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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Background: 
Original Mortgage company was Argent Mortgage
Servicer was Countrywide then
 BAC Home Mortgage
Foreclosure procedures commenced July 2010
Assignment of Mortgage from Argent to a Securtiized Trust 9/13/10
Sherriff sale on Jan 27, 2011

Filed lawsuit as plaintiff on 2/5/11
sued on 19 points...
But the crux of the case will be on standing... since its the trust that
foreclosed and the assignment is at best faulty, and per the PSA they
cannot transfer a defaulted loan into the trust.. and by IRS regs they
can not transfer any loans after a 2 yr period.

Received answer from BAC and Foreclosure mill attorney.

Now what is my next step...

IMO, it is to file for a summary judgment based on the faulty if not fraudulent assignment. Which in the end should compel the other side to show documents proving that the trust has the right to foreclose.

Is there a better way to proceed?

Thanks for your help... Only have one swing at this... and have to get it right.

YIC

Adam  


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William A. Roper, Jr.
Adam:

I find your post to be truly ALARMING.  You leave out several particularly critical pieces of information.  And you seem to have already embarked upon what I would find to be a rather questionable strategy given the information furnished.

First, Are you in a judicial or non-judicial state?  Was this a judicial or a non-judicial foreclosure?

Second, IF this was a judicial foreclosure, Were you served?  Did you file an answer,  Did you appear and contest the foreclosure?

Third, Have you already previously availed yourself of ANY judicial mechanism?  That is, have you previously filed for bankruptcy during the pendency of the foreclosure?  Did you oppose the foreclosure in bankruptcy by opposing the proof of claim or the motion for relief of stay?  Did you seek a TRO?  Did you oppose an ejectment?

Fourth, Are you still in possession of the property?  Or have you been ejected from the property?

*

"Sheriff's Sale" in most places implies a judicial foreclosure.  The mortgage investor typically first obtains a judgment, usually a default or a summary judgment, which provides for the either the appointment of a referee (NY), commissioner (OH, KY) or the sale of the property by the Sheriff (PA).  After the sale, there is usually an action to confirm the deed by court order.

*

If you waited until AFTER the conclusion of a judicial foreclosure proceeding to file another separate suit, in all likelihood you are totally WASTING YOUR TIME.

Under the statutes and the rules of civil procedure of most places, there are certain issues which are denominated as "mandatory counterclaims".  That is, where you have claims which arise out of the same set of facts which form the basis of the foreclosing entity's cause of action, you are REQUIRED under teh rules to plead these as counterclaims in the SAME action.  If you fail to do this, these claims are WAIVED.

You do NOT get to sit back and watch the outcome of the formal judicial proceeding and then then to collaterally challenge the out of the first suit by filing another separate suit.  If this has been your strategy, the mortgage investor is likely to chew you up and spit you out!

Moreover, standing is a defensive doctrine.  You can argue standing in the original proceeding brought against you and seek dismissal of the suit.  When you argue standing, you are arguing that the opposing party does not have the right to come into court and bring an action against you.

If you are the one bringing the cause of action, then it is your opponent who might challenge standing, though in this instance the mortgage investor will argue res judicata or, if you have sought relief in Federal Court, the defendant will invoke the Rooker-Feldman Doctrine.

*

Here is what you need to do RIGHT AWAY.  Take ALL of the important documents and find a qualified, competent attorney specializing in consumer debt law and/or bankruptcy, preferably with some expertise in mortgage foreclosure defense.  Show him or her the pleadings and the orders from your case and ASK what valid legal avenues are still available to you. 

Listen carefully to what the qualified and competent attorney tells you.

It seems likely that it is TOO LATE to appeal the final order of foreclosure, if this is, in fact, a foreclosure in judicial foreclosure state.  It MIGHT still be possible to get the judgment of foreclosure set aside due to fraud OR if there are serious service defects.  But if you were validly served and defaulted, the chances of getting the order set aside may be slim.

Otherwise, you may very well be simply in denial and deluding yourself.

*

If you are in a non-judicial foreclosure state and no longer in the property (particularly if you haven't disputed the matter in ANY judicial proceeding), I would carefully check the limitations periods for various causes of action and consider beating a strategic retreat and then filing a suit to quiet title in about six years or so after the limitations period has run on a suit on a promissory note.
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William A. Roper, Jr.
Quote:
Adam said:
Only have one swing at this... and have to get it right.


Adam:

This is the point you correctly state, but it appears to me that you have already gotten things VERY WRONG.

YOU NEED TO TALK TO AN ATTORNEY RIGHT AWAY.

If you are resolved to litigate pro se, I have hte following additional suggestions, which should be done in precisely the order shown:
1. Read the Rules of Civil Procedure for your Jurisdiction.
2. Read the Rules of Civil Procedure for your Jurisdiction (again).
3. Read the cases on the Rules.
4. Read the Rules of Civil Procedure for your Jurisdiction (again).
Take special care to real the state equivalent (if you are in state court) to Federal Rules 13, 59 and 60 (or just the Federal Rules if you are in Federal court):

 

http://www.law.cornell.edu/rules/frcp/Rule13.htm

 

http://www.law.cornell.edu/rules/frcp/Rule59.htm

 

http://www.law.cornell.edu/rules/frcp/Rule60.htm


You need to find and read the CASES explaining these Rules.

Also make sure you read and understand the cases in your jurisdiction on res judicata, collateral attack on a judgment or order and cases on the finality of judgments generally.

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adam
Ok... perhaps I didnt lay enough facts out there.

Residency is in Michigan. Which is a dual state. The foreclosure was non judicial. This case has not been heard in any state or federal case.

The lawsuit that was brought against the original mortgage, the servicer et al.. was to challenge their standing to bring the non judicial foreclosure action.

The lawsuit was filed after the sheriff sale. Perhaps a mistake.. but that die has already been cast...The mistake was to take the sob's at their word... that the modification was pending and the sale would not go through....

Currently the property is under the six month redemption period.

Now... does that give enough facts?

YIC

Adam

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William A. Roper, Jr.
Quote:
The lawsuit that was brought against the original mortgage, the servicer et al.. was to challenge their standing to bring the non judicial foreclosure action.


I have NO KNOWLEDGE of Michigan law whatsoever.  But standing is usually a term which describes the right of a party to seek judicial redress in court.

Lack of standing is NOT an affirmative cause of action ANYWHERE as far as I know.

Usually, the cause of action in respect of questions relating to the validity of a title derived from a competing deed is a suit to quiet title, a treaspass to try title or some similar cause of action.  But perhaps there is some unique statutory provisioin or aspect of Michigan law unknown to us which makes this appropriate.

The fact that your vocabulary in respect of these issue seems SO FLAWED suggests to me that you are expending your powder flailing around without having read or studied the law.

You need to seek help from someone who is very knowledgeable about Michigan law.

You need to spend MANY HOURS at a law library if you are going to try to do this by yourself and the prospects are really BLEAK.

If you raise valid points about the authority of the purported mortgage investor and/or substitute trustee to conduct such sale, they are likely to just clean things up and do the sale over.  At best, this buys you a little time.

Your mention of a Sheriff's involvement in the sale suggests that this really isn't a private sale.  There seems to be a public officer involved.  Public officer involvement suggests that there might be stricter limits as to disturbing the sale.

I cannot possibly overstate the importance of the point that these aspects of real estate law pertaining to foreclosure are very often UNIQUE to a particular state.  Arguments that you find in a pleading in Florida or Ohio may be TOTALLY IRRELEVANT to a case in Michigan.

There are VERY FEW Michigan cases at this site and there has been relatively little Forum discussion of Michigan foreclosures, depsite the fact that Michigan has an enormous foreclosure problem.  This is no doubt in part due to the fact that with non-judicial provisions, most borrowers there simply get crushed.

You need to very carefully assess whether you want to immediately expend all of your powder flailing away making arguments you barely understand; whether to purchase the services of someone who might be able to help you or to beat a retreat and preserve the powder to fight another day.

People here would like to help you, but this will be a matter of the blind leading the blind!

Attacking well fortified positions with limited powder while blind is usually ill advised!  You need to either purchase a seeing eye dog, find another way to overcome your blindness (by learning martial arts with an emphasis on Braille) or bide your time until your opponents are drunk or asleep (Troy, Princeton/Trenton, San Jacinto).
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Adam
Interesting twist...

Defendants in my case have filed to remove the case from state court and put it into federal court.

Any thoughts on why they would do that? 

On another note... In their filing they have admitted that the original mortgage holder is a defunct entity as of 2007... Which is real interesting admission because that defunct entity assigned its rights to the mortgage in 2010...


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