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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Sonny Soldano
I entered into a binding agreement to repay my mortgage in May. I sat down with the mortage ladies and they set me up to start repaying in June. I came in and deposited the first check, then about a month later I get a returned check in the mail with a notice that a foreclosure was imminent.

I am hoping someone who could help me out with this breach of contract concern. What way to counter their refusal of payment that would best guarantee an affirmative defense that would be acceptable in legal circles. Thanks in advance for any advice, SS
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George Burns
When this happened to me years ago, when we were not as aware of these wrongdoings, my lawyer could only use the related documents etc as part of the Answer when the complaint was eventually filed. Make sure you have the intial offer they made regarding the agreement and any related communications, plus of course, the agreement and check with return letter.

I do not think that there is anything that you can really do until they file. However, I would send a certified letter asking them why the check was not accepted considering that you had enetered into the agreement dated xx/xx/xxxx. Nothing more, no threats, no allegations of breach of contract etc, JUST THE QUESTION... WHY?

I am not a lawyer and this is not legal advice.

Since you have some time, it would be sensible to start selecting a lawyer and getting up to speed with your foreclosure knowledge.
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Sonny Soldano

Yes, thanks for the remembering. I want to use the best, either breach of contract or breaking a binding agreement that fits the Answer. I am finding out that it must be tailored to your state's statutes, but it also must be one that befits a foreclosing as there are quite a few laws about contract breaching out there. Will await a directing or redirecting, SS

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George Burns
You did not say what state you are in.

Giving your state will help pinpoint cites and references that anyone might have to give.
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t

Sonny -

 

Implicit in your post seems to be that you entered into either a written forbearance agreement or a written modification agreement.  If you are instead describing entering into an obligation for an original promissory note at a regular loan closing, then the post doesn't seem to make much sense.

 

I would first point out that Mr. Roper and others have mentioned in several prior threads that servicers very often present a borrower with a written forbearance or modification agreement calling for signatures of both the borrower and the mortgage investor which the borrower is encouraged to sign, but which is NEVER actually signed by the lender.

 

If you negotiated an agreement with the Lender and YOU signed the agreement and presented a check, but the Lender did NOT sign this agreement, then you probably have NO AGREEMENT WHATSOEVER.  To the contrary, where the agreement contemplates the signature of both parties and one party does NOT sign, then there usually is NOT AN AGREEMENT.

 

In general, mortgage transactions everywhere tend to be covered by a state's statute of frauds.  Sometimes, the note is covered by the statute of frauds, as well.

 

As far as I know, ALL states have laws called statutes of frauds which pertain to the sale or lease of interests in real estate, requiring such agreements to be in writing.  This includes mortgages and deeds of trust.

 

In some states, the statute of frauds also expressly covers contracts involving amounts of greater than some threshold amount (e.g. $50,000) or the performance of which is contemplated over some time horizon exceeding a certain threshold (e.g. - performance is contemplated to occur over more than on year, etc.).

 

So if a state has a provision bringing contracts for a value exceeding $50,000 and performance of which is contemplated to be in excess of one year within the statute of frauds, then a thirty year promissory note for $100,000 would be subject of the state's statute of frauds in addition to the mortgage being subject to the statute of frauds.

 

Each instrument probably also has some provision indicating that it is the entire agreement, that it can only be altered in writing and that no forbearance would alter the agreement or waive a right to declare default.  Such written provisions are very likely to be enforced by the courts.

 

The bottom line is that UNLESS you have a copy of the modification agreement executed by the mortgage servicer or mortgage investor, YOU DO NOT HAVE AN AGREEMENT.

 

So BEFORE you start meditating about what sort of breach of contract provision you might seek to assert, you are going to need to prove that THERE WAS AN AGREEMENT.  If you have ONLY THE ORAL REPRESENTATIONS OF THE LENDER or an agreement SIGNED BY YOU, but UNSIGNED BY THE LENDER, you probably have no agreement and no cause of action for breach at all.  

 

Re-read your note and mortgage about five times.  Carefully read the language of the modification agreement and LOOK FOR THE SIGNATURE of the Lender's representative.

 

Only AFTER you find that you can prove a contract ought you be thinking about how to plead a breach.

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Sonny Soldano

t- only after you prove you know something about how to respond to poster's threads, then you will be ackknowledged, SS

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Bill
Sonny Soldano wrote:

t- only after you prove you know something about how to respond to poster's threads, then you will be ackknowledged, SS


I agree with you Sonny, don't listen to t because he didn't tell you what you want to hear.  It doesn't matter if he is CORRECT and gave you a well thought out, well written response.  We just had a thread discussing "mutual assent", you DEFIANTLY don't want to read that either.  It has cases that SUPPORT t's post.  It's always better to keep your "head in the sand" so you don't see the freight train coming.  


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Sonny Soldano
I'm sorry. Been a little constipated lately making my thinking a little cloudy.
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t

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t- only after you prove you know something about how to respond to poster's threads, then you will be ackknowledged, SS

 

ss -

 

I have nothing to prove to you or any other Forum participant.  I was under the apparently erroroneus understanding that you needed some help.  I do NOT need to demonstrate my knowledge to you.  You are free to inspect my responses to other posts and then to draw your own conclusions.  My house isn't the one at risk here.

 

However, I do NOT waste time on the rude or unappreciative.  I also have no interest in the workings or defects in your digestive system.  It is probably better for me to simply permit you to run along and collect information of uneven quality from others who are willing to work around your discourtesy, ingratitude, and health issues.

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