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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Steve Anderson
Hi, I have just been told that the only documentation I received regarding foreclosure was a letter dated May 25, 2011 stating that they were entering into foreclosure. Now, July 21, 2011, is not 90 days from receipt, actually less than 60 days, also, this was not sent certified or registered mail.

So, when it comes time to file a motion, what should I call or label this motion and if so, what is the best wording that would acccomplish my dismissal? Thanks for helping, just trying to get a handle on my options. I know, I know, get an attorney, but for this small amount, not sure if it is worth it. Ok, will await your expertise, SA
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Moose
Assuming from the RPAPL cite that you're in NY, and recognizing this isn't legal advice, here's a recent ruling relative to that notification where the defendants prevailed on appeal:

NY RPAPL Ruling

Hope that gives you some background.

Moose


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Angelo
SA

Not sure what you mean by "...but for this small amount, not sure if it is worth it."  Its always worth it, if you are in a foreclosure and you don't care if you lose your house, then its not worth it.  But a competent attorney is your best bet, nobody can write an motion for you, or they will be(can be) charged for UPL. 

As to your question it will either be a "motion to dismiss" or a "motion in opposition of summary judgement" and your affirmative defense would be failed to follow a condition precedent. 

Moose is 100% correct the Weisblum case is exactly what your looking for. 
Post your email and I will send you the appellent's brief.
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Thanks so much, Angelo and Moose for your wonderful insight. Please send me the brief, when and if you can, appreciate it. So, you think the average person being summoned can't write a motion to dismiss and the affidavit to follow? I mean, don't prisoners do this all the time...and, to be honest, there is so much I have done to try and pack back the home equity loan, that I have no idea why they went so far.

If there is someone you know who would assist me in preparing the motion, I would pay them for their time and efforts, as I believe that opening with this motion would be a powerful beginning. Actually, I find out something today, that I should file a complaint with the State of New York Banking Department for them entering into a binding agreement, taking a check, and then, their attorney backing out of the contract. However, from asking around, best not to upset the lender, as there are meetings set up in almost all states where you come together with the lender and attempt to work out a settlement
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Oops, hit the wrong button, though I found out something right away. The NY RPAPL pdf document is corrupt and didn't open, so please help me get a hold of this ruling and brief, thanks again, SA                                                             

P.S. If my email isn't posted, tell me how to achieve this!
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Moose
Steve, it opens fine in Firefox.

Moose


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Steve Anderson
Hi, yeah, I got it off the Net. It is a good case to quote esp. up here in NY. Also, because I never received those RPAPL 1304's, and the State Banking Department never got the documents they needed either. How could they not follow that procedure, seems like it was necessary...and how could they get out of a motion to dismiss on any grounds, just asking?

Could someone post or direct me to a thread with the best motion to file first in most foreclosure cases that doesn't have to do with standing of lender etc, but with a good offensive that slows procedures down, TIA, SA
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Steve Anderson
OK, a bit of time has passed since this thread was begun. Here is what I discovered and what has transpired. The RPAPL 1304 notice time of delivery is actually asked for on a RJI addendum that everyone receives in NY when they file for Judicial Intervention (90 day notice before foreclosure filing) 

Myself and the other 3 defendants never received one and in the case cited above, even if one did receive it, then all have to be served. I am not understanding why the attorney, and the lender do not fathom this, this is one of the most important presteps to filing a foreclosure complaint. In NY, it is quite strict, there must also be a providing of 5 places that would assist you in this litigation, a "You Could Lose Your Home" document (that was only included in the summons) and also a filing with the New York State Banking Department. Actually, the manner in which the RPAPL 1304 notice is served in, is also tres important.

Anyway, the way you handle this, is , you make a Motion to Dismiss for Insufficiency of Process. If the judge rules against this motion, then there must be grounds for appeal, amen, SA
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Moose
Excellent points, Steve - and good luck.

Moose


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