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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Looking For A Little Help
Hello,

I am in Florida.

I filed a motion to dismiss the foreclosure complaint against me. The alleged lender's attorney did not attach a note. The mortgage they attached shows someone other than the Plaintiff. They claim they have lost the note, but the the owner.

I sent them a copy of my motion to dismiss and they filed for summary judgment.

I have a good idea of how to go about my opposition to summary judgment, but I would appreciate it if someone had a sample or could point me in the right direction for some more research. I don't want to screw this up.

Thank You
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    If you had the cash, you'd get a lawyer, Right? But then again if you had the cash, you wouldn't be in this situation, so you are doing it pro se.
    Check to see if the originator was licensed with the Florida Office of Financial Regulation if it was a non-bank lender. If not, you are in luck!
     You need to do a sworn affidavit in opposition to summary judgment and in favor of your motion to dismiss. It must be factual and it must be notarized. Don't tell the Judge any bull. Keep it simple and to the point.
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I'm a bit confused.  The Plaintiff's filed a Complaint and you replied with a Motion to Dismiss (instead of an Answer for now which is usually ok unless it was a forcible detainer action).  Am I right so far?

Once you filed the MTD the other side (Plaintiff's) had to file a Response and you are generally allowed to file a Reply (touching only on arguments raised in the Reply).

Did the Plaintiff's 'Respond' to your Motion to Dismiss?  If so, what was their response argument.  In a Motion to Dismiss if you refer to issues outside the complaint the Court has the option to deny the MTD but usually offers the option to amend your complaint.  It's all really complicated.  In some cases if your Motion to Dismiss goes too far off topic the Court can construe the MTD as in fact a Motion for Summary Judgment, especially is you attached affidavits or other documentary evidence. 

Did the Court rule that your MTD would be considered a Motion for Summary Judgment?

The Motion to Dismiss is like a one time get out of hail free card.  You get one shot to tell the Court how screwed up the Plaintiff's Original complaint is but you have to stay on the topic of not having standing, the Court not having Jurisdiction, etc.  A MTD is not a place to argue points outside the Complaint.

What I can not follow is the Motion for Summary Judgment?  Where in the process did it come up?

Can you go over the dates/timelines in a bit more detail?

As usual and customary in this forum, this isn't legal advice.
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O -
If you email me, Markie8611@aol.com , I can give you a few links that might help.

Check out the legal lounge on the web site for this forum.  

Mortgage Servicing Fraud

Law Library 

Good Luck!


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Looking for a little help

Quote:
    If you had the cash, you'd get a lawyer, Right? But then again if you had the cash, you wouldn't be in this situation, so you are doing it pro se. Check to see if the originator was licensed with the Florida Office of Financial Regulation if it was a non-bank lender. If not, you are in luck! You need to do a sworn affidavit in opposition to summary judgment and in favor of your motion to dismiss. It must be factual and it must be notarized. Don't tell the Judge any bull. Keep it simple and to the point.

I have cash. I have cash to pay an attorney. You don't know what my situation is or why a foreclosure was filed against me.

Your snarky comments may seem okay to you, but they are not to me. If you have something relevant to post, do so without the assumptions and attitude.
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The Equitable One

If you make your email address available I'll share my response to summary with you. It was drafted to my situation but is also rather boiler plate.

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Looking for a little help

Ken wrote:
I'm a bit confused.  The Plaintiff's filed a Complaint and you replied with a Motion to Dismiss (instead of an Answer for now which is usually ok unless it was a forcible detainer action).  Am I right so far?

Once you filed the MTD the other side (Plaintiff's) had to file a Response and you are generally allowed to file a Reply (touching only on arguments raised in the Reply).

Did the Plaintiff's 'Respond' to your Motion to Dismiss?  If so, what was their response argument.  In a Motion to Dismiss if you refer to issues outside the complaint the Court has the option to deny the MTD but usually offers the option to amend your complaint.  It's all really complicated.  In some cases if your Motion to Dismiss goes too far off topic the Court can construe the MTD as in fact a Motion for Summary Judgment, especially is you attached affidavits or other documentary evidence. 

Did the Court rule that your MTD would be considered a Motion for Summary Judgment?

The Motion to Dismiss is like a one time get out of hail free card.  You get one shot to tell the Court how screwed up the Plaintiff's Original complaint is but you have to stay on the topic of not having standing, the Court not having Jurisdiction, etc.  A MTD is not a place to argue points outside the Complaint.

What I can not follow is the Motion for Summary Judgment?  Where in the process did it come up?

Can you go over the dates/timelines in a bit more detail?

As usual and customary in this forum, this isn't legal advice.



1. Plaintiff filed a complaint for foreclosure and to reestablish lost note.

2. I responded with a motion to dismiss (within 20 days). They have not responded to the motion to dismiss. 

3. The Plaintiff filed a motion for summary judgement. They filed this, before my time to respond was up.

It is like they are ignoring my motion to dismiss. The attorney is known as a foreclosure mill, so I wonder if they just do things automatically, on the assumption the borrower will not respond. The court has not ruled on anything yet.

I filed a motion to dismiss because: They did not attach a note. The Plaintiff is not on the mortgage they attached. I don't think they ever had possession of the note. There is not assignment of the mortgage. Based on their complaint, they lack standing to foreclose.

I had payments returned (twice) and my ability to pay online cutoff. When I began to ask questions about who I should be sending money to and what was going on, I got several different responses from the servicer about who actually owns my loan. During this time the Plaintiff filed against me. The Plaintiff is not on the list of entities that the servicer says owns my loan.

Thank You.
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Looking for a little help
The Equitable One wrote:
If you make your email address available I'll share my response to summary with you. It was drafted to my situation but is also rather boiler plate.

floridafight@yahoo.com

Thank You Very Much.
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2. I responded with a motion to dismiss (within 20 days). They have not responded to the motion to dismiss.
 
That's interesting.  If it was me I'd file a Request (not another motion) for a ruling by the Court on the MTD.  I would say something like the (look up the local rule) Plaintiff's have failed to answer the MTD within the time required by the local rules and ask the Court to 'grant your motion to dismiss'.  In most jurisdictions an unopposed Motion is granted without further review.  It may be the Court calender is really clogged and you just need to get the attention of either the Court or the Court's Judicial Assistant.
 
I for one wouldn't allow the MTD to simply be ignored.  I am sure you won't but force the issue.  Look up your local rules Motion Practice.
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I have cash. I have cash to pay an attorney. You don't know what my situation is or why a foreclosure was filed against me.

Your snarky comments may seem okay to you, but they are not to me. If you have something relevant to post, do so without the assumptions and attitude.

In defense of Mike H I don't think he was being snarky.  He is a regular and worthy contributor of value to this forum.  Everyone has his own way of making a point - even satirical at times.  I'd be surprised if your comment doesn't alienate forum contributors who might have been willing to offer advice.

I believe he was making the point most all of us have made at one time or another.  We are usually here because we couldn't afford the loan, couldn't afford an attorney, or like most of us, have been pilloried by the fraud of the banking system.  As with others I have been living this nightmare too long and fully understand the emotions that go along with the problem.  I was never in default, never behind in payments yet here I am in Court.

http://www.legalabusesyndrome.org/ 
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Looking for a little help

2. I responded with a motion to dismiss (within 20 days). They have not responded to the motion to dismiss.
 
That's interesting.  If it was me I'd file a Request (not another motion) for a ruling by the Court on the MTD.  I would say something like the (look up the local rule) Plaintiff's have failed to answer the MTD within the time required by the local rules and ask the Court to 'grant your motion to dismiss'.  In most jurisdictions an unopposed Motion is granted without further review.  It may be the Court calender is really clogged and you just need to get the attention of either the Court or the Court's Judicial Assistant.
 
I for one wouldn't allow the MTD to simply be ignored.  I am sure you won't but force the issue.  Look up your local rules Motion Practice.

That is pretty much what I was thinking.

I really do think they (the Plaintiff's attorney) are not paying attention to my case, because they are used to default/summary judgments.
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Looking for a little help

Ken wrote:
I have cash. I have cash to pay an attorney. You don't know what my situation is or why a foreclosure was filed against me.

Your snarky comments may seem okay to you, but they are not to me. If you have something relevant to post, do so without the assumptions and attitude.

In defense of Mike H I don't think he was being snarky.  He is a regular and worthy contributor of value to this forum.  Everyone has his own way of making a point - even satirical at times.  I'd be surprised if your comment doesn't alienate forum contributors who might have been willing to offer advice.

I believe he was making the point most all of us have made at one time or another.  We are usually here because we couldn't afford the loan, couldn't afford an attorney, or like most of us, have been pilloried by the fraud of the banking system.  As with others I have been living this nightmare too long and fully understand the emotions that go along with the problem.  I was never in default, never behind in payments yet here I am in Court.

http://www.legalabusesyndrome.org/
 
 



Mike H did not make a point--he made an assumption, based on nothing I had posted.

I don't make assumptions about what some one can or can not pay, unless they bring it up. When it comes to foreclosures (particulary in Florida), all bets are off. After doing research for my motion to dismiss, I suspect some people were flat out steam-rolled out of their homes.

If someone does not want to offer advice to me, because they don't like my response to a false assumption, that is fine with me. I am not going to fret over it.

To anyone who does offer advice and/or help I really appreciate it.
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to Looking for a little help,

I am also in Florida and handling my case pro se.  Like you, I filed a Motion to Dismiss within 20 days of being served.  Plaintiff's counsel ignored my Motion so after 20 days, I  called to get it scheduled.  At that time, plaintiff's counsel requested an extension in order to respond to my Motion.  Since it was during the holidays, I gave them the extension.  Two months later they requested another extension. Shortly afterward, they filed what they called the "original note and mortgage"  and set my motion for a hearing.  I asked opposing counsel if he intended on responding to the motion and he said no.  He did not show up for the hearing.  The judge was going to reset the hearing but I told him that I had traveled from Houston so he asked his judicial assistant to call the attorney.  My motion was denied because opposing counsel represented to the court that the acceleration letter had been sent before filing the foreclosure action.  The judge ordered the attorney to file a copy of the letter and send a copy to me.  The "acceleration letter" was a notice of late payment dated 2 years before the foreclosure action was filed.  I have filed a Motion for Reconsideration and was told that it would be decided later this week. 

In the interim, I have filed discovery.  I also filed a federal lawsuit seeking rescission and sanctions for RESPA violations. 

I am not an attorney but have worked as a civil litigation trial paralegal for the past 20 years.  Feel free to email me if you have any questions.

Knowledge is Power!!!!
Alina

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Looking for a little help
Thanks for the info Alina. Going Pro Se seems to be a tough route, but I plan to stick with it. I tried to find an attorney (who has experience in foreclosure defense), but no one I contacted served my area. I had no choice, but to respond and defend myself.

I am trying to make sure I don't make any mistakes. I was thrilled to find fourms like this where everyday people, help every day people.
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Looking for a little help
Alina,
I sent you an email.

Thanks
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   Sorry, I didn't mean to be "snarky". That was just my way of saying if you can afford an attorney,you should try to get one, at least for the motion
hearing on Summary Judgement. I was justifying what I had to say next,
which was, "if you can't afford a lawyer, this will definitely help you. I know
because I've been there, done that, and won my case.
   I would refer you to Florida Statute 702.10 , which is a bit antequated,
but still tells you that you need an "affidavit" to refute the allegations in
the Motion for Summary Judgement and in support of your "Motion to Dismiss". It has to be "verified", which means you have to "swear" to it.
This is why you might need a lawyer, because if you swear to something
that is not true, you could lose big time!  
   If there is a genuine "issue of fact" the Judge can not enter Summary
Judgement against you. You have to dispute the facts in the Summary
Judgement motion in such a way as to prove to the Judge that there are
genuine issues of fact. YOU ARE AT THE CRITICAL PART OF YOUR CASE!
If you get past this, it should be all downhill from there. Good Luck!
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Lookinf for a little help

Mike H wrote:
   Sorry, I didn't mean to be "snarky". That was just my way of saying if you can afford an attorney,you should try to get one, at least for the motion
hearing on Summary Judgement. I was justifying what I had to say next,
which was, "if you can't afford a lawyer, this will definitely help you. I know
because I've been there, done that, and won my case.
   I would refer you to Florida Statute 702.10 , which is a bit antequated,
but still tells you that you need an "affidavit" to refute the allegations in
the Motion for Summary Judgement and in support of your "Motion to Dismiss". It has to be "verified", which means you have to "swear" to it.
This is why you might need a lawyer, because if you swear to something
that is not true, you could lose big time!  
   If there is a genuine "issue of fact" the Judge can not enter Summary
Judgement against you. You have to dispute the facts in the Summary
Judgement motion in such a way as to prove to the Judge that there are
genuine issues of fact. YOU ARE AT THE CRITICAL PART OF YOUR CASE!
If you get past this, it should be all downhill from there. Good Luck!


No apology needed. I merely call things as I see them. Obviously you didn't mean to be "snarky" and I am not grumpy or holding a grudge.

I have my affidavit pretty much ready to go to the notary. I just need to get it tweaked and more succinct.

There are numerous issues of fact. The main one being the Plaintiff is not listed on one document they filed with the court. That is why I filed for a dismissal.

If I could find a foreclosure defense attorney who works in my area, I would be thrilled.
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LFALH

Mike H wrote:
  
If you get past this, it should be all downhill from there. Good Luck!


I have my fingers and toes crossed.   Thanks for the good wishes.
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h gosh
Hey guys - you're responding to a troll

Ask us of old wisdom and we'll tell you all about it!!!!  Caution ahead!!!

Remember that "Fire of Freedom"???

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The Equitable One
A troll?

Please explain h gosh.
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LFALH

Yes, do explain h gosh...

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LFALH

I want to thank everyone who emailed me with advice and ideas. I really appreciate it.

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   One last point I forgot to make: It's a good idea to hire a court reporter
to take down everything that's said at the motion hearing. That way if the
Judge rules against you because of lies told by the plaintiff's lawyer, you can
appeal the Judge's ruling to a higher Court. In my experience, Judges will
give a pro se much more respect when he or she comes with a Court Reporter. I would do this even if you do finally hire a lawyer for the motion
hearing: that way you can review how well he/she did in representing you.
   I am convinced that having a court reporter present was the difference
between victory and defeat in my mortgage foreclosure case. The judge
did not rule immediately and I had time to refute the lies told by opposing
counsel by submitting a memorandum which proved she lied about almost
everything. She was later sanctioned by the Bar for her lies.
   Judges have a tendency to take everything a lawyer says as "golden"
and everything a "pro se" says as "bull". This is why so many pro se's lose
even when they have a strong case. Plaintiff's counsel will try to aggravate
you with outrageous distortions. It's all part of the game to make you lose
your temper and turn you into a "raving" maniac. Fore warned is fore armed!
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LFALH

Mike H wrote:
   One last point I forgot to make: It's a good idea to hire a court reporter
to take down everything that's said at the motion hearing. That way if the
Judge rules against you because of lies told by the plaintiff's lawyer, you can
appeal the Judge's ruling to a higher Court. In my experience, Judges will
give a pro se much more respect when he or she comes with a Court Reporter. I would do this even if you do finally hire a lawyer for the motion
hearing: that way you can review how well he/she did in representing you.
   I am convinced that having a court reporter present was the difference
between victory and defeat in my mortgage foreclosure case. The judge
did not rule immediately and I had time to refute the lies told by opposing
counsel by submitting a memorandum which proved she lied about almost
everything. She was later sanctioned by the Bar for her lies.
   Judges have a tendency to take everything a lawyer says as "golden"
and everything a "pro se" says as "bull". This is why so many pro se's lose
even when they have a strong case. Plaintiff's counsel will try to aggravate
you with outrageous distortions. It's all part of the game to make you lose
your temper and turn you into a "raving" maniac. Fore warned is fore armed!


You post is very timely.  I was actually going to ask for opinions about doing just that. I think I will do it.

After reading their Motion for Summary Judgement, I am pretty sure one of their sworn affadavits has numerous untruths. Better yet, it was notarized the day they filed the foreclosure complaint. It looks like they were not expecting me to put up a fight.
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   A key point to understand in defending a foreclosure suit in Florida is Fl.
Statute 702.01 "Equity". Most people don't understand the difference between a "lawsuit" and an action in "equity". In essence the plaintiff is
alleging that he/she/it has "equity" in your property as evidenced by the "mortgage" which was recorded shortly after the "Note" was created.The
"note" is merely the evidence of a debt, it did not give the originator any
"equity" in the property.
    If a defendant can show that the "mortgage" was obtained in violation
of State or Federal law, or by fraud, then the mortgage is unenforceable
and the plaintiff has no "equity" in the property, even if the "Note" is legitimate, ie the debt exists. Mortgage lenders are held to a higher standard
of conduct than ordinary lenders, which is why they must be licensed and
regulated by the State or Federal government. Fraud can usually be found
in the "inflated appraisal" or the "inflated income of the borrower". One has
to go over the "originator's documents" to see if the "mortgage" was obtained
by "fraud". This is the "clean hands" doctrine. Much has been said about
"lost Notes" and "standing" to file, but more needs to be said about the origination process and wether or not it was done "lawfully". Conceivably,
one could end up with a money judgement and not be able to foreclose, especially if the property is "Homesteaded". These are things a "pro se"
needs to research, think about, and get legal help with, if possible! 

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LFALH

Mike H wrote:
   A key point to understand in defending a foreclosure suit in Florida is Fl.
Statute 702.01 "Equity". Most people don't understand the difference between a "lawsuit" and an action in "equity". In essence the plaintiff is
alleging that he/she/it has "equity" in your property as evidenced by the "mortgage" which was recorded shortly after the "Note" was created.The
"note" is merely the evidence of a debt, it did not give the originator any
"equity" in the property.
    If a defendant can show that the "mortgage" was obtained in violation
of State or Federal law, or by fraud, then the mortgage is unenforceable
and the plaintiff has no "equity" in the property, even if the "Note" is legitimate, ie the debt exists. Mortgage lenders are held to a higher standard
of conduct than ordinary lenders, which is why they must be licensed and
regulated by the State or Federal government. Fraud can usually be found
in the "inflated appraisal" or the "inflated income of the borrower". One has
to go over the "originator's documents" to see if the "mortgage" was obtained
by "fraud". This is the "clean hands" doctrine. Much has been said about
"lost Notes" and "standing" to file, but more needs to be said about the origination process and wether or not it was done "lawfully". Conceivably,
one could end up with a money judgement and not be able to foreclose, especially if the property is "Homesteaded". These are things a "pro se"
needs to research, think about, and get legal help with, if possible!
 

Thanks.

I don't want to go into too much detail about my case, but if it is not dismissed, origination is something that will play a part in my defense.


I really don't know who owns my loan. There is no assignment filed with the complaint and I don't think I was paying the correct servicer. I contacted two different servicers and each one gave me a different owner for my loan.


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O -

Looking For A Little Help wrote:
Hello,

I am in Florida.

I filed a motion to dismiss the forclosure complaint against me. The alleged lender's attorney did not attach a note. The mortgage they attached shows someone other than the Plaintiff. They claim they have lost the note, but te the owner.

I sent them a copy of my motion to dismiss and they filed for summary judgement.

I have a good idea of how to go about my opposition to summary judgment, but I would appreciate it if someone had a sample or could point me in the right direction for some more research. I don't want to screw this up.

Thank You


Help for Weathering the Housing Crisis
The Florida Bar's Consumer Protection Law Committee has resources to aid homeowners and the attorneys helping them weather the housing crisis.

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O -

Yer Welcome! I hope it helps. Good Luck!

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LFALH
I still haven't found a sample opposition to summary judgement form. If anyone stumbles accross one, I would appreciate it if you would keep me in mind.

Thank You
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O -
Try Googling it.
 
Google, Sample motion in opposition to summary judgement.
 
Good Luck, and you might want to start a new thread on this, this one is so gooft up...

LFALH wrote:
I still haven't found a sample opposition to summary judgement form. If anyone stumbles accross one, I would appreciate it if you would keep me in mind.

Thank You

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   One last thought! If I were the attorney for the plaintiff, I'd want to direct the attention of the Court and the defendant to the STRONGEST PART of my case and deflect attention away from the weakest part of my case.
  
How would I do this? Let's say that after researching the case, I realize that the "mortgage" violated State and Federal law, but that the "NOTE" was lawful (ie the loan of money). Knowing that the Plaintiff gets two shots at the "apple", I'd claim that the "Note" is lost (even though it isn't). The "defendant" would say "oh goody" they don't have the "Note" and totally overlook the weakest part of the plaintiff's case, the "mortgage".

 This is called a "diversionary tactic" and is used in "warfare" and "lawsuits", (which is just "war" but without the "bullets".)
 
 Understand that when a "pro se" goes up against a "lawyer", it is like an amateur prize fighter going against a "professional" prize fighter. 90% of the time, the amateur is going to get his/her "but kicked".
  
Once in a while, like during "the American Revolution" the amateurs win, (by learning from mistakes), and not being destroyed in the first battle!
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I too live in florida with my Mom (elderly) lost my Dad in 2007 and then lost my job in 11-2008, we lost 120,000.00 in income and now we are being sued by BB&T. My Mom gets 750. in SSI and i get 1200.00 a month in unemployment.
I am going to try to answer the court within the best of my abilities since we are barely able to keep a roof on top of us and cant afford an attorney.
I think this is a great forum and very informative.
Thanks to all
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