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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I had sent rescission letters to all involved in my loan in March 2008.  In May 2008, after receiving no response, I sent another rescission and default letter to them.  SPS would call about the mortgage payment and I would tell them that I had rescinded the loan.  They would check their computer screens, apologize for calling, tell me they are referring the matter to their legal department, and then hang up.  This went on a weekly basis for about 5 months. 

In August 2008, an attorney for SPS replied that they were denying my rescission.  SPS continued to call and harass me even after the foreclosure was filed.  I sent a cease and desist letter 3 times before they stopped calling me.  I have sent 2 Qualified Written Requests and no response.  I am getting ready to send a third.  I have filed 3 complaints with the FTC and 2 with the Florida Attorney General's office.  I also filed a federal suit earlier this week.

Foreclosure was filed September 2008.  I filed a Motion to Dismiss and called to have the Motion set for a hearing.  The Judge's Assistant told me that I had to coordinate the hearing with opposing counsel.  I then called opposing counsel who told me that he needed an extension in order to research the matter.  That was in October 2008.  In December 2008, he filed another Motion for Extension of Time.  Long story short, the hearing happened last week.  Opposing counsel did not appear and after I told the judge that I had travelled from Houston specifically for the hearing, the judge requested that the clerk contact the attorney.  (I am in Houston because my husband is at MD Anderson battling lung cancer)  My motion was denied because opposing counsel told the judge that they had sent the Notice of Default and Intent to Accelerate on July 21, 2008.  I told the judge that I never received the letter.  The judge ordered opposing counsel to file a copy of the letter and send me a copy.  The judge was actually leaning toward granting my motion based on my arguments. 

Imagine my surprise Monday when I received the supposed "letter."   The letter counsel sent me was dated July 21, 2006 and it was a late payment letter, not a Notice of Default and Intent to Accelerate.  I have been checking the docket every day to see when he files this letter.  My question is:  How do I bring this to the judge's attention?  The judge has not yet signed the Order dismissing my motion. 

PS:  Yesterday, I received a new statement from SPS.  They charged me $3,400 in the past month, no explanation on the statement regarding the charges.  In reviewing the statements since September 2008, I noticed that I have been charged over $24,000, also with no explanation. 
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See the message I just posted about a 3-20-2009 8th Circuit decision on recission.  Go find a copy of the decision or Private Mail me and I'll send it to you in PDF.  Print the case and send it to the lawyer who sent you the recission denial.

Ken
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I'm not an attorney so this isn't legal advice, but, if it was me:  I would file a "Notice" with the Court.  Simply recite the facts.  State that the lawyer for the plaintiff told the court he supposedly filed the accelleration, etc on the 21st and was ordered by the court to file that same letter with the court, and has failed to do so, and in fact, sent you a letter dated the 21st which contravenes what the lawyer told the Court. 

Remember, the purpose of the Notice is to let the Judge know the letter you got is different than what the lawyer said he filed, and, to create a record for appeal.  No emotion in the notice, just a recitation of the facts.  Make sure the actual court gets a copy and you mail one to the counsel for the other side.  Be sure to include a copy of the letter you recently received.  By filing a Notice, which is not a Motion, the Judge doesn't have to wait for the other side to respond, as would be the case with a motion, unless he/she wants to trap the lawyer into another lie.
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Thanks Ken,

I downloaded that case yesterday.  Great decision on rescission.  I am added that to my Answer and Affirmative Defenses.  I have compiled notebooks with court decisions re: rescission, holder in due course, TILA, RESPA, MERS, and SPS.  I also have a flashdrive that I carry with me and whenever I come across anything, I download it onto my flashdrive. 

I am not an attorney, but have worked as a paralegal for 20 years, so I have access to Westlaw and Pacer.  Since I am new to this forum, I am not sure what has been posted.

But my main question concerns that letter opposing counsel told the court was the NOD.  Don't know if counsel intentionally misrepresented the letter or if counsel is a little blind and could not tell the difference between a 6 and an 8.  Don't like to call folks liars, although if the shoe fits....
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thanks Ken,

I was thinking along the same lines, filing a "Notice."  However, I have been mulling in my head how to title it appropriately. 
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Ed
Alina wrote:
thanks Ken,

I was thinking along the same lines, filing a "Notice."  However, I have been mulling in my head how to title it appropriately. 


Check the local rules.
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Ed,

That is the first place I looked for direction.  The problem with Florida is their rules of civl procedure are extrememly scarse, they do not even address e-discovery (in the age of electronic everything, this is a serious deficiency).  The local rules even less. 

I was thinking of doing a "Request for Judicial Notice."  I do these here in Texas and in the cases we handle in California all the time. 

thoughts?
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4 Justice Now
Alina,

I'm sorry that you have been forced to deal with such frustrating, shameful and likely criminal behavior during a time that I'm sure is already very difficult and emotional for you and your family.  I have no idea if it's applicable in your circumstance, in fact based on what you have stated thus far it doesn't appear to be, but it has been stated several times before that many of these so-called companies specifically target people who are facing serious medical issues, simply because they know that many people in such circumstances are less likely to be able to defend themselves. That said it certainly doesn't look like you'll have any problems defending yourself at all.

I wish you and your husband the best of luck, and hope that you are able to make their lives very, very uncomfortable, just as they have done to so many people out there.


V/r,

4J
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Thank you so much for your encouraging words.
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Knows About Discovery
Alina:

You mention being a paralegal.  As a paralegal, you are no doubt familiar with discovery.

In my view, only through effective discovery can you ultimately hope to PREVAIL.  You can use discoveryto FRAME the case and box the other side in.

You probably need to check the Florida Rules and IMMEDIATELY hit them with a request for production.  I would also attach the document that they sent you and ask them to authenticate it

It is unclear to me what your defenses are, but your discovery should be both sufficiently general as to force them to give you FACTS to develop your case and specifically drafted to frame the case around the defensive issues you have identified.

While you may be inclined to rush back into court, it ay be better to first develop the matter through additional discovery AND to let the plaintiff begin to tax the patience of and to anger the judge.

Also check to see how long the court reporter is going to hold the records in case you need to obtain a transcript of the hearing.  It may be better to get a transcript sooner, as you can then use this tohelp refresh the Judge's memory.  If the hearing was short and uncomplicated, it may be inexpensive. 

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Thank you for your comments.  I am extremely familiar with discovery.  However, my case has not entered that phase yet.  I have the discovery requests prepared but I am waiting for the order denying my Motion to Dismiss to be entered.  I filed the Motion in October and the hearing was only 2 weeks ago.  While that was pending, I could not send discovery as it would have been premature.  You cannot have a pending motion to dismiss and conduct discovery.  The motion basically puts the case on hold until it is ruled on.  Once the order is entered, I have 20 days to file an answer.  At that time, I will serve discovery.  In the meantime, I have served them with a preservation letter.  I want native files. 

Do you think they will have the native files? 

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Another thing - As usual, opposing counsel is dragging his feet.  I have emailed him regarding the status of the order.  No response. 

I will deal with the "letter" after the order is entered.  

One thing I have learned from some of the best litigation attorneys is that strategy is everything.  Never let them see your all your cards.  Always start off small to get a feel for the other side.  Always, always play fair but smart. 

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Knows About Discovery
UNLESS the servicer was also the loan originator, the servicer is extremely UNLIKELY to have ready access to the loan files.  These would have been delivered along with the promissory note to the trustee of the mortgage trust.  The promissorynote would have gone to an institutional custodian.  The other loan files probably are in a DEEP ARCHIVE.

Foreclosure attorneys are NOT accustomed to having ANY opposition to a foreclosure case.  Most cases are won by DEFAULT.  Where there is an appearance, the plaintiff usually gets a summaryjudgment.  Discovery is almost NEVER CONDUCTED.  My WAGNER estimate (Wild Assed Guess, Not Easily Refutable) is that nomore than one in a thousand foreclosure cases involve discovery.

For this reason, the foreclosure mills have FORGOTTEN HOW TO DO DISCOVERY and are ill prepared to RESPOND.  They WILL OBJECT, OBJECT and OBJECT.  They will STONEWALL.  But they will NOT actually PRODUCE any of the records without a court order.  Make sure that you let them stonewall on a discovery request that the Judge CANNOT possibly refse to grant.  Then be prepared to go in with a motion to compel. 

Also, let their stonewalling work in your favor.  The records they REFUSE to produce cannot be later entered into evidence.  They will FABRICATE evidence in suport of their case.  PROVE the fabrication, move to exclude allother evidence, get a dismissal with prejudice.  Burn the mortgage!      
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That is right up my alley.  Th attorneys I work with all know that I am at my best when opposing counsel is a jerk.  I love the challenge.  I know how to give opposing counsel enough rope so they end up hanging themselves. 

I also recognize the fact that these attorneys have little to no ethics.  And their clients are even less ethical.  Opposing counsel already showed me that he will do or say anything, i.e., the "letter."  Therefore, I am keeping a paper trail.

In my case, the foreclosure was filed by the trustee.  MERS assigned the mortgage and note.  But I mailed rescission letter to all of them a year ago.  This is why I filed a federal lawsuit against them, basically to enforce the TILA rescission.  I also filed a Lis Pendens.

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