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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Manda
Hi all,

I need help from some of the veterans of this board. PLEASE---------------!

I'm somewhat of a regular poster here. I've got some problems I really need help with.


Here's our story.

EMC has our loan, and we've been having trouble with them for a while now.
Same BS everyone here suffers from.

This is where it gets complicated.

We have 13 acres of land, we bought before we bought our home.

Then we bought a Mobile Home , (to put on our land). The Mobile home is in no way tied to the LAND.

We filed for bankrupt. Chpt 13 a few years into the loan.
we have since been discharged for the satisfactory Chpt 13.

We have sent many qwr's in the past to EMC, they have sent us a letter telling us that they do not "HAVE" to answer any questions we have for them;   because we do not fall under the RESPA guidelines, since there is no "REAL PROPERTY"  'attached' to the loan.

What can we do?
What letter can I write to them to hold them accountable in a Court of Law? or otherwise?


I desperately want them to answer to ALL of their illegal actions they have taken against us. I desperately want them to answer to all of the fees, they have charged us for, and FORCED us to pay.

WHAT ARE OUR OPTIONS?

Please, anyone, everyone, help if you can.
The fees are rising again.
need help fast.

Thanks,

Any and all help would be greatly appreciated.


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Moose
I believe they are correct - RESPA applies only to real property loans.

This isn't legal advice, but IMHO, unfortunately, in order to force them to respond, you litterally may have to sue and get their responses during discovery (interrogatories).

But a lot of this may have to do with the state you live in. Manufactured housing lending is a whole different can of worms, and my limited understanding of it is that almost every state is different.

Moose
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Manda
Not what I was wanting to hear, but Thank you nonetheless.

OK, anyone else here want to add some info?

Please feel free, I need all of the suggestions, advice I can get at this moment.

Is there some type of consumer letter I could write to them?
After all we are consumers,
Who knows about the consumer law here?
I remember someone does, just don't remember who, that person is.

Again, thanks Moose

thanks all
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Moose
What state are you in?

Moose
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Joe B
Manda-

     I am pretty sure Moose is right. But here's the deal. They are still debt collectors and all debt related law still applies. In other words, they are still liable under the fair debt collection practices act, unfair and deceptive trade practices act, and all other typical consumer laws. So, I would start digging into each of these for their requirements.

     It seems to me that although your "home" doesn't qualify in their eyes, you still have some protections, and they have some obligations.

     Check your state laws first to see what protections exist there. If you do not want to, or cannot afford a consumer protection attorney, there is still much you can do on your own. Also, if you live near a major university that has a law school, you may be able to get some help there. There also may be some legal aid type clinics in your area.

     You also have a contract I assume. You are also protected by contract law. I would look your contract over cover to cover to see what in fact they are allowed to charge you. To be frank, if they are trying to charge fees outside your contract, you MAY be able to void the contract because this could be considered a breech. Be careful here... you will want competent counsel to do this properly. However, look over the contract, and let me/us know!

     What exactly are you trying to get from them? Is it the amount you owe? Is it the amount of fees they are charging you? What else are you trying to get? There is a great deal of information they MUST give you when you ask, you just need the appropriate questions.

     Another option is their website. If they have one, go there and get the data you are looking for. See what it says, and how this help/hurts you. Copy the information right from the site, and copy it and keep it safe. You may need it later.

     I hope I have helped. If not, please let me know what I can do. I try to help, but I don't always understand the question, so I give a bad answer!!!


JB
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Manda
We are in Georgia.


Joe,
Thanks for your input too.

We are at our wits end. I don't' understand why they would allow qwr's then suddenly say "no" to them.

Maybe our last one asked for more info than they wanted to give?

I've got an entire line of qwr's ready to send out, and still keep working on more.
But need to change it from a qwr to what?

something called "BECAUSE IT'S YOUR DUTY" letter?
lmao!

Gee, that's hysterical.
They'll be laughing all the way to the bank with our next month's over payment. Over payment, (because they make us) pay it, or take our home. Sleeze buckets they are!


Joe, you asked what do we want?
I want them to leave me, us, and children alone. My child or children are suffering because of them.
Needlessly suffering.
I cannot say more because then it will be known what name I normally post under.




We want the continuous fees to STOP!
We want the unneeded Escrow to STOP!
We want every fee REVERSED, that they were NOT ENTITLED TOO!

Do we want to have the loan rescinded? YES we do, but it has been years now. Probably too late for that. However I didn't discover until a few months ago, that our Original Mort Company was "PREDATORY" as in falsifying loan documents.

Didn't learn until a few months ago, that our loan was also effectively "SERVICED" by them as well.
By this I mean, they never came calling looking for more money. They were just taking our payments and putting them wherever they felt like putting them. Also, of course holding the payments they did decided to post, so they would show as late.

They have since stuck us with EMC.

Is it too late for us to rescind the loan I don't know.


What else do we want?
We want the Nightmare, and the threats to stop!
We want our home free and clear because anyone who has anything to do with it, continues to RIP US OFF.

and we want a few other things but I'm not at liberty to say.
Does any of this help you, to help me?
If not let me know and I'll try again.

Thanks a Mil.


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Joe B
Manda-

     I know you want them to leave you alone. That's unlikely because you owe them money, so we need something to work with. You need to forget why they are not accepting qwr's and focus on what you can do. You are not going to get your home free and clear. You are not going to get your loan rescinded unless you are legally entitled to it. So, how about we focus on what can be done with your situation.

     You say they are overcharging you. OK, so:
1. What does your loan say you are supposed to pay?
2. What are these "fees" they are charging you?
3. Does your loan require escrow?
     Have you been paying escrow?
     Are they placing insurance on you that you already have?
4. Have you been paying these fees?
     How much "extra" have you paid them?
5. Have you told them you have paid extra, and have you asked for it back?
6. Do you have an attorney?

     You said you are overpaying because they will take your home if you do not. I don't understand this. Have they written you letters saying you owe more than your contract states? Why are they saying you owe them this money? Have you paid them this extra amount?

     The folks on this board are familiar with being taken advantage of. However, we need to know how to help you before we can. Why I know that this is extremely emotional, please just give us the facts, so we can provide the best advice we can. I know it may be hard, and I know first hand how hard it is on the children. However, if you can try your best to just help us fill in the blanks, we would appreciate it!

     Please let us know how we can help.

JB
 
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Manda
Thanks Joe,
I'm in aqua.

Joe B wrote:
Manda-
You are not going to get your loan rescinded unless you are legally entitled to it.  Explain this further please. The loan for the Mobile home is in our names. Don't understand what you mean.

     You say they are overcharging you. OK, so:
1. What does your loan say you are supposed to pay? Lets say $702.00 for grins and giggles.
2. What are these "fees" they are charging you? Anything they can charge us for. We have had them all. Escrow, late charges Even though NEVER late, corporate executive fees, misc fees, bpo's, appraisal fees, attorney's fees, the list goes on and on. 
3. Does your loan require escrow? NO
     Have you been paying escrow?YES (they make us) or they take the home.
     Are they placing insurance on you that you already have?YES, they are trumping our privately solicited Home Owners policy every year. This a H.O. policy we solicited business for. NOT THEM! Every year one month before it is due THEY PAY IT. THEN charge us More than the policy is. And generally they charge us twice a year for this policy. Yeah strange I know, but I cannot make them stop.
4. Have you been paying these fees? YES, we have to or they take our home.
     How much "extra" have you paid them? over $15,000.00, could be double that or quadruple that. But I cannot share that info with the board at this time.

5. Have you told them you have paid extra, and have you asked for it back? Oops I think you have misunderstood me here. I've paid EXTRA because they have MADE ME. They have previously sent default notices, Acceleration notices, and many more things they have done to try to take our home away.
6. Do you have an attorney?YES but he/she told me to finish getting all of my paperwork together before we can file anything in courts. Since he/she is working on a contingency basis, I have to do all of the work. The qwr's are part of the work that I have to do. ________And______ if they DO NOT HAVE TO RESPOND TO A QWR that we send, then it is questions, that are unaswered about our loan. So NOW WHAT?
We cannot proceed until I get the necessary information.

     You said you are overpaying because they will take your home if you do not. I don't understand this. See above. If we do not pay them their fees, that they have asserted onto our account, they will send out another DEFAULT notice, or another Acceleration Notice, or FORECLOSE.
We don't want to be stuck in this Mobile Home forever. The mobile home was the Cheapest option for us, until we could afford to build our dream home. Now we are stuck in this home, until, we can have our loan REPRESENTED PROPERLY. OUR loan will never be represented properly as long as they are charging us for fees, that they are not due.

Have they written you letters saying you owe more than your contract states? NO, No "formal" letters, other than the default, or acceleration letters.
 However it is supposed to be a fixed monthly rate. When we bought this mobile home, we told them. If you cannot sell us a home without using our land as collateral then we will not buy this home. So again, this mobile home was purchased WITHOUT any attachments to Real Property.

Why are they saying you owe them this money?  They are saying we owe them for anything they can concoct, (see above) Escrow, corporate executive fees, corporate advance fees, appraisals, bpo's, misc. Suspense account fees. We suffer from them all. Including "PREVIOUS SERVICER" fees.
Have you paid them this extra amount? YES, because we have to. If we don't pay them what they "claim" we owe. Then they will take our home away.

please just give us the facts, All of the above are FACTS.
Please let us know how we can help. Thank you
JB

Does anyone know the name or title of the letter that is acceptable to write to the creditors?
 
I suppose we would now have to write this sort of letter, and do you know if they can still be held accountable for NOT answering questions pertaining to the loan?


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Joe B
Manda-

     How much harm would it do you and your family to let them take this home?

     You said you still own the land, so you have something of value. What would you lose if you just stopped paying and let them come and get it? This might be a clean and quick solution. Then, as soon as they foreclose, you can tell them to get it off your property, or you can charge them $5,000.00 per day to leave it there! Maybe...

     OR, since you have an attorney, you can pay the contractual amount into their trust account until this mess is cleared up. You can have your attorney represent this fact to them, and you can pay the money into the trust account.

     This should be able to protect your house while this thing runs its course. Your attorney should be able to tell you the name of the letter that needs to be written.

JB
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~beenawhile

Good job Joe. But wouldn't that ruin their credit for sure?

Would they ever be able to get another home again?

I'd think long and hard, first.

and would most certainly discuss this option with an attorney.

 

Anyway, I was looking for some info to help with this.

Don't know if any of it is on target.

I just posted some of the info on another thread.

http://www.websitetoolbox.com/tool/post/ssgoldstar/vpost?id=2297748&pid=21963730#post21963730

 

you can read that there.

but here is some more.

 

Common Law Fraud

Substantive Requirements

Unlike CFA, common law fraud requires proof of reliance. Specifically, to prove common law fraud, you must show: (1) a false statement of material fact; (2) the party making the statement knew or believed it to be untrue; (3) the party to whom the statement was made had a right to rely on the statement; (4) the party to whom the statement was made did rely on the statement; (5) the statement was made for the purpose of inducing the other party to act; and (6) the reliance by the person to whom the statement was made led to that person's injury. Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 542 43, 180 Ill. Dec. 300, 607 N.E.2d 194 (1992).

In many predatory lending cases, borrowers can allege common law fraud against the party with whom they dealt directly (the contractor, broker, or loan officer). In the foreclosure context, this is usually done via a third-party claim.

In addition, liability for common law fraud can be extended, e.g., from the broker to the lender, if the lender knowingly accepted the “fruits of the fraud.” Moore v. Pinkert, 28 Ill. App. 2d 320, 333, 171 N.E. 73 (1960); Pulphus v. Sullivan, No. 02 C 5794, 2003 U.S. Dist. LEXIS 7080, at **61-62 (N.D. Ill. April 25, 2003). This distinguishes common law fraud from an ICFA claim, which cannot be brought against a third party merely because that third party knowingly accepts the benefits of another’s fraud. Zekman v. Direct American Marketers, Inc. 182 Ill. 2d 359 (1998).

Remedies

Actual damages, punitive damages, equitable relief. Lucas v. Downtown Greenville Investors Limited Partnership, 284 Ill. App. 3d 37 (2nd Dist. 1996).

Statute of Limitations

5 years for affirmative claims. 735 ILCS 5/13-205;

Unlimited as a defense to foreclosure in the nature of a recoupment or setoff. 735 ILCS 5/13-207. Bank of New York v. Heath, 2001 WL 1771825, at *1 (Ill. Cir. Oct. 26, 2001).

 

 

 

 

Breach of Contract

Substantive Requirements

The parties to a contract have a duty to honor their obligations thereunder, and they also have an implied duty of good faith and fair dealing. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 315, 662 N.E.2d 602 (1st Dist. 1996). Did the broker or lender fail to live up to its contractual duty? Did it frustrate the borrower’s ability to perform on (or reinstate) the contract? If so, it may have breached the contract or its duty of good faith and fair dealing, which is implied in every contract. Hill v. Harris Bank, 329 Ill. App.3d 705, 710 (1st Dist. 2002).

These types of claims are often based on the acts of the loan servicer (the holder’s loan servicing agent), and you can bring in the servicer as a third-party if it provides an advantage, but you don’t have to, because the acts of the servicing agent can be held against the holder (the plaintiff in the foreclosure case).

Remedies

Remedies include actual damages, specific performance.

Statute of Limitations

10 years for affirmative claims. 735 ILCS 5/13-206;

Unlimited as a defense to foreclosure in the nature of a recoupment or setoff. 735 ILCS 5/13-207. Bank of New York v. Heath, 2001 WL 1771825, at *1 (Ill. Cir. Oct. 26, 2001).



I know there is some type of letter, you are talking about.
I think it was Ann, who shared some of that info with me last year,
on the board.

Ann are you around? Are you familiar with what I'm talking about?

anyway, I sure hope some of this helps.
visit this site for some more info. I know its not Ga. but should help a little bit.


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~beenawhile
just realized I didn't provide the link.

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1536#fiduciary%23fiduciary

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