separate closing package (there were 3) while borrower signed as instructed. While borrower signed x, x, x, etc. Friend, attempted to ask closing agent questions, to which closing agent sighed, showed obvious frustration, began flipping pages faster, and finally responded in a sarcastic response, "I am not allowed to answer any questions concerning the mortgage." Closing agent appeared with her husband(whom also slaimed to be a notary) in borrowers home for closing. Borrower paused the closing for a brief phone call to the loan rep., and lon rep. stated that he would be happy to answer any questions. The closing agent would not answer questions, and was very rude when confronted with the loan rep's statement that they would answer questions. The loan closing took approximately 30 minutes, and not a single page reviewed, or question answered.

e. Despite the lack of transparency and the closing agents' obvious need to get through with the closing, borrower feared postponing the closing because borrower had lost a $400 deposit with a previous lender when they were unable to come to closing after 30+ days of negotiation. Borrower feared losing her current $350 deposit in the same circumstances if closing was not completed, and therefor postponed questions with the expectation that the loan rep. would fulfill his promise to clarify, explain, or ratify any errors or misunderstandings after closing.

3. The Lender agreed to provide $3,000 cash at closing for the purpose of paying an upcoming property tax assessment (Not lien). The taxes were not delinquent. Through false representations, the lender claimed that a request for cash-out disqualified borrower from obtaining a 30yr. traditional fixed mortgage.

a. The contract lacked mutual ascent because the lender misrepresented the Fact that up-to $3,000 cash-out is allowable on a 30yr. fixed-rate mortgage.

b. The contract lacked mutual ascent because the lender used the cash-out stipulation as a pretext for disqualifying the borrower on a 30yr. fixed rate mortgage. However, just hours before closing, the lender informs borrower that lender decided to roll-in the tax payment as part of closing costs added to the cost of the loan, and would issue a check for $3,000 instead for borrower to use for any other purpose. This change in mutual agreement was not negotiable.

c. The loan rep misrepresented, that even if the borrower had not opted for the cash-out option, a 30yr. fixed-rate mortgage would still be unobtainable because such a program would require a 20% down payment.

4. The Lender misrepresented the initial payment term of the loan by promising 5yr's interest only, implying that payment would be fixed for the initial 60 mos of the loan.

a. The closing documents payment schedule shows the initial interest-only period of 54 mos. The lender was contacted during closing and informed of this problem. The lender insisted this was the "standard" and that the initial interest only period could simply be extended the full term. or 60 mos. by paying an additional $200 per month.

b. These representations made by the lender were completely lacking any truth in an obvious attempt to convince borrower to finish signing the closing documents, under the duress of the two closing agents (husband and wife) sitting across the table insisting they were in a hurry and needed to finish closing.

c. This serious issue and misrepresentation was exacerbated by the fact that borrower was not afforded the required 3-days to review closing documents and uncover any problems with the agreements and was forced to resort to a last minute phone call to the loan rep for answer.

5. The contract lacked mutual ascent because the borrower relied on a fraudulently appraised value given to borrowers home.

a. The appraiser relied on false representations of the home's value, size, condition and amenities.

b. The appraiser also choose unrealistic comparables, some far outside subject neighborhood without explanation required by USPAP.

c. The appraiser misrepresented amenities that were actual offered in comparables, and not available in subject property, i.e. swimming pools, car washing facilities etc.

d. The appraiser grossly inflated the cost to rebuild value of the subject property by ignoring current insurance estimates used in borrowers home insurance policy and increased the rebuild cost by 62%, thereby arriving at the lender's predetermined value needed to achieve the required level of equity. Note: The appraisers rebuild value was the exact amount of the lenders ALTA loan policy amount, or negative amortization ceiling.

The note holders breach of agreed upon terms in the contract.

6. The original documents signed at closing state that any subsequent transferee of the mortgage will honor all terms and conditions of the mortgage and note. The only exception being an interest rate recast, or increase or decrease in escrow.

a. The principle balance of the loan was increased several hundred dollars, with no corresponding increase to the amount of interest, interest rate, or missed mortgage payment. There is no explanation for this loan balance increase.

b. As a result of the increased loan balance, the monthly interest payment has increased to reflect the additional, undisclosed loan balance increase.

c. The loan balance increase and monthly interest increase are in breach of the closing documents agreed upon terms.

d. The loan balance increase and monthly interest increase upset the anniversary dates of the loan's interest rate recast dates, by causing the loan to reach its negative amortizations ceiling prematurely, and cause the loan balance to exceed its ceiling which increases the amount of interest paid over the life of the loan.

e. The increase to the balance of the loan is in violation of the Truth in Lending disclosed amount of interest, and triggers the TILA's "interest rate disclosure tolerance."

7. The note holder, and or, lender failed to timely respond to a properly documented and served "Notice of Borrowers Right to Cancel" sent prior to the 3-yr anniversary date of the mortgage.

a. Notice was sent, and parties failed to respond within the time limit, by

b. finally responded after the time limit, but failed to respond as is required under TILA by providing borrower with the accurate disclosures that were required at closing, or

c. failing to respond as is required under TILA by not taking action to reflect a cancellation of their security interest in the borrowers property.

 

Perhaps mutual ascent is a stretch of my understanding of the legal definition of it. There are more circumstances that I have not listed to save some anonymity in my case. This is just what I could think of, off the top of my head. I am not saying i have a case for breach of contract, and in no way am I implying these are causes of action. I'm simply highlighting a few of the issues regarding my situation in hope of answering your earlier questions, and receiving your feedback. -floridapathy

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t

floridapathy -

 

You seem to have no real understanding or appreciation of mutual mistake of fact, real TIL violations, or fraud.

 

If this is your case, it would appear that you will probably simply plead yourself out of courtSometimes, when one is ignorant, it is better to keep silent, rather than opening your mouth and removing all doubt!

 

YOU NEED TO GET A LAWYER!  A good lawyer KNOWS how to present arguments and facts in a way that doesn't get you into trouble.  The facts you set forth will pretty much eviscerate your case.  Of course your adversaries will probably discover these facts anyway if you have a single cause of action which could get past limitations.

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Bill
I personally would really refrain from taking a legal meaning from "Wiki".  That is why we have a Law Dictionary.  It appears you have some VERY CREATIVE (for lack of a better term) arguments.  Are you planning to make these in the alternative??? 

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"Breach of contract requires proof of the parties' mutual assent, or meeting of the minds, on all the essential terms of their agreement."  Sam Rodgers Properties v. Chmura, 2011 WL 1565446 (Fla. 2d DCA 2011).

If you claim they breached the contract, you have to agree that there was mutual assent in order to have a contract...........
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The law of contracts is applied to resolve issues regarding the formation of a 
binding settlement agreement.  See Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (“settlements, of course, are governed by the rules for interpretation of contracts”); ABC Liquors, Inc. v. Centimark Corp., 967 So. 2d 1053 (Fla. 5th DCA 2007) (“settlement agreements are governed by the rules of contract interpretation”).  To be binding, mutual assent as to all essential terms is required.  King v. Bray, 867 So. 2d  1224, 1228 (Fla. 5th DCA 2004) (citing David v. Richman, 568 So. 2d 922, 924 (Fla. 1990)).  Mutual assent does  not mean that two minds must agree on one intention; rather, the formation of a contract depends on the parties having said the same thing, not on their having meant the same thing.  Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957). 

For acceptance of an offer to bind the maker of the offer, it “must be absolute, 
unconditional, and identical with the terms of the offer.”  Montgomery v. English, 902 So. 2d 836, 837 (Fla. 5th DCA 2005) (citing Sullivan v. Econ. Research Props., 455 So. 2d 630, 631 (Fla. 5th DCA 1984)).  Thus, an acceptance must contain  an assent to the essential terms contained in the offer.  Giovo v. McDonald, 791 So. 2d 38, 40 (Fla. 2d DCA 2001).  What constitutes the essential terms of a given contract differs according to circumstances, but they “must include the terms specified in an offer to make a contract.”  Id.  

It also appears that you agreed to the terms of the note when you signed the note.  Once you did this you "assent to the essential terms contained in the offer".  If you had a problem or question YOU SHOULDN'T HAVE SIGNED THE NOTE.

I really think you lose on both arguments.  

  

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floridapathy
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Perhaps mutual ascent is a stretch of my understanding of the legal definition of it. There are more circumstances that I have not listed to save some anonymity in my case. This is just what I could think of, off the top of my head. I am not saying i have a case for breach of contract, and in no way am I implying these are causes of action. I'm simply highlighting a few of the issues regarding my situation in hope of answering your earlier questions, and receiving your feedback. -floridapathy

 


Bill, T, it looks like I took your advice before you even posted it. But really, thanks for looking out, I'm just going to go back to replacing my 20yr old water heater so I can take a hot shower and wash away my defeat. But if I get caught up in any other legal issues with the mortgage I'll be sure and keep it to myself while I hope they just get it over with and take my house. Why should I bother when all the psychics at MSFraud have already told me to just quit without even trying?
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Bill
floridapathy wrote:
Quote:

Perhaps mutual ascent is a stretch of my understanding of the legal definition of it. There are more circumstances that I have not listed to save some anonymity in my case. This is just what I could think of, off the top of my head. I am not saying i have a case for breach of contract, and in no way am I implying these are causes of action. I'm simply highlighting a few of the issues regarding my situation in hope of answering your earlier questions, and receiving your feedback. -floridapathy

 


Bill, T, it looks like I took your advice before you even posted it. But really, thanks for looking out, I'm just going to go back to replacing my 20yr old water heater so I can take a hot shower and wash away my defeat. But if I get caught up in any other legal issues with the mortgage I'll be sure and keep it to myself while I hope they just get it over with and take my house. Why should I bother when all the psychics at MSFraud have already told me to just quit without even trying?

I do sympathize with you floridapathy, and don't doubt you may have gotten a raw deal and been mislead.  The real problem is that you are trying to focus on arguments that will be rejected by the trial court.  I posted just a few cases that are opposed to your position on Mutual Assent and Breach of Contract that BIND THE COURT with just about 10 mins of research, the oppisition's para legal will have access to things like West Law and be much more efficient in their research.  The trial court will be REVERSED if they rule contrary to the case law.

The reason the success rate for a pro se is so low is because of making unsupported, poorly written, motions and pleadings.  You have to give the judge the arguments, cases, and evidence he needs to rule in your favor.  If you can't point to cases that have been decided on the same issues you are arguing that SUPPORT your position, you are going to lose.  



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Still in my home
The contract I signed My wife and I choose to pay our property taxes and insurance on our own. Just like it says in how banks steal your home. They claimed we did not pay our insurance (we were) and started paying it for us. We got them to stop and repay us back. The they took our payment and paid the taxes all of this set us behind 3 months and they would not take our payments. We ended up borrowing allot of money from a relative to catch up and they still put us on a repayment plan. During this time we asked for and got spread sheet with unexplained amounts coming out of our payments for who knows what. 99.99 was what most of them were. After all of this we were forced into escrow. This all happened in 2005 thru 2007.
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