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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I have knowledge of the FC being filed, and found an affidavit of service against an improperly included party having nothing to do with me or the property.

They were served July 6th, I assume they will tell the plaintiffs attorney they have nothing to do with the action.

Should I just answer to play it safe?

I would rather just continue to monitor the case buying more time.

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T-Bill
?1 do you have your motion for extension of time prepared
?2 do you have ur inititial discovery questions ready to b served
?3 do you have a draft of ur motion to dismiss
?4 do you have ur second set of discovery ?'s in the works
?5 do you have all ur research done to fight the sj

just askin
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Yes the ducks are all lined up.

All typed, just need final proof read.

I don't want to look like a fool and answer without being served.
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T-Bill
good job --- my opinion = wait let them think that u are a clueless deadbeat homeowner just ripe for picken --- then nail 'em!

good luck!

ps in the future try to hide ur identity on this and other websites -- a suggestion -- future postings should be done from a 'neutral' computer --- thus hidding ur actual ip address which = ur identity!
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JL
agree w/ T-Bill -- this site has a high degree of probability of having been taken over by the banks!  BEWARE!!!!!
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Texas
JL said: "agree w/ T-Bill -- this site has a high degree of probability of having been taken over by the banks!  BEWARE!!!!!"

Taken over, nope, monitored, would not surprise me.

Where one does not understand the magnitude, paranoia could come into play. Still, as with any website, protect thyself.
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JL
Texas ur correct - i should not have used the verbage 'taken over' ~ heavily monitor would have been more appropriate!
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Texas
No issue JL

Precision, Precision, Precision and make no admission.
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Zach
In some states, failure to serve will always preclude judgment and is a valid means of overturning a judgment.

In other states, if a defendant knows about the suit, failure to answer the suit can result in a default that cannot be set aside, even if there was never any valid service.  Posting here at the Forum demonstrates that you know about the suit.

If you are in the former type of state, you can probably safely wait until you are served.  If you are in the latter type of state, you are at great peril, especially if the plaintiff employs a sewer service concern that will swear that they served you, whether they did or not.  In such states, once that affidavit of service is filed, the burden shifts to you to prove that you weren't served and that you didn't know about the suit.

See also Mr. Roper's cautions and guidance against posting identifying information here at the Forum.  Maybe someone with more time can find this thread.

Check the cases for your state and be VERY, VERY CAREFUL!!
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Mike
I monitor the clerks office online almost everyday, if an avidavit of service is filed I'll grab a copy.

If they pull sewer service should MTD on that or just file my answer withing the time limits to be safe.
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arrgy
Why would you even play around with that. The above poster is right, you have 30 days, you don't answer or file some type of motion and your really screwed. You don't answer they get a default judgment and you can be gone in 30-60 days. You file an answer or a motion and you can drag it out for years and years.
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confused
"...found an affidavit of service against an improperly included party having nothing to do with me or the property."

v

"I monitor the clerks office online almost everyday, if an avidavit of service is filed I'll grab a copy."

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Hank
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I monitor the clerks office online almost everyday, if an avidavit of service is filed I'll grab a copy.

If they pull sewer service should MTD on that or just file my answer withing the time limits to be safe.
  

The procedure for attacking sufficiency of personal service varies greatly from place to place.  In some places, you would file a special appearance denying service and personal jurisdiction.  In other places, you might move to strike the return of service.  In still other places, a motion to dismiss might be used.

If you want to fight an initial skirmish over sufficiency of service, you need to very carefully read the rules and the cases on the rules.  You also need to understand that if you rely on something that someone told you on the Internet and you screw this up, a default judgment can be taken against you.

In most places, when you succeed in denying personal service, the best case end state of the skirmish is to set aside the earlier return of service, but to establish the court's jurisdiction over you at the conclusion of the special appearance, traverse proceeding, etc.  So ALL this would ever really accomplish is to delay the time for answer for a matter of weeks or months.  In the meantime, you will have spent a great deal of time and energy that could have been devoted to developing a meaningful defense.

An experienced attorney litigating a foreclosure pro se might find this amusing.  But it is well beyond the skill of most pro se litigants and you may be playing with fire!
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Mike
I forgot to say I'm upstate NY, where if not served the court lacks jurisdiction over me.

But I have my answer almost ready, as of today no new affidavit of service was filed with the clerk.

The other thing that I checked is the plaintiff is not authorized to do business in NY according to the Secretary of state, not being authorized precludes them from commencing a law suit in NY, there are appellate cases on that.
Banks opening paragraph say they are "still a duly authorized Corp"

So after being served I can move to dismiss on that or include that as an affirmative defense??????

any thoughts on that?

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T-Bill
could they be a dba entity?
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Hank
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Banks opening paragraph say they are "still a duly authorized Corp"

So after being served I can move to dismiss on that or include that as an affirmative defense??????

any thoughts on that?


Most of the banks acting as institutional trustees are national banks incorporated under the National Banking Act and supervised by the OCC.  National banks are authorized to do business in any state without registering as a foreign corporation.

By contrast, there are some cases that hold that a trust which is domiciled in another state still needs to register within a particular state even if its trustee is a national bank.

But there are also many cases showing that merely owning notes or mortgage loans secured by property within a state is not doing business in a state sufficient to require registration.   Whether this can be a potent argument in New York is going to depend upon the precise wording of the New York statute, the cases on that statute and the precise facts of the case.

The argument you seem to be suggesting is a capacity argument.  I am unfamiliar with New York cases on capacity.

Realize that a defense as to capacity is not an affirmative defense, despite what some very marginal lawyers may be telling you and others.  (Mr. Roper discusses this distinction in his discussion about conditions precedent not being an affirmative defense.)

The reason that conditions precedent is not an affirmative defense is that the plaintiff usually bears the burden of proof as to its own capacity.

While not an affirmative defense, it is still a special defense and you need to look to the New York statutes and rules as to the state equivalent (if any) to Federal Rule 9(a) concerning pleading special matters. 

Be careful.  Several people have lost their homes by following the totally false assertions in "model pleadings" suggested by several Forum participants that encourage defendants to tell courts that standing, capacity and conditions precedent are affirmative defenses.  These are not affirmative defenses!  Established and authoritative legal treatises and court decisions show that Mr. Roper was right about this and that incompetent Florida lawyers continue to mislead and deceive borrowers and cause them to lose cases by making the incorrect legal argument!

There are literally hundreds of cases showing this nationally, including cases of U.S. Courts of Appeals, but these are being suppressed by corrupt Florida lawyers who are trying to cover up their defensive malpractice.
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Hank
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I forgot to say I'm upstate NY, where if not served the court lacks jurisdiction over me.

But I have my answer almost ready, as of today no new affidavit of service was filed with the clerk.


Yes, the court may not have jurisdiction without service, but whether there has been service depends upon the "facts" as set forth within an affidavit of service.  If the plaintiff uses a sewer service firm (of which there are several in NY state) and they file an affidavit (falsely) asserting personal service, then you will have to refute this proof.

If you fail to answer and fail to refute the proof, then you could lose.  Trying to disprove that you were served is exceptionally difficult unless you can show an impossibility as to the facts set forth in the affidavit of service.  For example, if you can prove that you were in Sweden accepting the Nobel Peace Prize at the date that the affiant claims to have served you in Watertown, NY, and can produce an affidavit from each member of the Nobel Committee as well as the King of Sweden, this might overcome the plaintiff's affidavit of service.  But if you are merely alleging that you were really involved in an intimate Yahoo chat with former Rep. Andrew Weiner at that time and have some naked photos of Rep. Weiner, this might not be believed (even if true).

So if and when an affidavit of service appears, you need to carefully weigh what the affidavit of service avers with what actually happened and what sort of proof you can marshal about its falsity.  If it turns out that your alibi is that you were around the corner peeping at Adam & Eve eating the forbidden apple and that your proof is that you ate the apple core (as opposed to the Swedish Nobel Prize alibi), you might want to reconsider committing effort to this alibi and simply move to a defense on the merits!
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T-Bill
This is a Florida case - http://scholar.google.com/scholar_case?q=Clauro+Enterprises,+Inc.+v.+Aragon+Galiano+Holdings&hl=en&as_sdt=2,10&case=374716948020199059&scilh=0

might be of interest - as reported by:

The Florida Legal Blog

http://www.floridalegalblog.org/2009/09/third-district-reverses-order-finding.html

Wednesday, September 2, 2009

Third District Reverses Order Finding Improper Service of Process

 
 
In Clauro Enterprises, Inc. v. Aragon Galiano Holdings, LLC (3D09-711), the Third District reviewed a decision from the trial court relating to a motion to quash service of process.
 

The court affirmed as to one defendant but reversed as to the other holding "that Aragon failed to comply with section 48.031(6), Florida’s substitute service statute, when it attempted to serve Rupcich, individually."
 
First, the court stated: "The statute only permits substitute service at a private mailbox if (1) it is the only address discoverable through the public records, and (2) the process server determines that the person to be served maintains a mailbox at that location...With regard to the first requirement, Aragon did not and could not meet its burden of establishing that the only address for Rupcich discoverable through the public records was a private mailbox. Rupcich’s affidavit clearly demonstrated that a review of the public records showed that since the year 2000 he has owned property in Weston, Florida for which he claims a homestead exemption...Nonetheless, we also conclude that Aragon failed to meet the second statutory requirement because it failed to show that the process server determined that Rupcich maintained a mailbox at the Weston UPS store. In support of its position that service was proper, Aragon points to the return of service. That return of service, however, merely recites that service was in accordance with section 48.031(6), but it does not demonstrate that Aragon met either statutory requirement. “An affidavit [of service] which merely alleges that the service of process statute has been complied with is insufficient to meet the proponent's initial burden of establishing proper service.”
 
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Mike
"Most of the banks acting as institutional trustees are national banks incorporated under the National Banking Act and supervised by the OCC.  National banks are authorized to do business in any state without registering as a foreign corporation."

Ok didn't know that, but they went to the trouble to register in other states, I'll track that down next week.

"By contrast, there are some cases that hold that a trust which is domiciled in another state still needs to register within a particular state even if its trustee is a national bank."

The trust in not authorized here.


"Realize that a defense as to capacity is not an affirmative defense, despite what some very marginal lawyers may be telling you and others.  (Mr. Roper discusses this distinction in his discussion about conditions precedent not being an affirmative defense.)"

Great thanks, so it would then need to be done by MTD before an answer, if in fact the above comments prove they need to be.

thanks
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Hank
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Great thanks, so it would then need to be done by MTD before an answer, if in fact the above comments prove they need to be.

thanks


My recollection is that the procedure isn't a MTD in NY state.  I recall hearing something about a "traverse hearing".  Why don't you search the New York cases using keywords like service and personal and traverse, etc.
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Mike
No traverse is objecting to service, where process server says this and that, you don't fit the description or were not at that location.

Lack of authority is a Capacity issue done via a MTD.

Also read that just because a trust calls itself a bank doesn't mean they really are a true bank.
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Sean
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No traverse is objecting to service, where process server says this and that, you don't fit the description or were not at that location.


That sounds as though it is precisely what Hank is describing as to sewer service.  The affidavit of service claims that you were served and you claim you were not.
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David
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That sounds as though it is precisely what Hank is describing as to sewer service. The affidavit of service claims that you were served and you claim you were not.


It seemed as though Hank knew exactly what he was talking about.  When a plaintiff alleges valid service as by a questionable affidavit of service, a NY defendant can move for dismissal for lack of personal jurisdiction under various provisions, such as CPLR 3211.  The court then orders a traverse hearing.

See for example:

MATTER OF GERSHEL v. Porr, 89 N.Y.2d 327, 675 N.E.2d 836, 653 N.Y.S.2d 82 (N.Y. 1996)

Hank's analysis seemed to be pretty much dead on though he seemed not to know the NY statutes or the precise cases.

If Mike searches for personal jurisdiction and traverse hearings, he will find a lot of New York authority discussing this topic.  I agree with Hank as well that it is probably not a very good idea to spend very much time researching this issue.  It is at best a speed bump.  There is nothing wrong with throwing up a speed bump, but Mike needs to be very, very careful if the plaintiff files an affidavit of service.  If Mike makes any serious error in navigating the personal jurisdictional issue and traverse hearing he could be looking at a default judgment and NY defaults are exceptionally difficult to set aside.
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Mike
Just found an affidavit of substituted service filed 7/17, in NY I have 40 days if not direct personal service.

It has several errors, but not worth contesting,

I'll file a timely answer
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Peeps beware!!!! I think bank attorneys are on this site giving out legal advise that is hurting you and helping them. A corporation to file suit against you and bring it to your jurisdiction must be registered to do business in that particular state. It is called a Resident Cost Bond that they must get before initiating suit. If they are not registered in your state they must file one. if not Do a Motion to Dismiss for Lack of Resident Cost Bond. The judge will simply make them file one but it buys you more time! Like 40 more days then they have to come back and basically start over.
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Floyd
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Peeps beware!!!! I think bank attorneys are on this site giving out legal advise that is hurting you and helping them. A corporation to file suit against you and bring it to your jurisdiction must be registered to do business in that particular state. It is called a Resident Cost Bond that they must get before initiating suit. If they are not registered in your state they must file one. if not Do a Motion to Dismiss for Lack of Resident Cost Bond. The judge will simply make them file one but it buys you more time! Like 40 more days then they have to come back and basically start over.


The person who posted this information is exceptionally poorly informed.

While there does exist an occasional (and underused) defense relating to ineligibility to sue in a forum state, this is usually raised as a capacity defense in most places. The defense is far from uniformly robust. And the mechanics of raising the defense under the Rules and the statutory prohibition that would preclude access to the courts by an unregistered entity vary widely from state to state. So one needs to do a LOT of research to bring this defense properly.

The capacity defense probably deserves its own thread rather than cluttering up this thread.

A couple of additional notes are probably in order to help show some of the contours of where this defense might be viable or where it might fail.

First, generally nationally chartered banks supervised by the Comptroller of the Currency are exempt from state registration as foreign entities. Thus, if you are being sued by Bank of America, N.A, JPMorgan Chase, N.A., U.S. Bank, N.A., etc., directly as an entity, the capacity defense is likely to prove ineffective UNLESS the entity took the instrument from an unregistered foreign entity without value after default.

But there is also the possibility of an exception to this general rule if the bank was merely acting as trustee of a foreign trust. There have been a handful of decisions that seem to show that the general exemption from registration by national banks does not also exempt a foreign trust from registration merely because its trustee is a national bank.

Separately, if the plaintiff is a separate corporate affiliate of the national bank, the exemption doesn't usually carry over to the subsidiary. That is BAC Home Loans, LP, is not the same entity as Bank of America, N.A. and BAC Home Loans is not exempt from registration.

Another treacherous area involves the necessity of registering at all. Usually, the requirement to register is based upon the foreign entity doing business in a state. If the entity does business in a state, it must register. But if it doesn't do business in a state, then it is not required to register.

Most states have expressly exempted certain activities from conclusively establishing that an entity is doing business in a particular state. So, for example, having a directors meeting or shareholders meeting in a state does not usually constitute doing business in that state. Neither does owning secured loans or even owning real estate. Thus, a passive investor in a large portfolio of loans in a particular place may not make that investor subject to the requirement of registering.

There are other activities that may bring a foreign entity into non-compliance.

Bringing suit on defaulted loans usually does not, in and of itself, subject the entity to the necessity of registration.

I am not arguing against making a capacity argument. Rather, I am simply pointing out that a borrower needs to read the statutes, rules and cases on capacity of foreign registration requirements as well as looking for specific facts which can be used to establish that the entity was required to register, but failed to do so.

There is a rumor floating around that capacity may play a key role in an appellate case to be decided within the next few months. That case purportedly involves MERS!
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