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
I am taking the offense against mortgage servicing fraud. For over a year i have tried to get Wells fargo to furnish proof that they have a right to service my mortgage. I am not in forclosure, not have i missed a payment. I am concerned that they do not have right to to collect my payment on a note. I believe my note could have been paid off or written off or otherwise been voided, but Wells Fargo continues to be unduly enriched and continues to demand payment.

I have drafted a suit...would appreciate comments and strategies...I am will to share all i have and will obtain to help the rights of those that have been defrauded by the big banks. it seems that i can not post my suit to this forum, so if others have a suggestion as to how i can get this on the site, please respond. 
Quote 0 0
Moose
This is of course, not legal advice, but give us the highlights (the "cause of action" of your filing, i.e., what is it you're specifically claiming (other than you think they don't have the servicing rights)?

Moose


Quote 0 0
Here is the gist of things...there is much more...

  1. Defendant(s) Wells Fargo and Co. and Wells Fargo Home Mortgage have defaulted in their obligation to provide documentation as required by several sections of the Florida Statutes pertaining to their obligations regarding negotiable instruments, specifically a Promissory Note, specifically proving proof of status of Holder in Due Course or has standing to enforce the note, and to present Plaintiff with reasonable evidence that Defendant(s) has the authority to make demands upon the Plaintiff if it does not own the note, both being required by F.S. 673, Defendant(s) continually refuse to comply with requirements of this statute. As a result, they have subsequently defaulted in their alleged ability to enforce the note and demand payment.
  2. Defendant, Wells Fargo and Company, or a subsidiary thereof currently fraudulently withdraws funds from Plaintiffs’ checking account, without furnishing any proof requested by Plaintiffs, that they have any standing, holding or ownership of Promissory Note and any legal entitlement to do so and after being notified that they are in default of their ability to collect payment.
  3. Defendants XXXXXXX Mortgage  and XXXXXXXXXX Bank, a/k/a XXXXXXXX Bank, A Division of XXXXXXXXXX Bank have defaulted in their obligations to properly transfer and record transfer of Plaintiff’s Promissory Note and Mortgage, and defaulted in their obligation to provide documentation as required by several sections of the Florida Statutes pertaining to their obligations regarding negotiable instruments, specifically a Promissory Note, and has subsequently defaulted in their alleged ability to transfer any rights that they may have had regarding the Promissory Note and Mortgage.
  4. While Plaintiffs do not have original or attested certified copies of any requested documents, Plaintiffs do have several original letters from Defendant(s) that outline a pattern of passing negotiable instruments and mortgage documents to subsequent parties, with no “paper trail” of legally binding, notarized documents, assignments or endorsements transferring the Promissory Note and/or Mortgage. This lack of “proof” greatly concerns the Plaintiffs, in that Plaintiffs do not have any assurance that Defendant(s) have any legal standing to enforce the Promissory Note or Mortgage. This causes a direct greater concern to the Plaintiffs, as the Plaintiffs have been diligently paying Defendant(s) up to August 2010, with no assurance of who has standing to collect payments, enforce the Security Instruments and discharge the original Promissory Note for the mortgage and issue the release of the primary mortgage, when the obligations in those instruments are satisfied, pursuant to various sections of Florida Statutes Chapter 673.
  5. Based on the defendant(s) repeated failure to produce legal documents, pursuant to F.S. 673.5011.2.b.1, Presentment to enforce the Negotiable Instrument, “Defendant shall exhibit the instrument,” the Plaintiff deemed a Court action was the only recourse, as Defendant Wells Fargo and Company, et al repeatedly refused and has subsequently defaulted on Plaintiff’s several demands to produce legal documents and, following plaintiffs’ “Notice of Default” has continued to fraudulently transfer, by electronic means, funds from Plaintiff’s checking account as “payment” on this Note.
  6. The Evidence Code provides the rationale for this conclusion. Section 90.952, Florida Statutes (2010), indicates that original documents are required to prove the contents of a writing, unless otherwise provided by statute. Section 90.953, Florida Statutes (2010), however, indicates that duplicates are admissible unless a genuine question is raised about the authenticity of the original, or it is unfair to admit the duplicate, or: The document or writing is a negotiable instrument as defined in s. 673.1041, a security instrument as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment. A Promissory Note is clearly a negotiable instrument within the definition of section 673.1041(1), and either the original must be produced, or the lost document must be reestablished under section 673.3091, Florida Statutes (2010). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999); see also Downing v. First Nat’l Bank of Lake City, 81 So. 2d 486 (Fla. 1955); Thompson v. First Union Nat’l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989). Because it is negotiable, the promissory note must be produced upon request for presentment if requested by the maker, surrendered in a foreclosure proceeding or returned to the maker upon proper payment so that it does not remain in the stream of commerce. Indeed, if the Holder in Due Course or one who claims to have standing to enforce the note alleges that the note is lost, destroyed or stolen, the Court is authorized by statute to take the necessary actions to protect the party required to pay the note against loss that might occur by reason of a claim by another party to enforce the instrument. See section 673.3091(2), Fla. Stat. (2010).
  7. Plaintiff alleges that XXXXXXX Mortgage did not transfer the Promissory Note as explicitly stated several times in the Promissory Note and is also specifically required in F.S. 673.2031. A review of Exhibit “D”, response letter by XXXXXXXXXX, General Counsel for XXXXXXXX Mortgage Associates, states that “XXXXXXXXX Mortgage acted as a table-funding lender… assigned (emphasis mine) the Promissory Note simultaneously with the closing of the loan to the investor, XXXXXXXXXX Bank.” This statement indicates that XXXXXXXXXX Mortgage did not “transfer” the Promissory Note as explicitly stated in the Promissory Note and is also specifically required in F.S. 673.2031, but rather “assigned” the Promissory Note. In fact, the term “assign” or any other derivations of this term do not occur in the Promissory Note. Pursuant to Florida Statutes, Title XXXIX, rights of a “transferee” are superior to those of an “assignee,” which is why the Promissory Note explicitly indicates solely the rights of the lender to “transfer” the Note, rather than to “assign” rights. This is in keeping with the definition of transfer, as it relates in this instance, as the physical passing of the actual “wet ink signature” Promissory Note. While Plaintiffs acknowledge that certain rights of a mortgage can be “assigned” or “transferred,” F.S. 673 specifically allows only transfer of Negotiable Instruments. Further, Blacks Law Dictionary (Ninth Edition,) specifically defines “transfer” as “transfer, vb. (14c) 1. To convey or remove from one place or one person to another; to pass or hand over from one to another, esp. to change over the possession or control of.” This term defines the actual, physical change of possession of an item, in this instance, the original “wet ink” Promissory Note.
  8. Furthermore, XXXXXXXXXX Mortgage has furnished no subsequent actual documentation indicating their alleged “assignment” ever occurred, or did they specify under what conditions or enforcements the alleged “assignment” allows. Subsequently, Plaintiffs have no knowledge of the rights allegedly “assigned” to XXXXXXXXX Bank, and subsequently, has no knowledge of any subsequent assignment of other rights they may or may not have conferred to other parties.
  9. Defendant XXXXXXXX Mortgage failed to provide any documentation or proof, after repeated requests, that they legally transferred the Note to anyone. Therefore, without proof, any subsequent enforcement of any provisions of Promissory Note, by any other party are invalid.

Quote 0 0
Moose
This is not legal advice, but you REALLY NEED TO TALK TO AN ATTORNEY before you waste your time, effort and money and wind up paying their attorney's fees.

Moose


Quote 0 0
Thanks for your comments...
An Attorney is first, an officer of the "Court" and his first allegiance is the the 'Court' and not you his client; second, an attorney is beholden to judges beforewhich they argue, so his next allegiance is to the judge... third, an attorney will look out for himself before his client...so, at the start of your action, you are fourth in line and the deck is already leaning toward the "court" system. A well prepared self representation can take a firm approach to move the court where a beholden attorney would not...

Also,I have a standard fannie/freddie unifrom note. I am not aware of provisions to award fees to the prevailing party. I am under the impression that in FL, the plaintiff and defendents pay their own fees.

I am requesting comments on the stategy/merits of the case...

In my opinion, this is a straight up issue of promissory notes, per UCC and state statutues...Anyone with a non real property note can also make the same demands/claims such as this...

The issue is that the bank has not shown prrof of standing, i called them out and made demand that they could not continue to take it our of my bank and they continue to do so.

Quote 0 0
Moose
A Florida Fighter wrote:
Thanks for your comments...
An Attorney is first, an officer of the "Court" and his first allegiance is the the 'Court' and not you his client; second, an attorney is beholden to judges beforewhich they argue, so his next allegiance is to the judge... third, an attorney will look out for himself before his client...so, at the start of your action, you are fourth in line and the deck is already leaning toward the "court" system. A well prepared self representation can take a firm approach to move the court where a beholden attorney would not...


Good luck. The percentage of pro se successes is several decimal places to the right and your sophomoric diatribe about attorneys indicates you have been drinking the Mike H. kool-aid or something similar to it.
A Florida Fighter wrote:

Also,I have a standard fannie/freddie unifrom note. I am not aware of provisions to award fees to the prevailing party. I am under the impression that in FL, the plaintiff and defendents pay their own fees.

Not when one of the parties brings a frivolous case and the other party seeks sanctions and costs of defending it.

I'm not saying your case is frivolous - I'm saying again that this isn't legal advice but your approach/strategy is going to result in the classic motion for summary judgment on the grounds that "...the plaintiff fails to state a claim for which relief can be granted. On such-and-such date plaintiff signed blah blah blah ... further, plaintiff has submitted payments for xx months ... plaintiff comes to this court with shop-worn mortgage-elimination rhetoric and seeks to live in a home without having to pay for it ..."
A Florida Fighter wrote:

I am requesting comments on the stategy/merits of the case...

In my opinion, this is a straight up issue of promissory notes, per UCC and state statutues...Anyone with a non real property note can also make the same demands/claims such as this...

The issue is that the bank has not shown prrof of standing, i called them out and made demand that they could not continue to take it our of my bank and they continue to do so.


If there is enough money involved, they will produce the "proof." IMHO, only a competent and determined attorney can navigate the mine-field of evidentiary perils the other side will lay for you.

Moose

Quote 0 0
Florida Fighter,
Check out Matt Weidner Esq. website http://www.mattweidnerlaw.com/blog and read his posts. These posts  are legal opinions of various foreclosure defense issues from a Florida prominent foreclosure defense lawyer. Do a seach for the subject you are interested. Hope this help.
Quote 0 0
A Florida Fighter
Interesting comments...I do not know who Mike H is? I am new here to this website...i guess he is some troll...I have been using some Jurisdictionary techniques, which, if i am not mistaken, is a sponsor of this board. Not a sophmoric diatribe, practical advice and comments from a retired attorney friend.

Practical case is quite clear...nothing frivolous when WF is name in lawsuit after lawsuit and settling claims of fraud in the millions and millions of dollars...Also not looking to get a house free and clear or be unduly enriched...I am actually looking to get the note paid off, but am concerned that they are not the holder. Banks, on the other hand, are all about getting undully enriched.

I am looking for is who owns the note, so that note is relinquished when paid. I have also asked that any moneys be held by the court until such time as the note can be furnished or other standing to enforce can be provided. 

The issue here is the banks have perpetrated fraud, over and over again, in their greed to foreclose on homes and notes. In many instances these notes have been sold into trusts with false or no documents. You can not deny there is a significant occurance of fraudulent paperwork being issued. These banks should be held accountable.
Quote 0 0
Moose
The problem, Florida, is something called standing and as far as I know (and I've been around a long time) Jurisdictionary is not a sponsor of this board, simply a site many people here, myself included, recommend.

You as an individual can't prosecute banks at large for fraud. You as a private citizen have to have standing on which to sue, which means you have to also have to claim and then prove damages to you, not to others.

What is it you - specifically, you - are being defrauded of?

Again this isn't legal advice, but generally speaking you can't sue for damages for something that may happen in the future, nor can you sue on behalf of other parties, i.e., investors, other borrowers, trustees, etc.

Moose









Quote 0 0
.
Standing to sue:
Quote:
The plaintiff must be able to show “that [his] claimed injury is personal, particularized, concrete and otherwise judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 819 (1997).

Quote:
Article III of the Constitution sets forth the basic standing requirements for a plaintiff:  (i) the plaintiff must have suffered an injury-in-fact which is actual, not hypothetical; (ii) there must be a causal connection between the injury and the conduct complained of; and (iii) it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife. 504 U.S. 555, 560 (1992)



Quote 0 0
TheEquitableOne
Many attorneys aren't worth a bucket of warm spit, and will throw you under the bus faster than you can say "No!"  But there are some good ones out there, and particularly in Florida (leading the nation in Foreclosures has caused something of a defensive BAR to wake up).

But, as a pro se the court will accord you next to no respect whatsoever. If that is the route you choose to go then plan on losing in the lower court. If you set up an appeal well there is a chance you could prevail at the appellate level, but that chance still isn't very good.

Consulting with a qualified, knowledgeable attorney is going to be your best route.

Quote 0 0
John Lewis

A Florida Fighter,

Here is my recommendation, this forum contains a wealth of foreclosure information, simply enter what you are interested in ie “discovery standing or capacity” in the ‘search tool’.  Each listed thread will provide a great deal of information, information that I guarantee will help you in your fight!  Good Luck!  

Quote 0 0
Write a reply...