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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I am in foreclosure with Wells Fargo.  My original mortgage was made July 3, 2002.  However, I received a letter from their attorneys stating that I had 30 days to dispute the note and request a copy of note and mortgage dated August 21,2003.  I do find "MERS" paperwork in my records with this date and my copies are unsigned.  It appears to show the original loan amount from the year before.  I remember my original mortgage company selling my loan about this time.  I was not behind on August 21,2003 but must have been asleep to not notice no change in priniciple.  My loan has transferred since 2003 and Wells Fargo is 3rd or 4th company to own it.  Is the 2002 note the one they must produce or is this 2003 MERS paperwork valid?  Wells Fargo says they are working on HAMP but foreclosure is proceeding. 

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George Burns
I do not understand.

You clearly state that you are in foreclosure but you also reference a letter from their lawyer.

I  assume that you are in a judicial foreclosure state. If you are in foreclosure you get served a complaint noticing you of the filing of the lawsuit. You do not get a letter such as you described.

Please clarify.
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Thank you George.
 I received a letter from Wells Fargo attorneys dated 5/18/11 that they had been hired to begin foreclosure and I had 30 days to dispute the debt. Yesterday, I began receiving mail from third parties offering to help me fight the foreclosure. Apparently, a court filing was made on Wells Fargo's behalf 05/31 (since these letters reference it) but I have received no notice of this directly. Also, I spoke with Wells Fargo on or about 05/19/11 and was told directly that no effort to foreclose was currently being made. The letter of 05/18/11 was received by me on 05/20/11. When I asked WFHM about this two days later, their representative stated the foreclosure was initiated just after my call and they had not lied.   I find this implausible but that is their story.

Getting into weeds here. My question is:  should they produce my original mortgage from July 2002 or are they correct in citing the August 2003 date on this MERS document I have? I really don't recall signing it and it was found with my original loan and title work. No signature is on the copies of MERS documents I have.

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kathy wrote:
Thank you George.
 I received a letter from Wells Fargo attorneys dated 5/18/11 that they had been hired to begin foreclosure and I had 30 days to dispute the debt. Yesterday, I began receiving mail from third parties offering to help me fight the foreclosure. Apparently, a court filing was made on Wells Fargo's behalf 05/31 (since these letters reference it) but I have received no notice of this directly. Also, I spoke with Wells Fargo on or about 05/19/11 and was told directly that no effort to foreclose was currently being made. The letter of 05/18/11 was received by me on 05/20/11. When I asked WFHM about this two days later, their representative stated the foreclosure was initiated just after my call and they had not lied.   I find this implausible but that is their story.

Getting into weeds here. My question is:  should they produce my original mortgage from July 2002 or are they correct in citing the August 2003 date on this MERS document I have? I really don't recall signing it and it was found with my original loan and title work. No signature is on the copies of MERS documents I have.

Let me add, that I sent the Wells Fargo attorney a certifiied letter today stating that I show a different date on my mortgage and loan papers and do request they furnish paperwork showing a valid loan/mortgage.
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George Burns
Do NOT make the big mistake of thinking that a letter  has any bearing on or protects you from a foreclosure lawsuit. IT DOES NOT.

You should immediately contact the clerk of the court to find out if a lawsuit has been filed.

You should also find out if any liens or a lis pendens has been filed. I have no idea where you are so I cannot tell you which county office you should contact, but the Clerk Of the Courts might be able to help you.

If a foreclosure lawsuit has already been filed, your letter to their lawyer might have been the worse thing you could have done. You might have pointed out to them, the error that could have been your best defense.

You should have first found out  what to do and how to proceed, before you responded.

It is most likely that you will need a good lawyer urgently, so start looking NOW.

If a lawsuit has been filed and you have not been properly served you need a lawyer. Proper service or not, your time in which to respond to the court (NOT THEIR LAWYER) is short and is running out on you.
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George Burns wrote:
Do NOT make the big mistake of thinking that a letter  has any bearing on or protects you from a foreclosure lawsuit. IT DOES NOT.

You should immediately contact the clerk of the court to find out if a lawsuit has been filed.

You should also find out if any liens or a lis pendens has been filed. I have no idea where you are so I cannot tell you which county office you should contact, but the Clerk Of the Courts might be able to help you.

If a foreclosure lawsuit has already been filed, your letter to their lawyer might have been the worse thing you could have done. You might have pointed out to them, the error that could have been your best defense.

You should have first found out  what to do and how to proceed, before you responded.

It is most likely that you will need a good lawyer urgently, so start looking NOW.

If a lawsuit has been filed and you have not been properly served you need a lawyer. Proper service or not, your time in which to respond to the court (NOT THEIR LAWYER) is short and is running out on you.

Thanks George.  I checked the court docket in my state via website and yes, a filing was made 5/31/11 AM on behalf of mtge co against me.  I have not been served.  Have a call in to an attorney that should fit the bill and offer sound advice.  Really thought my letter disputing debt would be in my best interest and thought the time was now to get them to halt and work with me.  I am in OK by the way.
Thanks again.
Kathy 
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William A. Roper, Jr.
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George Burns said:
If a foreclosure lawsuit has already been filed, your letter to their lawyer might have been the worse thing you could have done.  You might have pointed out to them, the error that could have been your best defense.


I want to both second and underscore George's point.

This is precisely the kind of situation that shows the peril of undertaking ANY course of action based upon the Internet wisdom of wingnut theorists.

My grandfather, an oil industry engineer, used to have an expression that makes sense mostly to those in the oil business, but perhaps might be more generally understood in wider circles now within the context of the recent BP Gulf Oil Spill.  He used to say:
"When you have lost a drill bit down a mile deep hole, it is imperative that you do NOTHING TO MAKE THE PROBLEM ANY WORSE."
He used to say this more than four decades ago.  (And he designed the first off shore drilling rig for a major global oil company before I was born.)

The drill bit on an oil rig, like the drill bit on a regular household drill is what is used to cut through rock, sand and soil to bore the hole.  When it becomes detached from the drill pipe a mile down the hole, one proceeds with some caution.  It isn't going anywhere.  Things that are undertaken which worsen the problem might be hard to correct.

The wisdom of the expression applies equally to problems on an orbitting space station or an undersea well.

*

In legal matters, it pertains to sending communications you cannot retrieve and particularly (a) communications that can be used against you, and (b) communications that can take the purported mortgage investor to school about the defects in its case.

The single biggest blunder of pro se litigants often make is the tendency to want to blurt out right away ALL of the defects in the plaintiff's case so that the plaintiff can quickly AMEND its pleadings and obtain a surer and faster foreclosure action.  Do you want to immediately and voluntarily show your opponent your hand whenever dealt a new hand at poker? 

THIS IS A KEY REASON WHY ATTORNEYS COUNSEL THEIR CLIENTS NOT TO DISCUSS A CASE WITH  OTHERS AND WHY LEGAL ETHICAL RULES REQUIRE THAT A LAWYER SPEAK ONLY TO THE ATTORNEY REPRESENTING A PARTY AFTER THAT PARTY HAS OBTAINED REPRESENTATION.

The IMPULSE to rush out and RESPOND in ways which are counterproductive are devastating is the single reason why the suggestions and recommendations of many of the idiots who visit and post UTTER NONSENSE with the greatest of confidence and pretended authority needs to be checked and refuted.

George's post is DEAD ON.  Kathy, you need to go and see a really sharp attorney RIGHT AWAY.  You have already probably made things WORSE.  Stop trying to communicate, say or DO anything UNTIL you better understand the situation and get some good valid counsel!
  

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Sandy
Mr. Roper, when you have time, tell us how you REALLY feel!

I have some of the same issues with my case, in that I found out about the complaint 9 days after it was filed. I, too, realized that a case was filed with I got solicitation from loan auditors that referenced a case number. It has been 7 months now and I still haven't been served in person. The only notice I received was a validation of debt letter by regular mail. I objected to the amount of the debt, as it was incorrect.

What is proper service? Does it vary by state? My case is a judicial foreclosure, if that matters.

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William A. Roper, Jr.
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Sandy said:
What is proper service?  Does it vary by state?  My case is a judicial foreclosure, if that matters.


Sandy:

The fundamental requisite of service is grounded in the 14th Amendment Due Process protections.  I would recommend to you the Cornell LII Annotated Constitutions Notes in this aspect of Due Process:

http://www.law.cornell.edu/anncon/html/amdt14dfrag14_user.html#amdt14d_hd39


The specific requirements, consistent with the Constitutional minimums, vary from state to state and are implemented by Statute, Court Rules and case law decisions.

*

In most places, personal service is preferred.  But in almost all jurisdictions, the law provides for a variety of alternative service methods.  These usually include service by mail and service by publication.  So IF they could NOT find you, they might have obtained permission or been authorized under the Rules to effect service by an alternative method.  Your case could be going forward without your knowledge.

But there is another really critical caution in order.  Whether you were served doesn't so much depend upon the FACT and reality of whether the service actually took place, but rather whether there is a return of service affidavit or similar record ON FILE that says that you were served.

This gives rise to the expression "sewer service" by which it is generally meant that service was effected by means that are less than fragrant, probably illegal and almost certainly unseemly.

So whether a person actually served you or not, if the person responsible for serving you filed a return of service affidavit (or similar process) indicating that you HAD been served at a particular time and place or even that the service had been left at your residential address with an adult person answering the door, etc., then you HAVE BEEN SERVED UNLESS YOU CAN RATHER CONCLUSIVELY PROVE OTHERWISE.

This can be particularly problematic.  If, for example, the process server swears that they left the citation or process with an adult female, ~5' 6", brown hair, medium build who did not give her name, HOW would you actually PROVE otherwise?  You are trying to PROVE A NEGATIVE.

In most places, if the record says you were served, the suit will GO FORWARD with you or without you.

Overturning a default judgment can be particularly difficult.  And in some places, it is NOT enough to simply swear that you were not served.  In some places, the courts will insist that you also swear that you didn't know about the suit.

*

While playing a cat and mouse game and avoiding service might seem like a way to prolong the matter (and it might be in some places), this is NOT a game that you want to play against the corrupt and dishonest foreclosure mills without (a) keeping very close track of WHAT IS FILED, and (b) knowing EXACTLY what the laws and cases on service say and mean in your jurisdiction.

This falls into the category that you do NOT want to be cutting the margins of the law too close.  And it would be expensive to play the cat & mouse game for a long time paying a lawyer to advise you as you duck, bob & weave.

Read the rules.  Read the cases on the rules.  Read the statutes.  Read the cases on the statutes.  Monitor the Docket filings VERY CLOSELY.  If there is an ambiguous record or a record stating that you HAVE BEEN SERVED, do NOT play around!  Get counsel from a lawyer!
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I wanted to thank you all for your sound advice so far.  Give you an update and ask a few questions.
Thanks above!!
I was served last night with papers on foreclosure. 
I have not been able to locate an attorney yet.  The one I contacted has yet to return my calls from Thursday or Friday.  I am not certain who to call without a recommendation.  I live in Oklahoma City, OK if anyone knows anyone to recommend.
Questions:  1)  Does anyone know anything about these laymen foreclosure people I am getting flyers from?  I saw Sandy had mentioned she is receiving them too.  2)  My mortgage is with Wells Fargo now but US Bank is the one suing me.  I can find no relationship between US Bank and Wells Fargo so I am a bit confused about this.  3) When an FHA loan is made it has a file number.  When my loan was sold to Wells Fargo, my FHA file number changed.  Is this correct practice?   It seems like the file would stay the same no matter who services the loan.  The new file was started off all over as a 30 year mortgage with a year's payments disregarded.  I did not instigate the transfer of my mortgage from the original company to WFHM
If this is correct practice, I might as well let them have the house vs. the added cost of an attorney  I am thinking.

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George Burns
Kathy

The first thing that you have to do is to decide if you want to fight. If you do not stand and fight :
1. You lose the house.
2. You lose any equity now and future.
3. Your past payments have been wasted.
4. Your credit is totally destroyed.
5. You might owe a deficiency judgement (in some states).
6. You will have to pay rent to some landlord. Might be almost as much as your mortgage.

To even think of conceding and giving away your hard earned money, before you  even find out if you have a case or a defense against these predators, makes me fear for the future of this country.

Regarding your questions:

1. Throw away the junk mail.
2. Do not concern yourself with the various names. They are not relevant as yet.
3. File numbers, amounts etc are irrelevant at this stage.

What you should be concerned about is finding a good lawyer ASAP.  Initial consultations should be free, so  ask questions and get info from a few, then decide whhat you want to do.

There has not been much repoorted from OK, but I am sure more experienced posters will refer you to a few lawyers. In the meantime, you can look at the cases in your jurisdiction and see who the successful foreclosure defense lawyers are.
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George Burns
Kathy

You should contact Legal  Aid Services of Oklahoma and ask for referrals, especially to foreclosure defense lawyers who attended their seminar on "Defending Foreclosures in Oklahoma".

In addition to looking for names in the court Dockets etc, you should do a Google search using the phrase ( Oklahoma foreclosure defense ) and read up on some of the lawyers that you see. This should give you an idea of how they think and what to expect.
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William A. Roper, Jr.
Kathy:

I think that George has given you some good counsel.

I want to add a note about net borrower equity and your other financial circumstances.

IF you have substantial equity in the subject property, reasonably good cash flow and otherwise good credit, then it is probably in your finanical interest to AVOID foreclosure and to seek a modification or workout.  (This still may require the assistance of a capable lawyer.)

If you have substantial net negative equity in a property, other significant debt and cash flow problems, fighting the foreclosure may make somewhat more sense, as your credit might already be impaired and you might ultimately need to file Bankruptcy anyway to clean up other issues.

There are others whose circumstances fall in between.

For example, suppose that you had a $200,000 house and a $100,000 mortgage.  While there are probably some viable foreclosure defenses, the outcome is uncertain and loss of your equity would make risking a foreclosure a rather speculative proposition which would put your equity at risk.

In such a case, the sale of the property probably makes sense, even at a distress price, if you cannot obtain a modification.

By contrast, suppose that you have a $100,000 property with a $200,000 mortgage.  That might sound extreme, but there are MANY in this situation in Florida, California, Arizona and Nevada.

In this situation, there is rarely a loan workout or modification that is both economic to YOU and agreeable to the Lender.

*

In this situation, often choices reduce to giving the Lender a deed in lieu to get the problem behind you as quickly as possible OR contesting the foreclosureIn either instance, you really should consult an attorney.  Giving a deed in lieu without involving an attorney is particularly perilous.

The big picture strategy very often ought to be driven and dictated by the economics of the situation.  Thereafter, smaller strategic and tactical decisions need to be taken in respect of the specific facts of your case.

Some strategically default because they have explored alternatives and it makes sense to do this.  Others default out of necessity, because they cannot make the payments and have no viable alternatives

You first need help in identifying and assessing alternatives.  Some of this is economic and some is legal.  It is important to distinguish the difference.  You do NOT want to be paying a lawyer to give you advice about areas outside of the attorney's core expertise.  And you can both minimize your legal costs and get to a better result by organizing the information and having ALL of the critical information readily available for an informed conversation.
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William A. Roper, Jr.
The leading MERS foreclosure case in Oklahoma was the case BAC Home Loans v White.  See the thread:

"OK Court of Appeals Hands MERS Another DEFEAT in BAC Home Loans v. White"

http://ssgoldstar.websitetoolbox.com/post?id=5007669

 

Mr. White represented himself pro se and ultimately settled by selling the property at a short sale.

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