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
sheen
Last September Bank A filed a foreclosure complaint against us.  We subsequently filed a motion to dismiss without requesting a hearing.  The case has remained status quo until last month when we received a notice from Bank A that they had filed a claim on the FHA insurance and sold the mortgage to another Bank B.  We recently received a statement from their servicing company detailing past due amount(s), service charges, etc...
I've been told to expect this new company to file for substitution of plaintiff eventually.
In the meantime, I have been weighing the pros and cons of sending a QWR to this new company or even filing for a Quiet Title.
Any input/experience is appreciated!
Quote 0 0
Les
Quote:
Last September BOA filed a foreclosure complaint against us. We subsequently filed a motion to dismiss without requesting a hearing. The case has remained status quo until last month when we received a notice from BOA that they had filed a claim on the FHA insurance and sold the mortgage to another company (Random Property Acquisitions). We recently received a statement from their servicing company detailing past due amount(s), service charges, etc...
I've been told to expect this new company to file for substitution of plaintiff eventually.
In the meantime, I have been weighing the pros and cons of sending a QWR to this new company or even filing for a Quiet Title.
Any input/experience is appreciated!

If you were sitting in a restaurant with an unpaid tab and no money or credit cards waiting for your steak order to arrive after three beers, would it be better to go over and punch the bouncer in the nose or to wait for the steak to arrive, have three more beers and then try to slip out of the restaurant unnoticed?

You must be completely out of your mind and seem to have been seduced by some debt elimination scam artists.

Quiet Title is ALWAYS a debt elimination scam. In a judicial foreclosure state, when you a enjoying the continued use of your property the very last thing any sane person wants to do is to draw attention to themselves by ANY communication with the lender. You are not going to succeed in your judicial foreclosure suit by filing QWRs.

When the suit is being actively pursued, you need to be running discovery under the court rules. If the servicer has forgotten about the suit, you can remind them that they ought to hurry up and prosecute the suit to successful completion or you can let sleeping dogs lie and get a few months more use out of the property.

If you are really sharp, you can be using that extra time to study more robust defensive avenues. That you have even uttered the words "Quiet Title" seems to show that you are completely clueless about foreclosure defense, because those words are nowhere in the vocabulary of any successful judicial foreclosure defendant.

Oh, by the way, the court rules in EVERY STATE require you to make any such claim WITHIN the context of the suit already pending. Wake up and smell the coffee. Almost anything the scam artists told you about foreclosure defense is wrong. There is a lot to learn at this site that might help and if you start right away you might still save your house!
Quote 0 0
texas
Quieting title does not if written correctly threaten an unsecured value.
Quote 0 0
Wes
Quote:
Quieting title does not if written correctly threaten an unsecured value.

Texas, you probably ought to stick to the UCC. Quiet Title is always a scam.

In a judicial foreclosure state, Rule 13 (or the state equivalent) requires any claims against other parties be made in the original action ("A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim"). In Texas, see Tex. R. Civ. P. 97.
Quote 0 0
sheen
Thanks Les, your illustrations really drove the point home.  As you can see I've been somewhat conflicted as to continue as is or take what I thought might be a proactive approach with the new mortgage holder.  If I am understanding you correctly, there is nothing for us to gain by submitting QWR(s)?
Quote 0 0
Pete
Quote:
Thanks Les, your illustrations really drove the point home. As you can see I've been somewhat conflicted as to continue as is or take what I thought might be a proactive approach with the new mortgage holder. If I am understanding you correctly, there is nothing for us to gain by submitting QWR(s)?

Les has given you some very good advice!

I know of one pro se litigant who used to be a regular at the Forum who used Mr. Roper's suggestions to defeat a bank's judicial foreclosure action and get a dismissal without prejudice. Afterwards, this knucklehead thought he knew so much about foreclosure that he hooked up with some West Coast scam artists and helped them defraud a bunch of borrowers out of thousands of dollars. More importantly, the knucklehead decided to begin speaking at Occupy Wall Street events recounting how he "beat the bank". The lender never bothered to re-file until after his second such appearance, which was televised.

Then, the bank re-filed and had him out of the property in under ten months despite an intervening bankruptcy filing (he had filed twice before).

On the other hand, I know several who followed Mr. Roper's advice who obtained a dismissal and are still in their properties years later. Two are now past limitations. One borrower is coming up on eight years in his property after acceleration in a state where the limitations period is only four years. These borrowers are smart enough to ignore all of the loose talk and scams about "quiet title".

Mr. Roper, a former military man, advises "Get in a good defilade position!". I had to look that up. But it means to get under cover and out of sight, like in a foxhole or bunker. This is very good advice.
Quote 0 0
Pete
Quote:
If I am understanding you correctly, there is nothing for us to gain by submitting QWR(s)?

I doubt that Mr. Roper would categorically tell you to foreswear QWRs, but discovery is usually far more useful. QWRs are better before suit and when not in litigation.

Mr. Roper uses another analogy and I have often heard him describe defending a foreclosure as "walking on a tightrope". There are a variety of ways to fall off a tightrope.

In respect of any issues as to discovery or QWR, you need to be asking yourself precisely what you are hoping to accomplish. What questions do you really need answered to prevail? Mr. Roper speaks of energizing the lender.

If a foreclosure mill law firm has totally forgotten about your case or ceased to pursue it, do you really want to do anything to remind them that they should be actively pursuing foreclosure? If you serve discovery or a QWR, it will almost surely energize your adversaries! They will pull out the case file and someone will be told to obtain a judgment and make the hassle go away.

On the other hand, if you do nothing, as time passes the court may get more and more agitated with the languishing case, which tends to screw up case disposition statistics. After a long period of inactivity, the court may, sua sponte, set the case for dismissal due to failure to prosecute. (You could also make a motion to dismiss for failure to prosecute, but this, too, can energize the plaintiff.)

In some states, a dismissal due to failure to prosecute is a dismissal on the merits, which has res judicata effect.

Suppose that you are scheduled for some sports match or bout with a vastly superior opponent. Further suppose that your opponent fails to show up at the appointed hour. One strategy would be to call your opponent right away to remind him that he needs to show up to pummel you. Another approach is to have a cup of coffee, read the newspaper and wait for the referee or umpire to declare you the winner by default!

Returning to the tightrope analogy, laying low and waiting has some disadvantages, too. When the plaintiff finally realizes that it has overlooked your case and begins again to litigate, the court is very likely to look askance on much protracted discovery if you didn't bother to serve any discovery during the intervening period.

So if you really think that discovery is essential to win your case, you refrain from running discovery at some peril.

Mr. Roper told me an ingenious strategy about this, too. He basically suggested that I hit the other side with a couple of discovery requests and that anytime that the plaintiff was active, to be very energetic about discovery, but any time that the case languished to ease off on discovery. This worked for me!

The real bottom line is that there is no silver bullet or universal defensive litigation strategy that will work in every case. Your strategy needs to be designed to fit the unique needs of your case. If you can win dismissal without discovery, keep quiet. If discovery is essential to your case, prepare the discovery and carefully weigh when to send it, since this will energize the other side. At the very least, you should have prepared a really strong discovery request to serve at the very first hint that the plaintiff is showing renewed activity.
Quote 0 0
sheen
Thanks Pete, you guys have given me much food for thought. I was all for "laying low" but became a bit unnerved when I was informed that the mortgage had been sold. And that to a company that appears to make it's hay by purchasing notes on the cheap, foreclosing and then sellling the property.

Since there still has not been a ruling on our motion to dismiss, I think I'll wait until we are compelled to answer and utilize the time to work on our defense.
Quote 0 0
Veal
as an aside: William A. Roper Jr made clear, when discussing the issue of sj, that outstanding discovery will always forestall the fraudster a quick sj.  Again, 'the tightrope', I have read cases where the defendant did file discovery, the fraudster bank never responded, the defendant did not follow-up with a motion to compel, the court declared it a 'moot' issue, sj to fraudster bank!  
Quote 0 0
Brock
Quote:
Thanks Pete, you guys have given me much food for thought. I was all for "laying low" but became a bit unnerved when I was informed that the mortgage had been sold. And that to a company that appears to make it's hay by purchasing notes on the cheap, foreclosing and then sellling the property.

Since there still has not been a ruling on our motion to dismiss, I think I'll wait until we are compelled to answer and utilize the time to work on our defense.

I know one guy whose motion to dismiss wasn't heard for three years. Then the plaintiff voluntarily dismissed. Then they waited a year and refilled.

A change in the owner and/or the servicer can also be an opportunity. A new servicer may have some difficulty in proving up the business records of the old entity.

If the plaintiff files a motion to substitute, this would be an opportunity to jump in and begin discovery. Have the discovery ready. Otherwise, let time pass and get as close to limitations as you can. Every month counts. I know one guy who is nearing eight years and still in his property.

One other point made above as to tightrope. If you could really count on the plaintiff (old servicer and/or foreclosure mill) being asleep at the wheel, there are two other possible strategies, not that I am recommending but urge you to consider.

First, a discovery request including critical requests for admissions could be used to establish key facts. If the plaintiff defaults in answering, you could win the case.

Second, you could move for defensive summary judgment on some basis and if they fail to answer and/or show up you could obtain a dismissal.

I doubt either would work. They might have worked during the interval that the Stern firm was in meltdown in Florida, etc., that is a time of total turmoil. But the very most likely thing is that filing anything of the sort just "energizes" the lender, as discussed above, and they resume concerted actions to foreclose.

So the best strategy is still probably to do nothing. But at every juncture, you need to identify a variety of possible moves and to carefully assess which is the best move under the circumstances!
Quote 0 0
I thoroughly enjoyed reading this thread, given all the useful information that is being shared.  I was recently served with  a Foreclosure action for the second time.  The first was dismissed for lack of Prosecution and the Bank took two years to refile the case.

I have filed a Motion to Dismiss the Plaintiff's Case and will be in a holding pattern awaiting their next move.  On the issue of filing discovery, should I just sit back and wait for some form of action on the Motion to Dismiss?  My concern is, from reading numerous cases, the Bank might, at some point in the future, simply move for a Final Judgment Hearing, without any ruling from the Judge on the Motion to Dismiss.  I guess, I could wait for such a move on the part of the Bank and send out the discoveries then.  Is this the correct posture to take at this early stage of the case?  I'm about fours years into this whole thing, since the first Default Letter was sent over 4-years ago and the first Foreclosure Case was filed roughly 3-years and 8 months ago.  Thanks in advance for any suggestions/feedback.
Quote 0 0
Veal
re: the first action - ?Did you file any discovery?  What motions did you file?

?2: what, if anything, is different from the first complaint when compared to the fraudster's new complaint?
Quote 0 0
Andy
Quote:
I have filed a Motion to Dismiss the Plaintiff's Case and will be in a holding pattern awaiting their next move. On the issue of filing discovery, should I just sit back and wait for some form of action on the Motion to Dismiss? My concern is, from reading numerous cases, the Bank might, at some point in the future, simply move for a Final Judgment Hearing, without any ruling from the Judge on the Motion to Dismiss. I guess, I could wait for such a move on the part of the Bank and send out the discoveries then. Is this the correct posture to take at this early stage of the case? I'm about fours years into this whole thing, since the first Default Letter was sent over 4-years ago and the first Foreclosure Case was filed roughly 3-years and 8 months ago. Thanks in advance for any suggestions/feedback.

If you only just recently filed the motion to dismiss, I would hit the plaintiff with one or two discovery requests immediately. You can use these to gauge their response and also to form a basis for a future motion to compel.

But if the case has been in a holding pattern over your motion to dismiss for some time, then this would be a closer call. If you serve discovery, you will energize the plaintiff.

One question is whether the plaintiff has responded to the motion to dismiss or if this motion is set for a hearing. If the plaintiff has failed to file a timely response, discovery may energize them. By contrast, if the motion is on the calendar for a hearing, then that hearing is going to keep the plaintiff energized.

Whenever the matter is energized, hit the plaintiff with a little more discovery, a motion to compel, a motion for judicial notice, etc. When the matter is languishing let it languish.

As mentioned by others in prior posts, though, a lot depends upon the robustness of your defenses. If you already have a lot of ammunition and some strong basis to prevail, the discovery may be unimportant. If you are grasping for a winning opportunity, discovery may be too important to subordinate to strategic considerations of drawing the matter out.
Quote 0 0
Sandra
@ Veal

1.  The first action was not contested, I did a trial modification for a few months and stop since the monthly mortgage payments was significantly higher than the pre-foreclosure payments.  The first case languished for over a year without any activity and was eventually dismissed for lack of prosecution.  I did not contest that case, so no discovery or any action on my path was taken.

2.  With the new case, they have produced the original note (or what appears to be the original) this time around and drop the Lost Note Count.  The Plaintiff in both cases is not the original Mortgagee.  The Plaintiff took over the original Mortgage through PSA and the note reflects the name of the previous note holder/Lender.  

Also, the Mortgage legal description has an error and the first case had sort to reformation of the mortgage to correct the error.  The new case, chose not to pursue the reformation and use the incorrect legal description in the LIS PENDENS and make no mention of the incorrect legal description.  BTW, the property ownership was transferred (by means of a Quit-Claim-Deed) from Owner A to Owner B, some years ago.  The Note is in the name of the previous owner (A), while the current property Owner is B. Ex-Owner A does not live in the property.  Owner B uses the property as the homestead property.  Both individuals are named as defendants in both old and new cases.  I am only about two weeks into the new filing of the Motion to Dismiss.  

@ Andy:

Since I'm only about a week into the Motion to Dismiss, the Plaintiff has not responded to the
Motion as of yet.  I'm just at the beginning of the new case so no hearing has be yet.
Quote 0 0
Kent
Quote:
If you were sitting in a restaurant with an unpaid tab and no money or credit cards waiting for your steak order to arrive after three beers, would it be better to go over and punch the bouncer in the nose or to wait for the steak to arrive, have three more beers and then try to slip out of the restaurant unnoticed?

LOL

Probably best not to run up the tab too high or otherwise call attention to yourself.  Definitely wait for the maximum crowd.  After finishing the steak, order a pitcher and ask where the restrooms are.  Coming out of the restroom, just keep going right out the door!

There is never really any upside to punching the bouncer in the nose!  Anyway, why do you want to punch the bouncer if his employer is treating you to a free meal and beers?
Quote 0 0
Kent
Quote:
If I am understanding you correctly, there is nothing for us to gain by submitting QWR(s)?

Here is a great question to ask the Lender in your QWR:

Quote:
Your bank initiated foreclosure some time ago, but the case has been languishing.  What can you do to speed up the foreclosure process so that I can qualify to live in a homeless shelter?


Or maybe that question is just implied any time you serve a QWR when the plaintiff seems to have forgotten about your case.

Here is another good question to include on your QWR when the Lender hasn't done anything in your case:

Quote:
I am a pro se litigant.  Is there anything that would be helpful for me to blurt out in correspondence or in an ill conceived pleading, motion or response that will help you overcome the confusion and incompetence of your foreclosure mill attorneys?


There are a lot of possible questions to ask in a QWR, but if you are living in your house payment free and the bank seems to have forgotten about your foreclosure case, these are definitely two questions you might want to include to help the Lender get its case back on track!
Quote 0 0
sheen
Kent wrote:
Quote:
If you were sitting in a restaurant with an unpaid tab and no money or credit cards waiting for your steak order to arrive after three beers, would it be better to go over and punch the bouncer in the nose or to wait for the steak to arrive, have three more beers and then try to slip out of the restaurant unnoticed?

LOL

Probably best not to run up the tab too high or otherwise call attention to yourself.  Definitely wait for the maximum crowd.  After finishing the steak, order a pitcher and ask where the restrooms are.  Coming out of the restroom, just keep going right out the door!

There is never really any upside to punching the bouncer in the nose!  Anyway, why do you want to punch the bouncer if his employer is treating you to a free meal and beers?



So, in keeping with the diner illustration, here is how I am viewing things.  Please let me know where/if my reasoning is flawed.

True, I ran up a tab with the restaurant owner (Bank A).  He did at one time bring this to my attention, requesting that I pay up immediately and involving a 3rd party (the courts) to mediate.  I disputed the amount owed with him and he has subsequently disappeared into his office to either research the matter or attend to bigger, more important things I presume.

I was recently notified that the owner has sold the restaurant to a new owner (Bank B).  From what I gather, this new owner is very exacting and based on my conversations with other customers who had open tabs with the previous owner, he moves quickly to collect the amount he has determined to be due.  I have recently received a notice from the new owner of the amount due with 30 days to dispute.

Since the court has no idea that Bank A has sold the mortgage to Bank B, should I not work to get the case that is currently open somehow dismissed?  My biggest concern (unfounded?) is that if I don't make an attempt to act on the current case, Bank B will eventually file for substititution of plaintiff and SJ simultaneously (as I have read about quite often) and the court will allow the case to move forward without ever ruling on the MTD I originally filed (which I have also read about seemingly quite often).  What card would I have to play at this point?

Since Bank B is currently treating this as a newly past due account and not in conjunction with the pending foreclosure, should I not act toward them outside the current case, disputing the amount owed and requesting proof via QWR?

Again, any insight is appreciated... especially if it is provided in the form of an illustration.
Quote 0 0
sheen
Brock wrote:
If you could really count on the plaintiff (old servicer and/or foreclosure mill) being asleep at the wheel, there are two other possible strategies, not that I am recommending but urge you to consider. First, a discovery request including critical requests for admissions could be used to establish key facts. If the plaintiff defaults in answering, you could win the case. Second, you could move for defensive summary judgment on some basis and if they fail to answer and/or show up you could obtain a dismissal.


Am I able to initiate discovery prior to answering the plaintiff's complaint and before a ruling is handed down on the MTD?
Quote 0 0
Herb
Quote:
Am I able to initiate discovery prior to answering the plaintiff's complaint and before a ruling is handed down on the MTD?

The correct answer is always to carefully consult the rules of your state and the cases on the rules. While I wouldn't want to declare that the answer is universal, I suspect that it probably is.

Usually, a party can initiate discovery immediately upon being named as a party in a case and even before being formally made a party. For example, in many places if someone is named as a party and the service is defective the party can enter a special appearance and is often entitled to discovery in support of a determination of the so-called special appearance. In such cases, it would usually be best to at least file the special appearance first to formally establish that the person is challenging personal jurisdiction before beginning discovery. (Similarly, it is usually better, but not always strictly necessary to enter a special appearance before reaching written agreements with your adversary supported by an order, etc.)

See, for example:

[i]Exito Electronics Co., Ltd. v. Trejo, 142 S.W.3d 302 (Tex. 2004)[/b]
http://scholar.google.com/scholar_case?case=5606128012000519882

Bear in mind that this is a Texas holding and not strictly binding in other states, but is probably exemplary.

Understand that the key issue in the case wasn't whether the party was entitled to discovery, which wasn't in doubt, but rather whether by initiating discovery that the person or entity waived the jurisdictional challenge and became a party.

Thus, I am simply mentioned by was of caution that where personal jurisdiction is in doubt and subject to challenge, it would probably usually be better to first make the challenge before initiating discovery, but might not be necessary to do so.

Also, realize that in many places there is even an avenue for initiation of discovery in advance of suit to determine some facts upon which to base a suit.

Read the rules for your jurisdiction to be sure. You need to do this carefully to properly craft and serve discovery anyway. But by the time one has filed a motion to dismiss, which in most places would involve raising any challenges to sufficiency of process or sufficiency of service, or else these would be waived, you are probably already past the personal jurisdictional issue.

Thus, the answer is almost certainly that you are entitled to conduct discovery and probably ought to do so. Take the time to carefully read some of the other prior posts on discovery and make sure you get the discovery right.

In particular, I would caution you to exercise exceptional care in judiciously choosing discovery questions. Those who present a long list of poorly worded and marginally relevant questions risk incurring the judge's wrath when seeking an order to compel. You will be playing into your adversary's hands if you ask too many questions or go off in too many wingnut directions. The plaintiff is almost always going to resist discovery when up against a pro se litigant because they are going to know that you do not know how to respond to enforce your rights and a pro se litigant is never entitled to attorneys' fees as a sanction for non-compliance. To put this another way, there is NO PENALTY for the plaintiff to engage in egregious discovery abuse, so they always will.

Where you want to be the first time you are standing in front of the judge on a motion to compel is to have in front of the court an exceptionally short list of singularly focused and relevant questions that the judge can clearly see are directly relevant to the case. If you can beat the plaintiff on this first request, the plaintiff isn't going to want to be standing in front of the same judge a second time on a second discovery violation.

If you just grab some long winded and unfocused request off the Internet, the plaintiff will object to everything, claiming that the discovery is unduly burdensome, oppressive, etc., and the judge will sustain the objection. Then you will get no further compliance and will learn nothing at all.
Quote 0 0
Write a reply...