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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Need advice, and soon please! I posted this on another thread but got no reply, and wondered if a new thread would be helpful to me, as well as other "lurkers". I am no "legal-eagle" just an average Joe trying to fight pro-se and save my family's home.
On advice I got before on here, I was able to stop my foreclosure in it's tracks based on my bankruptcy still being open and the bank sent me foreclosure papers anyway. We sent the court and the banks attorney a letter stating that they had not filed a motion for relief, and the bank dropped the suit. Now they are back, and have filed a motion for relief of stay in BK court, I have less than a week to respond now. It is a chapter 7, in the State of SD.
Some quick facts:
We DO NOT show mers on the title work, or anywhere else.
The bank bringing the foreclosure is the same bank we originally closed the home with.
We have a letter from WFargo stating that they are a SERVICER and that freddie mac owns the loan. (I sent WF a letter asking them to show me the note. The letter stating this was the response from that request).
We have not been able to find our loan in the SEC.

I am scared we will blow our most important legal defense (ie; the back up and help from BK court), by not submitting to the court the proper arguments or citing relevant and proper case law.

I really need some step by step layman advice, from some of you who have "been there, done that". The legal jargon and many differnt defense strategies we have seen, well, just makes my head spin. Confused as to WHAT my best defense is, and how to go about PROVING it.

Anybody out there got any advice they want to share?
Tick tock, tick tock....
Thank you much,
Joe


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Sandy
Joe, you might find this case and document helpful, in that it is a good breakdown of the UCC as it relates to notes and who is the party entitled to enforce it. You might find some ideas in them. These links had a dedicated post, but some subscribers hijacked it with personal insults and neutralized the intended discussion. (Who wants to read through that mess!)

Notice that this case was a bankruptcy appeal and MERS was not involved. Of course, your case is unique and your state law must be considered. And no doubt, a good attorney is the best weapon.

Your attorney *might* want to see this case and document (some won't listen or care what their clients find on the Internet.) The document is a draft, thus subject to change.

http://www.scribd.com/doc/57568003/IN-RE-VEAL-w?autodown=pdf

http://extranet.ali.org/directory/files/PEB_Report_On_Mortgage_Notes-Circulation_Draft.pdf

If I may add this. Mr. Roper made a comment that helps keep me focused. This isn't a direct quote, but close:

The defendant's job is not to teach the court the TRUTH (of the fraud and securitization mess), rather it is to prove that the plaintiff did not prove its case.

Shoot for effect!
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William A. Roper, Jr.
Quote:
Joe said:
We DO NOT show mers on the title work, or anywhere else.


IF MERS is involved, this will be shown EITHER on the dave of the mortgage (an MERS as Original Mortgagee mortgage) OR in an assignment of the loan from the originator to MERS.

Quote:
Joe said:
The bank bringing the foreclosure is the same bank we originally closed the home with.  We have a letter from WFargo stating that they are a SERVICER and that freddie mac owns the loan.


Use the Freddie Mac lookup tool to find out whether Freddie owns your loan:

Does Freddie Mac Own Your Mortgage?

http://ssgoldstar.websitetoolbox.com/post?id=5151295

 

IF MERS is involved, check the MERS lookup tool as well:

MERS Servicer ID Lookup

http://ssgoldstar.websitetoolbox.com/post?id=5346473


Quote:
Joe said:
(I sent WF a letter asking them to show me the note.  The letter stating this was the response from that request).


Like so many other recent visitors to the Forum, you seem to have a wish to LOSE YOUR CASE.  Writing to the servicer and coaching them into obtaining the winning evidence is a really IDIOTIC STRATEGY that you must have learned from FOOLS at some other web site!

STOP COACHING YOUR OPPOSITION!

Do you always show your opponent your hand BEFORE you begin betting at Poker?

Quote:
Joe said:
We have not been able to find our loan in the SEC.


You will find NO RECORD of your loan in ANY SEC filing if your loan is owned by Freddie Mac.

Quote:
Joe said:
I am scared we will blow our most important legal defense (ie; the back up and help from BK court), by not submitting to the court the proper arguments or citing relevant and proper case law.


It would be to your advantage to get a good Bankruptcy lawyer experienced in foreclosure defense.

Trying to navigate the treacherous shoals of bankruptcy without an attorney is a BAD IDEA, particularly where you didn't already STUDY UP IN ADVANCE.

Usually, you have TWO opportunities to fight the creditor in a Bankruptcy setting.  The first opportunity arises with the PROOF OF CLAIM.  If you already ADMITTED in your original Bankruptcy filing and schedule the fact of the mortgage and secured claim you may have already WAIVED an opposition to the proof of claim.  But see the In Re Veal case.

Next, you can oppose a motion for relief of stay.  But if you didn't CONTEST the claim, it is UNCLEAR what your defense is to the motion for relief.

NO ONE AT THIS SITE CAN PREPARE YOUR BANKRUPTCY SCHEDULES FOR YOU.  IF ANYONE OFFERS TO PREPARE YOUR SCHEDULES, IT IS PROBABLY A CRIMINAL WHO IS SEEKING TO RIP YOU OFF BY HIS UNSKILLED EFFORTS AT THE UNAUTHORIZED PRACTICE OF LAW.  BEWARE OF PREDATORS!!

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Moose
Joe wrote:
... Confused as to WHAT my best defense is, and how to go about PROVING it.

Anybody out there got any advice they want to share?
Tick tock, tick tock....
Thank you much,
Joe



Of course this isn't legal advice, but in addition to other responses, given the fact that you have filed for bankruptcy under Chapter 7 - several questions:

Did you reaffirm the mortgage debt?

Are you upside down - or was your plan to use the equity to pay off other creditors?

What other debts are you looking to discharge? (Keeping in mind the IRS is first in line and Federally-insured student loans can't be discharged.)

In chapter 7, you liquidate assets to pay creditors. You have the option to reaffirm certain types of debt, i.e., mortgage and vehicle loans. You have to specify whether or not you will and the trustee, then the court has to approve the plan of liquidation and distribution schedule.

There is another huge question - do you even know if you actually qualified for Chapter 7 bankruptcy?  Your case may be dismissed if it is improperly filed and then you're back to square 1 and will have to re-file.

Again, this isn't legal advice but if you're employed with an income and meet the various qualification tests, the legal expenses of a Chapter 13 filing (reorganization as opposed to liquidation) are paid out of the plan over time - meaning you may be able to find an attorney who knows how to deal with these issues.

Moose





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FnDoomed
So what did you actually DO with this?   Have you distilled all the advice down to a simple objection to motion for relief from stay?   Have you gotten the attorney?  

Quote:
The bank bringing the foreclosure is the same bank we originally closed the home with.
We have a letter from WFargo stating that they are a SERVICER and that freddie mac owns the loan. (I sent WF a letter asking them to show me the note. The letter stating this was the response from that request).
We have not been able to find our loan in the SEC.


What did the proof of claim look like ?   If proof of claim is from BANK then BANK as who?   Servicer or Note holder.   If proof of claim is from SERVICER then SERVICER of who ?  BANK as NoteHolder or WF as Noteholder.

How long ago was proof of claim submitted?   Can you still object to it?

Basically the only people who are capable of pursuing you in BK are SERVICER for Note Holder, or Note Holder, or a host of people under UCC 3-301 but the groupings get more esoteric.

Get a lawyer or take your best shot.  I can't advise you, but if this were me I'd just file an objection to motion for relief from stay.  What to object to depends on the record evidence.  Lets say BANK is in court but the note submitted with the claim appears to be owned by Freddie and serviced by Wells Fargo.

Your objection is that:

Based on the record evidence, BANK has not proven it is the servicer of the instant mortgage.

Based on the record evidence, BANK has not proven it is the holder of promissory note.

Do double check that there are no MERS assignments of your mortgage.  MERS assignments are becoming rather easy to tear apart in some jurisdictions. 

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I can't thank you all enough for taking the time to help us out. You really are a Blessing to us, and could not have gotten this far without you.
We filed an objection to the motion for stay. I don't know if this is good or not, but, we just got notice of a hearing. The letter from the Judge stated "for cause shown" and the date for the hearing. We went with the fact that the bank (WF) bringing the foreclosure is NOT who holds the mortgage which is Freddie. May or may not be enough, guess we will see.
Can not afford a local attorney, and the ones I did interview really seemed to know not one wit about this whole mortgage mess. Sure can't see caughing up a wad of needed cash, for an attorney who not only doesn't understand my case, but doesn't have any confidence in winning it either. I am not knocking attorneys by any means, sure wish I could find one around here eager to try a case like ours out, as I find it hard to "know" what to do "next". If I can keep turning to all of you "old hats", we may just be ok. Every time I file something I learn more and more about the "process".
Seriously, thank you to all who have responded to our cry for help.
So, what does one expect to have happen in a BK hearing?
Hopefully they won't "hear" me sweating...hahaha

Joe
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