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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Texas
Evan said I said: "Also, Texas is busy implying that there is some other means of reopening those cases litigated to conclusion by going to Federal Court."

Never said anything about reopening a case.

When one speaks, one needs to speak about what is said in precision.
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Texas
Evan, for the fun of it and to see what responses come, please comment on below.

No one can contract to commit a crime; it would be void.

44 U.S. 534, to hint a little, it is written within a United States Supreme Court opinion.
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Tom
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Evan, for the fun of it and to see what responses come, please comment on below.

No one can contract to commit a crime; it would be void.

44 U.S. 534, to hint a little, it is written within a United States Supreme Court opinion.

It seems as though Texas is losing it. He seems to think that he can somehow make himself sound intelligent speaking in riddles or parables, but instead just comes across as ignorant.

Nowhere in this discussion is anyone discussing illegal contracts. He seems to be trying to squirm out from responsibility for legally erroenous statements by changing the subject. Disgraceful.
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Texas
Conversation was about void or voidable.
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Texas
https://bulk.resource.org/courts.gov/c/US/44/44.US.534.html

Some have said they can not find the correct case.
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Avery
Quote:
https://bulk.resource.org/courts.gov/c/US/44/44.US.534.html

Some have said they can not find the correct case.


The discussion is about void versus voidable final orders or judgments. The discussion is not about void versus voidable contracts, which is a completely different legal issue.

Neither is the discussion about void statutes.

Pay attention!! Your inability to distiguish this really brands you as a blowhard!
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Texas
Avery stated:

"The discussion is about void versus voidable final orders or judgments. The discussion is not about void versus voidable contracts, which is a completely different legal issue.

Neither is the discussion about void statutes."


Thanks for opening the door, now let's present a question to Avery, if a contract is void then how does that affect a final order or judgement?
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Liam
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Thanks for opening the door, now let's present a question to Avery, if a contract is void then how does that affect a final order or judgement?


You must be a complete idiot to even be posing this question. This is a matter of apples and oranges, two completely different issues. If a void contract was the subject of an unappealed final order or judgment that was otherwise valid (and not itself void for one of the reasons discussed by others who understand the issue above), then final order or judgment would be absolutely binding and the "voidness" of the contract would be completely irrelevant.

Whether or not a contract is void is a matter of judicial interpretation. If a court rules that the contract is void, it is void. If the court rules that it isn't void, then it isn't.

If a court enters an order, one way or the other, even an erroenous order, this order becomes final and disposes of the matter unless timely appealed.

Others have pointed out back channel that Texas can be ignored. Apparently, he already lost his house and all appeals. And now he wants to coach other people to help them obtain the same result.

There are people here at the Forum who have survived foreclosure for years. Texas is not one of these. From the rather bizarre and uneven quality of his posts, it is clear why he didn't succeed.

It is really a shame, because unlike that scum Mike H., I think Texas is probably a nice guy. But here he is, persisting in trying to confuse and muddle an issue that seems well beyond his depth and understanding. Uggh!
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Texas
Just love the comments, there are many that are still in pre stages where as there are many post stage. When one operates only one side of the fence sight is lost to the other side.

Correct, lost appeal as the Texas Supreme Court denied to hear and reason given, "Denied for Want of Jurisdiction". That reasoning has set many in amazement for if SCOTX did not have jurisdiction then how in the heck did the lower courts have jurisdiction.

If you gonna state fact, state it correctly in detail.


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Texas
No mistake, and I will not comment on who else fall prey to Texas courts not following statutory law.
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Sue
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No mistake, and I will not comment on who else fall prey to Texas courts not following statutory law.


So let me make sure I correctly understand. You made legal arguments and took your case all the way to the Texas Supreme Court and lost. But you didn't make any mistakes. The Texas Supreme Court apparently made a mistake in deciding your case.

Now you are going to teach the other Forum participants how to avoid the loss of their homes???

It sounds as though you are in denial!
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poe
If it comes to that, for me at least, I'm going to start out by making sure that it was a "bona-fide" purchaser, because I think that's problematic. Some places get credit bid, and/or the transfer prices are very, very low.
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Dwight
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If it comes to that, for me at least, I'm going to start out by making sure that it was a "bona-fide" purchaser, because I think that's problematic. Some places get credit bid, and/or the transfer prices are very, very low.


If borrowers spent even 10% of the time now being devoted to various wingnut theories simply learning the rules of civil procedure and the rules of evidence, there would be hundred or thousands of decisions decided in favor of borrowers. But everyone seems to want to grasp for a silver bullet and everyone wants to believe the absurd debt elimination scams being promoted online.

I know of one borrower who contacted Mr. Roper repeatedly asking about every new wingnut theory he discovered here and at the other scam sites. He was angry when Mr. Roper told him not to contact him any more. I asked him if he had followed up on Mr. Roper's suggestions to go to the law library and read up on the rules. He said he didn't have any time to do that because he was still looking online for a winning strategy.

He lost his house last year. I followed the suggestions outlined in Mr. Roper's many helpful posts and I will be reaching four years in April. This poe seems to be in a hurry to lose his house. He is always chasing after new wingnut theories but doesn't seem to understand that everything he needs to understand to succeed has already been posted and what he now needs to do is a little serious study of the valid theories rather than going on senseless adventure. Maybe he should also read "Acres of Diamonds".
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irving
Roper, et al, including all his aliases, always have the same mantra "If borrowers spent even 10% of the time now being devoted to various wingnut theories simply learning the rules of civil procedure and the rules of evidence, there would be hundred or thousands of decisions decided in favor of borrowers.". The borrower never does it right in court.

If anything is obvious the courts cannot be that dumb to render justice, despite how many mistakes are made. Courts are charged with "doing justice", not dancing around the issue. It is all first year law student stuff. 
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Eduard
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Correct, lost appeal as the Texas Supreme Court denied to hear and reason given, "Denied for Want of Jurisdiction". That reasoning has set many in amazement for if SCOTX did not have jurisdiction then how in the heck did the lower courts have jurisdiction.


There are a variety of valid reasons that the Texas Supreme Court might have lacked jurisdiction to hear a petition for review. The most common and obvious of these is failing to file the notice of appeal on time, but there are a variety of others.

A single appeal to courts of appeal is usually a matter of right if timely filed. This is not true of appeals to the Texas Supreme Court. There are a variety of statutory or constitutional bases for the Supreme Court accepting and considering a petition for review. One of these is a dispute amongst the intermediate appellate courts on a particular question. I am unfamiliar with Texas law, but in some states a case cannot be appealed absent a difference amongst the appellate courts unless there is a dissenting vote in the Court of Appeals.

If Texas wants to post a link to the decision, then we can discuss the appellate decision as well as the decision by the Texas Supreme Court declining the appeal. If he is unwilling to share the case, then I think that we need to assume that these cases were rightly decided and that any assertion that the appellate courts erred is simply Texas blowing smoke.

Posting comments with some conclusory assertion that the appellate courts made a mistake without explaining or identifying the mistake is not only not worthy of consideration, but would seem to mark Texas as a coward. If he really believes that he was denied justice, he should post links so we can discuss it.
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MSF Moderator
Bank attorneys are not done with Schwartzwald, and Bank of America is now whining to the Ohio Supreme Court in the Kuchta case.

We will have a new filing from the attorneys soon.


See UPDATE in GREEN TEXT below
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Texas wrote:
That reasoning has set many in amazement for if SCOTX did not have jurisdiction then how in the heck did the lower courts have jurisdiction.

If you gonna state fact, state it correctly in detail.




I think its important to be a little stoic with your loss to keep credibility. In the end, you signed a note, mortgage, and didn't pay. Everything else is an excuse. Part of the contract you signed says they can sell the home if you default. That is the cold harsh reality. No one should get a "free house" at some other party's expense.

To imply the Supreme Court of Texas made a "mistake" or in some way stacks the deck against you is just without merit. To the contrary, while we often see trial courts make unfair, incorrect, and prejudicial decisions, the court of appeals and supreme courts are very fair and impartial in every jurisdiction.

Your post just re-enforces that you made a mistake or just don't understand the cases and rules.

In addition to a failure to follow procedure, as Edward posted, there are MANY other reasons the Supreme Court of Texas will not have jurisdiction:







Compugraphic presented a point of error asserting that the evidence offered by Morgan at the damage assessment hearing was factually insufficient to support an award of $200,000. This point of error was not passed upon by that court, and we lack jurisdiction to consider it. TEX. REV. CIV. STAT. ANN. arts. 1728, 1821

Other than application of the proper legal standard, we lack jurisdiction to consider points challenging the factual sufficiency of the evidence. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985).

HCA moves for leave to file its petition for writ of mandamus against both the judge of the 92nd District Court and the Hidalgo County District Clerk. We lack jurisdiction to issue mandamus against the district clerk. Pat Walker & Co. v. Johnson, 623 S.W.2d 306 (Tex. 1981)

Generally, we lack jurisdiction over interlocutory appeals unless an exception applies, such as when a court of appeals holds differently from a prior decision of this Court or another court of appeals. See TEX. GOV'T CODE §§ 22.225(b), (c), 22.001(a)(2); City of San Antonio v. Ytuarte, 229 S.W.3d 318, 319 (Tex.2007) (per curiam).

We have consistently held that we lack jurisdiction to issue mandamus to supervise or correct a trial court's incidental rulings when there is an adequate remedy by appeal. See Canadian Helicopters, 876 S.W.2d at 306; Holloway, 767 S.W.2d at 684.

The majority opinion compels further litigation to determine whether McGregor or Waco has jurisdiction to "regulate," to "protect" and to "police" the annexed airport. A reasonable meaning of the validation act and one that would avoid the territorial conflict created by the majority opinion is that it intended to leave undisturbed the jurisdiction which Article 46d-2 vested in McGregor. The only way this court can avoid this conflict of jurisdiction short of giving force to the validation act is to repeal Article 46d-2, and we lack jurisdiction to do that.

Our Constitution grants the Court of Criminal Appeals jurisdiction over criminal matters and this Court jurisdiction over civil cases. TEX. CONST. art. V, §§ 3, 5. As it has done historically, the Court of Criminal Appeals prudently deferred to this Court because the underlying case is civil in nature. But, by virtue of a statutory limitation, we lack jurisdiction to issue a writ of habeas corpus to discharge the relator from unlawful confinement in this 376*376 civil case.

The jurisdiction of all Texas courts, including this Court, derives from 460*460 the Texas Constitution and state statutes. Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex.1996) (per curiam). Absent an express constitutional or statutory grant, we lack jurisdiction to decide any case. Id.

We, therefore, 295*295 hold that the court of appeals has the power to order a remittitur in FELA actions. Since the granting of a remittitur and questions as to the excessiveness of damages are questions of fact made final in the court of appeals, we lack jurisdiction to review that holding. Impson v. Structural Metals, Inc., 487 S.W.2d 694, 697 (Tex.1972); Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 103 (Tex.1965).

According to the Court, the court of appeals can decide this interlocutory appeal because a timely administrative complaint is a statutory prerequisite to filing a civil suit. If it is truly a prerequisite to suit, then the trial court has no power to hear the case. If the trial court rejects the government's jurisdictional plea, then a statute gives the court of appeals authority to rule on this non-final trial court order.[1]

But if, as I contend, a timely administrative complaint is not a statutory prerequisite, then the government must win or lose the old-fashioned way — on the merits. And if I am right about that, then it is not the trial court that lacks jurisdiction. We lack jurisdiction.[2] A close reading of our 517*517 cases, the statute, and U.S. Supreme Court precedent compels that we dismiss this case because we do not have authority to decide it.





What would really be helpful to people who read the forum is for you to post what you did right, wrong, and what you would have done differently. You could even post your pleadings, your case is OVER.
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MSF Moderator
Some claim this case is of national interest.


Here is the AMICI CURIAE in Bank of America v. Kuchta, filed by: 

- ADVOCATES FOR BASIC LEGAL EQUALITY, INC.,
- COMMUNITY LEGAL AID SERVICES, INC.,
- LEGAL AID OF WESTERN OHIO, INC.,
- LEGAL AID SOCIETY OF CLEVELAND,
- LEGAL AID SOCIETY OF COLUMBUS,
- LEGAL AID SOCIETY OF SOUTHWEST OHIO, LLC,
- PRO SENIORS,
- SOUTHEASTERN OHIO LEGAL SERVICES, and
- THE OHIO POVERTY LAW CENTER

IN SUPPORT OF APPELLEES GEORGE AND BRIDGET KUCHTA

B. If a court lacks jurisdiction, then the judgment is void, and a void judgment is a nullity

Question Presented
This case comes before the Court on a certified conflict between the Ninth and Tenth Districts on this question: "When a defendant fails to appeal from a trial court's judgment in a foreclosure action, can a lack of standing be raised as part of a motion for relief from judgment?"

Ohio, like much of the nation, has experienced a foreclosure boom over the past decade.

Foreclosure filings more than quintupled between 1995 and 2009. Supreme Court of Ohio, 2009 Ohio Courts Statistical Summary, 53 (2010). By that time, it had become apparent that banks were sometimes suing and foreclosing on notes and mortgages they did not own. See, e.g., Wells Fargo Bank, NA. v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897 N.E.2d 722, ~ 23 (lst Dist.). This Court addressed that abuse in Fed Home Loan Mtge. Corp. v. Schwartzwald, establishing unequivocally that standing is a constitutionally-mandated jurisdictional requirement, that a plaintiff suing to foreclose without having an interest in the note or mortgage does not have standing, and that plaintiffs cannot cure that jurisdictional defect with post-filing corrective measures.
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MSF Moderator
HOMEOWNERS file brief in KUCHTA v. BANK OF AMERICA

MERIT BRIEF OF AMICI CURIAE JOSEPH AND LORI LAPIERRE IN SUPPORT OF
APPELLEES

http://www.msfraud.org/law/lounge/kuchta_amici-curiae-of-homeowner-lapierre_9-13.pdf 


REPLY BRIEF of BANK OF AMERICA

http://www.sconet.state.oh.us/pdf_viewer/pdf_viewer.aspx?pdf=734405.pdf
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MSF Moderator

More on Schwartzwald: Ohio Supreme Court Reverses Another Foreclosure 
by Robert Franco [envelope] | 2013/01/21 | 

Print

The Schwartzwald case held that a Plaintiff in a foreclosure case that does not hold the note or mortgage at the time it files the complaint lacks standing, and the court therefore lacks jurisdiction.  The big question that this left open was: what effect does that have on all of the faulty foreclosures that have already been completed?  We may now have some insight into this thanks to a case that was reversed and remanded just last month, Washington Mutual Bank v. Wallace.

Source of Title Blog ::

In 1999 Wallace purchased her home with financing from Norwest Mortgage.  The note attached to the complaint had not been endorsed by Norwest and the mortgage was in favor of Norwest.  In July 2008, Washington Mutual filed a complaint for foreclosure, alleging that it was the holder of Wallace's note and mortgage.  The following month, on August 14, 2008, Wells Fargo Bank, successor to Norwest, executed an Assignment of Mortgage to Washington Mutual, "together with the Promissory Note secured thereby and referenced therein."  The Assignment was recorded on August 21, 2008.

Wallace never filed an answer and the Court granted default judgment against her on August 20, 2008.  Wallace did not appeal.  But, about nine months later, on May 11, 2009, Wallace filed a Motion to Vacate a Void Judgment.  Wallace claimed that because Washington Mutual failed to establish that it was the holder of the note and mortgage, the court lacked standing and its default judgment was void.

On May 14, 2009, Wallace filed a Motion for Relief from Judgment, arguing that it should be granted because Washington Mutual falsely represented that it held the note and mortgage when it filed its complaint, and that she had a meritorious defense to the action - that Washington Mutual lacked standing to bring the foreclosure.

The trial court overruled both motions and Wallace appealed. The court of appeals affirmed the trial court's default judgment, relying in part on one of its earlier cases in which it held that "when the appellants failed to raise their real-party-in-interest objection or defense in the trial court at a time when the issue could have been effectively dealt with, the objection or defense was deemed waived."  The Court then concluded that "the fact that WaMu did not become the real party in interest in the 2008 foreclosure until 34 days after WaMu commenced the action but before final judgment was entered in that action did not deprive the trial court of subject-matter jurisdiction to enter default judgment against Wallace and in favor of WaMu."

Wallace then appealed to the Ohio Supreme Court, which accepted the appeal with a stay on briefing until the Court decided Schwartzwald.  Schwartzwald, of course, held that "a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court," and "a lack of standing at the outset of litigation cannot be cured by receipt of an assignment of the claim or by substitution of the real party in interest."

Washington Mutual urged the Court to reactivate the Wallace appeal for briefing and oral argument, arguing that the issue raised was not addressed by Schwartzwald.  The difference, according to Washington Mutual, was that in Schwartzwald the defendants actively defended the action, raising the issue of standing in their answer -- and in Wallace the defendant did not defend, default judgment was rendered against her, and she did not appeal.

In essence, Washington Mutual presented the problem now created bySchwartzwald: what is the retro-active effect of the case on past foreclosures where the Schwartzwald problem was never raised? According to Washington Mutual:

This case affords the Court to opportunity to address how the rule inSchwartzwald applies to motion to vacate judgments, whether a lack of standing is a component of subject matter jurisdiction, and whether a lack of standing can be waived.  If-- as contended here-- a plaintiff's failure to prove standing at the time of the complaint deprives a common pleas court of subject matter jurisdiction-- then every judgment rendered in Ohio could be attacked.  Because void judgments are not subject to time limits of Civil Rule 60(B), those attacks would throw into question literally hundred of thousands of cases that have long been over.

Wallace argued that the propositions of law in both were identical and theSchwartzwald Court ruled on each of those points:

The Court ruled that standing is a necessary component of a common pleas court's jurisdiction.  And it held that standing must be established as of the filing of the complaint.  It clearly stated that Civ. R. 17(A) cannot be used to cure a lack of standing.  And the Court made clear that its decision is premised on the fact that Freddie Mac was not entitled to enforce the note, and therefore had suffered no injury, at the time it filed suit.

The Ohio Supreme Court denied Washington Mutual's motion and reversed the court of appeals decision and remanded the case to the trial court for further proceedings consistent with Schwartzwald

The sale of the Wallace property was confirmed on January 24, 2011, though it appears that Washington Mutual assigned its bid to its successor-in-interest and receiver, JP Morgan Chase Bank, which still holds title today.

Though the Supreme Court did not provide any written opinion to provide guidance on the issue, it appears that it may never be too late to challenge a judgment in a foreclosure case that is void for lack of standing under Schwartzwald.  How then will the title industry deal with many properties plagued by old Schwartzwald problems?

Underwriters have begun to require exceptions on policies to make it clear that they will not cover claims related to attempts to set aside foreclosure judgments or subsequent sales based on lack of standing arguments.  But, many policies have already been issued without such exceptions.  Is there any way to cure this type of defect?

One possibility may be quiet title actions brought by the "new owners," but this was unsuccessfully tried in Massachusetts.  Following the Massachusetts Supreme Court case, U.S. Bank v. Ibanez, which was similar to Schwartzwald, a homeowner plagued by defective title filed a "try title" action and the Court dismissed it for lack of standing. 

Francis Bevilacqua had purchased the property from U.S. Bank after it foreclosed on Pablo Rodriguez.  U.S. Bank, unfortunately, did not hold the mortgage at the time it purported to foreclose.  Thus, U.S. Bank never acquired title to the property - the sale was "wholly void."  Because U.S. Bank did not hold title to the property, it could not convey tile to Bevilacqua which was fatal to Bevilacqua's claim to "own" the property for purposes of his try title action.

Interestingly, Rodriquez did not even attempt to defend his title.  Nevertheless, the trial court explained that the mere fact that Bevilacqua had a deed recorded in his name was irrelevant.  The court wrote that "in the classic example, a litigant could go to the registry, record a deed to the Brooklyn Bridge, commence suit, hope that the true owners ignored the suit or... could not be readily located and [would thus] be defaulted, and secure a judgment."

[For more on Bevilacqua v. Rodriguez, see Bevilacqua v. Rodriguez-- Mass. Buyers out of Foreclosure Get the [Mostly] Bad News.]

Though I think the court got the Bevilacqua case wrong, it does have some merit and if followed in Ohio it would make it very difficult to cure Schwartzwald defects.  In at least some of these types of cases, the foreclosures are long over and the party who would have standing to institute a new foreclosure would have little incentive to do so.  Those people who have been wrongly foreclosed on, who may have standing to file a quiet title action, have likely moved on and probably have little interest in getting involved.  Yet, those who have purchased foreclosed properties with defective title may have trouble obtaining title insurance or selling their homes.

We may have to wait for the next big Ohio Supreme Court case to provide us with the answer.

Though it has created a lot of uncertainty, the Schwartzwald case is certainly a landmark case in Ohio.  Attorney Andrew M. Engel, who represented Schwartzwald and Wallace, deserves kudos.  2012 was a great year for him and he has provided homeowners with a great, and much needed, defense in foreclosure actions. 

http://www.sourceoftitle.com/blog_node.aspx?uniq=977

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