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
thesheen
Has anyone in Florida been successful in this?  I'm not sure I have anything to gain other than maybe requiring the new plaintiff to file an amended complaint.  I am really just stalling in hopes that we may gain some additional time.  Any experience or advice is welcome.
Quote 0 0
NJ48
Mark Stopa from Florida has great articles on Sub. Google "Substitution of Plaintiff" and you'll find it easily. I have a motion now whereby OneWest Bank has already assigned and recorded the mortgage to Ocwen and the Assignment of Mortgage is on this forum under Ocwen.... Its fraudulent.   
Quote 0 0
thesheen

I've read his articles and his motion to vacate an order to substitute plaintiff, although I don't think he was successful in his argument.  I guess my question ultimately is... do I have anything to lose by not opposing the substitution?

Quote 0 0
NJ48
To THESHEEN,
You question should be why did they substitute the plaintiff ?
In my case, OneWest Bank did not sign the agreement to the 49 state Attorney General settlement and the review was never completed. By filing a simple Motion to Vacate Default(not Default Judgment), Onewest started to break apart because of all the errors that were committed by the foreclosure firm. Like disclosing that they are working on behave of FannieMae. In answering my QWR,  Ocwen, first stated that they were the owner of the mortgage, then that they working in behave of FannieMae, then they file an Assignment of Mortgage with Ocwen as owner of the mortgage. Now, Ocwen is trying to be substituted in my case with the same foreclosure mill and if they are successful, they will need to amend the complaint.
You should now be requesting a QWR from the new plaintiff with a complete loan payment history, etc.... and demand to see the note and mortgage(although they may ignore everything, you have requested it). The payment history from Ocwen, in my case, shows that my loan was securitized. Payments were made to other entities.
Subpoena the Custodian of Records in Discovery for the history of ownership of your loan, etc....any and all agreements with plaintiff(s), servicer(s) and any undisclosed third parties and their relationship to those parties(You want the records). This is the hardest to obtain because the plaintiff and court will do their best to ignore this unless you continue to demand it. 
If you're stalling for time, you have already lost. Attack !     
Quote 0 0
sheen
If Bank B is substituted as plaintiff am I still able to allege unclean hands if I believe Bank A (original plaintiff) is the culprit?
Quote 0 0
NJ48
To Sheen,
Check FannieMae and FreddieMac Lookup Tool website, that's probably your culprit. Name the bank and you'll get more responses and help, if you need it. 
Quote 0 0
sheen
Bank of America assigned the mortgage to HUD who in turn assigned it to another entity (not a bank.)
Quote 0 0
iknow
NJ48 wrote:
To THESHEEN,
You should now be requesting a QWR from the new plaintiff with a complete loan payment history, etc.... and demand to see the note and mortgage(although they may ignore everything, you have requested it). The payment history from Ocwen, in my case, shows that my loan was securitized. Payments were made to other entities.


He is way past the point of a QWR.  Any information he wants needs to come from discovery.   
"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
iknow
thesheen wrote:
Has anyone in Florida been successful in this?  I'm not sure I have anything to gain other than maybe requiring the new plaintiff to file an amended complaint.  I am really just stalling in hopes that we may gain some additional time.  Any experience or advice is welcome.


Using proper discovery is a long cumbersome process.  Find some good questions (not internet junk), when they don't respond, or object, file a motion to compel.  In the mean time, serve your next discovery request. 

In most juristictions it is impropper to grant SJ with discovery pending

You should be using discovery to uncover questions of fact that will preclude SJ as well as poke holes in the Plaintiff's complaint.

This could get you past SJ and maybe to trial, which is quite a ways down the road. 

It would be a really good idea to read the cases in your jurisdiction on SJ, SJ with discovery pending, SJ with questions of fact so that you understand and can be effective.

It would also be a really good idea to go down to the courthouse and pull cases where the homeowner prevailed and plagiarize a few things.
"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
sheen
Thanks iknow, your suggestion aligns with everything that I've come to understand thus far.  What are your thoughts on Roper's posts to this forum regarding discovery?  Do you know of any examples you could share online of proper discovery questions?  I do plan on making a trip to the courthouse next week.
Quote 0 0
iknow
sheen wrote:
Thanks iknow, your suggestion aligns with everything that I've come to understand thus far.  What are your thoughts on Roper's posts to this forum regarding discovery?  Do you know of any examples you could share online of proper discovery questions?  I do plan on making a trip to the courthouse next week.


Most pro se litigants have no idea of how to run discovery. They want to pull discovery examples off the internet with 30 generic questions and just mail it to the Plaintiff. This usually yields poor results.

Over the years, I have read many different things posted here by William Roper. He is a very bright guy. William had much more success than most attorneys with less favorable facts. I certainly would recommend reading his posts. I am in total agreement with his thoughts on discovery, personal knowledge, ect. I have and still am using the same basic process William outlined in my personal discovery.

Rather than just getting a list of non-responses and objections, I have been getting useful answers.

What you really have to consider, is that you are NOT an attorney. Even if you used the same discovery as an attorney used, you will NOT get the same result. There is a threat that if opposing counsel engages in discovery abuse, they will be on the hook for the attorney's fees in the motion to compel. This is a deterrent. With a Pro se litigant, if they abuse discovery, not only will you have no idea on how to do a motion to compel, you won't be entitled to any attorney fees. Why not just stonewall?

There are lots of good threads here. You are going to have to read them and make a decision on what path you want to follow.

Being in FL you have a HUGE advantage. There are a few attorneys that are effective and understand what foreclosure defense is. I personally am a fan of Mark Stopa and Ice legal. You can simply go to the courthouse, pull their foreclosure files and make copies. DON'T REINVENT THE WHEEL. You will have copies of motions, pleadings, discovery, ect.. that prevailed, with all the proper case law. There are also a lot of bad attorneys that just simply want homeowners to make monthly payments and do very little. You do need to be careful.

If you put in the work, you should have no problem throwing a wrench in the gears, but it is a lot of time and work. There are also a lot of people that offer incorrect advice and thoughts. Surprisingly, even after quickly losing their home, they lead people in foreclosure down the same path and still show the lack of understanding that resulted in the ineffective defense they used. You have to be objective and do your own work, there are no shortcuts (except you have a really big head start with case law and pleadings).
"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
mar7
suggestion:

goto Manatee Records Search: 

http://www.manateeclerk.org/PublicRecords/CourtRecordsSearch/tabid/57/Default.aspx

search using 'your' Plaintiffs name, this will provide you a listing of foreclosure cases to choose from.
review the 'chosen' case docket history ~ looking for 'discovery' topics ~ and then download them from their site ~ its free, immediate versus going to palm beach county, for instance, downloading/printing documents at $1.00 per page.

Yes, it is time consuming, but worth the effort.

ps try to locate cases handled by Stoppa, Gingo, and Ice that are located within the Manatee area.  They are out there -- good luck.
Quote 0 0
mar7
goto: http://www.gingoandorth.com/default.aspx

"Sample Pleadings"  they offer great advice re[biggrin]iscovery ?'s along with procedure required to service/file your discovery ~ i.e. interrogs.
Quote 0 0
iknow
mar7 wrote:
suggestion:

goto Manatee Records Search: 

http://www.manateeclerk.org/PublicRecords/CourtRecordsSearch/tabid/57/Default.aspx

search using 'your' Plaintiffs name, this will provide you a listing of foreclosure cases to choose from.
review the 'chosen' case docket history ~ looking for 'discovery' topics ~ and then download them from their site ~ its free, immediate versus going to palm beach county, for instance, downloading/printing documents at $1.00 per page.

Yes, it is time consuming, but worth the effort.

ps try to locate cases handled by Stoppa, Gingo, and Ice that are located within the Manatee area.  They are out there -- good luck.


I think it's a great idea to look up cases online. It is really a necessity so you don't waste time. But the bottom line is you need to spend time and money. You are not going to find any way around it. "Penny wise, Pound foolish" is the first thing that comes to mind. Once you do as Mar7 suggested and find a few cases, you are going to have to spend the time to go to different courts all over the state and the money for copies.

You are going to also have to go to a law library.

The best way to look at it is how much is it going to cost you to rent a place for a month? 500.00? 800.00? A simple motion to compel can easily eat up 3-4 months. It's potential value is at least 1500.00. If it cost you 60.00, you are really ahead.

My suggestion would be to find cases locally (you should be able to do this online), go to the clerk's office and read them. Make copies of what you think you can use. Then I would read the appellate cases that were favorable, and go to the courthouse and pull those files, read them, then make copies of what will help you. As I posted before, there are no shortcuts. You may have to make a 2 hour drive for an important case. Always refer to the paragraph above. How much is it worth to be in your home a few extra months.

On a side note. William Roper suggested that instead of paying for copies, you could simply take a decent camera (or cell phone), pull the file, and take pictures of the documents.
"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
thesheen
Thanks mar7 and iknow, your suggestions and links have been really helpful.  I won't be opposing the motion however, since an order was entered last week ex parte.  I will however oppose the order.

Plaintiff stated in the motion that the order would no prejudice would result from granting the order.  I disagree,  pleading unclean hands or fraud as an affirmative defense is quite different from the original plaintiff to the substituted.  The question is, will the judge buy it?
Quote 0 0
iknow
thesheen wrote:
The question is, will the judge buy it?


While your mileage may vary, any motion you file and set for hearing certainly slows things down....It certainly would be a good idea to have a well written brief and case law.

http://www.stayinmyhome.com/tag/motion-to-substitute-party-plaintiff/

"Has the foreclosure defense industry rolled over on plaintiffs’ ex parte motions to substitute party plaintiff? Is nobody opposing these motions? How can a judge who sincerely cares and wants to follow the law not have heard any homeowners or their counsel argue this issue previously? After all, there are many reasons to object to ex parte orders substituting party plaintiffs in foreclosure cases.

Take these arguments. Steal them. Use them in your foreclosure cases.

I don’t want to be the only one making these arguments – I want the judges before whom I appear to be familiar with these arguments because homeowners throughout Florida raise them."

"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
iknow
http://www.stayinmyhome.com/blog/wp-content/uploads/2013/03/Memo_re_Orders_Substituting_Party_Plaintiff.pdf

In case the prior link doesn't work.......Seems like a good document to plagiarize....
"Between two evils, I always pick the one I never tried before."

-Mae West
Quote 0 0
JJ
We are in a similar situation where BOA has transferred interest after the FC was filed.  In rummaging through cases in Florida where BOA was named plaintiff, I would say that in nearly 70% of them that BOA has transferred its interest during the course of the case.  I currently have a motion in to vacate the order subtituting the plaintiff.  I'm sure it will be denied, but after some thought, I believe this may actually be to our advantage.  In Florida, standing can be challenged at anytime, the plaintiff also has the burden of proving it had standing at the inception of the case.  To this point, no evidence has been entered into our case to prove that BOA had standing when it filed for FC.  We plan on keeping the standing card in our back pocket and using it only when we need to extend things a little more.  Only have about 1 1/2 years to SOL.
Quote 0 0
NJ48
For JJ: Don't forget about the NEW RESPA rules. 
Quote 0 0
JJ
NJ48, to which rules are you referring and how do you see them applying in this instance?
Quote 0 0
NJ48
In my case, I had the OneWest Bank as the plaintiff and had their Notice of Entry For Final Judgment dismissed because they failed to send me(us) a notice that Request For Entry of Default was granted as required by N.J. law. While they were seeking F/J they had transferred the servicing rights to Ocwen and Ocwen was also claiming to own the loan. Ocwen even recorded an assignment. The judge granted my motion but, allowed OneWest to file a Motion To substitute Plaintiff and required OneWest to Amend the Complaint which I think they cannot do. Having answered the complaint with the Motion To Vacate Default, I now have another opportunity to submit Discovery. With Discovery, under the new Respa Rules I can request the plaintiff(?) to IDENTIFY our loan in a Mortgage Loan Schedule and a portion of the PSA, if applicable, thru a QWR. Although Ocwen has not filed a foreclosure, I sent an early QWR to Ocwen and they sent me a complete payment history that shows they are making payments to a securitization trust and other entities. The loan is not in Default. The loan was paid off when they sold it to the trust. Plus FannieMae claims the loan after it was sold to the trust and Ocwen also claims they work in behalf of FannieMae. Read Judge Shack's recent opinion in N.Y. JPMC v. Butler and Substitution of Plaintiff in this Forum(Fla.). I believe you can use the RESPA in Discovery if its available. Maybe others can put more input.   
Quote 0 0
Write a reply...