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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Bill
There have been several discussions over the last few years about winning in foreclosure court. It is very true that a homeowner cannot win on the merits of the case.

Why fight?

You can\\\'t win.

You are only delaying the inevitable are common responses to this problem.

But this is not entirely true as several forum members (me included) have posted over and over. There are ways to win, and even get a free house. There is no magic bullet, no securitization arguments, the note is not negotiable arguments, death gamble arguments, quiet title arguments that have prevailed let alone won a free home. Mr. Roper in several different threads DID give the free house argument that HAS prevailed and will CONTINUE to prevail.

Limitations

In an interesting case from FL it appears a homeowner will get a free home because of using the correct strategy. While the order specifically addresses a dismissal for lack of prosecution it also addresses the limitation problems.

http://www.3dca.flcourts.org/opinions/3D11-0136.pdf

B. Statute of Limitations
Ms. Spencer is also correct that enforcement of the note and mortgage was likely barred by the five-year statute of limitations, section 95.11(2)(c), Florida
Statutes (2002).

Even if this were not so, the summary judgment should not be affirmed. Far from establishing the right to that relief beyond genuine issue on the statute of limitations defense, City of Brooksville v. Hernando County, 424 So. 2d 846 (Fla.
5th DCA 1982); Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981), the record contains unrebutted affirmative evidence from the plaintiff’s representative that a prior owner of the mortgage had appropriately accelerated it, thus triggering the limitations period under section 95.11(2)(c), Florida Statutes (2012), well more than five years before the commencement of this action. See Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999); Monte v. Tipton, 612 So. 2d 714 (Fla. 2d DCA 1993); Locke v. State Farm Fire & Cas. Co., 509 So. 2d 1375 (Fla. 1st DCA 1987). If anything, only the appellant was entitled to judgment on this record.

As someone – probably either St. Thomas More or George Costanza – must have said, the law is the law. Notwithstanding the distasteful consequences of applying it in this case, it must be served

Maybe someone with more time can post WAR\\\'s previous threads regarding Limitations. It certainly appears Ms. Spencer will be getting a free home.
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!!
That case is:

[i]Spencer v. EMC Mortgage Corporation, No. 3D11-136 (Fla. 3rd DCA August 29, 2012)[/b]

It is already up on Google Scholar:

http://scholar.google.com/scholar_case?case=9045297216649974458
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Floyd
It is good to keep one's eye on the goal line and limitations is the single most viable avenue to actually prevail against the servicers.

There are several important points that cannot bear repeating often enough. Mr. Roper made each of these points in prior posts. Perhaps someone can find and link the posts here.

First, limitations runs from the due date of each payment. What makes limitations a viable defense is that the Lender has accelerated the balance.

Therefore, a valid notice of acceleration is essential to proving one's limitations defense. A borrower needs to put the notice of acceleration in a fireproof lockbox (after making several good digital copies and putting these in other safe places).

Second, a lender can and may challenge the validity of its own notice of acceleration. This can be particularly effective where the Lender sent a notice of acceleration before it obtained its interest in the mortgage through the forged assignment. For this reason, it is a good idea to force the Lender to embrace and wrap its arms around the notice of acceleration either in discovery or in pleadings in an earlier action. It is very important that the Lender's embrace of the notice be by sworn interrogatory response or by affidavit.

Third, a borrower needs to take particular care in making a conditions precedent defense. If the borrower repudiates the notice of acceleration in making out a conditions precedent defense, then the borrower may have difficulty using the notice of acceleration later to establish an affirmative defense of limitations. For this reason, a borrower may be better off arguing a conditions precedent defense based upon failure to serve a notice of default or notice of grievance rather than hitting the Lender on the notice of acceleration argument. This is a very delicate balance, because one does not want to abandon viable arguments that can be used to successfully resist judgment in the current action, but it is also better to keep some "dry powder" for future engagements.

Fourth, borrowers need to remember that limitations are tolled while the borrower is in Bankruptcy and subject to the automatic civil stay. Similarly, limitations is tolled when a borrower asserts a right to a civil stay under the Servicemembers Civil Relief Act. Some states even have provisions that limitations is tolled when a party is out of state. Borrowers need to take exceptional care not to prematurely declare victory. (You do NOT want to throw a big party the day you think you got past limitations, only to discover that your two week vacation to Hawaii didn't count and that your vacation travels exclude enough time to prevent you from qualifying.) Borrowers need to be exceptionally circumspect in the information they make available to their adversaries, even information about travels and where the borrower can be found. (Posting your whereabouts on Facebook is very foolish.) Borrowers want to be years past limitations rather than months past limitations when asserting this defense.

Fifth, by getting well past limitations, borrowers also find themselves entitled to a far more robust laches argument. Laches is the equitable equivalent to the statutory limitations argument which can be made at law in the action on the note.

Finally, borrowers need to appreciate and understand that limitations usually bars the remedy only and is not a bar to collection of the debt, nor does it extinguish the debt. For this reason, limitations can NEVER FORM THE BASIS FOR A VALID QUIET TITLE ACTION. If someone is suggesting that you should file a Quiet Title action, that person is either a fool or a scam artist.
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Dear Floyd:

Check your case law, at least in Florida, filing for Bankrutpcy does not toll the statues of limitations on mortgage foreclosure and unsecured debt lawsuits. If you want the case law I can have it posted.
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Molly
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Dear Floyd:

Check your case law, at least in Florida, filing for Bankrutpcy does not toll the statues of limitations on mortgage foreclosure and unsecured debt lawsuits. If you want the case law I can have it posted.


I cannot speak for Floyd, but Mr. Roper seems to agree with Floyd and he includes a reference to the precise section of the Bankruptcy Code ("Substitute Trustee ???"):

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1267756593&postcount=11

Mr. Roper seems to express some doubt. But the law he cites says:

Quote:
11 USC § 108 - Extension of time
. . .
(c)Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1)the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2)30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.


George, can you please post the cases that show that the Bankruptcy Code doesn't apply in Florida? Also, are there any other provisions of the Bankruptcy Code which do not apply in Florida?
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Henry
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George, can you please post the cases that show that the Bankruptcy Code doesn't apply in Florida? Also, are there any other provisions of the Bankruptcy Code which do not apply in Florida?


Thanks for posting that Molly! Of course, George cannot reply, because there are no cases which show that Florida is exempt from the provisions of the United States Code.

Under the Supremacy Clause of the U.S. Constitution (Article VI, paragraph 2), the laws of the United States are binding in every state.

Quote:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.


See: http://www.law.cornell.edu/constitution/articlevi

There are some provisions of the Bankruptcy Code that provide for variance amongst the states, such as the provisions to allow states to identify exempt property, etc., but the law tolling limitations is not one of these.
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....
George wrote:
Dear Floyd:

Check your case law, at least in Florida, filing for Bankrutpcy does not toll the statues of limitations on mortgage foreclosure and unsecured debt lawsuits. If you want the case law I can have it posted.


It would be a good idea for you George to check your case law in FL. Bankruptcy DOES toll the statues of limitations on a foreclosure.

Here is a very easy to understand explanation from a FLORIDA judge.

http://www.scribd.com/doc/110845051/Bankruptcy-Toll-Limitations

Section 108(c) indicates Congress’s intent that state statutes of limitations be tolled for creditors while the bankruptcy case is pending.
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George
Sorry for the delay folks, didn't think this would be of so much interest:

Please Google the following Florida case: SWARTZMAN v. HARLAN 535 So.2d 605 (1988)

Also, Google the following case: Thurman v. Tafoya, 895 P. 2d 1050 - Colo: Supreme Court 1995.

This case is from Colorado's Supreme Court and references Florida's case cited above.

Read the above case's and you will understand why the Bankruptcy's code section 108 either does not apply or is being misinterpreted.

Good luck to all if this is a potential tool you may be able to use for your foreclosure cases.
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Henry
Quote:
Please Google the following Florida case: SWARTZMAN v. HARLAN 535 So.2d 605 (1988)

Also, Google the following case: Thurman v. Tafoya, 895 P. 2d 1050 - Colo: Supreme Court 1995.


Thanks for posting these cases, George! However, I would point out that these decisions are hardly determinative about the matter.

Molly's note that Mr. Roper had expressed some doubt about the applicability probably ought to have triggered some further inquiry.

The correct answer (based upon my brief survey) is that there seems to be some possibly still unresolved dispute about this issue between and amongst the Federal Circuits. Take a look at the U.S. Supreme Court's decision in Young v. United States:

[i]Young v. United States, 535 U.S. 43 (2002)[/b]
http://scholar.google.com/scholar_case?case=13046170438335509046

I do not have the time and the energy to run down whether Swartzman is current valid case law in Florida. Perhaps someone else can run this down. But it should be noted that even if this case has not been expressly overruled, any determination about U.S.C. 108(c) is inherently a Federal question, subject to appeal to the Federal Courts. So in this particular instance, if there is a contrary 10th Circuit case, it would trump Swartzman. And even if the 10th Circuit agrees with Swartzman, this does not make the holding correct. Since the U.S. Supreme Court declined to rule on this question, resolving the Young case on other grounds, the dispute within the circuits may still be resolved in the future by the U.S. Supreme Court.

To put this another way, whether or not Swartzman is currently binding, it is far from certain that this holding is correct. Courts in other states and other circuits have already held otherwise.

Thus, it would be a good idea for a borrower to treat the time in Bankruptcy as if it tolled limitations, but to be prepared to argue otherwise if a case is brought within the gray area. A borrower certainly wouldn't want to call attention to oneself and to simply gamble that Swartzman is correct. A more cautious approach is better.

George is to be applauded for bringing this issue to the fore. But there is also a lesson there for George. If Mr. Roper was in doubt, there was probably a reason. He probably took a cursory look and found conflicting decisions and then didn't want to express an opinion without further research. The lesson for George is not to be so certain as to the disposition based upon a single Florida decision. Ultimately, the Florida courts are not the arbiters of what Federal law means or how it must be applied.

I would suggest that George research the hell out of this before concluding so confidently that Swartzman is dispositive. A state court decision is never dispositive as to interpretation of U.S. law. Instead, the holdings of the 10th Circuit would control. Even a single subsequent decision by a U.S. District Court in Florida, would pretty much obliterate any authority found in Swartzman.

The holding in Thurman v. Tafoya could certainly be identified as instructive, but wouldn't be binding in Florida at all. The Illinois Supreme Court has also ruled otherwise, so there are cases going both ways. Any state supreme court decision outside of Florida would only be persuasive, not authoritative or binding.

This would be a great topic for a dedicated thread!

I cannot emphasize enough that I would never counsel a client to rely upon a case like Swartzman. You should always assume that a case like this can be overruled. This is not to say that the case shouldn't be cited. Treat the case as of no authority in developing your strategy (dont rely on it). Then cite the case and any other supporting cases you can find if presented with a situation where 108(c) is being used against you in Florida (rely on it only when necessary).

I am not licensed to practice in Florida and this is not legal advice! Consult a qualified and competent Florida attorney if your case might turn on this question!
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Henry
Quote:
It would be a good idea for you George to check your case law in FL. Bankruptcy DOES toll the statues of limitations on a foreclosure.

Here is a very easy to understand explanation from a FLORIDA judge.

http://www.scribd.com/doc/110845051/Bankruptcy-Toll-Limitations

Section 108(c) indicates Congress’s intent that state statutes of limitations be tolled for creditors while the bankruptcy case is pending.


I think that we must grant to George based upon his cited case that this may be a topic that merits further research!

One good research strategy would be to obtain the appellate briefs from the Young case. One would expect that attorneys arguing a case before the U.S. Supreme Court would have really researched this issue.

This topic probably deserves its own thread and it is probably a good idea to inventory the competing holdings in various states and U.S. Circuits. Where ever a Circuit Court has ruled, that ruling is going to trump a state supreme court decision in that circuit. Even a U.S. District Court ruling contrary to a state supreme court decision probably has the effect of virtually nullifying the authority of that state's decision, though it would not necessarily fully overrule it, except in a handful of states with a single Federal Court District.

I sure wouldn't bet my house or a client's house on a single intermediate state court decision.
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Henry
Whenever I indicated the 10th Circuit in the prior two posts in regards to Florida, I should have said the 11th Circuit. My passing familiarity with Florida law shows!
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I enjoyed reading this post, thank you for everyone who contributed.  Spencer case is very similar to a case I will be litigating in the future. (when I say litigating I mean hire an attorney to so) we purchased a house in foreclosure and bought the inferior lien position and title was issued subject to the first mortgage, however, the originator was Dana Capital, (which was ordered to close down in 2008 by a new Jersey Judge)

Background:

1. The house was bought in October 2004.
2. Loan amount $200,000.00
3. Originator is DANA CAPITAL GROUP INC.
4. No assignment was ever recorded however;
5.
DEUTSCHE BANK NATIONAL TRUST COMPANY filed a Lis Pendens 9/28/2007
6. The case got dismissed.
7. The Lender has not filed any new Lis Pendens since then.
8. The previous owner, as it seems, did not work any deal with the lender and has not made any payments, although we will have to prove it in court, we are still trying to contact the previous owner who has several city lien violations from 2007, 2008, 2009. unpaid water and other code enforcements violations attached to the property,in addition to that the association had not been paid for several years as well. 
9. How can
Deutsche bank foreclose if there was no recorded assignment to them?
10. assuming the defendant has not made any payments to the lender, since they closed down in 2008, and were forced to sieze operation by a new jersey judge.
10. they might sold the loan to deutsche bank before they closed down.
11. any feedback would be appreciated.

Date
Description
Additional Text
 02/24/2009 Final Disposition Form Final Disposition Form: Dismissed Before Hrg (Tdc)   
 02/24/2009 Notice of Voluntary Dismissal   
 10/22/2007 Answer Answer /deft Community Three Assn Inc (Txw)   
 10/12/2007 Summons Returned Unserved Sums Unserved Jane Doe (Txw)   
 10/12/2007 Summons Returned Unserved Sums Unserved John Doe (Txw)   
 10/12/2007 Summons Returned Served Sums Served 10/03/07 associ Community Three Assn Inc (Txw)   
 10/12/2007 Summons Returned Served Sums Served 09/28/07 defendant name (Txw)   
 10/12/2007 Summons Returned Served Sums Served 09/28/07 defendant name (Txw)   
 09/26/2007 Filing Fee Filing Fee Paid (Jpn)   
 09/26/2007 Petition Petition: Fld (Jpn)   
 09/26/2007 Civil Cover Sheet Civil Cover Sheet (Ips)   
 09/26/2007 Lis Pendens Lis Pendens: Fld & Rec (Jpn)   
 09/26/2007 Summons Issued Summons Issued 5 (Ips)   
 09/26/2007 Clock In Date of Case 09/26/07 Is Clock-In Date Of Case (Ips)   
 09/26/2007 Random Assignment Random Assignment Subd:04 (Jpn) 
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Texas
Hire a darn good attorney that knows many areas of law...
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I have contacted the attorney's who represented Spencer, the reply I received from Nancy C. Ciampa who is a managing partner in the Carlton Fields Firm is:

Thank you for your inquiry.  Unfortunately, we do not believe that this law firm can do anything to assist you in this matter.  Accordingly, we do not undertake to advise you in any way regarding your legal rights and obligations.  Also, please note that because we do not represent you, merely contacting us does not establish an attorney-client relationship.  As such, information you provide to us cannot be treated as confidences, secrets, or protected information of any nature.

 

               If you wish to pursue this matter with another attorney, you may need to act promptly.  There may be deadlines involved that could affect your rights.  If you fail to file a suit, make a claim, or take other appropriate actions by those dates, some or all of your rights may be permanently lost.

 

               We regret that Carlton Fields is unable to represent you in this matter.  We sincerely hope that you are able to obtain the redress you are seeking.

 

Very truly yours,

 

Nancy Ciampa

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Texas
Not absolutely certain of what your cause of action is. But if you bought the property in a foreclosure sale, with notice, you are not an innocent purchaser and could be subject to all conditions precedent.
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Cause of Action

A. The 5 years statue of Limitation is expired, and the claim is barred and the mortgage is unenforceable.

B. Latches

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You are correct, I am subject to these conditions. 

A. Since there is no active or Pending Lis Pendens if the lender will wake up one day and file its complaint they will have to serve me as indispensable party, at this point I can challenge the lender, and bring the Statute of Limitation and Latches argument.  They first filed in 2007, case got dismissed, assuming no agreement or payment made to the lender to re-set the clock, they have 5 years to bring the action from the date of the acceleration, since the acceleration date is unknown we can relate to the complaint filed in 2007 that clearly state that the Plaintiff has accelerated the loan.

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$&?!
Quote:
Fifth, by getting well past limitations, borrowers also find themselves entitled to a far more robust laches argument. Laches is the equitable equivalent to the statutory limitations argument which can be made at law in the action on the note.


We probably need a dedicated thread on laches, but this seemed to be the best place at present to post this nugget:

"Laches is an affirmative defense. As such, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence."
Van Meter v. Kelsey, 91 So.2d 327 (Fla. 1956)
http://scholar.google.com/scholar_case?case=10665518688502516672
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