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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Cindy
Concerning piggyback 80/20 purchase financing, if homeowners win the first mortgage foreclosure, would they likely be on the hamster wheel again with a second-mortgage foreclosure from the same servicer?

Another question, with the piggyback loan, is the second part of the financing considered a second mortgage (in the traditional sense of tapping equity) when it is closed at the same time? I read somewhere that different rules for debt collection apply for secured home equity loans or second mortgages than those that apply to a first mortgage.
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    I have researched your question, since it is of concern to many of my clients. The answer depends upon whether or not they included the second mortgage in the initial foreclosure. Sometimes, the plaintiff will include a count II or III to include the second mortgage. if this happens, and the case
gets dismissed,it would probably apply to both mortgages.
    On the other hand, if the plaintiff only sues on the first mortgage, then
a dismissal would not effect the second. If the first gets dismissed twice,then they can't file again and the second would fall into first place
at least as far as I can tell.
     So what this may mean, is one should try to cram down the second to
say 20 cents on the dollar, before doing battle with the first Note holder
if you think you have a good defense against the first because the second
will fall into first place. Seconds usually are easier to prove because there
was not as much fraud involved, ie they were harder to sell on the secondary
market so no counterfeits were made. When a second sues, they usually have all the paper work they need to win the case. At least that has been
my experience, which is not very extensive, since it does not happen very
often.
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William A. Roper, Jr.
Quote:
Mike H. said:
On the other hand, if the plaintiff only sues on the first mortgage, then a dismissal would not effect the second.  If the first gets dismissed twice, then they can't file again and the second would fall into first place at least as far as I can tell.


Mike H. is mistaken that this is the rule everywhere or even the rule in very many places.

If a case is dismissed without prejudice, it can be refiled.  Several states have rules that preclude refiling of a case voluntarily dismissed more than once.  Most do not.

When a case proceeds to a final judgment and is dismissed on the merits, it usually cannot be refiled due to res judicata.

As a practical matter, Mike's statement may turn out to be true even if it is not legally required.

Very often, a defendant properly pleading standing can get a case dismissed for lack of jurisdiction.  This would usually be a dismissal without prejudice, allowing refiling.  It would be unusual for a case to be dismissed a second time on standing, though not impossible.  It would also be unusual for a plaintiff to voluntarily dismiss the refiled case.  So usually the second time around the case would be decided on the merits.  But IF the plaintiff voluntarily dismissed the second case, the plaintiff could still usually refile a third time unless precluded by limitations or some other impediment in most jurisdictions.  But I am not aware of any case that has been litigated in this way three times. 

ALWAYS CHECK THE STATUTES, RULES AND CASES ON THE STATUTES AND RULES FOR YOUR JURISDICTION.  DO NOT ASSUME THAT SOME ASSERTION ABOUT THE LAW POSTED AT THIS MESSAGE BOARD NECESSARILY APPLIES IN YOUR JURISDICTION.  IF THE ASSERTION OF LAW IS VALID, IT CAN BE SUPPORTED BY A VALID STATUTORY, RULE OR CASE CITATION!
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William A. Roper, Jr.
Another note is also in order as to the implications of actually winning the foreclosure suit on the first mortgage.  (This is so rare that there are but a handful of examples.)

In many states, a dismissal of a foreclosure suit may bar the remedy by res judicata, but it does not necessarily extinguish the debt.

This is a very common misconception by pro se litigants.

Put another way, the Lender may be precluded from suing on the note again or foreclosing, but this does NOT mean that the debt has been extinguished.  Its collection is merely barred.

While this may preclude the servicer and purporter mortgage investor from making further trouble and interfering with the borrower's quiet enjoyment of the property, it does NOT necessarily entitle the borrower to a release of the first mortgage.

So the borrower may find that he or she is unable to sell the property, at least for a few years, or might have to sell the property at a discount because the holder of the mortgage is not required to record a release of lien.

A prospective buyer may find himself unable to obtain title insurance and without at least a lender's title policy, no lender will lend on the security of the property.

So the victorious home owner can probably remain in the property and could leave and rent the property out.  But selling the property might prove to be problematic, at least for a little while.

The borrower could certainly record a copy of the judgment.  Similarly, the borrower could record any notice of acceleration.  The former would generally seem to demonstrate res judicata in respect of the suit.  The latter might demonstrate a limitations bar.

After the maturity date of the recorded mortgage or deed of trust, it is usually presumed to be released.

How a title company views the strength of title will vary from jurisdiction to jurisdiction.

The property might be most marketable to an attorney specializing in real estate and paying cash.  Limited marketability will impair the property's value.

But the borrower winning on the merits enjoy the property free on monthly mortgage payments.

Mike's assertion that the second lien holder would have priority is also technically incorrect.  In most places, the first lien holder would retain priority, but would be unable to enforce the lien by suit.  It is UNCLEAR where the first lien holder would stand in a foreclosure suit brought by the second lien holder.

Usually a foreclosure by a junior lien holder does NOT clear the senior lien.

So a purchaser at a sale conducted in respect of the junior lien might take the property subject to the first lien.  Interestingly, in many places, res judicata only bars suits between the same parties or assignees of the original parties.  Whether the first lien holder could assert rights in a suit against a purchaser of the property at auction under the second lien is an interesting question.

Mike's explanation is a very shallow and gross oversimplification.

I would be interested in hearing from attorneys at the Forum as to their views on this.
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Cindy
This gets really interesting when MERS is named a defendant in the first mortgage suit--supposedly because MERS is the mortgagee of the second mortgage, too.

As most know, in those cases, defendant MERS assigns the first mortgage to the servicer so it can sue MERS, who is also the mortgagee of the second mortgage, which is serviced by the same servicer suing. (Absolutely insane!)

Further complicating this issue in one case I know about, a notice of transfer was delivered by mail, well after the foreclosure commenced. It stated that the second loan had been transferred to a bank that a QWR response letter from the servicer had already identified as the investor/owner of the note. 

The second mortgage is alleged to be in default, so if it is, and the loan was transferred to the investor well after it was alleged in default, does that mean the investor would become a debt collector of an unsecured debt? The servicer remained the servicer.

Knowledgeable input would be appreciated.

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     Right now, I am recruiting "underwater homeowners" whose first mortgage
is with a "dead lender" and where the first mortgage was a MERS mortgage.
What we are doing is filing "quiet title" actions.
      The idea is that it is better to go on the offensive and get the matter dealt with once and for all, especially if the homeowner knows he/she will
face foreclosure in the near future anyway due to a drop in income or some
other problem.
       I am working with an attorney who has a track record of winning quiet
title actions. i do the preliminary work and then I send the case to him for
execution of the quiet title action.
       There is little point in playing defense anymore. The fraudulant nature
of all MERS mortgages is now well known, so why wait around to get sued,
go on the offensive and sue the originator, MERS and the servicer. This
should change the whole ball game.
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Bill

Mike H wrote:
     Right now, I am recruiting "underwater homeowners" whose first mortgage
is with a "dead lender" and where the first mortgage was a MERS mortgage.
What we are doing is filing "quiet title" actions.
      The idea is that it is better to go on the offensive and get the matter dealt with once and for all, especially if the homeowner knows he/she will
face foreclosure in the near future anyway due to a drop in income or some
other problem.
       I am working with an attorney who has a track record of winning quiet
title actions. i do the preliminary work and then I send the case to him for
execution of the quiet title action.
       There is little point in playing defense anymore. The fraudulent nature
of all MERS mortgages is now well known, so why wait around to get sued,
go on the offensive and sue the originator, MERS and the servicer. This
should change the whole ball game.

I think IF homeowners would file a quite title action prior to foreclosure it would cause many problems for the banks.  The problem is a lack of information.  Most of the time no one even thinks about foreclosure defense, quite title, ect.. until they are IN foreclosure.  Some don't even know it exists WHILE in foreclosure and just fail to answer. 

I think if EVERYONE that had a foreclosure complaint filed put out some kind of ANSWER this would tend to gridlock the court system.  Just a basic motion to dismiss, followed by an answer, basic discovery, and a proper opposition to summary judgment would drag the court systems into years of backlog.  Rather than a 6 month foreclosure time line for example, maybe the average foreclosure would last 18 months.

I am still learning about the Non-Judaical procedures, but this to me, would seem the way to go.  A quiet title suit would seem to be a way to get your arguments before a judge.  ANYTHING is better than just letting them do a Non-Judicial sale.   



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William A. Roper, Jr.
Mike H.'s suggestion above regarding quiet title actions is not entirely without merit, particularly in the non-judicial foreclosure states, but is also certainly a double edged sword.

It is absolutely true that bringing a quiet title action against the originating Lender, without naming MERS (OR by naming MERS and hoping for incompetence) could result in a default judgment against the original Lender, especially where the Lender is no longer in business.

Appelate court decisions in Arkansas, Kansas, and Indiana are at least somewhat supportive of the view that if MERS is merely nominee of the original Lender, serving that Lender is enough.  There is also a similar decision in New York State.

But these decisions mostly pertain to MERS being named by someone other than the borrower.

Where a quiet title judgemnt has been obtained, it has sometimes been sustained, particularly when MERS shows up at the party late in seeking to have the judgemnt overturned.

*

By contrast, this is NOT a viable strategy where the borrower is already being sued by the alleged mortgage investor in a judicial foreclosure state.  Its viability in non-judicial foreclosure states is suspect once the non-judicial sale has been completed.  And if the non-judicial sale was actually so defective as to have created a VOID DEED, the borrower MIGHT be better off in some places waiting out limitations on the note.

*

There is another rather serious DEFECT in the strategy, though it wouldn't necessarily preclude exploring it.  Particularly in judicial foreclosure states, the purported mortgage investor/plaintiff has the burden of proofIn any quiet title action the borrower/plaintiff will carry the burden.

It is one thing to get a default judgment when the original Lender or MERS fails to answer.  It is another matter entirely to plead and prove a successful quiet title case.

*

Those with some military experience will recognize that both defense and offense have certain advantages.  The defense is often in a much more secure position and able to use natural terrain and hardened battle positions against an opponent that must expose himself, become decisively engaged and assail the defender.  The defense often has this advantge.

By contrast, the party taking the offensive position has some greater freedom of maneuver and more choice as to the precise place and time of battle.

If one goes on the offense, one assumes the burden of proof.  And the result is going to usually turn out to be binding in any future defensive battle.

If a defender can sally forth and conduct a daring and successful raid, obtaining a default judgment, this could be a success.  By contrast, if a borrower goes forth and brings the action and then becomes decisively engaged in a protracted battle, this is almost certainly going to prove to be a major blunder, even folly!

Without ANY knowledge of Mike's precise arguments or the experience of the attorney with whom he claims to collaborate, I would counsel at a minimum CAUTION.  I would usually view a quiet title action IN ADVANCE of any foreclosure litigation to be viewed within the context of a "daring raid", like the SEAL mission to take out Osama in Pakistan.  But if the Lender or MERS were to answer and put on a good defense, I would NOT usually suggest becoming decisively engaged UNLESS you have developed through some specific unique facts of YOUR case some very strong evidence.  I would NEVER voluntarily litigate such a suit on mere conclusions and suspicions.

In many places, a plaintiff can voluntarily dismiss a cause of action.  That is, one could raid and then retreat.

You do NOT want to undertake a dangerous raid and then try to stand and fight against overwhelming odds.  It is better to find a good secure defilade position from which to defend.
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Cindy
Mike,

Is this quiet title action the plan addressed in Dave Krieger's book?

I think it's called Clouded Titles?

(FYI: I am not affiliated in any way with the book or the author.)



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    I know the QT idea has been around for awhile but few truly understand why it should be a winning strategy because they still don't see the big picture,ie they don't understand the true nature of why MERS was created in the first place. They still believe media propaganda that MERS was created so that investors could buy and sell Notes among themselves more easily thus providing liquidity to the mortgage Note market. In other words they want the "proles" to believe that the Notes are real. They want you to believe that this financial mess was caused by borrowers defaulting on their loans. None of this is true.
    An example of the truth can be found in the Mortgage Daily edition of 12/28/10 "Ally settles repurchase obligations on $84 billion in loans" "The
deal, which calls for a $462 million cash payment, impacts all mortgages serviced by GMAC Mortgage LLC on behalf of Fannie as of June 30." My take on this is that Ally settled with the investors (pension, insurance, & money
market funds) for less than 1 cent on the dollar! Where did the other 99cents
go? It was stolen, that's where it went! Who replaced this stolen cash to
prevent the funds from going bankrupt? Answer: The US government with
TARP funds and the Fed by "quantitative easing" ie replenish the funds accounts with freshly created cash.
     How could this have happened? I have said it before in this blog. The
originators (some using phony names) sold the same Note multiple times to
different investors in these Note pools. They made such rediculous loans because they could care less if the borrower ever paid it back. Their objective was to rob the savings accounts of Americans and move the cash
offshore where they most likely converted it to gold bullion so it couldn't be
traced. It was the biggest heist in world history! It was organized by certain
elements on Wall Street and shipped to a certain foreign Nation.
      The servicing rights (read foreclosing rights) to these Ponzi loans was
sold to the servicers for a pittance. The real profit for the servicers is in
getting a "free house" each time they foreclose, since they have no equity
in it. But they have a big problem, THEY DON'T REALLY OWN THE LOANS!
Therefore, they have no choice but to fabricate, forge and counterfeit docu-
ments in order to push the foreclosures through. This is why if you examine
let's say a hundred foreclosure files at random, at least 75% contain forged,
counterfeit or phony documents. The foreclosure mill attorneys are given the
task of proving the unprovable so they must "improvise" to sneak it past the Judge. Up until now, the Judges trusted them but with all the brouhaha about
phony documents, some are starting to see the "big picture".
      MERS was invented to hold the Mortgage Deed for the multiple investors
who own a COUNTERFEIT NOTE corresponding to that mortgage deed. It
prevents the investors from realizing that more than one investor THINKS he/she owns the one and only Note on a specific property.
      This is why a Quiet Title action will be a powerful weapon capable of putting the "pretender lenders" out of business. When sued in a Quiet Title
the "dead originator", MERS and the servicer will not be able to prove they
own the loan! The next question to the servicer will be, "if you don't own the
loan, who does? And where have my payments been going? The answer must
be that the servicers have been banking and keeping the borrowers payments. Which leaves them open to a further lawsuit for theft of funds
from the homeowner. This is why they usually default and you never hear
from them again. AMERICA, LIBERATE YOURSELF. BREAK THE CHAINS OF
FINACIAL SLAVERY AND TAKE BACK YOUR COUNTRY. QUIET TITLE NOW!
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William A. Roper, Jr.
Now that Mike H. has clarified the basis for his quiet title defense, ALL I can say is steer at least 2,000 miles clear of this guy!  His most recent post reflects the fact that he is actually NUTS!!

As I stated in my prior post, IF a borrower is in a situation where MERS is the mortgagee of record AND the originating Lender is OUT OF BUSINESS and has surrendered its corporate charter, it MIGHT be a viable stategy to bring a quiet title action to seek a quick judgment, particularly in a non-judicial foreclosure state.  But such a suit should probably be voluntarily dismissed if answered.

Anyone who wants to assume the burden of proof to support Mike H.'s allegations in a court anyway in the United States rather than assuming a defensive position in either state court or U.S. Bankruptcy Court is clearly INSANE!  Moreover, if they go into court hoping to prove this drivel, they probably DESERVE to lose their home.
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Texas
"MERS was invented to hold the Mortgage Deed", about as close as I can agree with.
I would listen to Roper regarding the "Mike H" scenario.
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    There is an old expression I like to quote, "In the land of the blind, the one
eyed man is called crazy, because he sees things the others can not see."
    This is what I see. Every person who is upside down and underwater on their MERS mortgage can wait to get foreclosed on, or they can be proactive
and attack the "pretender lenders" with a "quiet title" action. The only thing
you have to lose, are the chains that bind you in debt slavery!
    The "nay sayers" simply have not yet removed the "blinders" of propaganda which prevent them from seeing the clear path to victory and
national liberation.But I thank them for creating this forum where opposing idea can be exchanged.
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Bill

Mike H wrote:
    I know the QT idea has been around for awhile but few truly understand why it should be a winning strategy because they still don't see the big picture,ie they don't understand the true nature of why MERS was created in the first place. They still believe media propaganda that MERS was created so that investors could buy and sell Notes among themselves more easily thus providing liquidity to the mortgage Note market. In other words they want the "proles" to believe that the Notes are real. They want you to believe that this financial mess was caused by borrowers defaulting on their loans. None of this is true.
    An example of the truth can be found in the Mortgage Daily edition of 12/28/10 "Ally settles repurchase obligations on $84 billion in loans" "The
deal, which calls for a $462 million cash payment, impacts all mortgages serviced by GMAC Mortgage LLC on behalf of Fannie as of June 30." My take on this is that Ally settled with the investors (pension, insurance, & money
market funds) for less than 1 cent on the dollar! Where did the other 99cents
go? It was stolen, that's where it went! Who replaced this stolen cash to
prevent the funds from going bankrupt? Answer: The US government with
TARP funds and the Fed by "quantitative easing" ie replenish the funds accounts with freshly created cash.
     How could this have happened? I have said it before in this blog. The
originators (some using phony names) sold the same Note multiple times to
different investors in these Note pools. They made such rediculous loans because they could care less if the borrower ever paid it back. Their objective was to rob the savings accounts of Americans and move the cash
offshore where they most likely converted it to gold bullion so it couldn't be
traced. It was the biggest heist in world history! It was organized by certain
elements on Wall Street and shipped to a certain foreign Nation.
      The servicing rights (read foreclosing rights) to these Ponzi loans was
sold to the servicers for a pittance. The real profit for the servicers is in
getting a "free house" each time they foreclose, since they have no equity
in it. But they have a big problem, THEY DON'T REALLY OWN THE LOANS!
Therefore, they have no choice but to fabricate, forge and counterfeit docu-
ments in order to push the foreclosures through. This is why if you examine
let's say a hundred foreclosure files at random, at least 75% contain forged,
counterfeit or phony documents. The foreclosure mill attorneys are given the task of proving the unprovable so they must "improvise" to sneak it past the Judge. Up until now, the Judges trusted them but with all the brouhaha about phony documents, some are starting to see the "big picture".
      MERS was invented to hold the Mortgage Deed for the multiple investors who own a COUNTERFEIT NOTE corresponding to that mortgage deed. It prevents the investors from realizing that more than one investor THINKS he/she owns the one and only Note on a specific property.
      This is why a Quiet Title action will be a powerful weapon capable of putting the "pretender lenders" out of business. When sued in a Quiet Title
the "dead originator", MERS and the servicer will not be able to prove they own the loan! The next question to the servicer will be, "if you don't own the loan, who does? And where have my payments been going? The answer must be that the servicers have been banking and keeping the borrowers payments. Which leaves them open to a further lawsuit for theft of funds from the homeowner. This is why they usually default and you never hear from them again. AMERICA, LIBERATE YOURSELF. BREAK THE CHAINS OF FINACIAL SLAVERY AND TAKE BACK YOUR COUNTRY. QUIET TITLE NOW!


Mike,

You posted a very relevant quite title post, then continued to turn it into a script from the TV show the X-Files.  As soon as you suggested that the "notes" are not real, I was waiting for Mulder and Scully to begin their investigation.  

1.  Suggesting that the notes that people signed to purchase a home that they enjoy and live in are not "REAL" is just STUPID, is not based on fact or law, and should NEVER be argued.

2.  IF there were multiple investors all claiming to own your note, WHY aren't we seeing these MYSTERY owners coming forward and challenging the foreclosure judgment claiming an interest?  If I owned a note and stopped getting my payments I'd try to foreclose.  Why aren't these MYSTERY owners doing so?  The trust does own the loan, they just have a PROOF problem because of shortcuts.  There are only a handful of cases that these trusts FAILED to prove ownership.  Most of the problems and dismissals come from the PROVING of fraud.  AN averment of fraud will NOT BE SUFFICIENT.  YOU WILL HAVE TO PROVE THE FRAUD.  You will need to use EFFECTIVE discovery to box the Plaintiff in.  It's not WHAT YOU KNOW, IT'S WHAT YOU CAN PROVE.

3.  MERS and the Servicer don't need to prove they own the loan.  Very rarely do they claim that they do own the loan.  The Servicer and MERS are ACTING AS AN AGENT OF THE OWNER which is 100% legal.  Having an agent act for you is nothing new.

Maybe soon, Mulder and Scully will find that the government is using a secret black ops group to STEAL all of the notes and funneling the property rights to aliens before their takeover so they can squat in our homes until foreclosures are complete.  But until they brings these facts to the FBI, I think it's best that we stick to the PROVEN foreclosure defense tactics that have case law to support them. 
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George Burns
Mike H

There are pros and cons for any rational position and it is our inaliennable right to have an opinion, rational or not. Each situation has its own particular set of facts and circumstances, so what might be good in one case might be inapplicable in another.

There should no "side" to take, but there are questions to be asked.

Personally, my experience of over 20 lawsuits along with research and fairly extensive reading, makes me prefer to be a Defendant in most lawsuits, especially foreclosure related, rather than to be the Plaintiff. I find it easier to defend against and punch hole into an attack, than it is to have to bear the burden of proof and other liability as Plaintiff. That is MY personal preference.

I wonder why you think it either easy/easier in a Quiet Title action?
Have you seen any or many victories in cases with the fact pattern that you gave, of the Homeowner who is not in default, where the Homeowner files?
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Personally, my experience of over 20 lawsuits along with research and fairly extensive reading, makes me prefer to be a Defendant in most lawsuits, especially foreclosure related, rather than to be the Plaintiff. I find it easier to defend against and punch hole into an attack, than it is to have to bear the burden of proof and other liability as Plaintiff. That is MY personal preference.

The above statement is true.  Having been the Plaintiff in a mortgage case for over three years now I can say without hesitation that initiating such a lawsuit must be done with considerable thought and deliberation.  It is easy to stand on a park bench and scream the words 'fraud' over and over.  While most likely true, proof of fraud, at least in Arizona, is no easy matter.

Our Arizona courts have for decades laid out the elements of fraud.  If you fail to prove each of these elements, you will surely lose a motion for summary judgment by the defense and quite possibility a motion to dismiss based upon your inability to notice your claim with sufficient particularity.

Here are the nine elements of fraud you must prove, at least in Arizona.  Other jurisdictions may have elements substantially the same.

(1) a representation;
(2) its falsity;
(3) its materiality;
(4) the speaker’s knowledge of its falsity or ignorance of its truth;
(5) the speaker’s intent that it be acted upon by the recipient in the manner reasonably contemplated;
(6) the hearer’s ignorance of its falsity;
(7) the hearer’s reliance on its truth;
(8) the right to rely on it;
(9) his consequent and proximate injury.

Each of these elements has a high burden of proof.  In a criminal case conviction based upon proof beyond a reasonable doubt is the controlling burden.  In most civil cases the burden for proving responsibility is generally preponderance of evidence.  However, the common law tort of fraud, versus contract fraud, again in Arizona, carries the higher burden of clear and convincing.  Why you may ask is there a higher burden for a fraud based on tort?  The courts have reasoned that allegations of fraud carry a societal burden, i.e., that guy is a thief; he is a liar; he defrauded all those people!  Because of the damage to reputation the burden is higher than contract civil cases.

How does this impact your case?  If you are a defendant, you need to prove that one of the elements of fraud does not exist.  However, as a plaintiff you have to prove each and every one of the nine elements. 

My point - it is easy to say you have been defrauded but the bar to proving it is enormous.

Here are some cases on fraud 'proof':

“Fraud may never be established by doubtful, vague, speculative, or inconclusive evidence.” Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982) (quoting In re McDonnell's Estate, 65 Ariz. 248, 253, 179 P.2d 238, 241 (1947)).

“Fraud must be proven by clear and convincing evidence.” Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, 985 P.2d 556, 562 (App. Div. 1, 1998) (citing Rice v. Tissaw, 57 Ariz. 230, 237, 112 P.2d 866, 869 (1941)). See also Elliott v. Videan, 164 Ariz. 113, 116, 791 P.2d 639, 642 (App. Div. 2, 1989).

Here are cases on fraud damages:

“[P]unitive damages are not recoverable in every fraud case, even though fraud is an intentional tort.” Rawlings v. Apodaca, 151 Ariz. 149, 162, n.8, 726 P.2d 565, 578 (1986).

“‘[C]onsequential damage’ is a proper measure of damages in a fraud action and that the defrauding party may not limit the proof of damages to the benefit of the bargain, a type of proof which at times may be difficult to present.” Ashley v. Kramer, 8 Ariz. App. 27, 31, 442 P.2d 564, 568 (App. 1968).

Here are cases on fraud defense:

“The existence of public records is no defense to fraud.” Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, 541, ¶ 23, 5 P.3d 249, 255 (App. Div. 1, 2000).

“One who has intentionally deceived another to his prejudice is not to be heard to say, in defense of a charge of fraud, that the innocent person ought not to have trusted him, unless such trust in manifestly unreasonable.” United Ben. Fire Ins. Co. v. First Nat. Bank of Ariz., 1 Ariz. App. 550, 553, 405 P.2d 488, 491 (App. 1965).

I am not a lawyer - these are merely my opinions.


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    Many objections have been raised to my theory that QT is the way to go
if certain parameters are met. (MERS, dead originator, pretender lender servicer). Right now, playing defense results in about a 95% win ratio for the
servicers. (By the way I am in the 5% who won playing defense and by "win"
I mean I got the cases dismissed.)
    In reflecting back on my experiences, I truly believe that if I knew then, what I know today, I would have been much better off iniating a "quiet title"
action against the servicer (pretender lender) than waiting for them to sue
me.
     A quiet title action provides finality to the issue, that one does not get
with a mere "dismissal", because even after you get a "dismissal", the title
to your property is still "clouded" so you are going to have to do a QT anyway, so why not just be proactive and do it BEFORE YOU GET ATTACKED!
     Also, why wait until you've lost your job or suffered some other disaster
in life and then be forced to play defense when you can least afford it and when the probability of losing is 95%. It is much better to attack the pretender lender servicer when you are employed, healthy and strong. Your
odds of winning are much higher because you are not in distress.
     "First my neighbor lost his job, but I still had mine so I didn't really care.
Then men with badges and guns came to his house with papers telling him
to pay up or get out. Since I was current on my mortgage, it didn't effect
me so i didn't think much about it. Later, the men with badges and guns
came back and put him,his wife and kids and all his stuff out on the curb.
I felt bad for him and helped him store his stuff and gave him $10 gas money
but really, it didn't effect me directly, so I didn't really care. I saw him a week later, he was living in his car with his wife and two kids. I gave him
20 bucks for food and gas and said to myself, that's a real shame, but I didn't really care, I still had my job, my bills were paid and I really didn't care.
      Then one day, I got a pink slip in the mail. They were closing the plant.
Now I was worried. Six months later, my unemployment checks ended. Nine
months later I was in foreclosure. I thought back to that blog by Mike H
and how he mentioned it was all a Ponzi scheme, but I really didn't understand it. I thought he was just some Commie pinko dead beat who was
trying to get people to renege on their just debts.
       Now I'm living in my car, I wish I could remember what Mike H was
saying but now I'm in such distress, I can hardly think straight. By the
way, Buddy can you spare a fiver so I can buy a gallon of gas?
    
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Right now, I am recruiting "underwater homeowners" whose first mortgage is with a "dead lender" and where the first mortgage was a MERS mortgage. What we are doing is filing "quiet title" actions.
The idea is that it is better to go on the offensive and get the matter dealt with once and for all, especially if the homeowner knows he/she will
face foreclosure in the near future anyway due to a drop in income or some other problem.
       I am working with an attorney who has a track record of winning quiet
title actions. i do the preliminary work and then I send the case to him for
execution of the quiet title action.
       There is little point in playing defense anymore. The fraudulant nature
of all MERS mortgages is now well known, so why wait around to get sued,
go on the offensive and sue the originator, MERS and the servicer. This
should change the whole ball game.
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Mike, how can I get you to contact me. We're not in foreclosure and are VERY interested in this approach, because we fear a coming global collapse and skyrocketing interest rates on our 1st mortgage ARM with BAC! 
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