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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
H. Gosh Show full post »
4 justice now
Gene,

I would like to suggest that we select Ocwen Federal Bank (Ocwen Loan Servicing) as number three on the MS Fraud hit list.

R,

J
Quote 0 0
Huh? 

I too am a Realtor, have been since 1965.  When people ask me what I do, I tell them that I am an "educator". 

I am not emotionally charged, not fighting for my home, life, nor have I ever had to fight for my sanity. Seeing as how both my feet are firmly planted on the ground, wingtips level as my pilot bro would say, I do hope you will consider my qualifications adequate enough to offer up an appropriate response to your drivel.

"This mortgage meltdown was caused by greedy brokers, and uneducated borrowers or borrowers that insist on living beyond their financial ability. "  (your response to SRSD......4/21/07 at 05:05 PM)

My nearly two decade long experience working with MSF victims shows what you wrote just isn't so. 
 
Judging from everything I have read, seen and heard since late 2006, this meltdown is largely due to MSF.

 I bet there are a lot of people out there who think all Realtors just want to get their hands on the REO listings.  Some of us work hard educating buyers so they will get a good mortgage from a reputable lenders.......but that is no longer enough to protect them from MSF.  Some of us work very hard to keep homeowners in their homes when MSF comes knocking at their door, even going so far as to "educate" their lawyers on MSF.
Quote 0 0
4 justice now
Blossom,

Knowing that there are realitors out there like yourself will help restore the credibility that has been lost for the profession in general. You are clearly a good, caring and honest person.  I truly Thank-You for that!

Respectfully,

Jon
Quote 0 0
The point that I believe everyone is trying to make, Huh, is that you have to look at the entire pedigree of an "investor" in order to see where their true motivation lies. These days, the big boys and girls (wow, me - politically correct? nahhhhh....) are buying up everything that they can - originators, servicers, pmi underwriters, trustees (LaSalle DID just get traded to BofA for what - $21B cash?) And the only way to really do that is to dig through the SEC filings. And, fortunately or unfortunately, I'm sleeping a little better these days and generally don't pull the 24 hour shifts that I used to when I was wading through 10ks, 8k, S-3s and 424b5s.

The era of consolidation in this industry is upon us. Those that don't go extinct are either strong enough to live on their own or they're swallowed up by those stronger than them. The dinosaurs are once again leaving the planet. And evolution is spawning something even bigger, greedier and, despite all of the PR spin, ultimately more ruthless than the last species. And everyone thought that we had it rough the last time...
Quote 0 0
Huh?

Blossom wrote:
Huh? 

I too am a Realtor, have been since 1965.  When people ask me what I do, I tell them that I am an "educator". 

I am not emotionally charged, not fighting for my home, life, nor have I ever had to fight for my sanity. Seeing as how both my feet are firmly planted on the ground, wingtips level as my pilot bro would say, I do hope you will consider my qualifications adequate enough to offer up an appropriate response to your drivel.

"This mortgage meltdown was caused by greedy brokers, and uneducated borrowers or borrowers that insist on living beyond their financial ability. "  (your response to SRSD......4/21/07 at 05:05 PM)

My nearly two decade long experience working with MSF victims shows what you wrote just isn't so. 
 
Judging from everything I have read, seen and heard since late 2006, this meltdown is largely due to MSF.

 I bet there are a lot of people out there who think all Realtors just want to get their hands on the REO listings.  Some of us work hard educating buyers so they will get a good mortgage from a reputable lenders.......but that is no longer enough to protect them from MSF.  Some of us work very hard to keep homeowners in their homes when MSF comes knocking at their door, even going so far as to "educate" their lawyers on MSF.

Thank you Blossom. Now I can respond to your drivel.

Most of us old timers on this forum are "educators". Speaking in our community to anyone that will listen; realtors, brokers, attorneys, neighbors, etc.

The fact that you go the extra mile for your client is well appreciated, I'm sure. You are one of a very few.

You wrote:
My nearly two decade long experience working with MSF victims shows what you wrote just isn't so. 

If you have 20 years of experience working with victims of mortgage servicing fraud, you should be a great asset to this board. You should have an enormous amount of advise along with well documented cases, contacts for attorneys, ideas that work in the MSF fight. Please, do share your knowledge.

Also, with your 20 years of experience please also share the evidence you have that shows this mortgage meltdown is largely due to MSF.
Any evidence will do. Give us something. If this is infact the case, we need to "Alert the Media" ASAP!!

Quote 0 0

Huh? ,  Each and everyone of us have evidence or most lawyers wouldn`t waste their time with us.  What if you sent your payment in every month on time with $200.00-300.00 extra and then got a letter that you were late or behind?(the company posted it late).  This was reported to credit bureau and now it shows I am late every month since.  Even though you call them , send them e-mails, letters with a copy of all your checks, they say you are late but they sure would like to refinance your mortgage.  What if the extra money you sent in just set there in what they call a suspense account .... another thing Huh?   Why are there so many of us that this has happened to?  I had no ideal that anything was wrong until this happened to us and did some checking and found out the fraud existed. How can it be our fault when their own employees talk about the fraud and when some of the people involved in this mess has already been sentenced to prison????

Quote 0 0
Ted :)
The great suspense account, HSBC tried that on me for the first payment when the servicing was sold to them. watch out for forced placed insurance.
 
I could afford my payment and I started to put extra money added to the payment every month to try to pay it off asap the same as SRSD.
 
My payment was a lil less then 420,00 a month, I could have doubled the payment every month. I was planing on paying it off in 1/2 the time.
Quote 0 0

Huh? wrote:
 

If this is infact the case, we need to "Alert the Media" ASAP!!

For what it's worth, the media has been well informed about Mortgage Servicing Fraud. They have been since at LEAST the days when Jayne Miller began covering Fairbanks/SPS' predatory activities. (Before anyone at Eckert or Harmon or Fairbanks/SPS goes crazy yelling "LIBEL !" that was the Judge's word not mine - although I do like it. I believe the doc that it's quoted from is somewhere on my site if you need to reference it - GetDShirtz.com)

Media coverage of Mortgage Servicing Fraud can most likely go back at least as far as the Dime Savings fiasco of the 90's if not further. But, ultimately, this isn't a "media" issue. It's a regulatory one and so far no one seems to really want to step up and protect home owners although Congressman Barney Frank does seem to have caught on a bit. Maybe something good will come out of all of these HFC hearings after all...
Quote 0 0
NoSoupForYou!
Lenders Push Mortgage Fraud
While the increase in mortgage fraud largely centers around inflated appraisals, lenders are also to blame -- as 90 percent of appraisers claim that they have received from lenders coercion such as threats to stop doing business with them and not paying them due fees if they don't assign the value necessary for a property finance to be approved.
read story from Village Soup
Quote 0 0
If anyone is interested in media coverage here is a few:

http://www.msfraud.org/Stories.html#s1

There are hundreds, maybe even thousands of these stories all over the Internet.
Quote 0 0
Huh?
SRSD wrote:
Huh? ,  Each and everyone of us have evidence or most lawyers wouldn`t waste their time with us. 
 
You have evidence that you are a victim of mortgage servicing fraud. That's not the question, the question is were is the evidence that MSF is the majority cause of this foreclosure epidemic.  NOBODY has provided it, because it doesn't exist.


What if you sent your payment in every month on time with $200.00-300.00 extra and then got a letter that you were late or behind?(the company posted it late).  This was reported to credit bureau and now it shows I am late every month since.  Even though you call them , send them e-mails, letters with a copy of all your checks, they say you are late but they sure would like to refinance your mortgage.  What if the extra money you sent in just set there in what they call a suspense account .... another thing Huh?   Why are there so many of us that this has happened to?  I had no ideal that anything was wrong until this happened to us and did some checking and found out the fraud existed. How can it be our fault when their own employees talk about the fraud and when some of the people involved in this mess has already been sentenced to prison????

It isn't any homeowners fault when they become a victim of mortgage servicing fraud. I never missed a payment either, had payments dropped in suspense accts, force placed insurance, etc
 
From your last statement, "people involved in this mess have already been sentenced to prison" it's clear that you don't know the difference between mortgage servicing fraud and other types of mortgage fraud because NOBODY involved in the MSF mess has EVER gone to prison.
 
That is the point Im trying to make. Knowing the difference between mortgage servicing fraud and everything else that is currently happening in todays market.
 
This forum is plastered with articles about predatory lending, bad brokers, bad appraisers, bad loans; all surrounding the current state of the market and the foreclosure crisis. It's all interesting reading, although if you're a victim of MSF alone, coming to this forum for the first time, it's very likely you will be extremely confused (as many here obviously are) about what MSF actually is.  
Quote 0 0
Wow...Now where have I heard THIS message before? Anyone? Anyone? Bueller?

If you're a victim of Mortgage Servicing Fraud then you should be paying attention to the current state of the market and the foreclosure crisis - because as a Mortgage Servicing Fraud victim you are smack dab in the middle of it like it or not.  There absolutely is a difference between "predatory lending" and Mortgage Servicing Fraud. The two can exist mutually exclusively of each other although both are often found in similar demographics. And MSF can and, in my own suspicions, does occur far more often than predatory lending because predatory lending tends to be limited to the origination of loans in those specific demographics whereas Mortgage Servicing Fraud can and does potentially affect literally anyone with a mortgage on a property. Race, religion, income, age etc. do not seem to be any overly defining factor for Mortgage Servicing Fraud. The one thing that we used to think was that equity was the one major contributing factor that attracted the fraudsters. These days, it's looking more and more like flat out greed regardless of equity levels that drives MSF.

Let's clarify the statement that "no one has provided evidence that Mortgage Servicing Fraud is the major cause of the current foreclosure crisis. It's not that the evidence doesn't exist. It is that any evidence either in support of or against this theory simply has not yet been compiled. To the best of my knowledge, no one has yet taken on the incredibly daunting task of examining the mind-boggling amount of data that has already been generated and has still yet to be revealed. The only way to determine whether Mortgage Servicing Fraud is any kind of contributor to the "meltdown" is, I believe, to examine each and every note that has been or will be foreclosed on and extract every bit of data possible out of each one and cross reference, and spread sheet, and tabulate, and calculate and dissect the hell out of it until the situation is better understood. Only then, I think, will it really be understood as to how and why the subprime market imploded. I'd be willing to bet that a sizable portion of those loans were foreclosed on by XXX, Trustee for XXXX Trust or Pass Through Certificate Series XXX ABC -1, etc. Until that happens, everyone has two things in common - opinions, highly educated and regarded as some may be, is one thing...

Let's put it out there. True, "legitimate lenders" (entities that actually lend money?) let's try that again, how about "ethical" or "above board" or "corporately responsible" lenders may not want to foreclose on properties for various reasons. But take a stroll through your local public notices tomorrow and examine just how many actual lenders are foreclosing on borrowers. "Actual lenders" as opposed to "Trustees". And, to scrutinize that statement even more closely, when it says "Trustee" what it most likely means is the servicer of the Trust foreclosing on the borrower. 

In order to understand how that is relevant to the foreclosure process, you'd have to read the Pooling and Servicing Agreement as laid out in the prospectus for the RMBS that the subject loan was bundled into. More likely than not, as part of the "servicing compensation" the servicer would be given first right of refusal to purchase the subject property once the foreclosure process had been completed.

And, of course MSF victims coming to the site and this forum for the first time may be confused. Dog knows that I was for the first couple of YEARS that I was dealing with this S fling. Simply put, John and Jane Q should not have to know what those of us that have been dealing with Mortgage Servicing Fraud for any length of time have learned over our years of frustration. Mortgage Servicing Fraud is, unfortunately, an absolutely immense issue that has more layers than an ogre. If anyone is going to truly understand the issue they are going to have to develop a basic understanding of the entire issue - many parts of which I will fully admit that I haven't even begun to scratch myself after more than 5 years. 

If it helps someone to understand more quickly, then by all means they should start off with blinders in order to stay focused. Just make sure that they understand how to eat an elephant and, most importantly, that they know that they're dealing with an elephant and not just a simple accounting or computer error. At least for now, it's going to take the village to educate the new victims. And if anyone can throw any more cliches into this discussion then I say run with it....
Quote 0 0
Great post Mike.

I like the eating an elephant analogy I wasted years learning about these criminals a little at time. My assumption was that the whole financial services industry was if any thing over regulated and the government watched lenders/servicers etc like a hawk to make sure the could not harm the economy and repeat the 29 crash and thew S+L crises. There is big difference though between regulation of terms and conditions and prosecution of actual crimes.

There are two basic issues here one is borrowers trapped in a permanent high interest debt cycle mostly because they borrowed more than they could afford or needed money who are likely to default and those of us who are outright crime victims ms fraud, forged docs etc. The same lenders who lend to people buried in debt and are likely to default are often the same lenders in many cases engaging in ms fraud. I agree it's difficult to separate the issues despite ms fraud and predatory lending being different issues because the same players are involved.

My big wake up call started when an FBI agent got angry with me and said listen were are not here to protect you we are here to protect the banks from people like you. Well then if I'm a criminal who defrauded Ameriquest out of $66,000 in immediate losses and a million in interest payments why then am I not in jail.

You suggestion to put the blinders on and focus on the immediate issue is a good one too.

Quote 0 0
DHW
I agree, great post, as usual, Mike. 
 
I also didn't believe about servicing fraud for a long time, I just thought I had a problem that I would have to fix that somehow had gotten my account "infected." like greg said, as you start putting all the pieces together and realizing it's bigger than you thought (it's now becoming an elephant) you have paid and paid, and your credit has been ruined, and maybe people like me, who eventually just financed away from one company because the problem couldn't get fixed by yourself, and foreclosure (however not fair or legal) was looming and  you had no choice,  you finance with subprime company with high and adjustable interest rate, not because you "bought more than you could afford" but because you ran out of money paying the original thieves and your credit won't allow for anything better.  so yes, now when the adjustable rate is being adjusted, its scary, but not necessarily because it was your fault, and not necessarily unconnected to servicing fraud...maybe this is why many people are in the ARMs... who knows, like Mike said, the evidence has not been gathered. 
 
I might also add, I am not even sure how I got with Fairbanks/SPS to begin with...I didn't start out with subprime lending, and guess i didn't realize when things switched, that somehow I was considered in subprime category.  I didn't realize they were considered subprime. I didn't think I deserved that ranking.
Quote 0 0
4 justice now
Mike, Greg & DHW:

Thanks for the excellent posts!

As I realize more and more that these MS Fraud scumbags were actually able to rip-off people as sharp as you guys, I don't feel quite as naive or ignorant as I once did. Oh, I certainly don't mean to imply that I feel better because your loses, not at all... Well, I think you know what I mean.

BTW: I too, once thought that the FBI and other government agencies were empowered to protect all our citizens, and truly those of us who are honest and lawful. But I know better now. Unfortunately, by the time enough people, those who actually care and/or are in a position to do anything,  realize the truth about what has taken place here, I'm afraid MS Fraud will be overshadowed by the total collapse of our economy, etc (all thanks to the same group of F'n thieves).   

Just my opinion.
Quote 0 0
4j, the only reason I know what I know now is because of what Fairbanks/SPS did to my loan. I knew none of this when I first realized that something was wrong with my loan and had to learn on the fly because at one point I thought that I was going to have to bring this case pro se and figured that I better start learning about my enemy. That reminds me, I still have to read "The Art of War"...

No homeowner should know what many MSF victims have come to learn. We should all be able to make our monthly mortgage payments and feel safe in doing so. Conversely, if we can't make those payments for some reason then we should expect to face foreclosure. But we shouldn't be blindsided by third party servicers with whom we have neither agreed to do business nor have any contractual agreement with simply because of their greed or the greed of Wall Street.

Hmmm....I wonder if Bob Conrad would be at all interested in Mortgage Servicing Fraud and it's connection with the Street.
Quote 0 0
CEO Profiles

MortgageMisfit.com - Home

     
Roland Arnall
Founder & Major Shareholder of Ameriquest, Argent

Angelo Mozilo
CEO of Countrywide

Brad A. Morrice
President and Chief Executive Officer of New Century
Financial Corporation

James McIntyre
CEO of Fremont General

Bob Dubrish
President and CEO of Option One Mortgage
Corporation

James A. Konrath
Co-founder and CEO of Accredited Home Lenders

Tony Daniloo
CEO of DreamLife Financial

Michael Fanghella
Ex-CEO of PinnFund

Phil Hill
Atlanta-based real estate developer gone fraudster



Quote 0 0
Rip-off report
Quote 0 0
need 2 read

United States District Court - District of Massachusetts


Pierre Richard Augustin, PRO SE )
Plaintiff, )
)
v. ) C.A. No. 06-10368 (NMG)
)
DANVERSBANK, ET AL., )
Defendants. )


PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
WITH SUPPORTING AUTHORITY (Ameriquest Mortgage)



CERTIFICATION OF PERSONAL CONSULTATION
Plaintiff hereby certifies that on October 11, 2006 he hand delivered to the United States District Court of Massachusetts and has followed Rule 7.1(a)(2) prior filing his Memorandum of Point and Authorities in opposition to defendant’s motion to dismiss.

1. Emancipation Redress
In America, no one is considered to be above the law. The United States Constitution is considered the supreme law of the land both because of its content and because its authority is derived from the people. However, first and foremost, plaintiff meditates and relies on the divine guidance of the almighty to provide him with wisdom to dissect and to comprehend the meaning of the law of the land.

Plaintiff strongly believes in the transparency of the judicial system in the United States of America to uphold the law in the search of Justice. For, it is the only forum whereby an average ‘Joe’ citizen like myself who never had any infraction with the law, was left with the only viable option of bankruptcy and TILA to protect his property rights without money, status and political connection in seeking the emancipation and the redress from the violation of the law by defendants’s powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.

Intuitively, plaintiff recognizes that he is facing lawyers that are well schooled with an in-depth knowledge of the law and various courtroom strategies that he lacks. Although not a lawyer or pretending to be one, plaintiff action is symmetrical to many pro se individual from the early settlers in the state of Massachusetts who could not afford expensive legal representation in the search of fairness, equal protection and justice under the law.

Unequivocally, the paramount reason for plaintiff complaint against the defendants rest on the principle of Emancipation and Redress which are intertwined with his property rights as "the guardian of every other right". Thus, plaintiff arguments are based on the following Rule of Law and others as deemed appropriate:

1) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."

2) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”

3) 7th Amendment, “…The right of trial by jury shall be preserved.”

4) 14th Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5) Natural Rights, “Weakness allures the ruffian, but arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding citizens deprived of the use of them, and the weak will become a prey to the strong.” — Thomas Paine

6) Common Law, In Beard v. U.S.(158 U.S. 550, 1895), the Court approved the common law rule that a person "may repel force by force" in self-defense, and concluded that when attacked, a person "was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force" as needed to prevent "great bodily injury or death."

7) Pro Se Litigants, “Courts are particularly cautious while inspecting pleading prepared by plaintiffs who lack counsel and are proceeding pro se. Often inartful, and rarely compose to the standards expected of practicing attorneys, pro se pleadings are viewed with considerable liberality and are held to less stringent standards than those expected of pleadings drafted by lawyers”. (Antonelli v. Shehan, 81 F. 3d 1422, 1427 (7th Cir. 1996)). Also, “parties appearing pro se are allowed greater latitude with respect to reasonableness of their legal theories (Patterson V. Aiker, 111 F.R.D. 354, 358 [N.D. GA 1986]) and according to section D of Rule 11 of the Federal Rule of Civil Procedure.

2. Defendant violated Local Rule 7.1(a)(2)
The facts and circumstances reveal that there were no attempt made by neither the defendant or their counsel to comply with Local Rule 7.1(a)(2) nor was there any certification accompanying their motion to dismiss.

The issue is covered by a Rule of law of Local Rule 7.1(a)(2)(Motion Practice) which states that “No motion shall be filed unless counsel certify that they have conferred and have attempted in good faith to resolve or narrow the issue.”

Analysis - The fact help to prove that the defendant or their counsel did not comply with Local Rule 7.1(a)(2).

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Hence, defendant’s motion to dismiss should be denied.

3. F.R.Civ.P. 12(b)(1) – District Court has Jurisdiction Over The Subject Matter
The facts and circumstances that brought the plaintiff under the Federal Court jurisdiction are that this complaint involves violations of Federal and State Law and the plaintiff and defendants are citizens of different states. As a whole, the complaint is based on actual count of facts and claims based on Federal and Massachusetts Law since plaintiff has pursued and exhausted all administrative remedies prior the filing of this action in Court.

The issue is covered by the Rule of law, which are 28 U.S.C § 1331, 28 U.S.C § 1332 and 28 U.S.C § 1391.

Analysis - The fact helps to prove that the rule created by Article III of the U.S. Constitution expressly creates a federal court system, and Section 2 of that Article further declares that jurisdiction. Also, Federal Courts may hear only those cases involving federal laws, federal or sovereign parties (including states), or disputes between citizens from different states. Defendant is foreign corporation from California doing business in Massachusetts.

Conclusion - From the analysis, plaintiff comes to the Conclusion that based on the rule of law, the United States District Court, District Court of Massachusetts has venue and power to hear and decide on this case whose subject matter fits within the court's scope of authority. Hence, defendant’s motion to dismiss should be denied.

P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
-> Just Fill out a Simple 1-minute form, Serving all 50 States in the U.S. & the rest of the World!
1. Call and Speak with a Consultant, 1.800.519.7024, it's FREE!
2. Or Have a Financial Executive Call Me at a convenient time.
P.S. - Please  Tell a Friend to Visit
  & Sign-Up to Our Newsletter! 

Business Loans!Real Estate LoansCommercial Loans!Earn Money!


4. F.R.Civ.P. 12(b)(6) – Plaintiff state a claim upon which relief can be granted
The facts and circumstances that brought the plaintiff to court against “Ameriquest” are based on the facts that payoff or refinancing does not terminate the extended right of rescission so as long as the earlier loans were within the three-year period and the earlier loan independently had violations giving rise to the extended rescission right as well (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Ill. Apr. 28, 2003); McIntosh v. Irwin Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003); Mayfield v. Vanguard Savings & Loan Ass’n, 710 F. Supp. 143 (E.D. Pa. 1989) (both current and prior, refinanced loan rescinded); Abele v. Mid-Penn Consumer Discount, 77 B.R. 460, 467 (E.D. Pa. 1987), aff’d mem., 845 F.2d 1009 (3d Cir. 1988) (four in series of refinancings rescinded); In re Steinbrecher, 110 B.R. 155 (Bankr. E.D. Pa. 1990); In re Milbourne, 108 B.R. 522 (Bankr. E.D. Pa. 1989); see also Wiggins v. Avco Fin. Servs., 62 F. Supp. 2d 90 (D.D.C. 1999) (rescission allowed even though debtors paid off loan after sending rescission notice); in re Tucker, 74 B.R. 923 (Bankr. E.D. Pa. 1987) (debtor could have rescinded earlier, refinanced loans, though did not seek rescission).

By invoking F.R.Civ.P. 12(b)(6), defendant is suggesting that plaintiff’s factual allegations must be taken as true for the purpose of the court ruling on the motion. Since defendant’s motion does not replace the trial, real and factual issues based on circumstantial evidence and prior conclusion should be drawn favorably for the plaintiff. Since there are matters outside the complaint allegations, then this motion could be viewed as a “Summary Judgment”.

The issue is covered by a Rule of law of F.R.Civ.P. 12(b)(6) which states, if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Analysis - The fact helps to prove that when considering defendant’s motion, the court must construe the factual allegations in the light most favorable to plaintiff with all doubts resolved in the pleaders favor and the allegations taken as true. The purpose of the ‘Notice of Rescission’ and allegations cited in Plaintiff’s verified complaint was to give defendant fair notice of plaintiff’s claimed and the rule of law for basing the argument. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). With regard to Fed. Rule Civ. P 12(b)(6), court should dismiss a suit under FRCP 12(b)(6) only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that entitled him to relief. Conley v. Gibson, 355 U.S. 41, 45-48 (1957).

The rule also state that a dismissal under failure to state a claim upon which relief can be granted would have to be "treated as one for summary judgment", and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56" as stipulated in Fed. Rule Civ. P, Rule 12(b). Then, in the absence of given plaintiff the opportunity to present sworn affidavits as well as the opportunity to conduct some kind of discovery against defendants and to request admissions and conduct interrogatories, plaintiff reaches the conclusion that justice will not be served based on the notion that the Fourteenth Amendment to the Constitution requires that plaintiff be allowed his Due Process rights to prove these claims by a preponderance of the evidence. Plaintiff has the legal right, and a moral duty, according to the constitution, the 7th amendment to present his evidence to a jury and let them decide based on the finding of fact and the principle of equality and fundamental fairness.

Conclusion - From the analysis, plaintiff comes to the Conclusion that based on the rule of law, he has satisfied the burden of stating a claim against “Ameriquest Mortgage”. Plaintiff’s complaint need not alleged any specific wrong per se; rather it must merely notify the defendant of the nature of the claim and state the ‘Relief Sought’. Plaintiff also alleges that all defendants are liable for damages by virtue of their part in the civil conspiracy and trampling on the rights of plaintiffs by violating Federal and State Law. Hence, defendant’s motion to dismiss should be denied.

5. Plaintiff has stated a Cause of Action against Defendant
The facts and circumstances that brought the plaintiff to court against defendants is the civil conspiracy with Global Consultants (acted as a “finder” in the transaction), Title company, Closing Attorney, Allen Segal in violation of the Massachusetts Laws on Predatory Lending and Acts and the fact that TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the plaintiff to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to plaintiff all finance charges and fees paid. Thus, Ameriquest Mortgage is obligated to return those charges to the plaintiff (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan).

The issue is covered by a Rule of law under Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law.

Analysis - The fact helps to prove that the plaintiff alleged unequivocally that the defendant(s) has violated of Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Plaintiff has sufficiently alleged facts necessary to prove each element of his causes of action. Hence, defendant motion to dismiss should be denied.

6. Plaintiff’s did notify lien holders within the Federal & Mass. TILA limitation period
The facts and circumstances that plaintiff filed a copy of the notice of rescission in the bankruptcy court notifying the attorneys representing DanversBank, Commonwealth, New Century Mortgage and Chase Home Finance as well as having certified receipt return of proof of delivery to the Defendants/Lawyers including Ameriquest Mortgage are proof of notification according to the Official Staff Commentary, 226.2(a)(22)-2 as authorizing service on attorney.

The issue is covered by a Rule of law of the Truth-in-Lending which empower plaintiff to exercise his right in writing by notifying creditors of his cancellation by mail to rescind the mortgage loan transactions per (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b). This action is also based on Massachusetts TILA law, which has a statute of limitations of 4 years.

The filing of Bankruptcy tolls or extends the rescission time as plaintiff had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Also, the principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Plaintiff could not have reasonably discovered the concealed fact of TILA violations in-depth and explicitly until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center.

The equitable tolling principles are to be read into every federal statute of limitations unless Congress expressly provides to the contrary in clear and ambiguous language, (See Rotella v. Wood, 528 U.S. 549, 560-61, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)). Since TILA does not evidence a contrary Congressional intent, its statute of limitations must be read to be subject to equitable tolling, particularly since the act is to be construed liberally in favor of consumers. In an analogous case, the District Court reversed the Bankruptcy court holding that section 108(b) guards against the expiration of the underlying right by extending the period to exercise the right of rescission, as long as the right had not expired when the bankruptcy case.

Analysis – The fact helps to prove the statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§ 226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary §§ 226.15(d)(1)-1, 226.23(d)(1)-1.). Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. This requires canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary §§ 226.15(d)(2)-3, 226.23(d)(2)-3.) Thus, allowing rescission of refinanced loan or loan paid off is also consistent with TIL’s protective attitude toward borrowers’ rescission rights generally and the general requirement that TIL be interpreted liberally for the consumer.

Conclusion - From the analysis, plaintiff comes to the Conclusion that both the statute and Regulation Z make it clear that, if the plaintiff has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). The statute, section 1635(b) states: “When an obligor exercises his right to cancel…, any security interest given by the obligor… becomes void upon such rescission”. Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b).

The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Ameriquest Mortgage and other defendants to potential liability. Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the plaintiff to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to plaintiff all finance charges and fees paid. Thus, it is premature to determine jurisdiction since plaintiff has the option of enforcing the rescission right in federal district, state or bankruptcy court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees in a successful action”). Hence, defendant motion to dismiss should be denied.

P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
-> Just Fill out a Simple 1-minute form, Serving all 50 States in the U.S. & the rest of the World!
1. Call and Speak with a Consultant, 1.800.519.7024, it's FREE!
2. Or Have a Financial Executive Call Me at a convenient time.
P.S. - Please  Tell a Friend to Visit
  & Sign-Up to Our Newsletter! 

Business Loans!Real Estate LoansCommercial Loans!Earn Money!

7. Plaintiff timely submitted Summons to U.S. Marshal
Timeline analysis of service of Summons & Complaint by US Marshall
Step 1 Step 2 How? A Step 3 B Step 4
Docket entry # Defendant Date Summons was Issued by Court Date Plaintiff submitted Summons to US Marshall Date US Marshall served on Defendants Served by US Marshall or by mail # of Days Elapsed between Step 1 & Step 2 Date US Marshall filed Proof of Service in Court # of Days Elapsed Between Step 2 & Step 3 Date Plaintiff received proof of service
1 7 Allen H. Segal 4/3/2006 4/7/2006 4/13/2006 Officer 7 4/18/2006 5 *
2 8 Commonwealth 4/3/2006 4/7/2006 4/13/2006 Mail 7 *
3 9 Chase 4/3/2006 4/7/2006 4/14/2006 Mail 8 *
4 10 Allied Home Mort. 4/3/2006 4/7/2006 4/21/2006 Officer 15 5/3/2006 13 *
5 11 New Century 4/3/2006 4/7/2006 4/21/2006 Officer 15 5/3/2006 13 *
6 15 Old Republic 4/7/2006 4/7/2006 4/20/2006 Officer 14 5/4/2006 15 *
7 19 DanversBank 4/3/2006 4/7/2006 5/8/2006 Officer 32 5/12/2006 5 *
8 27 Ameriquest 4/3/2006 4/7/2006 5/12/2006 Officer 36 6/1/2006 21 *
9 40 Global Consultant 4/3/2006 4/7/2006 5/31/2006 Officer 55 6/14/2006 15 *
10 50 Samuel Reef 4/3/2006 4/6/2006 6/29/2006 Officer 85 7/5/2006 7 *
11 59 Allen H. Segal 7/14/2006 7/14/2006 8/28/2006 Officer 46 8/29/2006 1 *
12 65 Ameriquest 4/3/2006 6/30/2006 9/8/2006 Officer 71 10/4/2006 27 *

The facts and circumstances as outlined in the table above, prove that Plaintiff submitted the summons and complaints to the U.S. Marshall office for process timely. Plaintiff received the summons issued on April 3, 2006 by the Court that he submitted timely on April 6 & 7, 2006 to the U.S. Marshall’s office. Once Plaintiff turned over the summons and complaint to U.S. Marshal, he does not has any authority to demand that his summons be delivered right away. Based on the fact mentioned above, Plaintiff believes that the summons were issued timely since the 120 days period, as confirmed by the Massachusetts District Court Clerk’s office, run from April 3, 2006 to July 31, 2006. Also, on July 26, 2006, Plaintiff timely submitted a Motion for Enlargement of Time so that the US Marshal would have appropriate time to serve the remaining summons in their possession among which was Ameriquest’s summons in route to California.

The issue is covered by a Rule of law that in an action in which the Plaintiff petitions to proceed in forma pauperis, the Fed. R. Civ. P. 4(m) 120-day period for service on the defendant does not begin to run on the date that the plaintiff files the complaint with the clerk of court without the required filing fee. Courts must allow considerable leeway when assessing whether a pro se litigant’s failure to comply strictly with the time limits should be excused for good cause which is to be determined by the court itself. Good causes are determined by the following factors: 1) whether the plaintiff exhibited reasonable diligence or made reasonable effort to effect service, 2) whether the party to be served received actual notice of the lawsuit (which Ameriquest in their motion to dismiss claimed to receive from a co-defendant a courtesy copy of the complaint) (in Re Sheehan, 253 F.3d 507 (9th Cir. 2001)), 3) the degree of prejudice suffered by the party to be served, 4) the degree of prejedice to the serving party if his complaint is dismissed and 5) whether the serving party has moved for an extension of the time to serve.

Analysis – The time limit rule for service states that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, could either dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time. Fed.R. Civ. P. 4(m) grants discretion to the district court to extend the time period for service of process, even in the absence of a showing good cause for failure to effect timely service (Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 30 Fed.R. Serv. 3d 823 (3r Cir. 1995) and (Horenkamp v. Van Winkle And Col., Inc., 402 F.3d 1129, 60 Fed. R. Serv. 3d 1260 (11th Cir. 2005)).

In Plaintiff’s case, he filed a timely motion to enlarge time for serving the summons prior to the running of the 120 days. In deciding whether to grant permissive relief, the district court should also take care to protect pro se plaintiffs from the consequences of confusion or delay as illustrated above by U.S. Marshall or attending the resoluting of an in forma pauperis petition.

Conclusion - From the analysis, plaintiff comes to the Conclusion that when a pro se litigant is proceeding in forma pauperis, he is relying on service by the U.S. Marshals, and as long as he provided the information as illustrated in the table above, to identify the defendant, courts have uniformly held that the Marshals’ failure to effect service automatically constitutes good cause under Fed. R. Civ. P. 4(m). A plaintiff proceeding in forma pauperis is entitled to rely upon court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service of process, where such failure is through no fault of the litigant. Hence, defendant’s motion to dismiss should be denied.

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person October 11, 2006 to US District Court, District of Massachusetts, Boston and served by United States Postal Mail, postage upon counsel for the defendants (‘Ameriquest Mortgage’) mailed on October 11, 2006.

X ____________________________________ Pierre R. Augustin, 28 Cedar Street,
Lowell, MA 01852, 617-202-8069
VERIFICATION

I, Pierre R. Augustin, hereby depose and state as follows:

1. I am Pierre R. Augustin, represented by self.

2. I have read the foregoing amended Complaint filed herein and knowing the contents thereof have found that the allegations of fact set forth therein are true of my own personal knowledge, except as to those allegations based on information and belief which I believe to be true.

Signed under the penalties of perjury this ________day of ____________2006.

X ________________________________

STATE OF _______________________________COUNTY OF _____________________________

On this _____ day of __________, 2006, before me, the undersigned notary public, personally appeared ___________________________, proved to me through satisfactory evidence of identification, which was _________________________________________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose.

______________________________
Notary Public
My Commission Expires:
(SEAL)


United States District Court - District of Massachusetts

Pierre Richard Augustin, PRO SE )
Plaintiff, ) C.A. No. 06-10368 (NMG)
)
v. ) Plaintiff’s
) Affidavit/Affirmation
DANVERSBANK, ET AL., ) In Opposition To
Defendants. ) Defendant’s Motion

CERTIFICATION OF PERSONAL CONSULTATION - Plaintiff hereby certifies that on October 11, 2006 he hand delivered to the U.S. District Court of Massachusetts the Affirmation & Affidavit form in opposition to defendant’s motion to dismiss and has followed Rule 7.1(a)(2).
I, Pierre R. Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the plaintiff in this action, and I respectfully submit this affidavit/affirmation in opposition to the motion dated October 11, 2006, made by Ameriquest Mortgage’s Attorneys.
2) The Motion should be denied because of the facts and circumstances outlined in the ‘Memorandum of Points And Authorities In Opposition To Defendant’s Motion To Dismiss With Supporting Authority’.
3) I have personal knowledge of facts, which bear on this motion. In view of the foregoing, it is respectfully submitted that the motion should be denied.
I declare under penalty of perjury that the foregoing is true and correct, except as to those allegations based on information and belief, which I believe to be true.
Dated:_____________ _____________________________
Signature, Pro Se Plaintiff, Pierre-Richard Augustin,
28 Cedar Street, Lowell, MA 01852, (617) 202-8069
STATE OF _______________________________COUNTY OF _____________________________

On this _____ day of __________, 2006, before me, the undersigned notary public, personally appeared ___________________________, proved to me through satisfactory evidence of identification, which was _________________________________________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
(SEAL)

Memorandum of point and authorities with supporting authority

Thus, Ameriquest Mortgage is obligated to return those charges to the .... Docket entry # Defendant Date Summons was Issued by Court Date Plaintiff ...
rcxloan.com/Civil_Action_Motion_9.htm - 57k - Cached - Similar pages

Quote 0 0
Don't Read This!
Quote 0 0
Sally Joe
This guy was just throwing things against the wall to see what sticks!

The problem with cases like this is that it just weakens the rest of us.

The more garbage cases get before a judge or jury without merit, the less chance the rest of us have of being taken seriously.

UGH!!
Quote 0 0
O -

do you know much about that case? if you did I have to bet you wouln't say that.

Quote 0 0
Digger
Sally Joe:

I understand your comment.  This case is about an innocent homeowner's desperate attempt to find justice in a system that is severely broken and where the judicial abuse is so shocking you would have to see it to believe it.

I am familiar with this case and it MUST be properly and fully investigated by the proper authorities (if there is such a thing anymore) and those responsible, especially this (using the lawyer's own words) "out of control judge", held accountable.

When corruption in a court is at risk of being exposed, judges have the unbridled and unchallenged power to write Opinions to make it "appear" that it is the PRO SE litigant who is the problem and convince the reader that the homeowner is a tad mentally unstable.  It is as prevalent in MSF as it is in convicting innocent criminals.  It doesn't matter how perfect your case is, if the judge is corrupt, corrupted by your opponents, or just doesn't like you or your case, you lose.
Quote 0 0
Under Dog

The Judge got to retire. Diggers right! have you read Richard E?

Quote 0 0
Etty :)

- Not an Official Document

Quote 0 0
AHRC NEWS

AHRC

Press Release      
United States Government Representatives Hear About Theft of Homes by Lawyers and Due Process Violations by America's Courts

Congressman Conyers and Senator Leahy requests list of cases, venue, judges and issues

March 28, 2007

By AHRC News Services

Homeowners Associations: Comments

Quote 0 0

Big Bob! Send them your case!  Showing the Forgery, Documents substituted, and legal fraud!

Quote 0 0
Digger

AHRC

An Article
JUDGE ALERTS - November 5, 2007

Homeowner reports on conspiracy, collusion, fraud, denial of due process and property seizures

November 05, 2007

By AHRC News Services

Orange County, California -

Judges have the power to harm homeowners and their families and take away their freedom, reputation, homes and property.

Most Southern California homeowners taken to court, often on trumped up charges of disputed late charges or "rules violations" by CAI equity stripper lawyers , report that judges engage in one or more of the following:

• Abuse of process
• Fraud and racketeering
• Denial of due process
• Illegal seizures of property
• Bribery
• Ignoring evidence, laws and rules of the courts
• Eviscerating the cases and defenses of homeowners
• Denying homeowner discovery rights
• Knowingly signing fraudulent judgments that mislabel homeowners as "debtors" in order to subject them to illegal wage garnishments, property and bank account seizures
• Ordering homeowners to pay $500 - $650 per hour to their private rental judge colleagues in a rigged private justice system set up to bankrupt homeownersand enrich lawyers and judges
• Deciding cases when they are on the take of the CAI foreclosure lawyers on the case - from whom they receive seminar fees, political donations, recognition awards, trips and junkets
• Stripping evidence homeowners provide from the court records
• Writing legal opinions that are contrary to facts, evidence, statutes, and rules and labeling these unjust opinions "Unpublished Opinions" to conceal their judicial biases and crimes.

CAI lawyers have been known to act as temporary judges. For example, Larry Rothman, who told the Orange County Register that he filed 250 foreclosures a month in homeowner associations.

Homeowners reports injustice or CCR - State Law violations by the following judges:

• Judge Michael McCartin - Laguna Hills, California - "MY daughter ..committed suicide upon receiving the notice of judgment from the court" - Jerri Beardslee

• Judge Richard Kirchner - Los Angeles County

The $67 Million Pants - Washington, D.C., Lawyer Sues Dry Cleaners for Lost Trousers -May 02, 2007 - By Jim Avila, Chris Francescani, Mary Harris - Copyright ABC Law News & Justice Unit - Washington, District of Columbia

• Judge Adele Grubbs - Superior Court - Cobb County, Georgia

• Judge Toni Lindsey - Superior Court - Texas

• Judge David Chaffee - Orange County Superior Court

• Judge Derek Hunt

• Judge Geoffrey Glass

• Judge William Monroe - Orange County Superior Court, California

• Judge Tracey T. Moreno Grant - County of Los Angeles South Distric - San Pedro, California

• Judge Polis - - Orange County Superior Court, California - retired - now a rental judge

• Judge Kenneth Ziebarth - Riverside Court Judge- Rental Judge JAMS - Palacio del Mar Board member

Homeowner have reported complaints on the following foreclosure lawyers who also sit as Judges • Judge Pro Tem • Commissioners in Courtrooms

* John Robin MacDowell - Fiore Racobs & Powers - Judge Pro-tem

• Larry Rothman - Judge Pro tem - California Superior Court - Oange County

To report a judge use the both a Directory Listing Form and the News Article Form and include cases and evidence as attachments.

Click here to do a Directory Listing of a Judge

Click here to submit a News Article on a Judge

Quote 0 0
O -

The Center For Judicial Accountability

Quote 0 0
Write a reply...