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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Where to begin????  I will try my best to keep this short and to the point....in the meantime please know that I am in need of help....

We received our first court summons on Sept 15, 2008  for Mortgage Foreclosure Complaint from:

U.S. Bank National Association, as trustee for Bear Stearns asset backed Securities 2005-AC4  (we can now add Wells Fargo as servicing agent for...)

In this summons mortgage company acknowledged that they where NOT in possession of mortgage note.  That after due and diligent searching they have been unable to obtain possession of note but would continue to seek a COPY and will file with court when obtained.

We did not attend this hearing and where not served any further notices.

In May of 2010 we applied for loan modification.  Shortly thereafter we rcvd. notice from court.  At that hearing we informed the court that we were in the middle of loan mod.  According to the underwriter we needed to submit 3 amended pages (one missing a signature and two missing date) We faxed the 3 pages the following morning.  Three weeks later we were notified that we were no longer eligible for modification due to other documentation needed (?) and not supplied to them.

Mortgage company wanted to do a short sale and we declined.

We now have a court date for Dec. 27th....mortgage company has not supplied courts with mortgage note as promised in original filing dated Sept 14, 2008.  Also, while searching public records I see that this mortgage originally recorded on May 13, 2005 with Union Federal Bank of Indianapolis in the official records book 14312 page 708 of the Public Records of Pinellas County Florida also shows that this mortgage is satisfied as of May 25, 2005 in the official records book 14370 pg 1971.  There are no other mortgages recorded after this date. 

I do not understand how U.S. National Association , as trustee for Bear Stearns asset backed Securities 2005-AC4 has any interest in this "mortgage".  It, to me, does not appear to exist.  I am wondering now if that is why our loan modification was, at the last minute, denied.  Does anyone know how I should respond to the court (I need to respond within 5 days of court date)?  Can a mortgage company foreclose on a property that has a "satisfaction of mortgage" recorded in public records?  I am wondering if they can be held accountable for false filings?

Thank you in advance for any help or knowledge shared in regards to this.

be well~
Shannon



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You should get a lawyer to fight your lawsuit. With the info you provide, I think a good lawyer can get your lawsuit dismissed . Don't try it yourself, the Motion to Dismiss due to Plaintiff lacks of standing has better chance to win with a lawyer at the hearing.

Read the threat "REMIC has failed"  and the thread Assignment Before the Trust Close on this forum .
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Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning “for oneself”. This status is sometimes known as propria persona (abbreviated to “pro per”).

Florida is a judicial state when it comes to foreclosure. That means your lender has to sue you in court in order to foreclose on your property. In a non-judicial state such as Georgia, the mortgage document contains a “power of sale clause”. The clause gives the lender pre-authorization to sell your property without a court order. If you’ve just been served a foreclosure summon, do not panic. Your worst mistake would be to ignore it. If you do not respond to the complaint, you’ve given an easy victory to the mortgage company. Usually you have 20 to 30 days to respond; if you do not respond, a default judgment will be entered against you, and eventually you will lose your house..

You must file an answer within that timeframe. Most people are intimidated by the judicial system. If you can overcome your initial fear, you will be immensely rewarded regardless of whether you win or lose. You must be prepared to leave behind the idea that a) the law is about justice b) that all attorneys are honest and follow the law c) that judges must take the side of justice. U.S judicial system is based on an adversarial contest between the plaintiff and the defendant. The judge has to be impartial to both parties. If the plaintiff cheats and lies in court, don’t expect the judge to raise the matter. It is the responsibility of the defendant to raise the issue. For that reason, you must be vigilant at all time and never trust the authenticity of anything the plaintiff attorney presents. Your weapon is the law and the rule of civil procedure. The rules of civil procedure dictate the manner in which the lawsuit must proceed. Like in any game, the opposing party will try to bend the rules and cheat. Knowing the rules of civil procedure is crucial to your success. If you don’t master the rules of civil procedure, your opponent will cheat without you being able to challenge the foul play. You can obtain a copy of the rules of civil procedure in your state for free.

To buy time, you can file a Motion for Enlargement of Time or a Notice of Appearance. You can ask for 20 extra days to file your answer. Sample pleadings are available on the Pleading section of this web site.
Call your county courthouse and get the contact info of the judge assigned to your case. Write down the name and address of the Judicial Assistance of the judge and the recording office of the court. Some courts allow you to file by mail; you can also go directly to the courthouse to have your documents filed. A copy of each filing must be sent to the plaintiff attorney and in some cases to the judge office. Call the judicial assistance for more information.

Anatomy of A Foreclosure Complaint

You’ve been served a foreclosure summon. That means the bank is suing you to get the property that secured your loan. With the summon, you will find the complaint detailing what you’re being sued for.

The foreclosure complaint is made of several parts.
1.Style of the case: this is the section that list the plaintiffs and the defendants. For example “BANKSTER BANK VS JOHN SMITH”;
2.The case number;
3.The title;
4.An introductory paragraph;
5.Numbered paragraphs;
6.Demand for relief;
7.Certificate of service;
8.A signature block.

Foreclosure Defense Road Map For Judicial States

1) You’re at least three months late on your mortgage payment.
2) The servicer or “lender” sends you a Notice of Default
3) Send a Qualified Written Request to the loan servicer. They have twenty days to acknowledge receipt of your request; then they have sixty days to provide the information demanded.
4) You receive a foreclosure complaint. You have 20 to 30 days to file a response to the complaint. Check the document for exact deadline. Failure to timely respond to the complaint will result in a default being entered against you. In a sense, you’ve given an easy victory to the plaintiff.
5) If the plaintiff is a trust, a defunct bank, or a bank not registered in your state, file a “Motion to Dismiss For Lack of Capacity”.
6) If the plaintiff is an entity from another state and did not post a cost bond, file a “Notice of Failure of Plaintiff to Post Non-residential Cost Bond”. After twenty days if plaintiff has not posted the cost bond, file a “Motion to Dismiss For Failure to Post Cost Bond”. Schedule a hearing and bring a court reporter to the hearing.
7) If there is no assignment from the original lender to the current plaintiff, file a “Motion to Dismiss For Lack of Standing”. 8) If plaintiff files an “Affidavit of Amount Due and Owed”, file a “Motion To Strike Affidavit of Amount Owed”.
9) If plaintiff files a Motion for Summary Judgment, file an “Affidavit Opposing Summary Judgment”.
10) Send your interrogatories. If plaintiff does not answer the interrogatories in a timely manner, file a “Motion to Compel” and schedule a hearing. Make sure to bring a court reporter.
11) File your answer, affirmative defenses and counter-claims if necessary.
12) Request for production of documents.
13) Schedule deposition to depose affiants.
Read more at http://www.foreclosureprose.com and
http://www.foreclosureprose.com/the-reporter-guide-to-a-civil/

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Ann~

Thank you!  I do believe that I can step thru any fear that I may have.  I do enjoy a good challenge...especially when it comes to "right" and "wrong".  

I want to back track just to be sure that I explained exactly what has happened...

***We were first served a summons for "Notice of Lis Pendens" in Sept 2008.  We did not (there is that fear you spoke of) appear and no sale date was ever issued.

***In our public records I found a "Master Order Dismissal Calender No. 012009-007"  stating that "Service has not been obtain upon the defendant in the following causes within 120days after filing the initial pleading and the plaintiff, having been noticed that the cause of action would be dismissed on March 02, 2009, and further has made no showing of cause as to why service was not made within that time, it is therefore;  Ordered and adjudged that the cases, as indicated on the attached listing,k are hereby dismissed without prejudice pursuant to rule 1.070(I) of the Florida rules of civil procedure."

***October 26, 2011 we received via U.S. mail "Notice of Lack of Prosecution" stating "It appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10months immediately preceding service of this notice, and no stay has been issued or approved by the court.  Pursuant to the rule 1.420(E), if no such record activity occurs within 60days following the service of this notice, and if no stay is issued or approved during such 60day period, this action may be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the heaing on the motion or prior to Dec. 27, 2011 why the action should remain pending."

US Bank National Assoc, as Trustee for Bear Stearns replied to this motion on October 26, 2011 (which seems somewhat odd since the courts motion was dated and mailed on October 26, 2011) with an "Affidavit as to Amounts Due and Owing" (Affiant is VP loan documentation, of Wells Fargo Bank, as servicing agent) through 9/01/2011,  Attached to this answer is 1) breakdown of total debt  prepared by a"Pre-Foreclosure Specialist"  2) Corporate Advance Breakdown including monthly inspection fees, brok BPO fees, photo fees, title policy fee, and Attorney fees. 3) Loan status including completed BPO with a value of $130,000  (total amount due on said note is $288,071)


Am I correct in assuming that they are attempting to bypass the fact that in the very first summons they admitted to not having Mortgage Note?  This is when I will file (as mentioned in your response) “Motion To Strike Affidavit of Amount Owed”.? 

Thank you for taking your time to read and respond ..... it is much appreciated!

Be well~
Shannon



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Ann~

Do you believe that I should hire an attorney to help plead my case?

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Sorry....I forgot to mention again that in our Public Records this mortgage is recorded as satisfied as of May 25, 2005.  No other mortgage for property has since been recorded.....I printed a copy of this satisfaction.  How can there be a foreclosure when there is no mortgage?
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I believe that if you want to keep your house, you should hire a good attorney to represent you. Attorneys can defense you with a small monthly payment so you don't have to have big sum to begin with. Depend on your financial situation and whether you want to keep the house. Fight the lawsuit pro se can buy you sometimes but often pro se lost their homes at the end or make many legal mistakes that many attorneys do not want to accept the case later.

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Go to the Court House and ask the clerk your case Court Docket. Bring it and the whole file to see few attorneys. First interview is usually free and the attorney can tell you exactly your situation and what action you need.

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shannon west
Ann~

Thank you very much!!  We do want to keep our home.  I will take your advice and see a few attorneys! 

Shannon

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I think the Bank filed the Affidavit of Amount Owing as a reply to Notice of Lack of Prosecution for the purpose of keeping the lawsuit alive and at the same time to reaffirm your debt. Your attorney can file Motion to Strike the Affidavit to deny the the debt or its accuracy. In order to win the future Summary Judgment hearing, attorneys usually file Motion to Strike all Bank affidavits. If you do nothing, the court assumes that the info in the Affidavit is correct. See links below:

 

http://mattweidnerlaw.com/blog/2010/02/foreclsoure-case-killer-motion-to-strike-affidavit-of-amounts-due-and-owing/

 

http://www.scribd.com/doc/36654993/Motion-to-Strike-Affidavits-Matt-Weidner

 

http://www.scribd.com/doc/55428147/Motion-To-Strike-P-Affidavit-and-Subpoena-witness-1

 

http://www.scribd.com/doc/60263792/FL-MOTION-TO-DISMISS-TO-STRIKE-OR-IN-THE-ALTERNATIVE-FOR-MORE-DEFINITE-STATEMENT-AND-COURT-ORDERED-MEDIATION

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