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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Billy


I don't recall seeing this mentioned here on the board, so I will ask a quick question. We are in a foreclosure fight with one of the more notorious servicers. We have been represented by an attorney for more than six months, and there have been many varied communications. In other words, there is no way they can claim they didn't know we were represented by an attorney. 


I thought there was a rule that once someone is represented by counsel, that any direct communication with the homeowner (other than routine statements, etc.) is off-limits. For example, they cannot contact the homeowner about insurance payments, or escrow shortage, etc. These should be handled through counsel, right?

If I am right, are there any penalties for not following this process? If so, how do we roll this/these violation(s) into our current fight?

If I am wrong, sorry for the distraction.

Thanks!

Billy
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O -

Do you live in Florida?

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Billy

No.

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O -
You might want to check this out for your state.


FLORIDA RULES OF CIVIL PROCEDURE
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Ohio
This happened to me on numerous occassions. They are not supposed to contact you for ANY reason routine or otherwise.

Keep a log of these calls. Also if they call let them leave a message on your voicemail and then you can save it for later proof.

Notify your attorney every time they contact you. Even if the contact is through the mail. Your attorney should then contact the foreclosure attorney and tell them to knock it off or else.

You can add it as one of your counter claims if you are making any. Your attorney will know what to call it. 

Do not talk to them except to state that you are represented by an attorney and all communications must go through them. Tell them to not call back.

Believe me they will respond with the stupidist crap as if you had not said a word about having an attorney....just hang up
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Billy
Ohio-

Thanks. I just was looking for what it is called so I can make sure my attorney does it. They basically sent me a letter saying I owe money for my taxes (which I pay), and another letter saying I owe money for insurance (which I pay), and I thought this kind of thing needed to go through my counsel.

I just wanted to give the letters and the specifics of how it should be handled to my attorney. Basically, here's the letters, here's why they aren't supposed to do it, now go do something about it!!

Know what I mean? Thanks!!

Billy
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4 justice now
Billy,

You already have more than enough to worry about, so I wouldn't be too concerned about knowing the proper terminology. Just make the same statement to your Attorney as you have here. They damn well better know what to do. If not, it's better that you find out now so that can discharge them and find a replacement.

I wish you best of luck.

R,

4J
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Here's the thing about them calling you when you have an attorney,

They know they are not supposed to do it.

You can take the tactic, I've warned them several times that I am represented by an attorney and not to call me directly.

Just make sure your attorney knows he/she is still representing you.

Write up a list of dates, times and subject matter of the phone call.

It is not done very often, but your attorney could request sanctions.
He could send a letter to them demanding they stop calling you as he is
your legal counsel.  You always want to be seen as the most reasonable party.

How much money do you want for them calling you when they know you
are represented?

Take your attorney's advice and move on to something more important
than just hanging up the phone if they call again.

Dee


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I am somewhat shooting from the hip here, but until we hear from an attorney with better information or until someone has actually LOOKED UP or briefed the law in this area as it applies to a specific jurisdiction, I will simply share with you what my GUT reaction is to the interesting question raised in this discussion thread.

First, I think that the question merges, confuses and muddles three different sorts of laws or restrictions relating to post-foreclosure filing contact by the foreclosing lender.

One tpye of restriction concerns formal service of pleadings or official suit papers by one party on another party.  These restrictions will typically be found within either the Court Rules a state's code or statutes relating to civil procedure or both.  Exemplary is the Federal Rule set forth within Rule 5(b)(1) of the Federal RUles of Civil Procedure:  "If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party."  [See, for example, http://www.law.cornell.edu/rules/frcp/Rule5.htm ]

In Florida, a similar rule appears in Rule 1.080(b).  In Texas, there is a similar rule appearing at Rule 21 and Rule 21a.  In some States that have Rules modeled almost verbatim after the Federal Rules, you will find the State Rule is numbered consistently with the Federal Rule enunciated above (Rule 5) [e.g. Ohio, Kentucky].    

Note that this Rule does NOT preclude contact by a person other than the opposing party's attorney, but rather states that once a party to a suit has been served with original process and an attorney makes and appearance on behalf of such party that other ongoing service in a suit must be served upon that party's attorney.

The sanction for non-compliance would generally seem to be the striking of a non-complaint pleading.  That is once the suit is underway, if a motion or pleading were NOT properly served on the party's attorney of record, then that motion or pleading would NOT have been served in compliance with the Rules and would NOT be properly before the court.  This could merely DELAY the action until the serving defect was cured, OR could result in the STRIKING of such non-compliant service of the pleading or motion.

Most states have some sort of similar provision regarding service of official process throughout a suit.  You should check the Rules of Civil Procedure applicable to YOUR COURT to determine the precise langague of the rule which applies in YOUR case.

*

A second restriction is one that applies to ATTORNEYs usually through the DISCIPLINARY RULES of a state.  Exemplary are the Texas Disciplinary Rules of Professional Conduct [ See generally http://www.supreme.courts.state.tx.us/rules/atty_rules.asp ].  In Texas, Disciplinary Rule 4.02 provides:
Rule 4.02 Communication with One Represented by Counsel
(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(c) For the purpose of this rule, organization or entity of government includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or omission.

(d) When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the
first lawyer.
Most states would have some other similar rule restricting communications by members of the bar.  Note that this is a Rule governing LAWYERS and and their interactions with the other represented party.  It is a restriction on the LAWYER, NOT the lawyer's CLIENT.  If the LAWYER encouraged his plaintiff client to directly contact the represented defendant without going through the defendant's lawyer, this would seem to be a violation of such a Rule.

The sanction for non-compliance would be a disciplinary complaint agains the plaintiff's attorney, if he had encouraged or authorized this sort of communication.

This is NOT to say that a Court might not view a violation by an attorney's client as a breach of etiquette or a violation of the Court's procedure.  If such was brought to a Court's attntion, the Court might order the client to refrain from such contact.  And then a violation of such orde might be a sepearate contempt of court.

*

The third area where such a restriction arises involves those defendants who have sought Federal Bankruptcy protection.

Upon the filing of a petition in Bankruptcy, the borrower is usually entitled to a civil stay pursuant to Section 362 of the Bankruptcy Code (U.S.C. Title 11, § 362) [See generally http://www.law.cornell.edu/uscode/11/usc_sec_11_00000362----000-.html ].  This civil stay includes a provision to bar "(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; "

It should be readily self-apparent that the plaintiff-client's direct contact with the debtor about any matter that might constitute one of the prohibited activites under Section 362 would be impermissible.

But this provision would NOT preclude direct contact by the plaintiff in an instance where the borrower had NOT sought or received Bankruptcy Court protection or where the borrower had been subsequently RELEASED frm Bankruptcy.  The provision is Bankruptcy specific.

Most Lenders are pretty vigilent at AVOIDING direct contact after a Bankruptcy petition is filed.  In fact, they may go overboard the OTHER WAY, as is illustrated in the case of In Re SCHUESSLER, United States Bankruptcy Court, Southern District of New York, Case No. 07-35608.

In the SCHUESSLER case, Chase Home LLP used the pre-text of the Section 362 Civil Stay to REFUSE to accept the BORROWER's voluntarily tendered payment.  That is after the borrower went into Bankruptcy and TRIED to make a timely pament, the commerical bank branch owned by the mortgage servicer's jointly owned corporate affiliate, on the INSTRUCTION of the mortgage servicer REFUSED to accept the borrower's payment and then when the REFUSED payment wasn't made, declared DEFAULT.

Basically, Section 362 was used as a PRETEXT to precipitate default rather than as a shield from inappropriate creditor contact.  The Bankruptcy Court was NOT amused and imposed Sanctions upon Chase.

But this case is also instructive.  There may be TIMES when the borrower DESIRES to have regular ordinary contact with a counterparty in a legal dispute.  I think that we can all agree that while it was UNREASONABLE for Chase to have REFUSED the borrower's regular mortgage payment, it would be equally UNREASONABLE for the represented borrower to visit a bank branch, initiate contact and interaction and then later COMPLAIN that the mortgage servicer hadn't gone through the borrower's attorney.

* * *

I am only weighing in here to FRAME what I see as some of the possible issues.  You would be well counselled to seek YOUR ATTORNEY's guidance relating to the legality of the contact you describe and HOW THE COURTS OF YOUR STATE VIEW SUCH CONTACT.

In other words, all of the usual disclaimers apply.  I am NOT an attorney and this is NOT legal advice.  You should make your OWN legal inquiries and, hopefully will obtain the guidance and counsel of YOUR LAWYER as to the application of the law to the facts of YOUR CASE.

But I think that you have raised an interesting question about which there is more than a little confusion.  I would welcome a post by an attorney who can further clarify and illuminate how members of the bar see and understand this issue!       
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Ohio
It's blatant interference with a person's right to representation and due process. Period.

I don't know about other states but here in Ohio my attorneys took it very seriously and immediately contacted their attorney and demanded the communications stop or else.


They have a choice ...


1) get their own attorneys to file a complaint against you and leave it to the court to sort out


OR


2) handle it themselves by communicating directly with you.


They CAN NOT have it BOTH ways.

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Ohio:

Unless you have some specific statutory language OR case law to back you up, it appears to me that you are INCORRECT.  Moreover, you really seem to fail to understand the nuance of the situation.

READ THE CASE In Re SCHUESSLER, United States Bankruptcy Court, Southern District of New York, Case No. 07-35608.

There MAY BE TIMES when it is to the borrower's advantage to have some direct contact with the lender AND in those circumstances, sending everything through the lawyers will only UNNECESSARILY drive the borrower's costs higher.

In the SCHUESSLER case, the borrower sought only to make REGULAR MONTHLY PAYMENTS through a branch of Chase Bank.  The Bank REFUSED TO ACCEPT THE PAYMENT.  By YOUR LOGIC, this behavior by the Lender is DEFENSIBLE after the initiation of any legal action.

To the contrary, the Federal Bankruptcy Judge found this to be MISCONDUCT by Chase and awarded SCHUESSLER his attorneys' fees as a sanction.

One can readily imagine another circumstance.  Suppose that a borrower's insurance and taxes are ESCROWED and the borrower receives his annual ad valorem tax bill or his insurance bill.  Should the borrower refrain from forwarding this to the lender after the institution of legal action?  Sure, the borrower could mail it to his attorney and his attorney could mail it to the plaintiff's attorney and the plaintiff's attorney could send it to the foreclosure specialist consultant (e.g. Fidelity), which could in turn send it to the mortgage servicer.  But you had better hope that your house doesn't burn down in the interim!

In some circumstances, a BETTER approach might be to send the bill directly to the mortgage servicer and/or bankruptcy trustee while COPYING one's own attorney and even the attorney for the plaintiff.  This is an inherently TRICKY problem, because there may some PERIL in such direct contact, too.  And the defendant's lawyer (a) will generally TELL his client to REFRAIN from contact (which is generally very GOOD advice) and (b) if the defendant's attorney encourages or consents to such direct contact, he or she may be in violation of bar disciplinary rules.

But anyone who thinks that the no contact rule is uniformly ABSOLUTE and that deviation ought never be countenanced has neither read SCHUESSLER nor faced the inexorable Chinese water torture of monthly attoney's billings.  IF you send EVERY routine communication THROUGH your attorney, you may very well be BROKE and looking for a NEW LAWYER before the matter actually comes to trial.

This is NOT to say that you should keep your attorney in the dark.  You should ALWAYS at least COPY HIM or HER and when in doubt, the defendant should err on REFRAINING from any communications.  The Defendant will end up paying for his or her attorney to read the COPY of the communication anyway.  In any event, the Defendant should FOLLOW THEIR ATTORNEY's ADVICE.

*

One also needs to distinguish between routine communications like a monthly printed statement (THESE CAN BE HELPFUL TO YOU IN MAKING YOUR CASE!), and a dunning telephone call seeking to ELICIT INFORMATION.

If money or payments are OWED and still being accepted either for interest and principal OR for escrows, OR if the defendant has any other DUTIES under the promissory note and mortgage (e.g. protecting the property against hazards or lax liens), making payments or forwarding of bills WITH THE LAWYER's acquiesence and agreement (if not encouragement) may be a good idea.  Getting on the telephone and TALKING to a representative of the plaintiff is almost NEVER a good idea.

Making notes, terminating the conversation and contacting one's lawyer, memorializing the date, time and nature of the contact would seem to be a good idea.

In any case, I am inclined to believe that even in Ohio, absent a contrary Court order OR IN A BANKRUPTCY SETTING, that while these contacts MIGHT AGGRAVATE some Judges, that they are probably NOT actionable except by getting a Court order to refrain from such contact.

One needs to use a little common sense here!  But as I have often been told, "Common sense is uncommon!".
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Ohio
Your perspective makes it okay for the lender to use the foreclosure action as a terrorist tool...they are allowed to dangle it over your head while they fleece your last dime through continuous contact....that in my opinion is NOT a legitimate acceleration of the note! It's extortion!!

To have a complaint in foreclosure filed against you...2 things would have had to transpire prior to the filing

1) Default
2) Acceleration of the loan...the WHOLE loan, lump sum

Payments are no longer applicable as they can NOT accelerate the loan seek to enforce the acceleration via judgment in court AND STILL SOLICIT THE BORROWER FOR PAYMENTS in the meantime!

They can not have it both ways! If you ALLOW them to sue you AND harass you then that is a personal choice.

If the note is truly accelerated then the rest is up to a judge. "Payments" no longer exist!  So what is there to talk about?!

If I'm paying an attorney 250 dollars an hour for 2-3 years you can bet your sweet bippy I'm not wasting one minute of my time being bothered with phone calls from the lender!

If they want to work it out with me then the legal action has to be dismissed. If they want it sorted out in court then they have to wait for judgment before they see another dime...it's as simple as that.
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Ohio:

Within the realm of MS Fraud, things are NOT always a cut and dried as you make them out to be.  I am aware of a couple of instances, where the DEFENDANT in a foreclosure action takes the position that they have NEVER DEFAULTED in ANY WAY.

And I am NOT talking about a standing question.

I am talking about an instance where, for example, the borrower pays, but the mortgage servicer FALSELY asserts that a payment was LATE.  Then the mortgage servicer charges a LATE CHARGE.  The borrower believes this late charge to be a MISTAKE OR never even KNOWS ABOUT IT.

The borrower makes another payment but is now charged a LATE CHARGE based upon the first LATE CHARGE not being paid.  Each month, the borrower pays the FULL Principal and Interest, plus any escrows due, but FAILS to pay the disputed late charge.

Of course, DISHONEST servicers also then begin adding on various other TRASH FEES -- Broker Price Opinions, CHARGING FOR INQUIRIES, etc. -- and the DISPUTED AMOUNT increases.

(It is noteworthy that THIS is the essence of classic MS Fraud.  MS Fraud is NOT about people who just can no longer AFFORD to pay, it is about dishonest, deceit and treachery in servicing and victimizing even those who are NOT facing serious financial adversity!)

A borrower COULD CHOOSE to stop paying.  This is a REALLY BAD IDEA!

It is BETTER to continue to pay.  And IF the lender unilaterally declares default and CEASES TO ACCEPT PAYMENTS, it is probably better to pay the monthly amounts into some escrow pending an adjudication.

During this interval, insurance and taxes may also come due.

While this may seem FAR-FETCHED to you, I am aware of one suit that has been going on for several years where these are the essential facts.

I am aware of another instance in which the borrower received a letter informing the borrower of a servicing transfer, but the letter was apparently ERRONEOUS.  The borrower SOUGHT TO PAY the IDENTIFIED NEW SERVICER.  The NEW SERVICER declined to accept the payments.  The OLD SERVICER (which had SENT THE NOTICE of CHANGE OF SERVICER) declared default when the borrower failed to timely pay during the confusion precipitated by the mortgage servicer's letter.

Just today, I called a New York attorney who is defending a borrower in a contested foreclosure.  I had some useful information to share.  During the course of my brief conversation with this lawyer, he mentioned that this particular case was all the more eggregious because the BORROWER had MADE EVERY PAYMENT TIMELY and had the cancelled checks to PROVE IT.

Hmmnnn.

I centainly UNDERSTAND acceleration.  But a declaration of default and a declaration and notice of acceleration when NO DEFAULT HAS OCCURED is going to turn out to be problematic for a mortgage servicer.  Or at least it will if the borrower AVOIDS actually defaulting in the confusion!

But DEFENDING against the suit is still a costly BOTHER for the borrower.  And the typical promissory note and mortgage is NEVER going to have a provision allowing for the recovery of the BORROWER's attorney's fees.

I really think that you ought to LIGHTEN UP a bit!  I am in TOTAL AGREEMENT that it is INAPPROPRIATE for the mortgage servicer to directly contact the represented borrower by telephone after filing suit.  But I also think that the United States Bankruptcy Court for the Southern District of New York has it precisely RIGHT in finding that the PURPOSE of the civil stay is to PROTECT THE BORROWER, NOT to protect the LENDER OR to give the Lender an EXCUSE to push the borrower into a technical default!

So my thinking is that a borrower should look at EVERY COMMUNICATION critically and should ERR on the side of carrying it to his or her lawyer and letting the lawyer handle it.  But if the contact is de minimis OR if the nature of what is being communicated is HELPFUL, then WHY TURN IT OFF?

In terms of a DOUBLE STANDARD, it would seem to me that it would be a double standard to INSIST that a mortgage servicer ACCEPT the borrower's payment as SCHUESSLER indictates they SHOULD (in a Bankruptcy setting), while simultaneously damning the servicer from communicating at all.  The statutory language of the Bankruptcy Code gives adequate protection to the borrower in Bankruptcy.  If the mortgage servicer (or agent) is responding to a borrower inquiry, this can hardly be a violation.

I think that you COMPLETELY MISUNDERSTAND the REAL underlying dynamic of the LAW and the RULES as these apply to other non-attorney contact, and absent hearing from a lawyer OR seeing some actual CASE law posted, I would stand by my post which included DOCUMENTATION as to some of the applicable rules. 
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OHIO

William A. Roper, Jr. wrote:
Ohio:

Within the realm of MS Fraud, things are NOT always a cut and dried as you make them out to be.  I am aware of a couple of instances, where the DEFENDANT in a foreclosure action takes the position that they have NEVER DEFAULTED in ANY WAY.

And I am NOT talking about a standing question.

I am talking about an instance where, for example, the borrower pays, but the mortgage servicer FALSELY asserts that a payment was LATE.  Then the mortgage servicer charges a LATE CHARGE.  The borrower believes this late charge to be a MISTAKE OR never even KNOWS ABOUT IT.

The borrower makes another payment but is now charged a LATE CHARGE based upon the first LATE CHARGE not being paid.  Each month, the borrower pays the FULL Principal and Interest, plus any escrows due, but FAILS to pay the disputed late charge.

Of course, DISHONEST servicers also then begin adding on various other TRASH FEES -- Broker Price Opinions, CHARGING FOR INQUIRIES, etc. -- and the DISPUTED AMOUNT increases.

(It is noteworthy that THIS is the essence of classic MS Fraud.  MS Fraud is NOT about people who just can no longer AFFORD to pay, it is about dishonest, deceit and treachery in servicing and victimizing even those who are NOT facing serious financial adversity!)

You feel the need to define MSF to me?! Why?!


William A. Roper, Jr. wrote:
A borrower COULD CHOOSE to stop paying.  This is a REALLY BAD IDEA!

It is BETTER to continue to pay.  And IF the lender unilaterally declares default and CEASES TO ACCEPT PAYMENTS, it is probably better to pay the monthly amounts into some escrow pending an adjudication.

During this interval, insurance and taxes may also come due.


DUH!! What does this have to do with anything remotely close to what the issue is?!

William A. Roper, Jr. wrote:
While this may seem FAR-FETCHED to you, I am aware of one suit that has been going on for several years where these are the essential facts.


How, in anything I said gave you the impression that this is far fetched to me?! What are you TALKING ABOUT?!

I lived every bit of that and MORE for 3 freaking years!

William A. Roper, Jr. wrote:
I am aware of another instance in which the borrower received a letter informing the borrower of a servicing transfer, but the letter was apparently ERRONEOUS.  The borrower SOUGHT TO PAY the IDENTIFIED NEW SERVICER.  The NEW SERVICER declined to accept the payments.  The OLD SERVICER (which had SENT THE NOTICE of CHANGE OF SERVICER) declared default when the borrower failed to timely pay during the confusion precipitated by the mortgage servicer's letter.


sooooooo.....??? the POINT?! the relevance???

William A. Roper, Jr. wrote:
Just today, I called a New York attorney who is defending a borrower in a contested foreclosure.  I had some useful information to share.  During the course of my brief conversation with this lawyer, he mentioned that this particular case was all the more eggregious because the BORROWER had MADE EVERY PAYMENT TIMELY and had the cancelled checks to PROVE IT.

Hmmnnn.


Sounds exactly like MY situation. Still don't see the relevance or your point as to my posts.

William A. Roper, Jr. wrote:
I centainly UNDERSTAND acceleration.  But a declaration of default and a declaration and notice of acceleration when NO DEFAULT HAS OCCURED is going to turn out to be problematic for a mortgage servicer.  Or at least it will if the borrower AVOIDS actually defaulting in the confusion!


You're talking prior to the complaint being filed....again where is the relevance here?!

William A. Roper, Jr. wrote:
But DEFENDING against the suit is still a costly BOTHER for the borrower.


That's the way it goes sometimes.

William A. Roper, Jr. wrote:
And the typical promissory note and mortgage is NEVER going to have a provision allowing for the recovery of the BORROWER's attorney's fees.


Maybe not but the law does. Want to see the copy of the check reimbursing me every dime of my attorney fees???  $15,000.00 to be exact??

William A. Roper, Jr. wrote:
I really think that you ought to LIGHTEN UP a bit! 


I need to lighten up?!  I simply stated my experience and my opinion.

You are the one who went off on some wild tangent!

William A. Roper, Jr. wrote:
I am in TOTAL AGREEMENT that it is INAPPROPRIATE for the mortgage servicer to directly contact the represented borrower by telephone after filing suit. 


That's all I said too so what's your problem?

William A. Roper, Jr. wrote:
 But I also think that the United States Bankruptcy Court for the Southern District of New York has it precisely RIGHT in finding that the PURPOSE of the civil stay is to PROTECT THE BORROWER, NOT to protect the LENDER OR to give the Lender an EXCUSE to push the borrower into a technical default!


again..the point?? I said NOTHING about bankruptcy

William A. Roper, Jr. wrote:
So my thinking is that a borrower should look at EVERY COMMUNICATION critically and should ERR on the side of carrying it to his or her lawyer and letting the lawyer handle it.  But if the contact is de minimis OR if the nature of what is being communicated is HELPFUL, then WHY TURN IT OFF?


You MUST be talking about pre-complaint communication which has nothing to do with anything I said.

William A. Roper, Jr. wrote:
In terms of a DOUBLE STANDARD, it would seem to me that it would be a double standard to INSIST that a mortgage servicer ACCEPT the borrower's payment as SCHUESSLER indictates they SHOULD (in a Bankruptcy setting), while simultaneously damning the servicer from communicating at all.  The statutory language of the Bankruptcy Code gives adequate protection to the borrower in Bankruptcy.  If the mortgage servicer (or agent) is responding to a borrower inquiry, this can hardly be a violation.


what happens in bankruptcy is something I know nothing of. Please go back and read. I never debated anything in this case you keep referring to. We all know the game changes when bankruptcy enters the picture. Please try to keep in mind my post was based on a NON-BANKRUPTCY scenario.

William A. Roper, Jr. wrote:
I think that you COMPLETELY MISUNDERSTAND the REAL underlying dynamic of the LAW and the RULES as these apply to other non-attorney contact, and absent hearing from a lawyer OR seeing some actual CASE law posted, I would stand by my post which included DOCUMENTATION as to some of the applicable rules.


I misunderstand nothing you talk much say nothing wind bag.

I may not understand "the REAL underlying dynamic of the LAW and the RULES" but I understood enough to win my battle!

Have you won yours??

Are we even talking about the same damn things here?? I don't think so. I think you need to re-read my posts in the context they were actually written.

You are confusing the issue here of pre and post filing. Nothing I posted even remotely pertains to pre foreclosure communication or bankruptcy proceedings. I have never been involved in a bankruptcy and it's not even something I would try to talk about.

Show me an attorney that does not care if his/her client continues with communications with the plaintiff and I'll show you one who is not protecting his client.

Show me a defendant who continues communications with the plaintiff yet is represented by legal counsel and I will show you a MORON.

That is my opinion and that was my strategy and it worked for me. You can disagree until your head falls off. I really don't care!

You are the one who needs to lighten up! 
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Ohio:

Perhaps you need to scroll back up to the TOP of this message thread and take note of the fact that this discussion is in RESPONSE to a query by "Billy".  So the FOCUS of the discussion and posts is NOT about YOUR situation AT ALL, it is an effort to respond to Billy's query.

Permit me to clarify, that I have NOT been a victim of mortgage servicing fraud, but rather have been the victim of fraudulent representations made by a mortgage servicer in a foreclosure proceding to which I am NOT a named party but in which I have an interest.  I have represented myself ably pro se for more than two years.  I have paid NOTHING for attorneys.  And, yes, I DO expect to WIN.

I have repeatedly pointed out at this Forum that I am NOT an attorney.  But I have prior experince as the president of a mortgage company and went to business school at one of the nation's leading universities, where I served as the teaching assistant in the law of real estate finance for three semesters.

I endeavor to be gratuitously of some assistance to others here at this Forum.  I do not desire to getinto a conflict with YOU or anyone else, but I WILL chime in when I think that bad advice is being given OR where it appears to me that the LAW is being misstated.  It would generally be more helpful to be responsive to the points made rather than the perceived slight.  I have scrolled back and find nothing within my prior posts which would require alteration or retraction.  I find your latest flame post to be quite unresponsive to the points made, but rather merely an inappropriate emotional outburst.

Let's keep the hostility to a minimum and focus on collective problem solving!
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Billy
OK everyone, it seems a bit of a tempest has ensued, so let me jump in...


Since I asked the question, let me say that each of you has added good insight. One of the challenges in posting to a forum, is that it is impossible (and frankly impractical) to provide all of the background to a question for a host of reasons. Although not intentionally vague, it is easy for folks to go down several disparate but helpful paths; each trying to help based on their experience and some assumptions. Since I did not provide ample background, Mr. Roper and Ohio made some assumptions about the reason I was making my inquiry. I am not offended by any of the assumptions, and I take the responsibility for not being sufficiently lucid in my request for help.

I ALWAYS hate to see any posters here who take any differing views on an issue to the level of a personal attack. Frankly, one of the more notorious posters who has some consistently good information finds this a common way to treat folks who disagree with him. I also think that mere disagreement is NOT a personal attack!! I do think that there are many approaches to solving our problems, and stifling them through personal attacks is counter productive.

It is quite troubling, I regret the role I played in this particular case, although I AM grateful for the advice!

Billy
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OHIO
Someone will have to tell me what bad advice I gave.

I merely stated how my attorney handled it when Wells Fargo continued contacting me.

I did not WANT them communicating with me! I had no obligation to talk to them. I ASKED that the communication stop and they should contact the attorneys. They ignored it. They had no right to ignore my request to not be contacted directly.

Excuse me for thinking Billy was having the same problem.
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Ohio,

You didn't say anything wrong.

You knew what you wanted and got it.

If you are not experienced in gladiator litigation, you did the right thing
for you. 

Your job is to furnish the facts alongwith evidence to support your contentions.  Be ready to testify or know exactly how much money
is at issue and settle the case to your benefit.

The trier of fact often determines whether you receive the cost of your
attorney fees or not. 

Attorney fees are usually not provided for in the contract you sign.

However, the right to demand them is not so easily dismissed if you
are in court solely based on their bad faith conduct.

Just forget about the criticism.  You have a w on your forehead.
Roper has a U for undecided. 

I hope Roper wins as well.  There are way too few wins. 

Dee 




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BoZo

Roper doesn't have a dog in this race.

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Ohio
Thank you Dee.

As someone who was on the receiving end of certain communications from the servicer I can say exactly the dollar amount those communications cost me....it's an extortion tool and nothing more.

Mr. Roper knows nothing about this as he has not experienced the financial rape and emotional abuse MSF victims are subjected to after the foreclosure has been filed. When faced with the choice of paying up or getting out most of us pay up....even when the demands far exceed what is owed. And we continue to be bled for every dime until we are either bled dry and rent a u-haul or wake up from the numbing trance and get an attorney.

The notion that such communications are "helpful" as they can prevent unnecessary attorney fees is ludicrous, laughable and in my opinion irresponsible advice that could cause a person reading that tripe to damage their own case by trying to save a few dollars on his attorney bill.

Tell me Bill....how many times have you had to fore go buying groceries so you could send in 3 mortgage payments that you did not even owe??? AND you only had 5 days to do it in?!

That my friend is the kind of "helpfulness" MSF victims are faced with every time that phone rings.

He is NOT an MSF victim. He has not encountered one iota of the abuse true MSF victims have suffered and will continue to suffer at the hands of "helpful" servicers.

Mr. Roper's bias against attorneys is obvious and it has jaded his perspective when it comes to this topic.

He is wrong when he implies attorney fees are not recoverable. Why he would say such a thing is clear...to dissuade others from getting an attorney. Keeping them at the mercy of the servicer.

So if you don't mind I will just take my "W" and my "misunderstanding of the real underlying dynamic of the law" and be on my way. Too many moles and saboteurs here for my liking.

Good luck to all the true victims and fighters out there. You will be in my prayers!
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Ohio:

I am absolutely DELIGHTED that your troubles with post-complaint contact by the mortgage servicer were so readily handled and resolved by your attorney AND that you WON your case.

My point throughout was to address the question as I understood it to have been presented.  And that seemed to relate to the legality and propriety of such contacts.  I identified three areas of the law which relate to this issue.

I suspect that there are also OTHERS.  I believe, for example, that under the Fair Debt Collection Act that a creditor is prohibited from contacting a borrower by telephone after being told not to call.  I am shooting from the hip about this, but I believe that some provision of this sort is in the statute (and it might NOT even require written direction, though telling someone orally presents a PROOF problem).

Many states also have state debt collection legislation that might apply to the general situation of a creditor continuing to contact a debtor after being told NOT to call.  Such state protection nationally is far beyond my knowledge and experience.

The original question seemed to me to pertain to whether post-complaint contact with the defndant was permissible, and I shared what I thought I understood about this.

Absent some other specific provision relating to prohibited contacts AFTER BEING TOLD NOT TO CALL (as opposed to telling them that you have a lawyer), I still believe that the law or rules cited give essential guidance to answer Billy's question.

But it is also important to distinguish that no matter WHAT THE LAW PRECISELY READS on this matter that WHAT THE JUDGE THINKS ABOUT IT is also critical, as the Judge presiding over the trial has a LOT of discretion as to the management and control of cases under his or her jurisdiction.

Hopefully, the represented party's lawyer KNOWS the Judge and has some insight into HOW THE JUDGE views this kind of behavior.  It would seem to me that a GOOD ATTORNEY would bring this contact to the Court's attention and HOPEFULLY the Judge would tell the plaintiff's counsel to get their client under control.  If the Judge is sympathetic and supportive, then this can be a potent issue.

If, by contrast, the Judge is NOT sympathetic, I am unsure how one makes this into a potent issue, where it cannot be demonstrated either that the defendant is in Bankruptcy OR that the plaintiff's attorney encouraged or permitted the direct contact with the borrower.

I have seen a number of Judges who seem to be pretty UNSYMPATHETIC to foreclosure defendants and I think that a defendant facing such a Judge needs to be well informed about the boundaries of the legality of this issue.  That is, it might be COUNTERPRODUCTIVE for someone to stand and INSIST to the Judge that this post-complaint contact was illegal per se without having better authority and evidence for this position.

And as I have indicate in my previous posts on this thread, one must also remain self-critical as to the reasonableness and equity of one's own arguments.

My point is that the borrower/defendant should weigh, consider and reflect upon the nature of the contact and whether continuing contact is helpful or prejudicial.  The borrower/defendant should discuss the matter with their attorney.  IF the defendant wants direct telephone communications to CEASE the borrower may want to memorialize that in writing (in consultation with their attorney) or have their attorney do so, consistent with any protections available to the defendant under the Federal Debt Collection Act or similar state consumer protection legislation.  The borrower or the borrower's attorney may want to memorialize in writing by verifable means (e.g. certified mail) that the mortgage servicer is aware of the representation.  Then the defendant's lawyer should get whatever mileage he or she can out of the issue consistent with the signals the judge sends as to the judge's disposition towards this point.

As to this latter point, one needs to be aware that the lawyer may know something of the judge's disposition due to prior experience and interaction.  If the lawyer think that he can win points with the judge based upon this contact, that is great.  But if the lawyer believes that the judge is or will be unpursuaded by the argument, I think that a defendant needs to be prepared for the possibility that the outcome is not as cut and dried as you had seemed to present it.

It appears to me that you and your attorney have handled YOUR situation ably, admirably and SUCCESSFULLY, and I salute your success!    
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Nick Go away!
BoZo wrote:

Roper doesn't have a dog in this race.

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Regarding the Necessity and Advisability of Obtaining an Attorney
Let me be CLEAR.  Anyone facing foreclosure litigation ought to try to find an attorney RIGHT AWAY.  This should be done BEFORE undertaking attempts to resolve matters oneself through loan modification agreements, etc.  If one engages in communications with the servicer or signs away one's rights by waiver in an ill considered loan modification agreement in advance of retaining counsel, then by the time one involves a lawyer it may be TOO LATE.

But this having been said, one needs, as I have indicated, to consider the nature of the communication.  For example, every time the mortgage servicer CALLS and obtains information from the defendant, this tends to UNDERMINE the defendant's case.  But every time that the mortgage servicer sends the defendant a written communcation which is internally inconsistent, contains FALSE or incorrect information, etc., this STRENGTHENS the defendant's case.

Defendants tend to begin foreclosure litigation with an information asymmetry.  The mortgage servicers use automated customer service / support tracking software that is TRACKING and memorializing borrower contact.  Borrowers tend to take very POOR notes and therefore oral communications tend to RE-ENFORCE the mortgage servicer's advantage in litigation.

But with written communications, including RESPA QWR letters, one can obtain some written information from the mortgage servicer in advance of litigation.  Even when represented by an attorney, one needs to be cautious about unanswered written correspondence.

*

My position is that there is not a monolithic correct answer for all defendants as to the strategy they employ with regard to communication.  But every communication needs to be undertaken with caution.

*

Ohio, your CERTAINTY that the borrower can always recover legal fees is EXTREMELY NAIVE.  I am NOT taking the position that these cannot be recovered.  Rather, I am taking the position that they cannot be recovered in many jurisdictions and one has to have a fairly compelling case to win one's attorney's fees.

I would challenge anyone to go out and poll local attorneys as to their assessment of the LIKELIHOOD of obtaining their legal fees in a foreclosure settlement or by judicial decree.

*

Finally, I want to throw in a word about litigation management.  YOU seem to have had a good experience with your lawyer.  I think that is just wonderful and I hope you are making your satisfaction known to others who face similar problems. 

The foreclosure defense bar is very small.  Most defendants fail to obtain counsel until it is far too late.  And there hasn't been a lot of money in foreclosure defense. 

Getting an attorney is a GOOD IDEA.  Getting an attorney who is well informed and experienced in this area of the law is even more important.  And one can readily see from message board posts in this Forum that others have found this to be challenging.

Defending oneself pro se is NOT something I would recommend to many.  But those who are without resources may have no other choice.  I have endeavored to post information which would be helpful to both pro se and well represented litigants alike.  I would uniformly encourage those who can afford attorney's to get one.

But this being said, it is important to also understand that if you completely delegate your defense and fail to affirmatively manage your attorney, you will have a less effective defense and your costs will probably be well in excess of a those who do a GOOD JOB properly managing their own litigation and their attorney.

Leading business schools, like Wharton, offer various business law courses for the express purpose of assisting managers to better understand law and the legal process so that they can organize their affairs in a way that minimizes legal risk and to assure that their interactions with attorneys can be more effective.  "Introduction to Law and the Legal Process" was a REQUIRED course at Wharton when I attended.

My University also offered OTHER COURSES in legal studies, including Corporations, Partnership and Agency (which I also took), Securities Law (which I audited), and the Law of Real Estate Finance (which I both took as a student) and assisted in as a teaching assistant for three semesters.

These courses have been VERY HELPFUL in obtaining a basic understanding of legal issues.  But in the end, these are only foundation and survey courses.  One really learns the law through practice.  Real estate law and the law of real estate finance varies widely nationally.  The top practitioners are usually involved in commercial real estate.

Specialty foreclosure mills conduct foreclosures on behalf of mortgage servicers.

In most places, only a handful of lawyers have much expertise in foreclosure defense and these are mostly attorneys who specialize in consumer debt and Bankruptcy. 

This entire discussion thread PRESUPPOSES that MOST or even MANY foreclosure defendants are WELL REPRESENTED.  Nothing could be FARTHER from the truth.  I have read the pleadings of probably 500 foreclosure cases and well under 5% of those involved defendants who even ANSWERED.  Of those represented, Bankruptcy is usually the speed-bump of choice.  Of those who answered and did NOT file Bankruptcy, MOST are representing themselves pro se.  Or they START with an attorney, but then the attorney withdraws when they cannot afford to pay.

So "let the attorney take care of everything" sounds great but for the unrepresented defendant, you seem to have NOTHING to offer AT ALL.

I would suggest that you take an inventory of your USEFUL POSTS.  When you think that you have furnished even 5% of the genuinely HELPFUL information I have posted, then come back around and give me some instruction on the law.  
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Schnnoodle
Quote:
I would suggest that you take an inventory of your USEFUL POSTS.  When you think that you have furnished even 5% of the genuinely HELPFUL information I have posted, then come back around and give me some instruction on the law. 

Who the ferk cares anyway?

What gives you the right to criticize the posters here?

 
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Ohio
This thread was started by someone who IS represented. All of your "what if" scenarios muddled that simple fact.

You are right. I do speak from the perspective of being represented. That's just how it happened in my situation. What other perspective COULD I base my posts on?? I suppose I could get on here and theorize about this and that and the other the way you do but I choose not to. I'm sure people have more productive things to do than read a bunch of inane ramblings and canned rhetoric.

You derailed this thread...not me. Why you jumped in and started this "who knows the law better" contest is beyound me.

Now you want to turn it into "who has contributed the most meaningful posts" contest.

Believe it or not, this forum is not about YOU Bill.
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