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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gnoles
I just got the court of appeals to vacate the judgment of foreclosure and sale of my home on a procedural issue (default judgment when I was not in default).  Two weeks later, Ocwen sends me a new notice of default letter attempting to start the foreclosure process all over again.  Problem is that the first lawsuit is still active, with order from court of appeals remanding for further action.  Isn't their attempt to re-start a process that is not yet litigated completely a violation of the Fair Debt Collections Practices Act?  I mean, how am I supposed to respond to such harassment?
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t
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Two weeks later, Ocwen sends me a new notice of default letter attempting to start the foreclosure process all over again. Problem is that the first lawsuit is still active, with order from court of appeals remanding for further action.


Sending a notice of default in most jurisdictions would be an extra-judicial measure to conform to conditions precedent.

Why on earth would you want to bring this to the plaintiff's attention through a Fair Debt Collection Act allegation?  Are you out of your mind?  Is this something that you read in one of the mindless posts linking material from the swindlers' web sites?

It sounds as though you might have successfully employed Mr. Roper's suggested conditions precedent defense and obtained a reversal due to the plaintiff's failure to conform to conditions precedent.  Or maybe you won on basic evidentiary issues.

You need to go back and very carefully read the covenants of the security instrument.

Then you need to avoid panicking develop a thoughtful new defense.  Also, patience is the keyAvoid taking the plaintiff to school!

If your mortgage is based upon a standard FNMA/FHLMC Uniform instrument, such as Form 3010 in Florida, take a particular look at Section 20, which might include a grievance procedure such as:

"Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action."

 

This makes service of the notice of grievance a condition precedent to the filing of a suit.  The provision is contractual.

If you have a subprime loan, the security instrument may lack this provision.  READ CAREFULLY.

If you are a FOOL, you MIGHT simply alert the mortgage servicer or investor and take them to school that they need to do a clean dismissal and START the litigation over again.  On the other hand, if you are intelligent, you might want to amend your pleadings to deny conditions precedent and then after a year or so during a trial on the merits show that the notice was served after commencement.

Maybe, like some here at the Forum you are in a hurry to lose your home.  To quote ka from another thread "You need to take a sedative, sit back and learn to ENJOY the rush of glaciers!".

If the plaintiff has made a mistake and is planning on litigating the foreclosure based upon an untimely notice of grievance (usually combined with the notice of default), you ought to let them do that and only plead as much as you must, in as general terms as you can under the rules.

You also might want to contact Mr. Roper via e-mail and get his suggestions.

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ka

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If your mortgage is based upon a standard FNMA/FHLMC Uniform instrument, such as Form 3010 in Florida, take a particular look at Section 20, which might include a grievance procedure such as:

"Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action."


Good call t!  Substantially the same language appears within Para 20 of the Uniform Instruments for New York and Ohio.  Though I haven't checked, I suspect that this language is found within almost all of the Fannie and Freddie instruments for most jurisdictions.

Bringing this to the attention of the plaintiff through a Fair Debt Collection Act complaint seems like a legal strategy that someone would find in a comic book, on a cereal box or some wingnut or swindler web site.
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George Burns
It is not harrassment and probably not a violation of FDCA. It is no different from the many monthly statements of account and insurance/property tax notices that you got during the period of the lawsuit. However, I am not a lawyer and this is not legal advice.

Not having seen the letter I cannot comment on its merits, but, I caution you from making responses to issues and items that are not related to your case. A letter of Default is not related to any case, it is a pre-requisite to a future case. You respond to motions etc filed with the Court or submitted under color of the Court. You do not respond to advertisement and  accounting updates etc. Responses made by you, especially those that are emotionally charged, most likely will contain admissions and information that could be used against you. Again this is not legal advice.

I advise you to speak with an experienced lawyer since it seems that you are likely to shoot yourself in the foot as your case restarts and restarts with technical issues and a more aware Plaintiff. You apparently were lucky this time, don't push your luck again, get some advice early.
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ka
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I advise you to speak with an experienced lawyer since it seems that you are likely to shoot yourself in the foot as your case restarts and restarts with technical issues and a more aware Plaintiff. You apparently were lucky this time, don't push your luck again, get some advice early. 


I want to concur with this counsel by George.  While actually getting an attorney to act on your behalf is going to cost $$$, very often attorneys will do an intitial consultation to discuss your situation and a possible case for FREE.  You can even get the views of more than one attorney within the context of an initial assessment.  It is only when the attorney begins to act on your behalf that the meter usually starts running.

Also, George is correct in cautioning against sending communications which can later be used against you.  While there are instances where some reply or communication might be necessary, particularly in respect of court filing deadlines, etc., more often with certain kinds of commuications, notices, threats or warnings, it is often safer to remain silent rather than send an ill conceived communication that can be later used against you.

A rather classic example of this sort of this which has been used in collections for decades is for a collection agency to send a communication with a deliberately inflated and erroneous amount owed.  Suppose, for example that you owe Consolidated Scam Corporation $250.  The collection agency sends you a letter asserting that you owe $750 and stating that it will ASSUME the amount to be correct unless you advise them immediately.

So you send them a letter stating that you only owe Consolidated Scam Corporation $250 and not a penny more!  Boy, did you ever show them.  Now you have given the collection agency a letter which can be used against you in court that confirms and admits the fact and amount of the indebtedness.

ANY TIME YOU CORRESPOND IN WRITING WITH THE LENDER, SERVICER OR ANYONE ACTING ON THE LENDERS' BEHALF TAKE GREAT CARE NOT TO ADMIT ANYTHING.

You can reply and DENY the allegation WITHOUT making any admissions.

For example, IF you felt a need and duty to reply in the example above (and often replying AT ALL might be unsound, as ANY reply confirms that you are RECEIVING the communications, etc.), you might say something along the lines of:

"In your letter of mmm, dd, yyyy, you assert that I owe Consolidated Scam Corporation $750.  This is untrue.  Please correct your records to reflect that there is no such amount owing."

Note that this neither confirms the existence of an account nor of the disputed amount.  You have simply denied the allegation, without elaborating.
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gnoles
With all due respect to all of you and the apparent reverence for someone named Roper and conditions precedent, you're missing the point.  Yes, a notice of default is a condition precedent to filing foreclosure actions.  The point is that Ocwen is re-booting foreclosure proceedings while a proceeding is already underway.  You can't have two suits and two foreclosures at the same time with the same parties. 
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George Burns
How does a new or updated notice of default constitute a new case? Does it reference a new case number? Each case has its own unique case number which would be issued when a Complaint is filed. Has a new Complaint been filed. There can be no new case without a new case number and there cannot be a case nember without a Complaint.

Sending you a letter is not sevice of a Complaint.

How does a new or updated notice of default constitute a "re-booting" of the case? What says it does? What says that it is even related to the case and not just an accounting notification? Does it reference the case number? Was it filed in court as a part of a pleading or motion or otherwise?

What does "re-booting" mean?

I think that you are reading too much into it and getting to hysterical to handle what is/has happened and should seek legal counsel.
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gnoles
Re-booting means Ocwen is complying with required notice of default as the first step in a new foreclosure action. 
George, your posts are the "hysterical" ones here, including, among other things, name-calling.  Totally unnecessary, and definitely not helpful in any way.

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gnoles
I must apologize to George.  T's comments get the prize for most hysterical. 
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ka
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Re-booting means Ocwen is complying with required notice of default as the first step in a new foreclosure action.  

 
Duh!  Yeah!
 
Complying with the express terms of the security instrument and complying with the law would seem to be precisely what a careful and well represented plaintiff ought to be doing.  It is unclear what it is that you are complaining about.  Usually, defenses are better founded upon failure to comply with contractual provisions and failure to comply with the law.
 
Maybe the plaintiff will make a mistake and file a second suit without dismissing the first one.  If so, one approach is to contact the plaintiff right away and help the plaintiff correct the errors in its case so that they can accomplish a successful foreclosure faster.  It is unclear to me WHY you would want to do this, but so many defendants are in a hurry to lose, that this is worth noting.  Identifying all the defects in the plaintiff's case and quickly bringing these to the plaintiff's attention is the sort of strategy helpful to the plaintiff that is advocated by many pro se litigants and is reasonably assured to render you homeless quickly.
 
Another approach would be to wait as long as possible under the rules and draw the matter out, carefully and as quietly as possible using the plaintiff's mistakes against it.  This is a better strategy for those who want to remain in their homes and/or WIN their case.
 
As to the assertion that "You can't have two suits and two foreclosures at the same time with the same parties", I think that you both misunderstand and misstate the point.  It might be better stated that a "plaintiff may not . . . ".
 
Parties can and do sometimes file other actions.  So hopefully you have already researched and can identify the statute or rule that forbids this.  I am confident that such a statute or rule exists, but no one will help you find it, since you haven't even bothered to identify your jurisdiction.
  
Bringing our attention to the service of a new notice of default is kind of like alerting HQs when someone you are assigned to follow has opened the front door to their home or office or has set foot on the top step.  While there is always some merit in giving others a heads up that "the subject is on the move", documenting that he is opening the door, now on the landing, now on the top step, etc., is a bit more granularity than is ordinarily necessary.  Usually, it is a bit more helpful and insightful to give reports at the turns or key decision points.
 
Sending a new notice of default is suggestive that there is doubt about the efficacy of the prior notice of default.
 
Hopefully, you obtained a reversal without actually attacking and impeaching the prior notice of acceleration.  It is the notice of acceleration that triggers the running of limitations (prior to the ordinary maturity of an instrument).  Make sure you keep the prior notice, as well as the new.
 
George is reacting to the breathless urgency you seem to sense in this new development. It seems a yawn is more appropriate. Sometimes plaintiffs take the next necessary step to advance their case. Sometimes glaciers melt, but usually not all at once and more often a trickle at a time.
 
But there is no reason to become hysterical over the filing of a new notice.  
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gnoles
My final word is this.  I stated an issue that seemed unique, and put it out there to see if anyone else had dealt with it, and BAM!  I get a bunch of crazy-assed responses from people who couldn't understand the very simple issue and made sarcastic comments and wrongly assumed hysteria.  Yep.  I have just learned firsthand the golden rule of forum-diving.  Never again.
I just feel for others who come here. 
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gnoles

its free advice & comments with info that could help you, dont be put off &  do not allow this to blind you to the info you just received ,use it to your advantage & let the rest go into the binary bin!
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t
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My final word is this.  I stated an issue that seemed unique, and put it out there to see if anyone else had dealt with it, and BAM!  I get a bunch of crazy-assed responses from people who couldn't understand the very simple issue and made sarcastic comments and wrongly assumed hysteria.  Yep. I have just learned firsthand the golden rule of forum-diving.  Never again.
 I just feel for others who come here.

 
gnoles,
 
You can surround yourself with people who praise you and tell you what you want to hear or you can solicit critical feedback from a diverse group of folks who give you honest and unvarnished feedback.
 
Your initial post asserts that you have prevailed on appeal.  That is terrific and already shows more than a modicum of sophistication.  Most of the Forum regulars have NOT yet been up on appeal and therefore lack the experience and perspective that you now have as to the appellate process.
 
On the other hand, the most successful of regular Forum participants have avoided losing in the trial court for several years, some as many as five or six.  Those who survived litigation in the trial court this long did not succeed by chance alone.  They have valuable insights that might be useful to you.  IGNORE THIS COUNSEL AT YOUR PERIL.
 
When your home is at stake, it is very easy to personalize criticism.  No doubt awaiting an appellate decision while your home hung in balance was particulatly anxiety provoking.  You need to develop a tougher skin.
 
Generally, Mr. Roper and several other thoughtful Forum participants have discouraged Forum visitors from posting identifying details about their case.  Because so few foreclosure cases are decided on appeal, and of those appeal decided until recently only a fraction resulted in decisions favorable to the borrower, your mention that you had WON an appellate decision would seem to already be overly identifying.  This may make you particularly reluctant to also share your location.
 
I would encourage you to wait a little while, ADOPT A NEW FORUM HANDLE and to repost some other details of your situation, including identification of your jurisdiction.
 
The Forum CAN be a source of useful strategy, tactics, arguments and insight.  The contributions of others can be most helpful when enough specific details are furnished to allow your peers to fully understand at least some aspects of your case.
 
You seem to be dimissing what appears to be very thoughtful suggestions and feedback in respect of the information you have shared.  If the suggestions and counsel is off the mark, perhaps this is due to the sparsity of details that inform your own outlook on your case.
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