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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Hi everyone

I wish all of you a Happier New Year in 2008. 

I sent the RESPA letters and received a call from Freedom Mortgage's In house Council.
When we were at Our attorney's today we called Freedom's attorney back on speaker phone, Boy did he talk!  First off Freedom is our "Servicer" Loan Care is a "Sub-Servicer" and he thought (his words) Freddie Mac or Fannie Mae might  be the mortgage holder.  It was very interesting to say the least.  WAR, you are so on the money on this one  your help has been so appreciated.  Want to start a business helping others?  I am a hard working Secretary...

SO, needless to say our counter claim is we DENY everything stated in the Foreclosure. Hopefully, the judge will throw things out.  I just wish we had the money or knowledge or an attorney to work Pro-bono and BLOW this case wide open and set in motion precedence for others. (I want to file a counter claim for fees and damages)   They are scrambling to Cover their tracks,the Fraud is so apparent, it would make a Great Story. 

Today was hard...Our Son left for Afghanistan, Attorney's, Bankruptcy talk, Work was crazy ( I work at a College and Winter quarter starts Monday) but I can close my eyes tonight and know I see a bit of light in a very long tunnel. 

Be Well,

Julie 


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Julie:

I am delighted to hear that things are going well for you!  But bear in mind that despite what APPEARS to be some constructive interaction with the plaintiff's attorney, these FORECLOSURE MILLS will LULL YOU AND YOUR ATTORNEY into a sense of COMPLACENCY.  Your attorney is no doubt BUSY and he wants to MINIMIZE your legal expense.

He can probably do this by simply filing a "general denial", without having to PLEAD any other specifics.  That sounds as though what he might be planning on doing when you say that he will "DENY everything".

But in many jurisdictions there are actually some defenses that must be EXPLICITLY PLEADED and also sometimes particular defenses must be pled in a verified pleading.  For example, in Texas a plea denying capacity must be made explicitly in a verified pleading.  Failing to do this in Texas WAIVES the argument.  I do NOT know what the law is in this regard in Ohio.

For that matter, in most states EQUITABLE DEFENSES from the equitable maxims must be EXPRESSLY pled and PROVED.  For example, you might consider pleading the equitable defense that the plaintiff has NOT DONE EQUITY ("He who seeks equity must DO equity").  And separately it seems to me that you really need to expressly plead the Clean Hands Doctrine.

Now, KNOWING NOTHING about Ohio law or the Ohio Rules, it is ALSO true that you DO need to timely ANSWER so that no default judgment is taken.  I am SURPRISED and ALARMED that you haven't answered ALREADY.

A general denial is FAR BETTER than losing by default in failing to appear.

Some states are generous in allowing amended pleadings without requiring Court permission.  Other states REQUIRE that permission be obtained in amending pleadings.

Where pleadings CAN be amended liberally, filing a general denial IMMEDIATELY and then amending it to include other specific defenses is precisely the RIGHT strategy.  It gets an answer in precluding DEFAULT.  And that answer can be tuned up later.

I am NOT trying to pick fights with yoru lawyer or undermine your CONFIDENCE in your lawyer.  But it is a GOOD IDEA to ask questions and to understand precisely what is being done and on what schedule.  It will also be HELPFUL to your lawyer if YOU are able to develop SPECIFIC written issues and questions and to ORGANIZE your case information for him.

I would encourage you to MAKE A LIST of the REAL DEFENSES you want to interpose in a THOROUGH pleading to include counterclaims and requests for sanctions.

Consistent with that suggestion, you might want to take a look at my most recent posts within the discussion thread "Some Interesting Recent Ohio Cases on Standing" and in particular the posts of TODAY [Thursday, January 3, 2008] at 09:45 PM, 09:52 PM and 09:56 PM (http://www.websitetoolbox.com/tool/post/ssgoldstar/vpost?id=2393763).  Therein you will see some very general suggestions on counterclaims and sanctions.

There is one REALLY COMPELLING REASON to IMMEDIATELY TUNE UP YOUR PLEADINGS and ADD a counteclaim.  Your plaintiff OUGHT TO immediately dismiss its suit!  IF THEY DISMISS, YOU WOULD HAVE TO INSTITUTE A NEW SUIT TO COLLECT ANY DAMAGES.  WHEN THEY DISMISS, IT WILL ALSO END ALL DISCOVERY.

HOWEVER, absent a written agreement REINSTATING your loan, YOU WILL STILL BE CONSIDERED TO BE IN DEFAULT and they can always file a NEW FORECLOSURE ACTION.

ALSO, YOU NEED TO GET DISCOVERY UNDERWAY IMMEDIATELY!!  I genuinely believe that YOUR CASE is SO COMPELLING that you CAN get your damages!  And if they PROCEED, I think you can WIN.  So if I was playing YOUR HAND, I would IMMEDIATELY tune up my pleading with counterclaims, initiate discovery and prepare a motion for summary judgment!  The plaintiff's attorney is BUSY!  If you HIT BACK HARD, you can actually WIN and EXTINGUISH the mortgage security instrument COMPLETELY!

This is the LAST information I intend to post on YOUR CASE on this Forum.  You really need to take the specifics OFF LINE!

P.S. -- I have STILL not heard anything from your lawyer!       
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win some , lose some
WAR.  

     do you have an outline or an actual pleading showing the motion for what it is ,  this would help alot of people on this site , since , most attorneys are scumbags , and would rather be bought off in some fashion , then to have to take the time and plead the case , this would be work , something most attorneys don't do

He can probably do this by simply filing a "general denial", without having to PLEAD any other specifics. 


thanks for any input you can offer , someone's case file for example , etc. , etc.    what it does boil down to , is several people with the lack of interest from their attorneys will have to step up to the plate and file this , it's quite obvious from alot of the reading of these stories.
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win some, lose some:

My OWN litigation is poking along...  but I have in mind to AMEND my own pleadings to expressly add a counterclaim as to "malicious use of process" and "unauthorized suit in another's name".  Frankly, this is only to form the basis for additional tort recovery against the plaintiff.  I think that the alleged mortgage indebtedness in our case is already ABSOLUTELY EXTINGUISHED.  But I think that there is some merit in also obtaining a judgment against some of the other bad actors in our case before they go out of business.

I CANNOT give others legal advice.  And pleadings that might be legally CORRECT in Texas may NOT be correct or appropriate in other states.  After my amended pleading is filed, I will consider sharing it with select individuals who so request.  But all of the usual disclaimers ESPECIALLY APPLY.

E-mail me and we can discuss it.  I am NOT inclined to post my pleadings here.  And I think that preparing such a model pleading for others to use would be VERY UNSOUND and cutting it way too close (or over the edge) as to prohibitions on practicing law without a license.  ADVISING people that a legal encyclopaedia identifies a tort related to "malicious use of process" and "unauthorized suit in another's name" and encouraging them to RESEARCH this topic ON THEIR OWN is VERY DIFFERENT from preparing a model pleading and encouraging others to file such a pleading.

This seems to me to be the sort of thing that legal aid lawyers OUGHT TO BE DOING.

I am PRESUMING that you were referring ONLY to the tort counterclaims.  Real property law. pleading and foreclosure practice varies SO WIDELY that I do NOT think that a single model defensive pleading could be developed which would be substantially correct nationally.  Again, what OUGHT TO BE HAPPENING is legal aid lawyers OUGHT TO HAVE DEVELOPED a model defensive pleading for use in each state.

Other than April Charney of Jacksonville Legal AId, I haven't seen much evidence that legal aid lawyers are doing ANYTHING effective in defense of indigent homeowners facing foreclosure.

SORRY! 
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win some , lose some
don't you just love that movie  , my cousin vinny  !

we all can learn some good advice from that movie !

YOU CAN DO IT  !  you just have to put forth the energy and get down on it .  it's amazing what one could do , when you put your mind to it .


thanks     WAR     for the feed back  , i was thinking that there might be boiler plates to help one's ability to press on and help prepare and file on certain motions that would be of help.
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Bishop
JULIE,

You must be careful about answering....procedurally you may have to bring a motion to dismiss BEFORE answering or you may waive the right to bring the Motion to Dismiss.

For example, if you believe that the plaintiff does not own the note and/or mortgage, the proper procedure may be to file a Motion to Dismiss alleging their lack of standing or capacity or both. The evidence you obtain in discovery will be what is needed to prove your case.

However, if you fail to file a Motion to Dismiss and ANSWER instead, you may be waiving your right to allege a lack of capacity or standing.

You should obtain the advice of an attorney familiar with motion practice in your state. That way he will be familiar with procedures to be complied with so you do not trip up yourself.
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I WHOLEHEARTEDLY AGREE with Bishop's most recent post above (3:33 PM).  Procedures as to pleading and practice VARY WIDELY between and amongst the various states.  So while the concepts -- pleading standing and capacity -- can be succinctly summarized in our posts, the METHOD for doing this VARIES.

In many jurisdictions, standing is Constitutional.  For example, in Texas, standing can even be raised for the first time ON APPEAL.  By contrast, in Texas, capacity must be raised in a verified pleading or the issue is considered waived.  Texas has fairly liberal Rules allowing for amendment of pleadings.  This is NOT uniformly the case throughout the country.  And even in Texas, the Courts will sometimes look askance at what are perceived to be untimely arguments.

I was UNAWARE that some states might require that these issues be raised in a motion to dismiss, possibly preliminary to an answer.  I am NOT disagreeing with or disputing this assertion by Bishop.  I do NOT know and am willing to take his word for it on this.  You certainly do NOT want to waive these arguments.  I had earlier expressed the concern that a general denial might not preserve certain defenses that must be expressly pled.

Specifics as to PLEADING your various defenses is best left to qualified Ohio lawyers, as Bishop indicates!

But as important as it is to get your answer CORRECT, is also essential that you file your response ON TIME (if you have been properly served with citation).  In most jurisdictions, a general denial is far better than no answer at all!  And many Courts will look past technical pleading defects if the substance of the argument is clear.  Your Ohio attorney OUGHT TO KNOW! 

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what is real ?

I still take the position , most attorneys are out for themselves and will not forge forward in the right manner and do what is right for their client's. I have personal knowledge of several attorneys doing just this . Only looking out for their best interest .  If you would like to debate me on this , I will surely prove you wrong . an attorney works for the client , not the other way around . when a client tells the attorney to push forward and file motions and discovery , then to find out attorneys sit on their hands , then you have a major problem. !

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Being NEW to this Entire process, forum, jargon etc.  Do any other "lay people"  out there feel as though no matter where you turn you are going in circles?  I am just so DIS-illusioned by anyone who claims to want to help or who offers any advice.  The WHOLE trust issue is the most overwhelming thing I think I have ever experienced. 

I hope I sleep tonight after all...Tomorrow is ANOTHER day.

Julie
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