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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A question to anyone that has knowledge to my question:

My case has a new Judge and a new Plaintiff Attorney. My question is; Can I put together some type of letter to the Judge and Attorney in reference to my case.

A discovery was filed over a year ago. Plaintiff asked for more time and it has been in limbo ever since. A motion for MERS tracking was filed and no answer for about 4 months now.

Can I put together a summary update??? Is this appropriate???

I am Pro Se.
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Moose
cmc wrote:
A question to anyone that has knowledge to my question:

My case has a new Judge and a new Plaintiff Attorney. My question is; Can I put together some type of letter to the Judge and Attorney in reference to my case.

A discovery was filed over a year ago. Plaintiff asked for more time and it has been in limbo ever since. A motion for MERS tracking was filed and no answer for about 4 months now.

Can I put together a summary update??? Is this appropriate???

I am Pro Se.

State courts have rather detailed procedural rules so you can't take this as a blanket statement nor legal advice - you should never write a letter to a judge. That is "ex parte" communication as is frowned on even for pro se litigants.

You can write a letter to the new attorney but you must be very careful with what you put in such a document.

Again, this isn't legal advice but if they (the plaintiff) have done and are doing nothing, I would suggest you look up the court rules for when a case can be "Dismissed for Want of Prosecution."

You should also go physically look at the current case record to see if they have filed something you're not aware of. Some of them are very clever in filing things that the defendant never sees.

I would suggest you spend a few minutes on the phone with a local legal aid lawyer to avoid doing something you'd find out later is a problem. They may not be in a position to represent you but they may know the ins and outs of the local court procedures and deadlines.

Moose




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William A. Roper, Jr.
cmc:

First, I would concur with each of Moose's thoughtful suggestions.

I would add a couple of strategic considerations, for which there is probably no single monolithically correct answer and which involves some rather subjective speculation dependent upon the facts of your case, the jurisdiction of the subject property, the foreclosure mill law firm involved and some uncertain future events.

In many places, state or local rules provide for the dismissal of cases which languish on the dockets.  These dismissals can, usually after some notice to the parties, be made sua sponte by the court or upon motion by a defendant.

An advantage of seeking such a dismissal is that it at least temporarily disposes of the matter, forcing the plaintiff to return to "Go" without collecting $200, and requiring that the plaintiff bring an entirely new case.  In many places, the plaintiff would then have to file a new lis pendens, file a new petition or complaint and serve you with an official citation, summons or other official process to obtain personal jurisdiction and restart the suit.

This would almost certainly buy some DELAY.

Whether it buys ADDITIONAL delay and whether this IMPROVES or UNDERMINES your case really depends upon the facts.

Let me give you some examples of the sorts of situations where it MIGHT prove counterproductive.

Suppose that the plaintiff has forged an assignment which is executed by a robo-forger working for a well known robo-forgery mill and further suppose that the robo-forged assignment is dated after the commencement of the suit.  (See Ibanez and other similar holdings.)  Further suppose that the plaintiff has attached an UNINDORSED promissory note made out in favor of a different entity to its complaint.  Further suppose that there is an existing deposition or two of the well known robo-forger floating around, which shows that the robo-forger engaged in unlawful activity in respect of robo-forgery and/or robo-perjury.

Further suppose that you have already run a little discovery, including some requests for admissions and the plaintiff has DEFAULTED in answering certain discovery requests.

Finally, suppose that the property is located in a state with an exceptionally high volume of foreclosures and, perhaps, the case has been litigated on the plaintiff's behalf by a corrupt and dishonest foreclosure mill law firm that has mostly imploded, with its cases scattered about to other different law firms.  Or alternatively, suppose that your case is in a jurisdiction where the courts have already reached a number of decisions favorable to defendants (suppose your case is before Justice Arthur Schack of Kings County, NY).

Under these circumstances, a defendant might very well reasonably hope that (a) ongoing chaos associated with the court system and caseload management, as well a the discontinuity in representation might result in some ongoing confusion, with the case languishing for some time, (b) litigating this case, as filed, when properly defended might result in a dismissal for lack of standing anyway, (c) there exists some possibility that the case could be dismissed with prejudice due to misconduct by the plaintiff and/or foreclosure mill law firm.

Getting a sooner dismissal might simply present the plaintiff with the opportunity to clean up its case upon refiling, actually DENYING the defendant some of the better issues.

In fact, in many of these cases, the very best strategy for the plaintiff would be to take a voluntary dismissal and to REFILE.  Continuing to litigate a case which was filed BEFORE the execution of the forged assignment and in consideration of the pleading of an unindorsed promissory note against a well represented and earnest defendant is sort of like playing out a very bad poker hand.  While it is certainly possible to win with an otherwise losing hand (and the foreclosure mills have been doing this for years), playing against skilled players, unwillingness to fold and walk away from a large pot to conserve resources for the next hand is really a pretty poor poker strategy.

Continuing the analogy, the player with the very good hand really doesn't want to immediately call and get a determination of the winning hand, but to bet in such a way that, at least initially, the other players are drawn in and continue to bet.  The player with the winning hand may very well want to raise and to do this in a way that keeps the other players playing rather than folding.

In a limiting case, suppose that the player with the winning hand has an ace high straight flush.  This is of course the ultimate winning hand and winning is a certainty.  In such a case, amounts bet are not actually at risk at all.  The risk is associated with the betting strategy and whether through the betting and various forms of signaling, personality, body language and bluster one can get others to both remain in the game and to ultimately bet larger amounts.

I would NOT want to suggest or represent to you that even the facts recited above would assure you a winning outcome.  There are a LOT of hostile, ill-informed and industry biased judges out there.  And you need to play your hand particularly careful where your home is at risk.

But the most capable, better trained and more experienced members of the foreclosure defense bar are at least beginning to have some success before some courts and in certain kinds of factual situations.

So the question may present itself as to whether it is better to press for a dismissal without prejudice due to failure to prosecute or whether to hold the case on the docket, preserving some of the better issues hoping to see the case languish for some time.

Even if the fact situation wasn't nearly as favorable, you might also ask yourself whether pressing for a dismissal due to lack of prosecution sooner is a good idea.  If the case has really landed in a form of litigation purgatory, it could languish for some time.  And you are then presented with the question of whether you want to let the matter languish a little longer before presenting an even more compelling motion for dismissal for lack of prosecution or whether the plaintiff is suddenly going to get its act together.

One possibility which you might also consider when the plaintiff has seemingly ceased to litigate is whether there is an opportunity under the rules to obtain some additional advantage through a request for admissions or through unanswered interrogatories.

Bear in mind that if a party fails to answer an admissions request, the matter is deemed to be admitted for the purposes of the case.  If you hit the plaintiff with a request for admissions as to several key issues in the case, and the plaintiff defaults, then they might not have a winning case at all.  But this possibility must also be balanced against provisions in the rules and cases interpreting the rules which allow deemed admissions to be withdrawn by motion and showing of some cause and, perhaps, excusable neglect.

In respect of interrogatories, questions which ask for the identification of fact witnesses and the identification and location of persons with particular facts in a case may result in witness preclusion in some jurisdictions when unanswered in accordance with the rules.

But there is another strategic consideration in pressing ahead with discovery.  If there is already some good outstanding discovery unanswered and the plaintiff has left the case to languish, ANY communication may result in the location of your loan file and some concerted attention by the plaintiff to advance the case, while doing nothing might very well result in months of additional languish.

There really is NOT any single answer here.  The crystal balls of even the best foreclosure defense attorneys are far from clear.  But these attorneys are generally going to have a better understanding of the law and the rules, as well as the disposition of your judge.  Moreover, they have additional data points about precisely HOW the foreclosure mills are responding in YOUR jurisdiction to various motions, discovery, etc. 

As Moose suggests, talking to an experienced foreclosure defense attorney is a very good idea.  They may not have a certain and correct answer, but at least they have been watching the game and have seen these players play out various hands before.  This can yield particularly valuable insight.

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