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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HungarianProse

This Question to Bill, or George:

 

When the assignment states: ...."together with the Note or other evidence of indebtedness (the Note)......"  is this a valid assignment of the Note as well? In Florida the possestion of the Original Note is what is required to prof of standing in foreclosure.

So should this assignment of mortgage and the note even matter?

Also, should it be attacked with a motion to strike?

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George Burns
What should be attacked in a Motion to Strike is dependent on many facts and circumstances and generally should not be based on an issue such as the wording that you have identified as being of concern. A Motion to Strike anything should be part of an overall strategy to accomplish a goal which should be to get a favorable adjudication, whatever that might be for your purposes. Striking for the sake of striking or striking to point out an error made by your opponent serves no useful purpose.

What would it benefit you by getting this assignment struck? All that would happen is a refiling with an assignment that met the criteria and which you could not oppose.

In any case the wording that you have identified is irrelevant in regards to whether the Note was properly assigned. That section is irrelevant. Nit-picking at sections such as that one has no value. That is not what makes an assignment proper or valid.

There are a few threads on this Forum where proper assigment and indorsement are fully addressed. Spend some time doing a search.

You should not be basing your defense on nit-picking at words or isolated sections of any document.

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

My advice to you is..Get a lawyer or at least speak to an experienced lawyer.
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This
Question to Bill, or Georg e:

 

When the assignment states: ...."together with the Note or other evidence of indebtedness (the Note)......"  is this a valid assignment of the Note as well? In Florida the possestion of the Original Note is what is required to prof of standing in foreclosure.

 

So should this assignment of mortgage and the note even matter?

 

Also, should it be attacked with a motion  to strike? 

HungarianProse

You need to begin with a strategy.  As has been discussed by Mr. Roper within other threads, whether to embrace the assignment or attack the assignment is almost wholly dependent upon whether the assignment is dated before or after the commencement of the suit.

 

While negotiation requires indorsement and delivery one of the key reasons that foreclosure mill law firms have been forging assignments is to create false evidence of negotiation.  It is precisely this sort of wording which has been identified as having memorialized a valid negotiation.  Some court cases have found that this language constitutes a valid assignment of the note as well as the mortgage, while other cases seem to have found that it reflects that such a negotiation took place.

 

If the assignment is dated AFTER the commencement of the suit the LAST THING you want to do in an initial suit is attack the assignment.  Similarly, very often the plaintiff has attached an unindorsed copy of the note to the complaint.  You can immediately call the plaintiff's attention to this defect OR you can wait and use this defensively at the critical time.

 

Generally, in an answer you do not want to get particularly specific about the evidence that you intend to use in defense.  Usually all that is required is to put the plaintiff generally on notice as to the  argument that you are using defensively.

 

WHAT IS REQUIRED VARIES FROM STATE TO STATE DEPENDING UPON THE RULES.  THIS IS WHY IT IS A GOOD IDEA TO GET A LAWYER.

 

In most places, it would be enough in an answer to simply deny that the plaintiff was the owner or the holder at commencement without setting forth the evidence that you intended to to use to prove that this was the  case.

 

In a summary judgment defense, you will have to both get more specific, as well as actually marshal the defensive evidence at your disposal.  But when you do this, you will be taking the plaintiff to school about the defects in its case and they can then FIX THESE DEFECTS.

 

One thing that pro se defendants often fail to understand is that a judge can give a plaintiff more than one opportunity at summary judgment.  That is, you can BEAT the plaintiff in opposing a motion for summary judgment and then the plaintiff can back off, repair its case and file a new motion for summary judgment.

 

Generally, you want to hold the motion for summary judgment off as long as possible, but when the hearing is going to take place, it is often in a defendant's interest to also file a cross motion for defensive summary judgment and to schedule that for hearing at the same time.

 

Beating the plaintiff's motion for summary judgment keeps a defendant from losing.  Winning a defensive motion WINS the case.

 

Even here, the strategy is tricky.  If you beat the plaintiff on standing, the dismissal is without prejudice and a plaintiff will refile.  Getting the case dismissed sooner is therefore problematic.  It may be better to wait for trial rather than getting the case dismissed sooner.

 

Which is the better strategy depends upon the temperment of the judge, the state of discovery and nuances of the Rules and cases on the Rules well beyond the scope of this post.

 

For example, suppose that you have conducted some very effective discovery and have the plaintiff fairly well boxed in.  Further suppose that you have a singularly strong defensive case and a very fair and balanced judge.

 

In this case, you might want to simply defeat the plaintiff's motion and wait for a trial.  Because the plaintiff usually has to bring live witnesses for trial and trials are time consuming, this may delay the matter for another six months or a year.

 

By contrast, if you have a hostile judge, very little in the way of useful discovery and are at peril of losing the case on summary judgment, the cross-motion for defensive summary judgment may be much better, because it can end the case and put you back at square one.  Also, if you lose the case in a summary judgment and it goes up on appeal, you can get the appellate court to not only reverse, but also dismiss.

 

Faced with a hostile judge who might give the plaintiff a lot of latitude to repair its case, why take the chances.

 

George and others have emphasized that you really need to get a lawyer.  While there are some Forum participants who have schooled themselves up and have interposed effective defensive strategies, this has been far more successful when (a) the defendant is very bright and has some initial acquaintance with the law, (b) the defendant has a LOT of time on their hands (e.g. is unemployed), (c) the defendant BEGINS EARLY and has a year or more to prepare.

 

By contrast, in most cases where a new participant appears weeks before a summary judgment hearing and TRIES to get up to speed, usually it turns out that ALL EFFORTS TO ASSIST SUCH A BORROWER TURN OUT TO BE A WASTE OF TIME, BECAUSE THE BORROWER FAILS TO APPRECIATE DETAILS AND NUANCES NECESSARY TO THE DEFENSE AND QUICKLY LOSES THE CASE BY FAILING TO FOLLOW THE RULES.

 

Well represented borrowers most often ultimately lose their foreclosure cases.  Pro se defendants most often lose even faster and fail to preserve issues for appeal.  You questions give me little encouragement that you are coming up to speed fast enough.  YOU NEED TO GET A LAWYER BEFORE IT IS TOO LATE.

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HungarianProse

"

" Well represented borrowers most often ultimately lose their foreclosure cases. Pro se defendants most often lose even faster and fail to preserve issues for appeal. You questions give me little encouragement that you are coming up to speed fast enough. YOU NEED TO GET A LAWYER BEFORE IT IS TOO LATE."

 

See that is just IT, in most cases the homeowners will lose soon or later. You have to make a financial decision if hiring a lawyer make sense. I am going for 2 1/2 years as a pro se. In any case, i am learning here and elsewhere, been to court at least 10 times for hearings, had a SJ against me dismissed in Florida. I want to get better and better and this Forum is helping a lot and very valuable to me.

 

Lecso1964@hotmail.com

 

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George Burns
I know cases that are over 2 years old but every one of them is because of lack of action by the Plaintiff for  a number of reasons, including death of a Plaintiff attorney.

What you should be doing is to try and understand Why and How you have lasted so long and plot your strategy to continue, instead of veerring off into left field and wing-nut territory.

Good luck and continued success.

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HungarianProse

George Burns wrote:
I know cases that are over 2 years old but every one of them is because of lack of action by the Plaintiff for  a number of reasons, including death of a Plaintiff attorney.

What you should be doing is to try and understand Why and How you have lasted so long and plot your strategy to continue, instead of veerring off into left field and wing-nut territory.

Good luck and continued success.

You are right George! And that is what i am doing. Try to learn more and more every day. Thank you for your help.

 

In my cases, i have filed every motion i could think of....

Some of them are pretty good, some of them ok, some of them not good. But i am an immigrant from Easter Europe, so there is a lot to learn...

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Charlie

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I know cases that are over 2 years old but every one of them is because of lack of action by the Plaintiff for  a number of reasons, including death of a Plaintiff attorney. 

 

A very common mistake made by pro se litigants is to mistakenly believe that delay arising after filing poorly conceived pleadings reflects success.

 

In judicial foreclosure states, sometimes any opposition moves a case to the back burner.  When a law firm like Stern implodes, thousands of cases are orphaned and nothing happens.

 

This has created an additional opening for swindlers like Mike H. to trumpet that somehow they have succeeded in helping borrowers.  The borrower may be benefiting from a delay arising from the collapse of the Stern law firm and mistakenly perceives that they have been actually helped by the likes of Mike H. and his wingnut theories.

 

In fact, Mike H. has led these borrowers to slaughter by discouraging them from obtaining representation from a qualified, competent lawyer, has prepared false pleadings based upon specious defenses which have no chance whatsoever, while waiving the actual effective defenses, which are beyond Mike's understanding and comprehension.

 

The borrower ultimately loses his house, when real delay or even victory might have been possible.  This does nothing but enrich dishonest criminals, such as Mike H.

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Bill
The emperor has no clothes!!!!!!!!!!!!!!!!!!!!!!!!


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Well represented borrowers most often ultimately lose their foreclosure cases.  Pro se defendants most often lose even faster and fail to preserve issues for appeal.  You questions give me little encouragement that you are coming up to speed fast enough.  YOU NEED TO GET A LAWYER BEFORE IT IS TOO LATE.



This is a bitter pill to swallow for most homeowners.  Life has made a turn for the worse in some way.  They often were mistreated by the servicer and often cheated by them.  Everyone has a sob story....

No one cares.  That is the way life is sometimes.  It's not fair.

You borrowed money to buy a home, you signed a note and mortgage, you failed to pay as required, the lender is entitled both by the law and equity to get their money back.

You CANNOT win on the MERITS.  That would give you a financial windfall.  You pay or give up the house.  No amount of securitization, robo-signing, MERS assignments, or lost note affidavits is going to change this.  

Only swindlers will tell homeowners "yes you can win" and give false hope to people so they can cheat them out of their last few dollars.  It's akin to kicking someone when they are down.  Most "victories" are on procedural or evidence issues, not the merits or some new argument.   Please feel free to post cases where someone ultimately "won" their home on the merits.

What's the point in fighting then???

That depends on your situation.  

For some homeowners it's a matter of principal.  You mistreated me, so I'm going to make it as hard and expensive as I can for you to take my home.

For some homeowners it's a matter of economics.  Even a pro se can delay a foreclosure for a significant time by just filing an answer and making the Plaintiff get a SJ.  While this is going on, the homeowner lives rent free and can save money to get their affairs in order and get ready to move.

Yet for other homeowners, often when faced with litigating, the bank will be more open to some sort of modification.  There is still a chance to save your home this way if you are willing to try.  

Usually the reason to fight foreclosure is some or all of these reasons with a couple personal reasons thrown in.  

The sooner you accept the REALITY of your situation the more effective your defense will be.  

"The most dangerous creation of any society is the man who has nothing to lose."            James A. Baldwin


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John Lewis

Bill what distinquishes : 

"Most victories are on procedural or evidence issues versus “cannot win on the merits or some new argument."

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