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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JohnH
Hello, I was reading the other thread about a women winning against Ameriquest due to the harassing calls. I am hoping that Knows About FDCPA might be able to shed some light on this question for me,

Could ALL the calls be violations of the FDCPA if the servicer lacks standing in the first place?

By the way, on behalf of everyone on this forum, I would like to thank 'Knows About' for the his time and effort spent on educating us all on a wide variety of subjects. Your posts are extremely helpful, THANK YOU!

JohnH


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Knows About FDCPA
I have neither studied nor briefed the law on this point.  I DOUBT that there are going to be any meaningful cases.

Note that dismissals due to lack of standing really only took off after the Dowd, Boyko, O'Malley and Rose Decisions in Federal District Court in Ohio in 2007.  And most of those were sua sponte dismissals in which the defendant hadn't even bothered to appear and file an answer.

It would seem to me that any FDCPA claims would either be affirmative defenses OR counterclaims.  A dismissal due to lack of jurisdiciton is going to carry with it any affirmative defenses.  Counterclaims are somewhat more problematic.  If a party is making counterclaims, it is seeking the jurisdiction of the court as to those counterclaims.

If one really wanted a dismissal due to lack of jurisdiction, making the suit go away, one MIGHT also want to take a voluntary dismissal as to counterclaims.  Otherwise the counterclaims might keep the matter in court.  Whether it is a good idea to do this depends upon the law and the Rules of the jurisdiction where the litigation is taking place and the nature of the counterclaims. 

There are some pretty specific protections and remedies under FDCPA that would be available even absent any evidence of lack of ownership/holdership and lack of jurisdiction.

If someone is calling in a harassing way, you TELL THEM TO STOP.  Follow up with a certified letter.

My knowledge of the FDCPA is actually pretty thin, though.  i was trying to put the person making the query on the rght page to begin her inquiry and to find the answer.  Go to the law library and reseach the case law on the topics that are of particular interest to you.

I would generally say that if you can get a dismissal due to lack of standing, TAKE IT.  Then interpose the FDCPA defenses in the new suit after refiling by the plaintiff.  But since each party always has a duty to mitigate their own damages, if a demand to stop calling sould stop the calls, I would definitely make the demand in writing

I also want to emphasize that while there was a LOT of fraud in mortgage origination and in mortgage servicing during the past decade, there are also people who entered into a mortgage with a reputable lender which has servced the loan properly and who have found themselves unable to pay due to financial adversity.  When in distress, there is a tendency to become angry with those seeking to enforce the contracts.

The servicers DO have a right to call, UNTIL you tell them to STOP CALLING.  Assert your rights.  But also bear in mind that the servicer is busy making a record for that inevitable foreclosure filing.
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h gosh
  You had me fooled for a while.  Why don't you cite the law, and history on Servicers and FDCRA? 
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You know I've put in my own adversary cause my atty didn't think the truth should be heard. Then again with the disuasion of the bk judge it has left me in a miffed situation myself.

John H. - It is a good question what if and what if you have proved they came to court pertending to have claim knowing before they filed they never had it? Better yet how about when the judge lets them off on a $500,000 penalty, five years in jail or both?

Ever lose your job because you were lied to when you being a DUMB CONSUMER thought you had a chance to make a difference in your future? I have. Fell hook line and sinker. Fell for the WE HAVE WITHIN OUR CONTRACT to sell mortgage notes for XYZ bank.  Only to find out 2.5 yrs later they lied about what they told me when I took my job.

Stupid me thinking I could get out of being a bill collector. I thought man there must be a way to make a better living then dealing with a hard luck story. However, listening to the hard luck stories were my life. I put the PERSONAL TOUCH ON COLLECTIONS. I received cards from debtors. Not to me bill collectors can tell you this.

Ever have enough friends? To me never. I've seemed to meet some very good people in my life besides all the bad things that have happened. These very people are the ones who have given me the courage to not back down. Them and every other homeowner.

If someone can't prove the truth then get off the bench. Cause there are some of us that know if its against federal law in ny its against federal law in MO, CA anywhere. Therefore, I don't need anyone attempting to Deny me my rights to DUE PROCESS AND BE HEARD.

I think and pray that I may of found someone to help me finally with my own case. Not sure yet. But I have to get this out the rest of the way. My future depends on what I do here.

I say this bcuz there's other people still seeing theives in court instead of a fair, impartial, and unbiased judge. The ladies case your referring to John H is Rosemary Gilroy in NH. She's my hero. After her settlement she finally got awarded Prose they motioned for a new trial.

I tonight read and save her motion in opposition to their bs games based on res judicia. Pretty much tears up the whole Argent/Ameriquest/Citiresidential theories...Poof!

It even gets into what your asking about as far as calls go and what federal vs state laws allow to be paid as damages...so instead maybe of $1000 per violation maybe $1200 per violation bcuz of them being combined. Showing them basically she got screwed for having to put up with them. Say for example if they actually made like 400 calls at 1,000 per viol they'd have to pay $400,000...She also totally tore them up about how the call detail could not be considered sufficient based on how many records would have to be checked and such. I truly enjoyed this read...
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Knows About FDCPA
John H.:

As an afterthought, bear in mind that there IS some pretty strong case law in many jurisdictions that a lack of jurisdiction does NOT immunize a plaintiff against Rule 11 sanctions (or equivalent sanctions under the Rules of a particular jurisdiciton).  [See generally http://www.law.cornell.edu/rules/frcp/Rule11.htm]  WIning the jurisdictional argument implies a pleading defect.  It does NOT necessarily imply a FDCPA violation.

So while winning the jurisdictional argument washes away the affirmative defenses (which are then unnecessary to that action) and persisting by way of counterclaims keeps the matter before the court, perhaps to one's disadvantage, a motion for Rule 11 sanctions keeps ONLY the sanctions matter before the court.

As an extension to what I posted before, bear in mind that what I mentioned before as to the undesirability of keeping the matter before the court on counterclaims is no small matter in some jurisdictions.  If the matter is dismissed completely (usually without prejudice) on jurisdictional grounds AND if the matter then DIES, the plaintiff may very well find that it has to (a) serve a new complaint, (b) obtain new service of process, (c) await the answer, (d) allow a minimal period for the initiation and completion of discovery, etc.

If you HOLD the matter before the court on counterclaims, YOU are asserting jurisdiction over the plaintiff and the plaintiff may very well have an arguable case for re-presenting its case to the SAME court without obtaining new jurisdiciton by motion to present an amended pleading.

There is yet another thing that you also need to bear in mind and this is the asymmetries as to burden of proof.  A plaintiff has the burdon of proving jurisdiction.  And when a plaintiff fails to do that the case may be dismissed.  YOU are going to have the burden of proof on your counterclaims.  This is no small matter.

Despite much of what is posted here by others, in most instances, the jurisdictional problem is NOT that the plaintiff doesn't OWN the mortgage, but rather that they have a PROOF PROBLEM and that they have MUDDLED their proof problem by pleading forged and perjured evidence.  If you continue under the illusion that it is impossible for the plainitff to prove its ownershp or holdership, you are building your case on a particularly weak foundation.  Trust me, the PROOF IS THERE.

But once the plaintiff has come into court with perjured and fabricated evidence, you have a whole new basis to seek dismissal with prejudice.

For this reason, I would NOT dwell on trying to PROVE that the plaintiff lacks jurisdiction.  It is enough to prove that the plaintiff is UNABLE to prove that it DOES. This is NOT to say that you shouldn't make the arguments to punch holes in the plaintiff's jurisdictional underpinnings.  You definitely want to do that.  But just as salesmen are admonished to beware of selling beyonf the close, once you have WON your jurisdictional argument, it is probably better to SIT DOWN or WALK AWAY and save your arguments for the inevitable representation of the matter by a new plaintiff filing.

Of course, if the plainitiff's complaint was dismissed WITH PREJUDICE, you might still want to consider pursuing counterclaims.  But I would do this very carefully and deliberately.  Most courts retain jurisdiction to vacate a final order for some period of time, usually around thirty days.  If you keep the matter in frnt of the judge, he or she can always CHANGE HIS OR HER MIND. 

This, by the way, is one reason, I haven't spent a great deal of time on FDCPA.  I would encourage you to research it carefully.  But I would definitely be wary of all of the "helpful" advice from others who fail to appreciate the nuances of strategy involved in combining certain arguments and defenses.
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Knows About Notes
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Posted by topguncrdtadvsr
It is a good question what if and what if you have proved they came to court pertending to have claim knowing before they filed they never had it?


I think that you are failing to perceive the reality of what is happening.  The plaintiff or claimant really DOES own or hold the claim and may have a valid cause of action of claim.

However, due to persistently sloppy paperwork, the servicer has a proof problem supporting the asserted ownership or holdership.  To overcome this proof problem, they have resorted to perjured affidavits and forged mortgage assignments.

You are welcome to feign indignation at their lack of ownership, but do NOT allow yourself to become confused by this feigned indignation.  In so doing, you will cloud your own thinking and analysis and miss some marvelous opportunities to present a winning case.

I am NOT saying you shouldn't be indignant.  You SHOULD.  But you should be indignant that servicers are routinely bring actions prematurely, based upon perjured and faricated evidence.  Again, it is OK to feign indignation at the plaintiff's lack of ownership.  That is good theatrics.  Just try to avoid fooling yourself (or others with whom you sympathize).

I recall my father once derisively describing some misrepresentations by salesmen in saying, "The trouble with those guys is that they have started to believe their own bullsh**!"  Be wary, look in the mirror and count to ten if you find yourself beginning to believe your own bullsh**.  

In many cases, a defendant has some fantastic arguments based upon false pleading, evidence fabrication and perjury.  These typically need to be developed through discovery.  Getting a dismissal, even without prejudice, gives the defendant an opportunity to prepare and mount these effective defenses.

The defenses may vary well include FDCPA affirmative defenses and counterclaims.  But if you FOOL YOURSELF into thinking that there is NO EVIDENCE of the plaintiff's ownership, you are in for a rude awakening.  When the plaintiff takes time to comb the archives and marshal the evidence, they are going to roll right over you.

Get your dismissal on forgery and perjury ready and make your equitable unclean hands argument.

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JohnH
Thank you 'Knows About' for your comments. I guess my situation is not so much about standing, but authority to proceed.

In Texas, a mortgage servicer has statutory authority to act on behalf of the lender but Texas has the most amazing definition of a mortgage servicer.

A mortgage servicer is the LAST person that the mortgagee was instructed to send their payments too. (No notices of transfer were ever sent to me, I have proof, they admit) Here is a paragraph from an article on standing:

<snip>Some states, like Texas, have passed statutes that allow servicing companies to act in foreclosure proceedings as a statutorily recognized agent of the noteholder.  See, e.g., Tex. Prop. Code §51.0001.  However, that statute refers to the servicer as the last entity to whom the debtor has been instructed to make payments.  This status is certainly open to challenge.  The statute certainly provides nothing more than prima facie evidence of the ability of the servicer to act.   If challenged, the servicing agent must show that the last entity to communicate instructions to the debtor is still the holder of the note.  See, e.g., HSBC Bank, N.A. v. Valentin, 2l N.Y.  Misc. 3d 1123(A), 2008 WL 4764816 (Table) (N.Y. Sup.), Nov. 3, 2008.  In addition, such a statute does not control in federal court where Fed. R. Civ. P. 17 and 19 (and Fed. R. Bankr. P. 7017 and 7019) apply.<snip>

My theory is that the servicer (debt collector) never had authority to call regarding the debt if they hadn't sent the notice of transfer. This is why I'm asking if all the calls could be violations of the FDCPA. They were told to stop calling, they were told to take it up with the original mortgage company, they kept up the calling for nine months!

Thank you for your input,
JohnH.

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Knows About Notes
Borrowers in deed of trust states, indeed, have far fewer effective defenses, though there are some recent indications that defendants have found some traction opposing foreclosue by private sale where MERS is involved particularly in Nevada.

The core problem in a deed of trust state is that the private power of sale provisions in the deed of trust shifts the burden of seeking remedy through the courts from the mortgage investor to the servicer.  In a traditional mortgage foreclosure setting, it is the mortgage investor acting as plaintiff seeking the intervention and authority of the courts to effect foreclosure.  In a deed of trust state, the mortgage investor effects teh foreclosure itself through the private power of sale and then goes to court only in an ejectment, forcible detainer or similar action for the recovery of the property.

The single most effective way to oppose a foreclosure in a deed of trust state is through bankruptcy.

In a bankruptcy setting, even in a deed of trust state, the filing stalls the foreclosure and forces the mortgage investor to make a claim and to seek a relief of stay.  When the mortgage investor makes false representations in the course of that claim or in seeking the relief of stay, the borrower is ina much better position to obtain the protection of the Federal Courts and even the Justice Department through the United States Trustee.

Texas Bankruptcy Courts have already sanctioned Barrett Burke several times for misconduct in foreclosure related bankruptcy matters.  If Fidelity is involved, you could be in even better position.  More likely, look for Barrett Burke to obtain fabricated or perjured evidence from its affiliate nDEX.

Of course, bankruptcy has many undesirable consequences, too, and it is NOT a viable solution for every deed of trust foreclosure situation.

Matters are so much more treacherous in deed of trust states, that it is very speculative to proceed without an extremely capable attorney. 
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Kim
I really like this post:

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I think that you are failing to perceive the reality of what is happening. The plaintiff or claimant really DOES own or hold the claim and may have a valid cause of action of claim.

However, due to persistently sloppy paperwork, the servicer has a proof problem supporting the asserted ownership or holdership. To overcome this proof problem, they have resorted to perjured affidavits and forged mortgage assignments.

You are welcome to feign indignation at their lack of ownership, but do NOT allow yourself to become confused by this feigned indignation. In so doing, you will cloud your own thinking and analysis and miss some marvelous opportunities to present a winning case.

I am NOT saying you shouldn't be indignant. You SHOULD. But you should be indignant that servicers are routinely bring actions prematurely, based upon perjured and faricated evidence. Again, it is OK to feign indignation at the plaintiff's lack of ownership. That is good theatrics. Just try to avoid fooling yourself (or others with whom you sympathize).

I recall my father once derisively describing some misrepresentations by salesmen in saying, "The trouble with those guys is that they have started to believe their own bullsh**!" Be wary, look in the mirror and count to ten if you find yourself beginning to believe your own bullsh**.

In many cases, a defendant has some fantastic arguments based upon false pleading, evidence fabrication and perjury. These typically need to be developed through discovery. Getting a dismissal, even without prejudice, gives the defendant an opportunity to prepare and mount these effective defenses.

The defenses may vary well include FDCPA affirmative defenses and counterclaims. But if you FOOL YOURSELF into thinking that there is NO EVIDENCE of the plaintiff's ownership, you are in for a rude awakening. When the plaintiff takes time to comb the archives and marshal the evidence, they are going to roll right over you.

Get your dismissal on forgery and perjury ready and make your equitable unclean hands argument.
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