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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Carrie
Mr. Roper mentioned how he won't post some things online, as he doesn't want to make the plaintiff's case easier for them. I think that's why they visit Web sites like this one, they have free researchers, and some darn good ones, on every site. All of them trying to dig up and share every piece of law that might help their cases. Someone here posted something about laches, which intrigued me enough to send me off to find out more. 

What a surprise! I just got an answer from the plaintiff listing laches as one of its affirmative claims against ME. Is this common, or is this a new tactic to cause alleged defaulters to be afraid to fight for their homes?

I finally found an attorney that I have confidence in, but I can't afford a long fight at $200 per hour. At least, he was fair enough to say the plaintiff lawyers just hit a computer key and generate a letter that he must answer, which takes much longer than generating that letter, and they know that. He said they try to increase the defendant's legal fees so they run out of money. The lawyer did see good cause in my case to defend against foreclosure, so he's checking to estimate how much time might be required to make the case.

I have saved enough money to move, so maybe that's what I need to do. Just get it behind me. Anyone else feeling this way, or am I just weary by myself?




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Carrie,   I know it's very hard to find an attorney that gets it. But I know for a fact that a good attorney that gets it is not $200 an hour. Some attorneys charge around $300.00 to $400.00 per "month". I don't know where you are located. But before you retain an attorney for that much money, you need to keep looking. You also need to go to the courts and see what this attorney has done for his clients for $200.00 per hour as well as any other attorney you are thinking about. Think of it this way; You are trying to hire an employee. You need to know if he can handle the job.

You have to read this forum and learn from it. You need to educate yourself. So you can tell your attorney what you want as well as his input.

I have gone through two attorneys so far. And to be honest with you. What I have learned here made me a better person. I am now Pro Se again. I have been Pro Se a couple of times now (I am not one bit scared anymore). And if you look at my file in the courts, I filed more motions on my own and made great stride.

I have been in front of a bankruptcy Judge as well. And believe me, that was my greatest victory. Because the motion to object the lift of stay did me justice. And I learned it all "HERE".

What I am trying to tell you is; Educate yourself first.......... That way when you make the decision to hire the attorney, you will be on the same page. He will not be able to dupe you.....

There is a lot of support here.

Good Luck
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Carrie,    I am sorry, I forgot to mention. Don't you "Dare" move. Just keep saving your money every month. And "KEEP FIGHTING"

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Bill
Carrie,
   Would you mind sharing what they claim is barred by latches?  I know the TILA has a window for things like rescission of the loan.
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Carrie
Thank you so much for the encouragement, cmc. What is involved in going back to pro se if one pays a lawyer who doesn't perform as expected? The lawyers I have talked to seemed to know less than I do about foreclosures issues going on today. I was shocked, because I don't know half of what I need to know. I am trying to educate myself.

Bill, I am still researching how laches affects my case. The twist is laches is one of the PLAINTIFF's affirmative defenses. It is simply listed with about 10 others, with no explanation. Probably so that they are not waived further  down the road.

As I researched laches, this seemed to be applicable to delays that cause expenses to increase, in my instance, claimed for the plaintiff. In reality, MY arrears were greatly increased because of the servicer's delay in working a loan mod, so I thought laches might be relevant for my defense.

To muddy matters, the servicer granted a reduced payment for six months (while servicer worked on what it called a permanent solution, and what I assumed meant a loan mod). I paid early every month for a year, and I added extra to pay toward escrow. The reduced payment agreement suggested that I try to pay at least something toward escrow. What I paid over the agreed payment was never applied to escrow.

The servicer held the reduced payment and applied it to the balance AFTER a full payment had pooled in my account, which I believe is a breach of contract with the mortgage provision that states payments would be applied immediately. 

I am still trying to find out about partial payments. I want to know if the amount in arrears was forgiven when the servicer accepted a partial payment each month and applied after the second partial payment was received. I received a notice of acceleration every month, stating the arrears due, while I was making the agreed payment. As I understand it, after a notice of acceleration is sent, the banks won't accept a payment less than the full amount to bring the alleged debt current because the partial payment would forgive the amount owed. 

If I am chasing rabbits with this, I would appreciate someone helping me get back on track with facts that will help me. Laches might have nothing to do with this, I am just not finding enough information to be sure.

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Carrie

It seems to me that the servicer's prolonged time to process a loan mod (and even a foreclosure), especially, while accepting partial payments, might fit this defensive tactic:


Laches is based on the legal maxim "Equity aids the vigilant, not those who slumber on their rights." Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

The law encourages a speedy resolution for every dispute. Cases in law are governed by statutes of limitations, which are laws that determine how long a person has to file a lawsuit before the right to sue expires. Different types of injuries (e.g., tort and contract) have different time periods in which to file a lawsuit. Laches is the equitable equivalent of statutes of limitations. However, unlike statutes of limitations, laches leaves it up to the court to determine, based on the unique facts of the case, whether a plaintiff has waited too long to seek relief.

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William A. Roper, Jr.
Carrie:

Laches is strictly a defensive doctrine which can be used as a shield but not as a sword.  It is very similar in intention and concept to statutory limitations periods and denies relief to those who sit on their rights and fail to act.

So laches might sometimes be interposed as a defense but not as a claim, counterclaim or cross claim.

Presumably, you have made some counterclaims in your answer and the laches defense is being argued by the plaintiff in defense to one or more of your counterclaims.

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While you may very well have a valid cause of action arising out of the servicer's deceit, fraud or even merely failure to follow the statutes and regulations in respect of a HAMP loan application, the servicer's failure would not give rise to a claim for laches which is defensive in nature.

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You might want to use Google Books to look up laches in some of the older equitable texts.  You can probably find a very meritworthy explanation which would contribute to your understanding of this concept and its place in litigation.  After obtaining a foundation understanding, try to search for recent cases from your jurisdiction which elaborate and explain how the law of laches is applied in your state.

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William A. Roper, Jr.
"Vigilantibus et non dormientibus jura subveniunt"

You might want to read Justice Joseph STORY's explanation of laches beginning on page 715 of his book "Commentaries on Equity Pleadings":

Commentaries on Equity Pleadings, and the incidents thereof: According To the Practice of the Courts of Equity of England and America, 3rd ed., Joseph Story, (Boston: Little & Brown, 1844)
http://books.google.com/books?id=uOU9AAAAIAAJ&pg=PA715#v=onepage&q&f=false

Justice Story was an Associate Justice of the Supreme Court of the United States and a Professor at Harvard for many years.

This volume also has many other useful tidbits on early equity jurisprudence.
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