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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Sneaky
I have been recording calls to my servicer. I have them telling me they can not disclose to me who owns my loan, they have told me they are the lender,  they have told me that they are only the servicer and disclosed the investor, and they have told me that any modification that is done will be according to what the trust will allow. I have been transferred to many different departments/people and submitted multiple copies of modification requests, again today they requested that I submit new paper work. Does anyone have questions I should be asking them and recording? 

Before someone goes off about the legalities of recording calls. The recorded statement at the beginning of the call, "this call may be recorded for quality assurance or training purposes", allows the call to be recorded by either party.
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William A. Roper, Jr.
Whether a call can be legally recorded is typically a matter of state law.  As to whether the other party's warning that the call might be recorded entitles you to record is something that would seem to me to be legally questionable.

In places where recording is permitted, this technique would probably be FINE.

In places where recording is NOT lawful, I wouldn;t rely on this approach hoping that it was permissible absent some solid case law to back it up.

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Even where recording is not unlawful, there are often lawful alternatives which might very well be far more effective than what you are now doing.

For example, GET A SPEAKER PHONE.  Tell the person you are calling and put them on the speaker.  Have several extremely trustworthy and credible persons who are capable of being useful witnesses in the room listening in on the conversation.  Have these take notes and prepare and sign affidavits as to what was said afterwards.

But also do this with some caution, as these could ALSO be used as witnesses AGAINST YOU.  The question is, What are you seeking to PROVE?

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Even if recording WAS LAWFUL and the recording admissible, I would still PREFER to also have one or more credible LIVE WITNESSES.  This is a belt and suspenders approach.

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I recall that in my twenties, my car was rear ended when I slowed for a cyclist.  The person driving the other car took off (hit and run).  I got the correct tag number of the car and a description before the car left the scene.  I located the owner and found the car.  It had front end damage and my car's paint in the dents.

I brought a Marine buddy along.  We took Polaroid photos of the damage.

Then, I retreated and called the fellow on the phone with my Marine buddy on the extension.

The driver stated that the accident was MY FAULT because I had slowed for the cyclist.  He added that if I sought to hold him responsible that he would LIE IN COURT and DENY involvement in the accident.

He said several other incriminating things in the conversation.

I filed a private criminal complaint for his leaving the scene.  At the hearing, ironically, it turned out that the SAME fellow had just been involved in a hearing the SAME DAY in another matter.  That matter involved speeding, reckless endangerment, and resisting arrest.

It was readily apparent that things were going my way when the Magistrate blurted out upon the defendant's arrival "You again"?

I related the basic facts of the case, including the Police report, also showing the photos of the damage to MY CAR with his car's paint, and corresponding damage to HIS CAR showing my car's paint.  The defendant then told a made up story involving various lies.

I then produced my witness to the conversation and we both testified as to what he said about both the responsibility and his intention of LYING in court.  The Magistrate added perjury charges and ordered the defendant jailed.

His insurance company quickly settled for the damage and he pled out to minimize jail time.

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There is more than one way to skin a rattlesnake!
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William A. Roper, Jr.
Be very CAREFUL as to who you select as witnesses for a conversation with a servicer.  Trustworthiness and credibility are important.  But it is also important to REFRAIN from TELLING these witnesses any more than is strictly necessary.

Once you put someone on the stand as a fact witness, they CAN be subjected to cross-examination.  And they can be REQUIRED to testify under oath as to anything that you have told them about your loan, default and the foreclosure.
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George Burns
Sneaky

Roper has adequately covered the issue and dangers of recording and especially warned you about what your witness should know. The weak link is your approach is that witness. If or when called to the stand, the answers that they give to other questions stand a good chance of killing your case. So be careful.

However, my concern is regarding your desire to fight so hard for a loan modification. Have you paid any attention to the many many news stories or court cases that have shown that it is quite likely that loan mods are questionable or even sometimes a trap? Do you know what the terms and conditions of the new agreement will be? Is the loan mod only a way for the lender to correct improper documentation or clouded title? Will you be giving up your rights to a future foreclosure defense? I suggest that you do some research asap.

Additionally, it seems that the requirements for a loan mod are more stringent that those for a new mortgage? Have you looked into refinancing with a new lender instead of a loan mod?
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Sneaky
I thought I should mention my state laws require that if one party or the other states," that this call may be recorded" it is legal for either party to record conversation. During the recording the statement "this call may be recorded" must be in the recording. 
 My purpose for the recordings is to build a case to fight foreclosure, not to mention keep track of all the different misinformation I have been given through the servicer. I would take a reasonable modification after I have an attorney look it over and approve it.  But as I read this site and everything I have learned about my mortgage I am beginning to believe I could fight a foreclosure. Many of the cases being won around the country are not nearly as deep as mine is. There is case law now in states with laws very similar to my state. I have had servicer A(originator of loan),B(servicer) ,C( servicer and originator to ABS),D(current servicer)  and MERS doing all the assignments of mortgage, B and C are no longer in business. So what kind of questions should I be asking my current servicer and of course recording for use later in court.
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FnDoomed
A few things.

1) Get a good foreclosure defense lawyer.  If you can't get a good lawyer, get a trustworthy lawyer and arm him well enough to be a good lawyer.  As example, my poor attorney thought he was going to file my BK forms and have a routine experience.  After dealing with me for a year sending him cases like Kemp, Ibanez, Agard, Veal, Weisblum, Adams and every other "good" tidbit I run across, he is a much better foreclosure defense lawyer. 

2) Get certified transcripts of your recordings.   I doubt a judge is going to want to listen to tapes all day long.

3) Evidence submitted into the record is what's important, although you may end up with something actionable from your recordings and transcripts.  It still won't matter that much what they tell you.  Focus your attack on the their evidence.

4) Bonus round.  Instead of playing 20 questions with a phone monkey, why not send the servicer a RESPA QWR instead?  

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William A. Roper, Jr.
Sneaky:

As long as you have really researched the issue and fully understand the legal requirements, risks and perils, have at it!

But bear a few other things in mind, whether using recordings OR other folks listening in on extensions or speaker phones.  ALL of the evidence that you create in this way is actually going to be subject to discovery.

So do NOT deceive yourself into thinking that you can simply record a LOT of conversations and then cherry pick a few in which the servicer makes egregious mistakes.

There is yet another problem with the recording strategy.

It is one thing to go into court and to play the victim and to tell the court that you were deceived into following oral guidance from the servicer which was contrary to the written requirements of the instrument and that you were tricked or induced into defaulting.  This presents a proof problem as to whether what you are saying is true.

The recordings may help you overcome that aspect of the proof problem, but what do the recordings actually say about your being deceived?  The fact of recording seems to suggest that you KNEW that the servicer was misleading you or directing you to do things which would place you in technical default.

You seem a little less "deceived" in this instance.

The entire default seems more staged rather than merely innocently following the servicer's instructions.

I would caution that you need to be rather keenly aware not only what is being SAID, but also how the calls and the recordings might be perceived.
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William A. Roper, Jr.
There was another previous thread on recording:

"State law info about recording conversations"

http://ssgoldstar.websitetoolbox.com/post?id=5152448


I am NOT endorsing or advocating recording as a strategy, but merely sharing the existence of this prior related thread.
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Moose
Sneaky wrote:
... My purpose for the recordings is to build a case to fight foreclosure, not to mention keep track of all the different misinformation I have been given through the servicer. ...


Recordings can be a two-edged sword and a skilled trial attorney can make it extremely difficult to even get them into evidence, especially if they were recorded with a computer.

This isn't legal advice, but your time would be better served communicating with the servicer in writing with Certified/RR mail.

Moose
 
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sneaky
Is this a good example of a QWR RESPA?

http://www.scribd.com/doc/11903044/Respa-Letter
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FnDoomed
The thing about the QWR is it puts some federal causes of action in play and that leads to other strategies and tactics down the road.  Violations are only worth $2,000 but the value of a removal to federal court under respa might easily exceed that.

If it says what you want then its good.

I got a response to my QWR that included my note, but the note had no allonge accomplishing the originally required indorsement.   When BANK filed a copy of my note in my BK, it contained the allonge.

Such contradictions can be useful...

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Moose
sneaky wrote:
Is this a good example of a QWR RESPA?

http://www.scribd.com/doc/11903044/Respa-Letter


Absolutely not.

The term "Qualified" has meaning, and that piece of Internet gibberish has been circulated repeatedly. If it ever gets used, it is instantly tossed as "onerous, overreaching and beyond the intended scope" of the RESPA statute - what's more, if it finds it's way into evidence in a case, it makes you appear to be a participant in one or more of the various debt or mortgage-elimination scams that have cropped up over the years.

You don't even get to make that many demands for production of documents or propound that many questions during discovery in a civil case!

QWR's are best short and specific to one issue or perhaps two inter-related subjects.

Moose


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William A. Roper, Jr.
I am going to chime in here with a related observation that probably deserves its own thread.

I recently corresponded with a foreclosure defendant and the question of discovery came up.  I asked the defendant if he had conducted any discovery and the defendant answered that he has served the plaintiff with a laundry list of production demands.

As Moose correctly observes, when someone grabs a letter like that nonsensical gibberish off the Internet, one destroys one's credibility and goodwill.

Poof:  You are a wingnut now!

The same is true of discovery.

The Plaintiff will almost always engage in egregious discovery abuse.  They will OBJECT TO EVERYTHING and PRODUCE NOTHING, especially when litigating with a pro se party.

The penalty for discovery abuse, when enforced (and it rarely is), is the attorneys' fees of the party subject to the abuse.  But a pro se litigant has NO ATTORNEYS FEES, so the Plaintiff is imboldened to object and is fairly assured that the defedant will not bring a successful motion to compel.  And even if the borrower defendant DID bring such a motion, the plaintiff avoids sanctions!

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The plaintiff is going to give a long list of objections.  But these will almost always start with "The request is overly broad and unduly burdensome, not relevant and unlikely to lead to any relevant discoverable material, etc.".

So where do you want to be when trying to get the judge to order the plaintiff to answer?  Standing there with a 17 page list containing quesiton after question of utter nonsense?

I think not!  You want to be asking for an order for the plaintiff to answer a very short list of particularly cogent and compelling questions, so when the Judge looks at the discovery request he can instantly see that the questions are relevant, direct and minimally burdensome, invasive or intrusive.

The wingnuts who circulate this drivel are the next single largest cause of defendants losing their properties after the most common cause, which is failing to answer the judicial foreclosure suit. 

This sort of request is WORSE THAN USELESS.  The person presenting such nonsense is branded a wingnut and the Court will TUNE OUT almost everything else that is presented.
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Texas
Roper Stated: "I recently corresponded with a foreclosure defendant and the question of discovery came up.  I asked the defendant if he had conducted any discovery and the defendant answered that he has served the plaintiff with a laundry list of production demands."

When one writes discovery questions, one should already know what the answer will be and know how to apply to the case, if not you most likely will get a reply that it is a fishing expedition.

The short, ask for what you know you can prove that can be used to advance the suit in your favor. This requires doing homework, if time does not allow time for learning, then one has no choice but to seek appropriate legal counsel.

Roper and I may not always agree, but till new case law comes forward, the mentality of the courts and how to currently deal with the courts is better described by Roper.


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When fielding collection calls from my servicer (Wachovia), they've informed me that they will be recording my calls. When I casually mention that I, too, will be recording the conversation with their permission, their response is "That's against our policy" and hang up.

Not that I'm ever going to go there but, do you suppose that their refusal would show up on tapes that they tried to present in court?

BTW, just found this forum - WOW, I've got a lot of reading to do. Thanks for the exquisite explanations of the finer points of law and court procedures.
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Tom wrote:
When fielding collection calls from my servicer (Wachovia), they've informed me that they will be recording my calls. When I casually mention that I, too, will be recording the conversation with their permission, their response is "That's against our policy" and hang up.

Not that I'm ever going to go there but, do you suppose that their refusal would show up on tapes that they tried to present in court?

BTW, just found this forum - WOW, I've got a lot of reading to do. Thanks for the exquisite explanations of the finer points of law and court procedures.


Tom in general recordings are a waste of time unless you know you are in a block-buster area. (All the servicers do it but it's standard procedure and they always warn you.) Certified letters are great for isolated major concerns of significant consequence or even routine housekeeping (Some exceptions apply) but they are laborious and less than practical 90% of the time. Additionally if you send a certified letter to executive John Doe at XYZ Mortgage he will usually forward it to legal. The Legal Department (not always but often) will stall, stonewall or do nothing. BTW I have told both Wachovia and Wells Fargo that "the call was recorded"* with no hang ups.

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I'm not a lawyer but I suggest emails to targeted executives at high levels. ~ This worked quite well for me. VERY well in fact.  As in a "0" balance.

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Ed Cage |  ecagetx@gmail.com


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