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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FnDoomed
Old timers may have noticed a pickup in my activity level on the forum. I’ve been dropping ideas relevant to my arguments that may help others. Because of the way NH works and due a removal to federal court I am a plaintiff in USDC NH. Having just submitted my MOL in opposition to MTD, I can go public because this is all known to my opposition.

In addition to my petition to enjoin the foreclosure, I am also alleging unfair and deceptive practices in violation of the NH Consumer Protection Act. The unfair and deceptive acts alleged are also violations of the FDCPA, RESPA and FRAUD so I styled them complaint 2 (CPA), counts I, II, III. This is the thing I’m thinking about right now, but that’s for later…

The basic facts on the record seem to indicate that a note went from R to C to F. F alleges possession. There is an indorsement in blank from C on the note itself. There is also an allonge to the note purporting to indorse the note from R to C, but misidentifies “that certain note” therefore R never negotiated to C therefore C had no right to negotiate to F. F is therefore a transferee and must prove the transfer from a holder – they can’t prove that because C was never a holder.

This argument worked well enough in chap13 BK court regarding simple entitlement to chapter 13 payments (not a motion for relief or anything else), that the judge ordered BANK to come in with an affidavit from a witness competent to testify (ha ha) but by then I had a divorce in full swing and simply converted to a chapter 7. In BK (and now) I also challenged the MERS assignment from C to F calling it a faked, forged or fabricated document recorded to represent a transaction that simply could not have occurred, and challenged the MERS “assistant secretary” on his capacity, authority and authorization.

I wanted them to defend the assignment. I wanted them engaged to it, married to it and having babies with it. They did so quite effectively in their MTD. They repeatedly pointed to that self-serving affidavit in the other BK case, and to the fact that I can’t challenge the assignment because I’m not a PARTY TO THE CONTRACT. I agree SO MUCH. They also called the misidentification of “that certain note” on the allonge a mere scrivener’s error.

Then in my MOL I dropped the authority, capacity and authorization of the assignment argument and adopted the assignment from C to F arguendo because it proves 1) The UCC is going to bite them in the ass on this since they can’t prove transfer from a holder. 2) is supportive of the fact that they took the debt after default which (weakly) supports an FDCPA claim against them, but it was still helpful as my fourth “here is another reason they are debt collectors” sort of argument. You may have noticed all the FDCPA cases I put in another post.

I pointed out how they can’t challenge an alleged scrivener’s error on an allonge because they are NOT PARTIES TO THE CONTRACT. I tossed in a couple of cases stating that indorsements are contracts and how our very United States Supreme Court has upheld that third parties to a contract can’t challenge a contract. Mama always said what’s good for the goose is good for the gander. So there. I also pointed out how even if they got past that, then any alleged scrivener’s error was NINE YEARS ago and reformation is barred by statute of limitations on contracts. I also pointed out how if they can get past all of that then they have to prove in alleging the unilateral mistake of the scrivener. I also hinted from a footnote that the allonge is probably a fake anyway, and it’s the forgery that contains the scrivener’s error.

They can’t beat me on the note. They can’t beat me on the mortgage. I think I got them on my FDCPA claim. I’m having the most major déjà vu moment right now, but I digress… They made some really dumb arguments against my RESPA claim and I think that will fly. They made some token arguments against my fraud claim but missed the point a little. I’m never sure about fraud and hated to plead it, but it needed to be told and I’m working hard on it.

Here’s the rub. The NH CPA has a carve-out for these weasels to the extent that it reads:

358-A:3 Exempt Transactions; etc. – The following transactions shall be exempt from the provisions of this chapter: I. Trade or commerce that is subject to the jurisdiction of the bank commissioner …

I’m arguing that the carve-out doesn’t apply because 1) they’re total freaking strangers to the debt and 2) non-judicial foreclosure is not subject to the banking commissioner, its subject to statute NH RSA 479:25 and 3) I pled the foreclosure notices as FDCPA violations and they aren’t subject to the commissioner either and 4) US supreme court called FDCPA violations “unfair and deceptive” practices.

Anybody who cares can read my MOL here: http://www.scribd.com/doc/105393585/12cv260-Mol-ObjMTD

Over the next 14 days I expect a REPLY to my OBJECTION with some better arguments than their motion had, and I anticipate more carve-out arguments. I’ll only have 5 pages to SUR REPLY if the court grants leave and I’ll have to move quickly with a 3 day notice, so I’m kicking a few things around…

I need help and case law on this theory:

That defendants committing unlawful acts are no more under the banking commissioner than a bank teller selling Nike knock-offs as Nikes at the flea market, which also violates our CPA. In other words, why should a criminal be protected just because he works for the bank?


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Texas
"missing the first 186 transactions." What is this? Caution!
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FnDoomed
Comments are certainly welcome if they help me or somebody else ...

I need help and case law on this theory:

That defendants committing unlawful acts are no more under the banking commissioner than a bank teller selling Nike knock-offs as Nikes at the flea market, which also violates our CPA. In other words, why should a criminal be protected just because he works for the bank?


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Bill
Therrien v. Resource Financial Group, Inc., 704 F. Supp. 322 - Dist. Court, D. New Hampshire 1989

http://scholar.google.com/scholar_case?case=10095476118308445259&q=358-A:3+exempt+banks&hl=en&as_sdt=2,15

B. The State Law Claims

Plaintiffs contend that the payment escrow account and excess legal fee charges were an unfair or deceptive act or practice and thereby violated the New Hampshire Consumer Protection Act, RSA 358-A. They claim that the escrow account violated RSA 358-K in that interest was charged before it was earned, thereby giving rise to a claim under RSA 358-A. In addition, they claim that the escrow account padded the size of the loan, in violation of RSA 358-A, and that the excess legal fee charges were unfair and deceptive.

The court has already ruled, supra, that the evidence demonstrates that the escrow account was part of the amount financed and that plaintiffs obtained the funds from the beginning. Therefore, defendant could not have charged interest before it was earned. The 5% interest earned by plaintiffs on the escrow fund demonstrates that plaintiffs had obtained the funds. The possible unfairness or deception in this conduct is a separate question.

In alleging that defendant used the payment escrow account to pad the loan, plaintiffs have alleged facts that state a 328*328 claim. In Gooley v. Mobil Oil Corp., 851 F.2d 513 (1st Cir.1988), the plaintiff had failed to allege a factual predicate for conduct that even came near to being unethical or unscrupulous, and therefore a violation of the Massachusetts Consumer Protection Act. Id. at 515-16. Here, however, plaintiffs allege that defendant structured the loan so as to increase the size of the loan without advancing additional funds to plaintiffs. This enables defendant to obtain extra profits through higher payments or a larger loan on which to foreclose. Similarly, the double-charging of title insurance and recording and discharge fees, see supra, enables defendant to increase its profits. Both claims allege unfair or deceptive practices.

Defendant contends that, even if plaintiffs state a claim, RSA 358-A is inapplicable to its lending activities, because they are \\\\\\\"[t]rade as commerce otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of [New Hampshire] or of the United States.\\\\\\\" RSA 358-A:3, I (an exemption to chapter 358-A).

RSA 358-A:3, I was interpreted in Rousseau v. Eshleman, 128 N.H. 564, 519 A.2d 243 (1986), reconsideration denied, 129 N.H. 306, 529 A.2d 862 (1987). There, the New Hampshire Supreme Court ruled that attorneys are exempted by RSA 358-A:3, I from the Consumer Protection Act because the professional conduct committee is \\\\\\\"a regulatory board acting under statutory ... authority of this State.\\\\\\\" Id. 128 N.H. at 567, 519 A.2d at 245. The court presumed that physicians, electricians, and plumbers, all of whom are subject to licensing and regulation by some board of registration, also would be exempt. Id.

However, Rousseau cannot be intended to exclude all trade or commerce subject to licensing, especially outside the context of attorneys and similar professionals, whose individual conduct and practice is subject to a comprehensive regulatory and disciplinary framework. Otherwise, the exemption would swallow the rule and the language of the exemption, covering \\\\\\\"transactions\\\\\\\" which are \\\\\\\"otherwise permitted under laws as administered by any regulatory board,\\\\\\\" would cover the entire business of industries that are subject to regulatory boards. As this court previously ruled:

The plain meaning of the exemptive section of the Consumer Protection Act is that transactions permitted under other laws of New Hampshire or the United States will not be deemed illegal under RSA ch. 358-A. Conversely, if transactions are not permitted under other laws, either expressly or impliedly, then they are subject to regulation under the Consumer Protection Act. The goal of the legislature would seem to encompass avoidance of a direct conflict with a regulatory scheme. Under RSA ch. 358-A:3, I the issue is whether a transaction \\\\\\\"is otherwise permitted,\\\\\\\" and not whether an agency exists to review the transaction.
WVG v. Pacific Ins. Co., 707 F.Supp. 70, 72 slip op. at 4-5 (D.N.H.1986). In WVG, the court ruled that a cause of action exists under RSA 358-A for an insurer\\\\\\\'s unfair and deceptive practices in failing to pay an insured\\\\\\\'s claim, despite the existence of a regulatory body under RSA 417. The court noted that Massachusetts, with a similar consumer protection statute and exemption, permits such a cause of action. Id. at 71-73; see Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 365 N.E.2d 802, 804-05 (1977); Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 448 N.E.2d 357, 360 (1983). The New Hampshire Supreme Court has acknowledged the similarity of the Massachusetts consumer protection statute and the appropriateness of looking to Massachusetts law in interpreting RSA 358-A. See Chase v. Dorais, 122 N.H. 600, 602, 448 A.2d 390, 391-92 (1982). Therefore, the decisions of this court and the Massachusetts Supreme Judicial Court demonstrate that regulated industries such as insurers are subject to RSA 358-A, if the particular transaction is not otherwise permitted. Defendant is licensed by the New Hampshire Banking Department, under RSA 397-A and RSA 398-A. However, defendant has not demonstrated that the specific conduct of which plaintiffs complain 329*329 is \\\\\\\"permitted\\\\\\\" under that regulatory framework. \\\\\\\"Whether the acts here were permitted under laws as administered by the [regulatory board] within the ... exemption is initially a matter for determination at trial.\\\\\\\" DiMarzo v. American Mutual Ins. Co., 389 Mass. 85, 449 N.E.2d 1189, 1197 (1983) (dealing with exemption to Massachusetts consumer protection statute for insurer). Plaintiffs\\\\\\\' state law claims, therefore, are not precluded by a state regulatory scheme.

Defendant also contends that the TILA, as administered by the Federal Reserve Board, provides it with an exemption from the consumer protection statute. However, the conduct of which plaintiffs complain is not \\\\\\\"permitted\\\\\\\" by TILA or Regulation Z. TILA and Regulation Z specify only the required disclosures by a creditor. They do not permit or otherwise regulate the particulars of a loan agreement. Conduct that complies with the federal disclosure requirements still could constitute an unfair or deceptive practice. Cf. Schubach v. Household Finance Corp., 375 Mass. 133, 376 N.E.2d 140 (1978) (compliance with state venue statute in filing debt collection actions may violate Massachusetts consumer protection statute). Furthermore, state requirements that creditors not engage in unfair or deceptive practices are not inconsistent with federal disclosure requirements. Creditors would face inconsistent requirements only if the state required different disclosures, see 12 C.F.R. § 226.28, but not if their practices are considered unfair or deceptive regardless of the disclosures. Therefore, the New Hampshire Consumer Protection Act applies to plaintiffs\\\\\\\' claim.

Accordingly, Plaintiffs\\\\\\\' Motion for Partial Summary Judgment (doc. # 11) is granted. Defendant\\\\\\\'s Motion for Summary Judgment (doc. # 12) is denied. Plaintiffs\\\\\\\' Motion for Leave to Reply to the Affidavit of Harvey Bock (doc. # 29) is granted.
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Bill
In re Globe Distributors, Inc., 111 BR 377 - Bankr. Court, D. New Hampshire 1990

http://scholar.google.com/scholar_case?case=15096868928043424128&q=358-A:3+exempt+banks&hl=en&as_sdt=2,15

II. THE CONSUMER PROTECTION ACT

This statute is titled \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Regulation of Business Practices for Consumer Protection\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\", but protects far more than what the layman would call \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"consumer.\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" There is no dispute among the parties that the statute covers the allegations of the plaintiff regarding what happened between the two corporations. In other words, it is conceded plaintiff has alleged an \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"unfair or deceptive act or practice in the conduct of any trade or commerce within this state.\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" N.H. RSA § 358-A:2.

The dispute lies in whether an exemption to the statute applies in this case. The exemption, N.H. RSA § 358-A:3 (emphasis added), is as follows:

The following transactions shall be exempt from the provisions of this chapter:
I. Trade or commerce otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of this state or the United States.
III. DISCUSSION

As part of the United States District court system, I am bound by the decisions of the District Judges of that court. Recently, two cases have been decided by District Judge Loughlin which constrain me to rule that the exemption does not apply in this case. In Therrien v. Resource Fin. Group, Inc., 704 F.Supp. 322 (D.N.H.1989), the court held that the exemption did not apply to a claim against a bank for an alleged failure to make adequate disclosures in connection with a loan transaction that was subject to some banking regulations. Similarly, in WVG v. Pacific Ins., Co., 707 F.Supp. 70 (D.N.H.1986), the court held that the exemption did not apply for an insurer\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s allegedly unfair and deceptive failure to pay an insured\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s claim that was subject to some state insurance regulation.
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Bill
State v. EMPIRE AUTOMOTIVE GROUP, INC., NH: Supreme Court 2011

http://scholar.google.com/scholar_case?case=17438732505660145262&q=358-A:3+exempt+banks&hl=en&as_sdt=2,15

The defendant also argues that RSA 383:10-d (2006) supports its status as exempt from the CPA with respect to the transactions at issue. This statute states, in part: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"The [bank] commissioner shall have exclusive authority and jurisdiction to investigate conduct that is or may be an unfair or deceptive act or practice under RSA 358-A and exempt under RSA 358-A:3, I . . . .\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" (Emphasis added.) But as the quoted statutory text makes clear, in order to fall within the \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"exclusive authority and jurisdiction\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" of the bank commissioner, the conduct at issue must be both an actual or potential violation of the CPA and exempt under RSA 358-A:3, I. Since, as discussed above, the conduct involved here is not exempt from the CPA pursuant to RSA 358-A:3, I, it does not fall within the exclusive investigative authority of the bank commissioner. For this same reason, even if we were to assume that conduct that does fall within the reach of RSA 383:10-d, and which is criminal in nature, could not be prosecuted by the department of justice absent a referral from the bank commissioner, see RSA 383:10-d, no such conduct is at issue in this case.
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Bill
While the defendant in your case can just generally claim they are exempt this is not true, but you have a VERY complex argument to make.

I think your time will be better spent on developing this argument prior to continuing on to others such as some kind of unlawful act. KISS is always a good rule of thumb. I\\\'d spend my time on perfecting necessary arguments then continue on. Your opposition needs a lot of work. Do you have a copy as a template?
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Bill
http://www.dartmouth.edu/~news/features/governance/aoasuit/aoa_opposition_to_motion.pdf

Above is an example of an opposition. While some of this can be omitted you can see:

Introduction

Statement of facts

Legal Standard

Arguments

Conclusion/Prayer

You have all of these jumbled up and not clearly separated (or included). This makes your opposition very hard to understand. I am still confused with the title and introduction.
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Bill
http://www.jdsupra.com/legalnews/plaintiffs-memorandum-in-opposition-to-23869/

Another example.,,,,
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FnDoomed
Thanks for the cases Bill ... Those will help! If anybody wants to take things off list I am me at gee mail ...
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FnDoomed
Got a five page surreply due late next week. For anybody interested I put it up on my scribd...

http://www.scribd.com/doc/106601270/12cv260-SurreplyMTD-Draft

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