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 want to make a motion to dismiss in my foreclosure case right after filing a time extension. I sat down with my lender and they agreed to start taking monthly payments again. I gave them the first check and it was deposited. About 3 weeks later I got this letter from their lawyer stating that they weren't supposed to take any more payments with the returned check.

So, I am asking, what is this defense called, as everyone who I have contacted about this procedure says they have broken an agreement given, entered into and acted upon with the check. I want to make this my first front line of defense besides no letter of acceleration. Your assistance is appreciated, SA
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Moose
This isn't legal advice, and you really do need some LOCAL advice because jurisdictional questions involving property and contracts always hinge on state law, but the first question is, when they "agreed" to start taking payments again, did you or they sign a document to that affect - a forbearance agreement, for example?

If not, they will simply say you were mistaken (or the person you allegedly talked to did not have the authority to tell you that) and they're proceeding with the foreclosure.

Depending again on the state you live in, the procedural rules and the terms of your mortgage, they may not be following the proper procedure and your response could simply be titled: 'Motion to Dismiss.'

In that, you outline specific missteps they made, i.e., "Plaintiff failed to timely issue a notice of acceleration as required by (cite state law/regulation)."  And, "Plaintiff violated (cite state contract statute) by agreeing to accept payments then on such-and-such-date subsequently refusing and returning check number XXX."

Of course, without documentation those allegations become very difficult to prove.

Again, this isn't legal advice, but I would suggest if you have equity to lose in a foreclosure that doing it yourself is an extremely risky course of action.

Moose


 



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Usually , in the mortgage document there is a paragraph about the condition of  acceleration letter. I would add this reference in the Motion to Dismiss.
If there are other reason for dismiss i.e Plaintiff is not the owner of Note, Plaintiff does not have standing to foreclose; Plaintiff name  is not the same name on mortgage ; Plaintiff does not have the note etc.
Samples of Motions to Dismiss at
http://www.scribd.com/my_document_collections/3011887
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Steve Anderson
OK, thanks for the information. I do have the documentation, in fact, along with the cancelled check, that should be sufficient for that part of the dismissal motion. No notice of acceleration is also another vehicle.

I know this isn't part of the thread, but when I went to file the motion for an extension of time, they wanted $100 for the start and $40 for the motion part of the defense. I mean, I can understand the motion amount but I never asked for this lawsuit, why do I have to pay for it. I understand if I was filing against someone or some place, but frankly, I don't see why I have to pay this amount to the County Clerk's Office. Just a smalll rant, but don't know how they were ever allowed to ask for a fee in the first place. Thanks for  helping, will keep you updated on all the proceedings. I know everyone wants me to obtain a lawyer, but I have no money for that, but will bring in someone who is an attorney soon to assist. SA
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George Burns
What do you mean by "for the start" ?

Isn't there an existing case number?
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Moose
I think what you're seeing is the trend toward electronic filing (free) and penalizing those who don't use it with fees.

Moose


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Collection of robo signers depositions
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