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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
OHIO people can make use of this case.  Lady sues law shop under FDCPA for msirepresenting the creditor as holder of note and mortgage.  Lower court dismisses for failure to state a claim.  Appeals court overturns and says she did state a claim.
Quote 0 0
This is really close to me! One county over....
Quote 0 0
We have constantly seen in foreclosure cases that for the Plaintiff to survive a motion to dismiss the bar is set REALLY LOW. It would be interesting to see if the Plaintiff prevails (or has the resources to prevail) but I really don\\\'t see how this helps anyone out.

\\\\\\\"we, of course, do not make any findings about the merits of the Plaintiff\\\'s claim\\\"

It would have been far more productive to fight the foreclosure and defend your home then to take the burden later and try to sue the law firm.
Quote 0 0
Don't know the details of the case under discussion, but if you're going into court and fighting he rights under the note then a counter claim under the FDCPA seems almost mandatory to me...
Quote 0 0
US Court of Appeals smackdown of Ohio Mill Firm - LSR

This great attorney (Andrew Engel) is also the attorney representing homeowners in OHIO landmark case awaiting decision by Supreme Court of Ohio
Federal Home Loan Mortgage Corp. v Schwartzwald

Quote 0 0
I'm fighting like hell to get an FDCPA claim up and running against some non-holder or entitled defendants in NH. NH is split but sadly has bad case law against this proposition.

We haven't got any appellate guidance but I did point out to the court these other six circuits. Might as well put them here too...

There's a proposition running around that FDCPA doesn't apply to people enforcing a security interest. I had occasion to collect some appellate level cases against that proposition.

I got the 3rd, 4th, 5th, 6th, 10th and 11th circuits covered. There doesn't seem to be anything on point in the 1st, 2nd, 7th, 8th or 9th so if you happen to know of any please speak up.

Piper v. Portnoff Law Associates, Ltd., 396 F. 3d 227 - Court of Appeals, 3rd Circuit 2005 (“We agree with the District Court that "[i]f a collector were able to avoid liability under the FDCPA simply by choosing to proceed in rem rather than in personam, it would undermine the purpose of the FDCPA”).

Wilson v. Draper & Goldberg, PLLC, 443 F. 3d 373 - Court of Appeals, 4th Circuit 2006 (“Defendants' argument, if accepted, would create an enormous loophole in the Act immunizing any debt from coverage if that debt happened to be secured by a real property interest and foreclosure proceedings were used to collect the debt”).

Kaltenbach v. Richards, 464 F. 3d 524 - Court of Appeals, 5th Circuit 2006(“We therefore hold that a party who satisfies § 1692a(6)'s general definition of a "debt collector" is a debt collector for the purposes of the entire FDCPA even when enforcing security interests”).

Wallace v. WASHINGTON MUTUAL BANK, FA, Court of Appeals, 6th Circuit 2012 (“Plaintiff alleges that the statement in the foreclosure complaint that Lerner, Sampson filed against her on behalf of Washington Mutual contained the false statement that Washington Mutual was the holder of her mortgage. District courts have decided, and we agree, that a clearly false representation of the creditor's name may constitute a "false representation . . . to collect or attempt to collect any debt" under Section 1692e”).

Maynard v. Cannon, Court of Appeals, 10th Circuit 2010 (“For the purposes of this case, we assume non-judicial foreclosures are covered by the FDCPA”).

Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (“The rule the Ellis law firm asks us to adopt would exempt from the provisions of § 1692e any communication that attempts to enforce a security interest regardless of whether it also attempts to collect the underlying debt. That rule would create a loophole in the FDCPA. A big one. In every case involving a secured debt, the proposed rule would allow the party demanding payment on the underlying debt to dodge the dictates of § 1692e by giving notice of foreclosure on the secured interest. The practical result would be that the Act would apply only to efforts to collect unsecured debts. So long as a debt was secured, a lender (or its law firm) could harass or mislead a debtor without violating the FDCPA. That can't be right. It isn't. A communication related to debt collection does not become unrelated to debt collection simply because it also relates to the enforcement of a security interest. A debt is still a "debt" even if it is secured”).
Quote 0 0
I'm not writing a well thought out dissertation and attaching anything, but isn't it the case that in order to be successful under the FDCPA, one must move the case to federal court?

What I'm seeing in Ohio, but reading different cases, is that homeowners are either raising as a defense or counter claiming under the FDCPA and the Ohio Consumber Sales Practices Act. The FDCPA is actionable, but not appropriate for judgment on the state level, but the OCSPA is.

I read this case that gives the debtor summary judgment on their counter claim:

Quote 0 0
Write a reply...