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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As I was going through the documents at the court clerk's office I came across fax from the plaintiff's law firm via presiding judge.

Basically, they argue that the defendants are insisting they produce original notes, allonge,endorsements,assigment...so that we can verify their authenticity, and they find this to be burdensome, time consuming, not safe in case these documents get lost or misplaced........they even use NJ Judge Todd's recent rule, excerpt to prove there standing since they did not file lost note affidavit and has submitted a copy of the original so don't need to need to come up with the original.

This letter was faxed 10 days prior the judge's order granting summary judgment to the plaintiff. I don't recall ever receiving this letter not my attorney giving me a copy, only came across because of my search in the court clerk's documents.

I know how important this letter was in the judgment and so the question is how and is it possible to use this letter to further my case?

My understanding is that in NJ you have to show the original documents to have standing as the holder of note and in the final judgment.

So, if the plaintiff has not filed a lost note affidavit but refuse to show original, only copy of the original how or what else can we do to force their hand?
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The Equitable One
I doubt this will fully answer your question but I'll give it a stab. I'm also a bit unclear on the procedural posture of your case, which makes me more certain this won't fully answer your question.

Did the copy produced by plaintiff comply with the rules of evidence? Was it properly introduced into evidence? Federal Rules of Evidence should offer you some insight and instruction on these. See:

http://www.law.cornell.edu/rules/fre/

It me be good to become familiar with Article 9, Rule 902 and Article 10, Rule 1002 and 1003.

A read of UCC 3-501, dealing with presentment, may be of use also.

http://www.law.cornell.edu/ucc/3/article3.htm#s3-501

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William A. Roper, Jr.
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Lucy said:
This letter was faxed 10 days prior the judge's order granting summary judgment to the plaintiff. I don't recall ever receiving this letter not my attorney giving me a copy, only came across because of my search in the court clerk's documents.

I know how important this letter was in the judgment and so the question is how and is it possible to use this letter to further my case?


Lucy, in most jurisdictions once an attorney has entered an appearance on behalf of a party, the Rules provide that all correspondence with that party be through that party's attorney of record.  Bar disciplinary rules also usually include a provision that expressly prohibits an attorney for another party from communicating directly with a represented person.

These rules are ostensibly adopted for the protection of the represented person to prevent attorneys from intimidating the opposing parties and obtaining concessions without the benefit of counsel.  The rules somewhat promote judicial economy by avoiding many unnecessary communications as when a party misunderstands some particular filing and calls their attorney to obtain an explanation of each and every possibly inconsequential development.

But the rules can also serve to close shop on the actual course of the litigation and often keep the client in the dark as to what is actually happening.  For parties who do not understand the law, it is often difficult enough to understand and follow what is going on without being excluded from the communications.

When a party is represented by a singularly competent and experienced attorney well familiar with foreclosure defense, delegating all aspects of the litigation to the attorney has some advantages, particularly in terms of time and efficiency.

The trouble comes when even exceptionally capable attorneys are juggling a large caseload.

Not to overly dump on attorneys, the same sort of thing happens in the management of medical care as is well know to those who are both sophisticated and who have faced issues relating to the management of the health care of a close friend or relative.  One can totally delegate the health care decisions to a particular physician or hospital.  Or one can choose to be more proactive.

Sometimes those giving the advice have some self-interested motives in their guidance and recommendations.

Permit me to share a medical example.  Some years ago, my father suffered congestive heart failure.  Happily, he lives less than five minutes from a large regional hospital and upon the onset of symptoms, self-transported himself to the hospital emergency room where he collapsed, but was successfully treated and stabilized.

Once his condition was stable, the attending cardiologist ascertained that he had suffered a renal artery blockage for which the recommended procedure was clearing the blockage through use of a stent introduced through a catheter process.  It was explained that this was a fairly routine procedure in which the regional hospital had some competence and experience.  The cardiologist recommended that the procedure be done at that regional hospital.

Another choice was for my father to be transported by ambulance to a nationally known major medical center with a leading cardiac medical center, which was located only one hour away.

The EASY choice was to have the procedure done at the hospital where he was already a patient.

One of my best friends is a physician and one of the very smartest people I know.  He has not only an MD from an ivy league medical school, but an MBA from a leading business school as well.  My friend had loaned me his textbook on cardiology when I first went to attend to my father's health.  And I consulted him about the recommendation.

My friend listened to the reports and, without examining my father, gave me some different insight into the relative merits of these two choices.

He basically said that the catheterization and stent implant procure was very well established and mainstream and that cardiologists in leading regional hospitals were very capable of doing this procedure.  He added that the primary risk associated with the procedure was the puncture or tearing of artery during the catheterization procedure or the inflation of the stent, but that the risk of such a complication was very low.  And while the rate of error or complication would be slightly lower at the major medical center than the regional hospital, he stated the this difference in incidence of error probably wouldn't justify the additional risks and inconvenience associated with transporting my father to the larger major medicla center with the global reputation.

But then he added that the real distinguishing characteristic of the major medical center was that at such a hospital, there would be a cardio-thoracic surgeon on standby during such procedures would could very often CORRECT any problems that emerged as a result of a catheterization gone awry.  By contrast, in the regional hospital, the patient would probably just die.

None of this was disclosed, identified or discussed with us by the otherwise capable cardiologist at the regional hospital.  But it would also seem likely that a thorough disclosure probably would have driven a large portion of the cardiac patients away to the large academic medical center only an hour away!

(If every time you went to an attorney, the attorney thought about which of his peers and competitors could most capably handle your case, he might end up referring ALL of his business, particularly if the attorney was of marginal or mediocre competence.)

My father was conscious and lucid and well able to make the choice for himself.  Given the additional information relating to worst case outcomes, he chose to have the procedure done at the major medical center.  I am not stating that this was the CORRECT decision.  In all likelihood, it wouldn't have mattered.  But we thought it to be the right choice.

*

I mention this anecdote, as instructive that one can be a passive consumer of medical services or one can be pro-active.  In all likelihood, my father would have had a successful catheterization at the regional hospital.  As I recall, the incidence of complications at that time was expected to be near or below 1%.  The physicians believed my father's condition to be sufficiently stable that they saw essentially NO RISK in transporting him (for others at greater risk, a different decision might have been indicated).

The same balance between delegation of litigation and proactive participation can be true of management of litigation.  A party can totally delegate the management of the litigation or a party can seek to remain continuously informed about various developments and to be a partner and participant in the litigation itself.

Not all attorneys will be eager or even willing to have the client involved in the litigation.

I recall seeing decades ago a sign at some auto mechanics's shop that said something like:

Labor -- $35 / hour
If you watch -- $50 / hour
If you help -- $100 / hour

This wasn't a mechanic who was encouraging customer participation in the repairs.  But he was up front about it, in a jocular sort of way.

There is a balance that one must strike between micromanaging litigation and putting your head in the sand and delegating completely.

I am totally comfortable litigating pro se.  I would NOT recommend this to others who can afford an attorney.  There is really far too much to learn in too little time for the pro se route to be a preferred strategy.

But there are some distinct advantages that can be obtained by a thoughtful and judicious management of your attorney.  One advantage that you have is that you are far more concerned with and motivated by the outcome of your case that your attorney is.  Your home is at stake.  Your attorney is going to be paid, win, lose or draw!  And if you gave him the money up front, he is in a particularly secure position.

Another advantage you have is that you are usually BETTER ACQUAINTED with the critical facts of YOUR CASE.  When you go over the pleadings, you are far more likely (if you have a reasonably good memory) to remember the FACTS of YOUR case than your attorney.  You do NOT have the burden of trying to keep track of fifty or a hundred other similar cases, distinguishing the facts of all of these.  Since the facts in your case may be very similar to a number of other cases, it is easy to see how an attorney is going to FORGET some of the details, particularly over time.

This is also an advantage you will have over the plaintiff's attorney, who is probably managing hundreds of foreclosures.

(By contrast, your attorney is going to be in a better position to assess the legal significance of many of those facts.)

Yet another advantage is that if you are vigilant, you can filter ALL newly emerging information nationally through the prism of YOUR CASE.  You cannot afford to pay your attorney enough to do that for you.

When your attorney reads about some newly released deposition or some new court decision, it is going to be difficult for the attorney to instantly see how this new information affects EACH of the foreclosures he or she is litigating.  But YOU can steadfastly continue to focus on these new developments as they pertain to YOU.

*

There are going to be other areas where the attorney has an enormous advantage.  One of these is nuances of practice in the local courts and perhaps before particular judges.  Unless you have been involved in other litigation, it is very unlikely that you are going to find information in books or at a web site that will fully prepare you for the tone and character of court proceedings.

If the attorney has a large foreclosure defense practice, the attorney will also have much non-public information about how plaintiffs have responded to different types of pleadings, motions and discovery in the past.  And the attorney may also be aware of the terms of some settlements the details of which are subject to confidentiality agreements.

The attorney probably has three years of formal law training.  And the knowledge of the law that comes with experience in actual practice.

It will be hard to catch up to the attorney's understanding of the law within the context of your case, just as it is difficult for the attorney to master every nuance of the facts of your case.

*

I recall that you have previously mentioned that you are litigating in New Jersey.  The New Jersey Rule on service appears here:


If your attorney failed to respond to some critical motion or memorandum of law, it is unclear to me how the failure to notify YOU or serve you with this document would give you any leverage to set aside the judgment or to appeal.

But this is something you need to present to your new attorney.

IF YOU HAD A COMPELLING AND VALID APPEAL, WHICH THE ATTORNEY FAILED TO TIMELY FILE YOU MIGHT HAVE A VALID CAUSE OF ACTION FOR MALPRACTICE, BUT THESE CASES CAN BE VERY DIFFICULT TO WIN.

You need to understand clearly from your NEW attorney what your rights and chances are and to have this new attorney explain to you clearly his vision as to how to best litigate your case going forward.

Then you need to be more proactive in the management of whatever case remains.  Be wary of throwing good money after bad.

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Since the Summary Judgment is already granted.
I would file Motion to Oppose Summary Judgment , claiming the Plaintiff does not have original of notes. Therefore Plaintiff has no standing to foreclose.

 I also would file Motion to Evidential Hearing request a Hearing where the Plaintiff has to show the Original of the Notes.
In Florida, only the holder of original Notes and Mortgage can foreclose.

If Plaintiff refuses to come to Evidential Hearing to show the note original , I would file Motion to Request the Court to Vacate the Judgment due to Plaintiff failure to provide evidence of Ownership.

I would also file Motion to Sanction asking Court to sanction Plaintiff of lying to the court and vacate the Judgment. They say they have original but they could not provide it. It't a lie, it's fraud on the Court.

Not a legal advice. Consult an attorney


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William A. Roper, Jr.
Ann:

New Jersey, as one of the original states and colonies has some legacy approaches to law which seem somewhat dissimilar to the law in a number of other states.

Of course, the UCC applies and there is a statute of frauds and are recording acts there, but the Rules of Civil Procedure are dissimilar in organization and in a number of other respects to the Federal Rules and the rules in those states which model their rules after the FRCP.

The problem is also somewhat exacerbated by the lack of much of a recent appellate record as to foreclosures.  Until very recently, New Jersey was largely spared the worst of the effects of the subprime meltdown.  Things are unraveling in New Jersey very quickly, but very few foreclosure cases have yet made it to the appellate courts for review.

It appears to me that Lucy has gotten herself into a rather singular fix, the delicacy of which defies the expertise of any lay contributor to this Forum.  She really needs to find an experienced, capable and honest attorney licensed to practice in New Jersey and familiar with the laws their to help her sort out her rights and options!

I would caution against recommending ANY particular strategy OTHER THAN finding such an attorney.  To which I would only add that it also never hurts to get a second opinion!
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I agree.

It is very difficult to vacate a Summary Judgment.  It takes a very experienced attorney to vacate a SJ and lots of luck . A Motion to Vacate SJ could give an opportunity file Appeal if denied. It may take a year to get to Appeal Hearing. Homeowner can always suggest to an attorney ideas for the fight. Go to the Hearing with a court reporter to document the hearing if
Homeowner plan to Appeal.


If Homeowner does not have money to an attorney, filing  Motion to Vacate SJ etc may delay the foreclosure process couple of months. If the Motions failed, Homeowner can request Mediation, delay the process couple more months before filing Bankruptcy to stop the sale of the property . Or file Appeal. Or negotiate some solution with the Bank.

It's better to do something than do nothing. When the Court is considering the Motions,  usually  Court does not schedule the Sale date.



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William A. Roper, Jr.
Ann:

A reason for particular concern is the possible lapse of filing deadlines to vacate or appeal the summary judgment, which I believe Lucy told us was entered in June 2010.

In most places, a summary judgment is a final judgment which must be appealed within a certain amount of time.  Lucy seemed to be under the impression that there was some subsequent action still to come relating to this judgment.

Not unlike other places, NJ seems to have some provisions to make a motion for a new trial or to amend a judgment (under NJ Rule 4:49):


My lay reading of this rule would be that such a motion would need to be filed within twenty (20) days.

There is also another separate provision under Rule 4:50 for relief from a judgment or order:


A motion under this rule is required to be filed within a reasonable time, though certain of the provisions have to be filed within one (1) year.

Under NY Rule 2:4, it would appear that the defendant could appeal, but the appeal would usually have to be filed within forty five (45) days:


*

IF the summary judgment was a final judgment for which the appeal period began to run, the time to appeal under Rule 2:4 may have already passed some time ago.

If the appeal period has already PASSED any talk of an appeal of the summary judgment is now probably ACADEMIC.  Whether Lucy's prior attorney had some duty to her after accepting her retainer to take timely action is unclear.  She MIGHT have an action against him for legal malpractice.

Appealing and seeking relief from a judgment or order are NOT symmetric approaches.

In appealing a summary judgment, the appellant/defendant need only show that there were disputes of material fact which precluded the granting of a summary judgment.  The defendant does NOT have a burden of proof as to ANY of the disputed issues.  The ONLY real question is usually whether by the summary judgment opposition and admissible evidence the defendant non-movant raised valid disputes as to issues of material fact.

By contrast, in any motion for relief of judgment, the defendant is going to have a burden of proof to show the judgment or order should be set aside for one of the reasons set forth within the rule.  This is NOT merely a matter of disputing evidence.  The defendant is going to have to persuade the court that the evidence supports her contentions.

Of course, if the defendant's attorney failed to raise good and effective issues in the answer and to contest material facts in the opposition to summary judgment, appealing summary judgment can be academic even if the appeal were made in time.  That is, in many and even most instances, arguments which are not raised in the opposition and at the summary judgment hearing are deemed to be waived and usually cannot be raised for the first time on appeal.

Identifying some of the possibly relevant New Jersey Rules is NOT the same as having formally studied New Jersey law and researching the decisions arising out of these Rules.  In particular, it is totally UNCLEAR TO ME why Lucy thinks that the summary judgment wasn't a final appealable order or what additional steps are customary as part of New Jersey foreclosure practice. 

Perhaps Lucy is simply confused or mistaken.  Perhaps she was misled by her second attorney.  Perhaps Lucy MISUNDERSTANDS the nature of the order entered.  Or, perhaps there is some unique dimension to summary judgment in NJ that makes the judgment an interlocutory rather than final order.

From the moment of her first post, which described having lost a summary judgment and then hiring a lawyer, who has FILED NOTHING AT ALL, I have been very concerned that she is in a very perilous situation!

*

Lucy's options are going to be highly dependent upon a number of facts unique to her case, precisely what arguments were already made and what evidence went into the summary judgment motion and opposition, as well as some specifics of New Jersey law with which we are unfamiliar.

She may now have no case at all and might be throwing good money after bad.  IT IS ESSENTIAL THAT SHE GET INFORMATION FROM A COMPETENT AND HONEST NEW JERSEY ATTORNEY.

Coaching her as to strategy or second guessing the recommendations she gets from an experienced and qualified NJ attorney seems ill advised.  But she needs to understand from her new attorney PRECISELY what her remaining options are and she needs to get a candid assessment of her prospects in consideration of mistakes already made.

*

There may be some arcane aspect to NJ law and practice relating to summary judgments in foreclosure which we do not understand.  But if the judgment is final and the appeal period has already run, she has already gotten herself into a very, very bad situation.

The differences in the burden and threshold of proof between a well defended summary judgment opposition and a motion for relief of judgment really couldn't be more dramatic.

And while the denial of a motion for relief could also be appealed, the likelihood of succeeding in such an appeal are probably dramatically lower than the prospect of prevailing on an appeal of a well opposed motion for summary judgment.

*

I am all for zealously defending against an unjust foreclosure.  But the defense, and particularly the out of pocket amount expended in such defense, needs to be carefully balanced against the prospects for success.  The zealous defense should not be carried beyond a point where the defendant is further injured.

Very often, the zealous defense cannot actually avert an ultimate foreclosure.  Litigants need to bear in mind that the number of defendants who have succeeded in either PREVENTING foreclosure OR in obtaining a favorable settlement is probably less than 1% of all foreclosure defendants.  By contrast, a zealous defense can very often DELAY a foreclosure, sometimes for months and even years.  A delay can be financially valuable to the defendant in helping to preserve precious cash flow and to avert homelessness.

IF it turns out that the judgment IS FINAL and the appeal period has passed, Lucy may need to carefully assess her prospects of getting the judgment vacated through a motion for relief.  And she also may need advice from an attorney as to whether a well timed bankruptcy filing is a more effective means of protecting her interests.

Let us keep Lucy in our prayers, but I think that trying to suggest specific motions or actions based upon the rules and experience of other jurisdictions is a really, really BAD idea.  Lucy needs good legal advice from a NJ lawyer as soon as possible!

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William A. Roper, Jr.
New Jersey Rule Relating To Foreclosures Noted

In making a very cursory review of the New Jersey Rules of Court, it is perhaps useful to both Lucy and other Forum participants with subject properties located in New Jersey to expressly call attention to the salutary NJ Rule which seems to expressly pertain to foreclosures:

RULE 4:64. FORECLOSURE OF MORTGAGES, CONDOMINIUM ASSOCIATION LIENS AND TAX SALE CERTIFICATES
http://assistive.usablenet.com/tt/www.judiciary.state.nj.us/rules/r4-64.htm

This Rule appears to me to afford foreclosure defendants somewhat greater protection than is generally available in a number of other states.

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William A. Roper, Jr.
The New Jersey Rules of Court are generally available from this page furnished by the New Jersey state court system:



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