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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Ok I originated a mortgage--they named a trustee...They made an assignment of the mortgage...When they foreclosed they put in a substitute trustee...

So my ??? is if there was an assignment after origination should there of been a new trustee named then? It's kinda strange I know.  I found out the foreclosure group that foreclosed on me not only substituted the trustee when they foreclosed they noticed the original lender instead of the lender the debt was assigned to. This was also done after foreclosure.

Just thought it was kinda strange. I read somewhere they should of possibly done this and even have the beneficiary sign off on it. But not sure. Sure hope someone can help w/this one!

Thanks, 

Kathy
Quote 0 0
William A. Roper, Jr.
Quote:
topguncrdtadvsr said:
So my ??? is if there was an assignment after origination should there of been a new trustee named then? It's kinda strange I know.  I found out the foreclosure group that foreclosed on me not only substituted the trustee when they foreclosed they noticed the original lender instead of the lender the debt was assigned to. This was also done after foreclosure.
 
Kathy:
 
Take a look at my posted response (03/13/11 at 04:09 PM) within the David's Forum message thread "Who owns the title?" (03/07/11 at 06:41 PM):
 
 
You need to distinguish between the owner of the legal title to the deed of trust and the owner of the legal title to the property. 
 
The identity of the trustee tends to remain fixed across assignments of the deed of trust unless and until a substitute trustee is appointed.
 
The owner of the deed of trust probably has the authority under the instrument to make such an appointment.  But UNLESS and UNTIL such appointment is actually made, the person or entity appointed as substitute trustee is essentially a stranger to the title and usually has no authority whatsoever.
 
Although Massachusetts is a mortgage rather than a deed of trust state, that state recognizes private powers of sale.  Re-read the Ibanez decision.
 
But BEFORE you run out and start calling attention to the possible defect in title created by the non-judicial sale, VERY CAREFULLY ASSESS THE FACTS AND LAW WHICH APPLIES IN YOUR SITUATION.
 
I would be VERY CAREFUL even in discussing this with an attorney unless you can be ABSOLUTELY ASSURED that the attorney actually has YOUR BEST INTERESTS AT HEART (e.g. the attorney is your father or uncle).
 
*
 
The substitute trustees deed may actually be VOID rather than merely voidable.  But here is the rub.  IF you actually defaulted on your deed of trust, this MIGHT be readily corrected by simply doing a new non-judicial foreclosure.
 
Now you MIGHT have a valid cause of action as a result of being prematurely dispossessed of the property.  But one problem with that is that you might have had some duty to NOTICE this defect and seek a remedy immedately (to mitigate your damages).
 
But you may also have another even more valuable and effective alternative strategy.  CHECK THE STATUTE OF LIMITATIONS OF YOUR JURISDICTION AS TO SUITS ON A NEGOTIABLE INSTRUEMNT OR NON-JUDICIAL FORECLOSURE UNDER A PRIVATE POWER OF SALE.  You are likely to find that the limitations period is 4 to 6 years.  The period usually does NOT begin to run until either the due date of the note OR the date of acceleration.
 
Next, check the limitations period for a suit to quiet title or a treaspass to try title.  The correct cause of action varies from jurisdiction to jurisdiction.  This limitations period might very well run for ten or twenty years!
 
You MAY be able to WAIT until the limitations period expires on the suit on a note or the remedy of private non-judicial sale (4 to 6 years) and still be well within the period to set aside the substitute trustee's deed!
 
In this way, you could recover the property with little or no further risk of additional foreclosure.
 
The notice of acceleration thereby becomes your ticket to the complete discharge of your outstanding mortgage indebtedness.
 
Those who encourage you to run to the lender and bring this defect to their immediate attention are very foolish and either do not have your best interests in mind OR fail to appreciate the nuances of this unique and delicate situation. 
Quote 0 0
Roper, 

Thank you! You don't know how much your appreciated! I just wish I knew more about using the court system to my advantage instead of theirs. I've found some interesting things out the last few months that may tell more about the circumstances I've endured. 

Not sure if your aware of this but I put together that my former employer NARS has down as their board of directors the Dave Kreisman/Gerald Shapiro. Who are also over the logs network of 34 major law offices nationwide. Found out strangely enough that they used to have the Sec of State mail from MO sent to their Shapiro & Fishman office there in Florida. They've been involved in various lawsuits nationally for their fraud and corruption. 

At any rate I also found out I come from one of the oldest banking families in the country. They actually came to America from Austria and resided in St. Joesph MO.  Some of the lawsuits they were involved w/back in the day would be filed under the Schuster Hax National Bank. I found this out from doing genealogy work for my grandmother. As she always knew her family was well off but not aware of how well off.  At any rate I know there were mishaps as my great great grandfather was into selling cattle and one of his partners was Adam N Schuster who was over several different banks in the MO/KS area, was an elector even and such. Not sure what happened there but my other great grandfather put his mother down as Katie O'hara w/the social security office. 

The last bank Adam Schuster was with he was a principal along with three others. One was the waterworks company owner and furniture manufacturer Louis Hax, the other was James Nelson Burnes a prominent attorney, congressman here in MO and the other was a John Calhoun. The same John Calhoun who got Abe Lincoln into being a surveyor in Il then the introductions to associates within the law system. I have every reason to fear for my life at this point I feel just as I suspected some time ago. John Calhoun mysteriously died of strinicne poisoning. Burnes died after the last election he was in b4 he could retake his position. And Louis Hax while in robust health the day before died under mysterious circumstances. And of course we all know Abe was shot. 

Now the thing is my family member is the only one who wasn't killed off I'd say. It could all have to do with Abe ousting the bankers. But another grandfather died after an unmitigated hit and run accident a month after it happened in 1933. And my other great grandfather left the family in 1950 to never be seen again. We found out 30yrs after he died when and where and who buried him. Wild thing is gma was never told. And apparently his son buried him who we can't find. He identified himself as a Glen Howard, my grandfathers alias as his stage name was Johnny Howard and can be tracked thru the billboard up til 1970.


Outside of this my grandma always knew that her family knew the people with Republic Pictures. Can't find the link there. But have found that the great grandfather who was in the hit/run accident signed up for World War I the same day as Herbert Yates 9/12/1918 in different states but one never knows. Someday I will figure out what happened. But its a vicious thing to have happen to someone. 


At any rate I've also found more evidence of the corruption here in MO. I just don't know what they think people will do if they don't quit getting the shaft! I put the articles below to show just how bad the Eastern District of MO is. In FL their saying that the Bar Association should handle the discpline of attorneys. Well in MO the Vp of the Bar Association has been caught up in scandal as well. 

Then the 1st article is the same judge who allowed the fraud that I said happened to me. The next is the 3rd judge (Shaw) on my case who did recuse. Then the last is the article involving the MO Bar Association. Then the last is something I found out about the initial person who put fraud against me. 







As usual your advice is appreciated!

Thanks!
Quote 0 0
Bill,
I'm confused . What do you mean by "The notice of acceleration thereby becomes your ticket to the complete discharge of your outstanding mortgage indebtedness" ? Please give more details. Thanks
Quote 0 0
William A. Roper, Jr.
Quote:
Ann said:
I'm confused . What do you mean by "The notice of acceleration thereby becomes your ticket to the complete discharge of your outstanding mortgage indebtedness" ?  Please give more details.  Thanks


Ann:

Under the UCC, there is an express statute of limitations as to a suit on a note.  The model UCC provision reads:
"§3-118.  STATUTE OF LIMITATIONS.
(a)  Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.
. . ."
http://www.law.cornell.edu/ucc/3/article3.htm#s3-118
The precise wording varies from jurisdiction to jurisdiction.

*

Suppose that you had a thirty year promissory note with scheduled monthly payments of interest only and a balloon payment of the full principal amount at the end of thirty years.  For example, suppose that you signed the note on December 2, 1999, and the first of 360 monthly payments was due on January 1, 2000.

Further suppose that after paying for a five year period, you STOPPED making payments.  That is, you LAST PAYMENT was on December 1, 2004.  There would then be twenty-five years to go on the loan.

Further suppose that the purported mortgage investor had NEVER filed suit OR that this suit had been dismissed without prejudice.  For simplicity, let us also assume that you have not filed for bankrupcty or asserted any other rights which would result in a tolling of the limitations period.

The payment which was due on January 1, 2005, would be subject to the limitations provision set forth within §3-118 after six years on January 1, 2011.  The February 1, 2005, payment would be subject to limitations after Feburary 1, 2011, etc.  But the principal amount isn't due on a balloon note until the end of the thirty year maturity.

*

One can construct a similar example with a fully amortizing mortgage.

Note that one gets relatively little value out of this limitations period because most of the payments haven't yet come due.

*

But when the purported mortgage investor declares default and accelerates the principal, then the full amount is sue and payable as of the acceleration date.  And the limitations period begins running with that acceleration.

For this reason, in discovery, you ALWAYS want to ask an interrogatory asking them under oath whether they accelerated the loan.  You also want to do a request for production to ask them to produce the notice of acceleration.

Hopefully, each borrower has KEPT the original notice of acceleration and will supplement this with the discovery responses described above.

These then become the ticket to limitations after the statutory period runs.  The limitations period is NOT six years in all states.  There are some states where it is SHORTER.
 
When a purported mortgage investor sues AFTER the limitations period has run, the defendant should plead limitations as a defense.  While one could develop the evidence through discovery in the new suit, it is better to already have the information readily available.  In a non-judicial foreclosure state, the borrower might want to attached the notice of acceleration to an affidavit and record it within the pblic records after the elapse of six years.

Consult an Attorney (though do NOT expect that any of them will have ever heard of this!).
Quote 0 0
When I read about things like the effects of bogus mortgage assignments and this most recent post on statue of limitations on the note, I am a little bummed that I picked NH to live in.

I don't know about other states, but in NH an action on a note secured by a mortgage may be brought so long as an action on the mortgage has not expired.  That is 20 years in NH.   And an action can be brought against you even if your house is gone.

See Phinney v. Levine, 116 NH 379 - NH: Supreme Court 1976

"In this State, separate remedies (RSA 524:10) are available to enforce a note and the mortgage which secures it. RSA 508:6 provides: "Actions upon notes secured by mortgage of real estate may be brought so long as the plaintiff is entitled to bring an action upon the mortgage." Under the statute, an action may be maintained on a note secured by a mortgage after the limitations period for an unsecured note has expired, even though the collateral is no longer available to satisfy the claim"



Quote 0 0
Angelo
Bill

I know you mentioned that the statue of limitations would be tolled if bankruptcy was filed.  What would be your take on this situation, if they filed a lis pendens and never cancelled it during the BK and not many post-partition payments were made during the BK, then the filed a motion for relief of stay, and an invalid modification was done right after the relief of stay, how long could the limitations be extended? 

Is the tolling period the entire BK or just when payments are made to the account after the notice of acceleration was issued? Or, if the notice of acceleration or lis pendens was never canceled, the debt isn't tolled at all?


Quote 0 0
TNL
Bill,

First --- Thank you for all of your informative posts because many have shined light in a previously dark space.

Second --  If for instance a particular State's Statute Of Limitations was five years would the ongoing foreclosure action have to be dismissed in order to use the Statute Of Limitations in a move for Quiet Title ? 

In other words, if a foreclosure action was still being actively defended after hypothetically five years and two months without a dismissal would the five year Statute Of Limitations period be tolled until a dismissal was obtained ?? 

If so, then it would seem that no Quiet Title could be successful while the current case of foreclosure is active -- no matter how drawn out and lengthy the process becomes.

If having an active case going potentially "extends" the five year Statute Of Limitations, then it also would seem that any dismissals with leave to amend, etc, etc. would possibly keep from getting a clean shot at Quiet Title (using the Statute Of Limitations) by tolling time for the Plaintiff -- although I hope not.

Just checking to find the weak spots in the Statute Of Limitations relationship to foreclosures and Quiet Title.

Thank you in advance for your thoughts on the above scenario.


Quote 0 0
William A. Roper, Jr.
Quote:
TNL said:
In other words, if a foreclosure action was still being actively defended after hypothetically five years and two months without a dismissal would the five year Statute Of Limitations period be tolled until a dismissal was obtained ??


TNL:

You need to look at the specific statutes and cases for your jurisdiction to obtain an understanding of how the limitations would work in your state.

Generally, once a case is filed limitations is measured to the filing date of the action, but there ARE some exceptions to this.  For example, suppose that the suit is filed, but citation or other official process is NOT served until AFTER the limtiations period has run.  In some places, both filing and service needs to be effected, though there are also exceptions to such a rule.

In at least one jurisdiction I researched, if the suit is filed within the limitations period, but service of citation isn't effected until after the limitations period, the question comes down to whether the plaintiff used diligence in obtaining service.

So if the defendant was evading service, but the plaintiff was conscientious, limitations might not apply, but where the plaintiff sat on its hands after limitations had expired, the pre-limitations filing might still be defeated by failure to properly serve citation of the suit during the limitations period.

*

Another example of an exception arises where the original suit was filed within limitations, but where additional parties were added OR where there was a substitution of plaintiff after the limitations period had expired.  Again, the case law on this varies with the jurisdiction.

In most places, an additional defendant couldn't usually be added after the limtiations period expired.  If there was a substitution of a defendant after the expiration of limitation, due to misnomer or misidentification, usually if the correct person was timely served within limitations, the suit can proceed, but where the wrong person was actually served in many places a correction in an amended pleading and subsequent service would probably not be enough to overcome the imposition of limitations.

Similarly, suppose that the suit involved multiple counts and the suit was amended to include an additional different count.  That additional count might be precluded.

Substitution of plaintiff is yet another interesting nuance.  Suppose that the correct plaintiff filed suit (a plaintiff with standing and capacity), but that the plaintiff subsequently assigned the note and cause of action to another entity.

In this case, the substitution is probably OK.

By contrast, if the wrong plaintiff brought the suit (a plaintiff lacking standing and/or capacity at commencement, usually the defendant is entitled to dismissal.  If the limitations period ran during the pendency of such suit, the correct plaintiff might NOT be entitled to refile!

I even ran across one case which stated that when there was a substitution of both plaintiff and defendant that this was inherently a different suit and that limitations would be measured from the refiling date.

The critical question is whether the new causes of action or amended pleading relates back to the original filing date.

There are going to be different results under different factual situations, as well as differing treatments in various jurisdictions.

*

Your question was actually much simpler.  You asked whether the limitations could be used to preclude judgment in a suit that was already filed before limitations ran.  I think that I implicitly answered this above.

But let me restate to be absolutely clear (while again cautioning you that you need to research the statutes, Rules and cases for YOUR jurisdiction).  IF the suit was properly filed and citation or other official process was properly served BEFORE the limitations period, identifying the correct causes of action, then the suit can usually proceed.  IF there is a defect in the service or the causes of action (or in the standing or capacity of the plaintiff), then there might be a problem.  The precise result needs to be researched.

If a case is DISMISSED, even without prejudice, usually the effects of limitations would then be measured as to the new action upon refiling by the filing and service dates of that new action.  There is usually no tolling associated with simply prosecuting a case previously.

I have seen some jurisdictions where filing in the wrong court might toll limitations. 

The bottom line is that you have to DO YOUR OWN RESEARCH and compare your fact situation with the law of your state!

*

It should perhaps be here noted that many defective cases in New York state have been lingering on the dockets for three to five years.  Defendants may be generally better off letting the cases persist on the docket and languish.  In many instances, these cases ARE going to be ultimately dismissed, but perhaps without prejudice.  If that dismissal comes AFTER the running of limitations, even though the dismissal was without prejudice, a defendant probably has a very potent limitations affirmative defense upon refiling!
Quote 0 0
William A. Roper, Jr.
Quote:
TNL said:
If so, then it would seem that no Quiet Title could be successful while the current case of foreclosure is active -- no matter how drawn out and lengthy the process becomes.


Anyone who is generally advocating filing a quiet title action in a judicial foreclosure state is out of his or her mind!

Quiet title or a similar action, such as trespass to try title, is an affirmative cause of action that might be appropriate to clear the cloud on a title arising from the execution of a competing deed by a substitute trustee asserting a private power of sale in a non-judicial foreclosure state.

In a judicial foreclosure state, usually the purported mortgage investor has to bring suit against the defendant/borrower and the plaintiff bears the burden of proof as to critical points.

If a borrower brings a suit to quiet title in a judicial foreclosure state, then that borrower is going to have the burden of proof.

If the borrower has retained possession of the property and successfully defended against a judicial foreclosure, then the defendant is usually best off to stand pat and NOT initiate any other new litigation.  The borrower has WON.  While the title to the property might remain clouded due to the unreleased mortgage impairing the prospects of sale, the chances of getting the cloud removed are actually pretty slim.  Not only does the borrower have the burden of proof, but the borrower encounters the equitable maxim, "he who seeks equity must do equity".
Quote 0 0
William A. Roper, Jr.

Quote:
Angelo said:
Is the tolling period the entire BK or just when payments are made to the account after the notice of acceleration was issued? Or, if the notice of acceleration or lis pendens was never canceled, the debt isn't tolled at all?


Angelo:

As I have pointed out on numerous occasions, I do not hold myself out as having any special knowledge or expertise as to Bankruptcy.  And since I have never been involved in a personal bankruptcy case, I haven't had occasion to read much law in this area.

Generally, the provisions for a civil stay are set forth in § 362 (Automatic stay):

http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000362----000-.html

 

By contrast, the provisions relating to tolling are set forth within §108 (Extension of time):

http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000108----000-.html


Why don't you look over these statutes and the cases interpretting these and report back to us what YOU THINK the law says about the fact situation you describe?

*

Also, bear in mind that the statutes or Rules of a jurisdiction may also affect the application of the Bankruptcy civil stay to the limitations period.  That is, statutes or rules relating to limitations may expressly discuss circumstances in which tollingis appropriate.
Quote 0 0
bill that was an excellent idea of assigning angelo to look up the bk statute but most importantly 
REPORT BACK.... It is a little selfish or shortsighted or both to do the work and not report the results for the simple reason....if you get something in the way of info then you REALLY should PAY IT FORWARD.. its not about me,its not about you ,its about US
Quote 0 0
angry&NOT TAKING IT
we can beat the pants off-them every last one em - if we work & stand together!
Quote 0 0
Write a reply...