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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PB
If you go through foreclosure, Sheriff's auction, and eviction etc. immediately file a Lis Pendens with the county courthouse register of deeds. In it state that you are contesting X about the foreclosure, that your aware of X acts [specific to your case], that you are going to file a lawsuit. Of course this should be based on good information you have about what happened. Search this site over and over to see what applies to your situation. But keep it to 1-2 pages.  

When they go to sell the property your filing is going to show up on a the Title search. If the mortgage servicer is foolish enough to file papers challenging it - bam - it opens the door for you to submit to the court evidence, documents, bring in a witness if you can, testify yourself (NOTE: when you do raise your right hand and ask the Judge to swear you in before beginning, very important).  Proving to the Judge what really happened.
Plus it would have to be shown to any potential buyer at the closing or sooner. Judges are waking up since the financial collapse last fall as to what is really going on. Educate them, they see/hear the evaporation of 401K's from their friends/family. They see their own stock investments plunging. My prediction by the way is around 3,600 for the Dow, then buy. The reason why is it is just coming out as to the massive fraud, being detailed in lawsuits across the country. Deutsch Bank is getting hammered over the last few months as one example in lawsuits and losing foreclosure filings they initiated.

PB
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Stephen

Thanks for that.  I posted it on the housing forum on Craigslist.

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O -

This might help a lot of people. TY!!!
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Moose
PB wrote:
If you go through foreclosure, Sheriff's auction, and eviction etc. immediately file a Lis Pendens with the county courthouse register of deeds. In it state that you are contesting X about the foreclosure, that your aware of X acts [specific to your case], that you are going to file a lawsuit. Of course this should be based on good information you have about what happened. Search this site over and over to see what applies to your situation. But keep it to 1-2 pages.


Just to be careful, note that if you don't timely file a suit (timing depends on local rules) the Lis Pendens can be stricken by a simple petition for removal and they will come after you for their legal fees.

PB wrote:
When they go to sell the property your filing is going to show up on a the Title search. If the mortgage servicer is foolish enough to file papers challenging it - bam - it opens the door for you to submit to the court evidence, documents, bring in a witness if you can,....


Not really - if you haven't filed suit as a plaintiff (in jurisdictions I'm aware of), there may not even be a hearing on the petition for removal of the lis pendens - keep in mind if they've foreclosed and taken the property from you, you aren't a party to the post-foreclosure transaction so you have no standing until you sue. 

PB wrote:
.... testify yourself (NOTE: when you do raise your right hand and ask the Judge to swear you in before beginning, very important).  Proving to the Judge what really happened.
Plus it would have to be shown to any potential buyer at the closing or sooner.


Not quite. No one has to show anyone a lis pendens. Interested parties have to go looking for them. The only people that would go looking would be the title insurer - that's what they get paid to do. They would pull an abstract well in advance of closing and if the lis pendens is still there, the offeror (seller) would then file the petition for removal if you haven't already filed suit. If it delays a sale without legal justification, the entities involved in the sale may sue you for damages.

It may sound like an easy way to have your case reheard, but in reality you have to bring an action to support the recording of a lis pendens.  In fact, in some counties, you can't even file one without first filing suit.

Tread carefully if you try doing these things without legal counsel (and no, this isn't legal advice!).

Moose


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The following example was taken from the upcoming MSFraud Newsletter, which we will post soon.

Your address here

 IN PRO PER

 

Recording requested by: Your name here

 

When recorded, mail to: Your name here

                                        Your address here                            

                                        

  SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY Name of your county inserted here

   

Your name here,

                         Plaintiff,

            vs.

GMAC Mortgage LLC et., al,

                         Defendant,

)

)

)

)

)

)

)

)

)

)

Case No.: Your litigation case number here

 

Action Filed: March 28, 2007

 

(Assigned to Judge John Doe, Dept.22)

 

 

NOTICE OF PENDENCY OF ACTION

 

 NOTICE IS GIVEN that the above captioned action was commenced on March 28, 2007, in the above-captioned court by Jane Doe, Plaintiff, against GMAC Mortgage LLC, Defendant; the action is now pending in the above court.

The above-captioned action alleges a real property claim affecting certain Real property that is situated in Santa Clara County, California, and that is described as follows:  Insert legal property description below↓

1515 John Doe Ln, San Jose, CA, 95100; Unit No. 7, Tract 0000, filed June 5, 1979,Map book 441, page 18, Santa Clara County Records, as shown upon that certain condominium plan Recorded November 8, 1974, in Book B 260, page 587, Official Records.  APN: 888-48-000

 

Insert Dated this 22nd day of January, 2009

____________________________

Your name here

IN PRO PER

 

 IT IS SO ORDERED

                                                                                                   _______________________________

                                                                 Insert  Judges name here

 

ACKNOWLEDGMENT

 

State of _______________________}

County of _____________________}                      ss,

 

On ___________________[date], before me, ________________________[name of title officer]

Personally appeared_____________________[name], who proved to me on the basis of  satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/capacities, and that by his/her/their signatures(s) on the instrument the person(s), or the entity on behalf of which the person(s) acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

                                                                                                                           (Seal)

                                                     

                                    Title Officer’s Signature: _____________________________

 

 

                                        Name of Title Officer: _____________________________

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Moose
Outstanding!

Moose


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Hanky
Moose - What PB is saying (I think) is you want the crooks to come after you. Let them sue, that is good, that is what you want. In my state the title search would show any lis pendens filed, making a buyer think twice.

Hanky
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Moose
Hanky wrote:
Moose - What PB is saying (I think) is you want the crooks to come after you. Let them sue, that is good, that is what you want. In my state the title search would show any lis pendens filed, making a buyer think twice.

Hanky


They've already come after you and gotten what they want in a foreclosure. Filing a lis pendens is meaningless unless you have actually filed suit as a plaintiff. Without that suit, the lis pendens will be rejected by the clerk (in every jurisdiction I'm aware of) and it won't show up in a title search.

If the clerk records it without an underlying suit, they're setting up the person filing it for a nasty surprise. When the new owner/seller becomes aware of a lis pendens on their property and they haven't been served with a suit, they will naturally have their local attorney petition the court for removal of the lis pendens. Attorneys will naturally charge several hundred dollars for this process AND you can't appear to defend the prior case in the matter; the foreclosure is res judicata; the only issue will be you filing a lis pendens without an associated suit. Without you being a plaintiff in a new suit to substantiate the lis pendens, you can't argue matters that were already ruled on.

As always, this isn't legal advice, but in short, you can't just file a lis pendens then wait for them to sue you to present a new angle on your already decided foreclosure just to avoid having to file a suit on your own.

Moose
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johnk
I did do this and it works great. Wells filed a motion and I responded and got a hearing, it is a whole new ball game again and the Judge seems to be listening too, at least so far.

Johnk
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I uncovered a strategy not too dissimilar from this about 3 weeks ago.

I was reading through my states revised statutes and found one that indicates "...if suit is filed under this statute a lis pendins will be filed..." That isn't the exact wording, but close. My take is that the county will file it for me.

I found it under either theft or fraud statutes. Memory fails. In anycase I'm preparing a post judgment motion to introduce new evidence and will follow up a couple of weeks later with a law suit under a little known rule that seems to allow an "independent action" to be filed under the same umbrella (thus avoiding filing fees).

Likely I'll need to file a writ of mandamus to force the clerks to do their job and actually file the lis pendins.

All in all though it seems a wonderful strategy to have the county file it on my behalf.
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Moose
The Equitable One wrote:
I uncovered a strategy not too dissimilar from this about 3 weeks ago.

I was reading through my states revised statutes and found one that indicates "...if suit is filed under this statute a lis pendins will be filed..." That isn't the exact wording, but close. My take is that the county will file it for me.


Don't count on it.

The Equitable One wrote:
I found it under either theft or fraud statutes. Memory fails. In anycase I'm preparing a post judgment motion to introduce new evidence and will follow up a couple of weeks later with a law suit under a little known rule that seems to allow an "independent action" to be filed under the same umbrella (thus avoiding filing fees).

Likely I'll need to file a writ of mandamus to force the clerks to do their job and actually file the lis pendins.

All in all though it seems a wonderful strategy to have the county file it on my behalf.


Don't be surprised if you find nothing has been filed on your behalf. And the writ of mandamus nonsense has cost people their homes before. (Among counsel for creditors it's referred to as the "writ of mandumbass.")

Not sure what the source is of the koolaid you're drinking but you have to act on your own and not rely on a court clerk to pay attention to legal theories that come from the 'net.

Moose

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That's funny Moose. The legal run around and double standards usually make me frustrated and often angry, I appreciate the chuckle.

This whole legal system is so complicated it seems to all come down to judicial prejudice and nitpicking over procedure and presentation.

Several lawyers have acknowledged their frustration with winning or even presenting clear cut violations. One personal lawyer told me flat out in relation to a construction permit delay, yes you are right but if I pursue that cause of action I'll never practice law in this county again.

Just remember right or wrong we win or lose based on the judges interpretation and most foreclosure and fraud claims are bench trails with summary judgments. NO matter how well we research the law and present our cases the Lawyers still have the edge because they have first hand and have knowledge of how a judge is likely to rule.

Ideally justice is blind and you have the right to self representation and full jury trail.  The courts just don't work that way they are set up to process a large number of cases and tend to rule the same way and develop a prejudice even if they are not paid off or corrupt and tend to rule by precedent rather than a strict Constitutional interpretation of property rights and contractual agreements



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thanks to all of you for this thread!  I am following this advice and we will see what happens.  It can't hurt.

My house is scheduled for auction on March 2nd.  Damn I am so scared!!!  But if I have to go to the auction and bid on my own house, I will.  I have enough saved for the 5% due at the auction.

My question: do you guys think anyone would finance me for the rest?  I will have 20-30 days to come up with the balance.

Sara 
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Moose
Sara wrote:
thanks to all of you for this thread!  I am following this advice and we will see what happens.  It can't hurt.

My house is scheduled for auction on March 2nd.  Damn I am so scared!!!  But if I have to go to the auction and bid on my own house, I will.  I have enough saved for the 5% due at the auction.

My question: do you guys think anyone would finance me for the rest?  I will have 20-30 days to come up with the balance.

Sara 

What state allows you to bid with only 5%?

Moose
 
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Moose:  I live in South Carolina

The foreclosure auction is held at the courthouse with the Master-In-Equity.  The winning bidder is required to pay 5% before leaving.  In some courts here it is required to be paid within 15 minutes but the state has declared you have until 5pm. Then the winning bidder has 20 days to produce the balance of the amount bid.

If there is a deficiency judgment order, the auction goes into a silent bidding war that starts with the high bid from the auction.  This is a 30 day period when anyone can bid again except the plaintiff and winning bidder from the auction.  And there is no right of redemption.

After all this takes place, by SC law, I have the right to an appraisal to determine if the home sold for a fair price.  During my foreclosure hearing the judge and I had a long talk about this.  He said that SC prevails over anything I might not remember signing to giving up my rights in this matter.  He also told me that I needed to speak with an attorney over this.  Too bad there are none in my area that seem to "get it".

So, my home will be auctioned off on 3/2/09 then there will be an additional 30 days if my newest lender or servicer chooses to hold the deficiency judgment against me.  If they don't, it goes to the highest bidder on the 2nd. 

One snag here, Litton sent me a 10-99 form.  I am waiting to see the ad in the paper to see if they are going actually pin the judgment on me or not.  Oh yes, I will make a copy of it since I am such a trusting person!  Litton can't have it both ways.

What really gets me in this stinky deal is I have the money to pay my mortgage, I offered them the money.  No, they don't want my money, they want my house and the equity I built up over the past 8 years along with the 20% down payment I made.  My home is still worth twice what I owe!






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Sara,

Ken posted a excellent posting within the last couple of days concerning a person who got an attorney "who gets it" they were able to get a restraining order.

Being this is a federal claim it'll supersede SC state law. Now you may want to still look up the codes for SC that differ from CA but other than that most things will be the same. Some of these complaints make excellent guidelines.

Make your voice be heard! You Can and we'll help you! At least some of us will try to! We may not be attys but we know how to get our point across.


Be blessed,

Kathy

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Digger
Homeowners' rallying cry:
Produce the note


Kathy Lovelace lost her job and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork.

And just like that, the foreclosure proceedings came to a standstill.

Lovelace and other homeowners around the country are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

http://news.yahoo.com/s/ap/20090217/ap_on_re_us/produce_the_note;_ylt=AmobgG13enlEs9fn0miyIxlvzwcF

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name withheld
For a time in 2002 I worked at a bank in a (very busy) department that was basically a go-between packaging up these home loans. The retail lender (e.g. Eloan, Countrywide) would write the loans just as fast as they could, and we were the middleman who would then package up a big bundle of these loans and sell that 'bundle' of paper to another bank.  In many cases, the loans were re-sold the same day they closed.  The rate at which this was happening was quite astounding.  We were moving millions of dollars a day. 

Accuracy was very often pushed aside for the sake of expediency.  If a deal didn't close on time, there were a lot of people who didn't get paid (not to mention homeowners who of course always want to close on time), so there was a lot of pressure to push things through fast.  There was no time for sending packages of hard copy documents back and forth before the loans closed.  We sent a huge amount of documentation by fax or email. And when these documents were sent, it wasn't just sending Mr and Mrs Brown's purchase of 12 Bluebird Lane.. no.. it was faxing huge bundles paper for 20 - 30 properties at a time.  The people on the receiving end at the other banks were not exactly the sharpest knives in the drawer, either... they didn't have much incentive to make sure every last piece of paper made its way into the correct file.

So.. my point is, having seen the chaos that took place - and I'm sure it was far worse in many other places - I would urge anyone who is facing foreclosure, to first and foremost insist on getting all the documents from the lender, and then make sure they are accurate.  I can guarantee that many of these lenders simply do not have all the documents they are supposed to have, and/or the documents are incorrect.  It could be the way out that you need.

Good luck!

Real name withheld
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Thank you for sharing your experiences.  This is further evidence that the greed machine ruled and that the interest of the borrowers were ignored.

 

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Digger

Produce-The-Note Gaining Momentum

February 18, 2009

With all the talk of Helping Homeowners, much attention is being paid to the plight of those currently in foreclosure or those headed into foreclosure. President Obama says that a fix is on the way but what can you do right now?

Several months ago we posted a story detailing how you can use the Produce-The-Note strategy to buy yourself extra time in the process. We’ve assembled some free template documents that you can use right now.

Using the Produce-The-Note strategy is something all homeowners facing foreclosure can do. If you believe you’ve been treated unfairly, fight back. We have created templates for a legal request, a letter to your lender and a motion to compel to help you through the process.

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Here's a silly question. In my case we have been sent to mediation and all motions and request for discovery have been stayed pending the outcome of mediation. Even though in my answer and affirmative defenses, and a motion to dismiss, I included allegations that they don't own the note or mortgage, the magistrate never made them produce the documents before we were sent to mediation.

My question is, if motions and discovery are stayed, is there still a way to make them produce the note? I figure since they are trying to qualify me for a modification I should have the right to qualify them to modify the loan. Any advice is greatly appreciated.
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Digger
Modifying the loan is a great way to get out of producing a note they know they do not have and then with your help, they can just create a new one. If they cannot produce the note, then they have NO right to mediate with you http://www.msfraud.org/LAW/Lounge/PossessionIsMANDATORY.pdf , and there is absolutely NO WAY they can foreclose or have the authority to modify.  They are trying to trick you into helping them get out of THEIR jam.

If they cannot produce evidence of the debt, then there is no debt. 

Consider the hassles you will go through if you reach a settlement and they breach it. 
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MSFraud Admin.

Delinquent Borrowers Turn Increasingly to Litigation over Mitigation

 

Wisniowski, Charles

TAMPA, Fla.--Mortgage servicers should expect increased state and federal litigation on servicing activities as borrowers and even state and local governments turning to increasingly sympathetic courts to resolve contractual conflicts and/or to disrupt the foreclosure process, analysts said.

Terry Hutchens, president of Hutchens, Senter & Britton, Fayetteville, N.C., told participants yesterday at the Mortgage Bankers Association's National Mortgage Servicing Conference and Expo that while lenders or mortgage servicing firms in the past might be given the benefit of the doubt in the event a home foreclosure case went to court, juries and judges in the current unfriendly judicial environment do not feel as inclined to cut mortgage firms or their attorneys any slack whatsoever.

"There has been a climate change," Hutchens said. "The pendulum has swung too far and we are not being treated fairly."

In a growing number of cases, delinquent borrowers have threatened or filed lawsuits to derail or delay foreclosure or to obtain monetary damages, focusing on actions and practices of the servicer to nitpick potential causes of action, said Shawn Ramsey, partner at Sirote & Permutt, Birmingham, Ala.

"With some folks, the goal is just to stop the foreclosure—to prolong, prolong, prolong," Ramsey said. "You have to make an early assessment on each case, whether it’s a ‘pound of flesh’ case or is it just about getting a loan modification."

A strategy employed by borrowers more and more often is to seek a rescission under the Truth-in-Lending Act, Ramsey said. Under TILA, the consumer is provided various remedies if lenders, creditors or mortgage brokers fail to provide the borrower with  proper disclosures during a transaction.

If the creditor has made all required disclosures, a consumer has three days to rescind the transaction but the right of rescission is extended to three years if the creditor fails to deliver the proper disclosures, Ramsey said.

Ramsey noted the U.S. Bankruptcy Court for the District of Massachusetts last year upheld a state case in which the borrower argued that their mortgage loan should be subject to the three-year rescission period because they had not received their Notice of Right to Rescind at closing, even though they conceded that they signed an acknowledgement that they received four copies of the notice at closing.

“Consequently, the consumer can’t be charged interest and the lender must return payments, fees and finance charges,” Ramsey said.

Hutchens noted more often than not, plaintiffs sought TILA rescissions as legal leverage over the servicer or lender.

Ramsey also noted a growing number of municipalities, such as Cleveland, Ohio; Buffalo, N.Y., and Minneapolis have lawsuits against large national lenders seeking to curtail foreclosures based on public nuisance theories.

In Baltimore, city officials filed suit against Wells Fargo & Co., San Francisco, under the Fair Housing Act alleging the lender targeted black neighborhoods for high-risk, unfairly priced loans, in effect reverse redlining, Ramsey said. Wells Fargo has denied the charges and is challenging the allegations.
http://www.mortgagebankers.org/tools/FullStory.aspx?ArticleId=1576#full
 

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