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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roxdan02
Hello, 

I'm new to the forum, lot's of great info here  

On 2007 I refinanced my mortgage, Washington mutual offered me a "no doc" refinance, first they had a different loan/terms on the HUD statement, fixed rate, etc.
Wamu inflated my income, appraisal/hoem value.   The day of the closing they told me that they had to "put" me on a different type of loan & that it would noe be "home equity line of credit" with a variable rate with a fixed rate option that i had to pay to lock (for a period of 5 years) & then it would turn back into variable, etc.  They didn't give me copies of mu closing docs, they didn't give me a 3 day rescind notice. 
They said they would mail me the docs, & never happened.

Due to medical problems I became disabled & couldn't make payments, I stopped payments on 01,2007 a few months later received a notice of acceleration, my mortgage has an acceleration clause. Wamu filed the lis pendings on 08-20-2008.  They claimed to have lost the note, I contested & they later claimed to have filed the "original" which turned to be a copy.  The case was dismissed on 01, 2011 by the judge due to lack of prosecution, (judge didn't specify on the order if it was dismissed with or without predijuce) 4 months later Chase filed a voluntary dismissal.

Even since then Chase has sent me notices that they intend to accelerate & foreclose, & offered me money if I do a short sale.  They have acted as a debt collector, but have never initiated or re-filed.

I've checked clerks office & no assignments have been recorded, nothing in MERS, Fannie or Freddie, I've tried to see if my loan was in one of Wamu's securitized pools, but haven't had luck finding it on SEC.

If the statute of limitation goes by the default or acceleration day, wouldn't Chase know this & not try to initiate foreclosure proceedings ? If they try can I use the SOL as an affirmative defense & show that the foreclosure is Time Barred ?
and if they don't give me a release of mortgage, would filing a Quiet title claim accomplish this under the SOL ? 

Sorry for the long post. 

Thanks ! 


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Daniel
Search the Forum for other posts on "Limitations".  There has been some great discussion on this topic before.

Here are a few key things to know and understand.

First, limitations does not extinguish or bar the debt.  What is extinguished is the remedy.  That is the holder of the note is no longer entitled to sue under the note and in most places also can no longer seek foreclosure under the mortgage (although this varies).

Second, just because you have gotten past limitations, this does not preclude the note holder from filing a suit.  Limitations is not usually jurisdictional.  Rather, limitations is an affirmative defense.  If you plead it and prove it, you win.  If you fail to plead limitations, the argument is waived.

Third, those who are telling you that you can rid yourself of the mortgage using Quiet Title are lying to you.  This is a scam.  Since the debt is not extinguished by limitations, the lender has a valid defense to any Quiet Title action and this is the equitable defense of "He who seeks equity must do equity."  If you want the lien released, you will have to pay the amount due, even though limitations has passed.  But they are not entitled to sue and win and they are usually not entitled to foreclose.  So you have a pretty good result.

After about five years, the bad credit history should drop off, though they will habitually try to renew this.

Inability to get the lien released also does not mean that you are forever with a mortgage.  The mortgage itself has a term shown in the instrument, usually 30 years.  When you get past this term, the mortgage is ASSUMED TO BE EXTINGUISHED.  Even sooner, you actually might prevail in a Quiet Title action.  Just NOT RIGHT AWAY.

While you have NO LEGAL RIGHT to Quiet Title, once the servicer finally DROPS THE LOAN from its servicing system and collection efforts are abandoned, the question then arises as to WHO IS GOING TO PAY the bank lawyers to DEFEND against a Quiet Title suit.  As long as the bank is carrying the loan in their servicing system, as servicer and agent of the mortgage trust, etc., the servicer has a legal duty to defend in accordance with the GSE Guide or private mortgage trust PSA. 

But once the amount is written off, NO ENTITY IS GOING TO WANT TO GO OUT OF POCKET TO PAY THE COSTS.  Thus, if you WAIT, you MIGHT be able to sue and win.   It is probably better to wait another five or so years according to most experts.  This will NEVER be because you had a legal entitlement to Quiet Title after passing limitations.  THIS IS NEVER, EVER THE CASE.  But if you sue and no one answers, you CAN get a default judgment (because no one showed up to make the equitable argument).

ENJOY your status having gotten past limitations.  There are a handful here at the Forum who have achieved that with Mr. Roper's help.  There are also a lot of homeless swindlers peddling various scams.

Oh, by the way, if you file a Quiet Title suit and LOSE, you WILL have to pay the bank's attorneys' fees, even though you are past limitations on the note.  See Paragraph 9 of your mortgage.  Since this is a NEW amount incurred which wasn't included in the acceleration, you are stuck with it.  Also, they CAN foreclose on your house if you FAIL TO PAY the legal fees after a Quiet Title action brought after limitations, so don't get suckered into this boneheaded move. 

I know of at least three people here at the Forum who got clipped for in excess of $25,000 in fees by falling for the Quiet Title scam.  Print and Save this post, because it will almost certainly be removed by the site administrator who seems to be getting paid to delete posts exposing this swindle.
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Daniel
I also know of a borrower whose lender had totally forgotten about his loan.  So this idiot got sold a debt elimination scam and filed a Quiet Title suit against the bank.  He even added in limitations as a cause of action.  (He actually wasn't even past limitations, because he didn't realize that his time in bankruptcy would be subtracted.)

Limitations is never a cause of action.  At best it is an affirmative defense.  So then the bank answered the dumb a$$' Quiet Title suit with a counterclaim for default under the note and foreclosure of the mortgage!

Since dumb a$$ was litigating without a clue based upon scam pleadings he had bought off the swindlers, he neglected to file an answer to the bank's counterclaims.  In fact, by failing to file an answer to the counterclaims, he waived his affirmative defense of limitations (which had been erroneously plead as a cause of action, but wouldn't have applied anyway due to bankruptcy, etc)!  The bank then got a default judgment on the note and mortgage.

Then dumb a$$ tried to appeal.  But he had shot himself in the foot in yet another way.  When the bank sought and obtained default judgment on the counterclaims, they did not seek summary judgment on his Quiet Title suit.  Thus, when dumb a$$ appealed, his appeal was immediately dismissed because the default judgment of foreclosure was not an appealable final judgment.

The bank had the property sold at auction, had the sale confirmed by the court and had dumb a$$ ejected from the property, ALL before the matter came up on appeal, which appeal was dismissed.  Then, after dumb a$$ was homeless, thanks to the scam artists selling the Quiet Title scam, the bank sought summary judgment on the Quiet Title claim.  When dumb a$$ filed his second appeal, the court found that the trial court had not erred in granting a default on the counterclaims, since dumb a$$ failed to answer.

So dumb a$$ went from being settled in his property, with the bank having forgotten about him and nearing limitations, to being homeless.  Think about this next time some swindler tries to peddle you a bogus Quiet Title scam! 

In a judicial foreclosure state, when you are secure in your property and not in litigation, get in a good defilade position and enjoy it.  If you go out on forays and attacks, you are going to draw fire and get annihilated!
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roxdan02

Thanks for your reply Daniel !
I got the information for Quiet title from a few attorneys, but I know some attorneys will tell you anything in order to get paid.

Chase never recorded an assignment for my loan so once I get to file the Quiet title I can raise that they are not the owners of the note & that the mortgage was signed with Wamu right ?

one last thing, if as per Wamu's foreclosure pwrk the day of my default was May 19 2008 is that when the clock starts for the SOL or is it when they filed the foreclosure ? I do have an acceleration clause on my mortgage & I did receive a notice to accelerate before they filed the foreclosure, but I can't find it & I don't remember exactly how long after I stopped paying this I get it.

Again thanks ! 

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....
roxdan02 wrote:
<p>Thanks for your reply Daniel !<br>I got the information for Quiet title from a few attorneys, but I know some attorneys will tell you anything in order to get paid.


There is a huge disparity in the skill levels of attorneys. You will see this by some in-depth reading of the forum. There are many posters that were represented by counsel, insisting they had valid defenses despite the showing by others that the defenses were not valid, only to find themselves homeless. They thought they had "can't lose" arguments because they bought into the internet garbage arguments like Quite Title.

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Lucky
roxdan02 wrote:

one last thing, if as per Wamu's foreclosure pwrk the day of my default was May 19 2008 is that when the clock starts for the SOL or is it when they filed the foreclosure ? I do have an acceleration clause on my mortgage & I did receive a notice to accelerate before they filed the foreclosure, but I can't find it & I don't remember exactly how long after I stopped paying this I get it.

Again thanks ! 



That is going to depend upon your mortgage agreement.

Was May 19, 2008 the day you stopped paying, which can be considered the day you defaulted, or was it the day the bank declared your loan to be in default? The latter is usually 2 to 3 months after you stopped paying. The date of acceleration is usually a month after the bank declared the default. You can generally rely upon the date of acceleration as a safe date to count limitations from. Acceleration is usually a month after the date of the declared default and so about 3 months after you stopped paying.


You are really close. Just keep holding your breath and crossing your fingers.
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roxdan02
Hi, Lucky

I stopped paying December 2007, I received the letter around April 2008.
The bank declared me on default as per what they stated on the foreclosure paperwork on May 19, 2008.  
They filed the foreclosure law suit on August 20, 2008 and when they filed for summary final judgement they stated that 
"the provisions of the note and mortgage being sued upon in this action confer upon plaintiff the right to accelerate all sums due thereunder upon default thereof" 

So I believe this means they declared the acceleration on the default date.... which was May 19, 2008.
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Chris
Quote:
I stopped paying December 2007, I received the letter around April 2008.
The bank declared me on default as per what they stated on the foreclosure paperwork on May 19, 2008.  
They filed the foreclosure law suit on August 20, 2008 and when they filed for summary final judgement they stated that 
"the provisions of the note and mortgage being sued upon in this action confer upon plaintiff the right to accelerate all sums due thereunder upon default thereof" 

So I believe this means they declared the acceleration on the default date.... which was May 19, 2008.


You are seeking to read into the language something it doesn't actually say!

Realize that some very clever (and dishonest) lawyers work for these banks.  These weasels word things in ways to get judgments, while actually not saying anything that can be later used against them.

If you defended and claimed that they never accelerated, then they will come back in with more specific language.  If you never called them on it, I serious doubt that you are going to be able to use this to show an acceleration.

The banks are very good about having their cake and eating it too.  You will bear the burden of proving limitations.  In my view, this language is no proof at all.  When the bank sends a borrower a notice of acceleration, all too often the borrower just throws this notice away.  The banks count on this.  They know that unless you can prove the acceleration, then limitations never begins to run on the principal or future scheduled payments.

You need to completely get the idea out of your head that you are "passed" limitations.  Maybe, if sued again, you can obtain such a letter of acceleration in discovery.  More likely, the bank will object and refuse to give it to you.  Even if ordered to do so, they will claim they cannot find it and challenge you to produce it.  When you cannot, your limitations defense is likely to fail.

By the way, the lenders never, ever accelerate on the default date even though they have the right to do so.  Most often, the acceleration will be about ninety days after default, but this varies by state.
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roxdan02
I hear what your saying about banks/ lawyers wanting their cake & eating it too. 

if they stated on the complaint that there had been a default under the note and mortgage and that the payment due on May 19, 2008 and all subsequent payments had not been made. Plaintiff declares tha full amount due under the note and mortgage due now.

Would that be an acceleration at that point ?

The wierd thing is Chase ha not send me any statements, no phone calls or home visits since the case was dismissed on 2011. 

Both my husband and I are disabled and cannot afford to hire an attorney, so I'm trying to study our options.

Thanks for the reply.
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Chris
Quote:
I hear what your saying about banks/ lawyers wanting their cake & eating it too. 

if they stated on the complaint that there had been a default under the note and mortgage and that the payment due on May 19, 2008 and all subsequent payments had not been made. Plaintiff declares tha full amount due under the note and mortgage due now.

Would that be an acceleration at that point ?

The wierd thing is Chase ha not send me any statements, no phone calls or home visits since the case was dismissed on 2011. 

Both my husband and I are disabled and cannot afford to hire an attorney, so I'm trying to study our options.

Thanks for the reply.


I am not saying that you shouldn't argue that there was an acceleration.  Instead, I am simply pointing out that you haven't made out a strong case for yourself.

There definitely are some appellate cases in several jurisdictions that hold that initiation of suit can be construed as an acceleration.  But realize that since failure to satisfy conditions precedent is also a valid defense in many cases, this is somewhat at odds with such holdings.

For example, suppose that the note and mortgage requires an express written acceleration (and most do require this).  If the Lender fails to ever accelerate, then one of my defenses is going to be failure to satisfy conditions precedent and this is a valid basis to have the suit dismissed.  See Para 22 of your mortgage.  There is also usually a provision calling for a Notice of Grievance and stating that neither party can initiate litigation without first serving the notice of grievance and affording the other side an opportunity to respond.

How can you reconcile appellate court holdings that state that a case must be dismissed for failure to properly accelerate with a holding that the mere filing of a suit constitutes acceleration?

Now there is one way to harmonize such results.  This might be if the court found that an express statement of acceleration in a pleading constituted such a notice as of the filing date and yet still didn't comply with the advance notice (with opportunity to cure) required by the instruments.

I think that it is possible to get a court to find that a pleading effected an acceleration.  But to do so, the pleading is going to need to be pretty explicit.  The language you quoted seemed to me not only to not be particularly explicit, but instead seemed to me to be sufficiently nebulous as to give the plaintiff a lot of room to claim that the statement wasn't an acceleration.

Compare the language you quoted with this allegation I found in a pleading from a judicial foreclosure state in the Midwest:
"By reason of default under the terms of the note and mortgage securing same, plaintiff has declared the debt evidenced by said note due, and there is due from the defendant . . . [FULL AMOUNT OF THE REMAINING PRINCIPAL] together with interest at the rate of . . ." 

Even in this case, the plaintiff has carefully avoided using the term acceleration.  Even so, the allegation seems to assert that there has been an acceleration (in the past) without identifying precisely WHEN (or how).

Daniel gave you some very good advice above.  You need to get the idea completely out of your head that you have any entitlement to claim limitations.  This is not to say that you cannot argue, even successfully, limitations if actually faced with another suit.  But TIME IS YOUR FRIEND.  With every passing month the earliest defaulted payments are subject to limitations, even absent acceleration.  Avoid the Quiet Title debt elimination scam artists and stay out of court!

If you are sued, you need to really expertly play your hand, both as to pleading and as to discovery and proof.  If you have not already obtained a certified copy of the original complaint from the earlier pleading, make sure you do so.  If that court file later turns up missing, you will be completely sunk!  The foreclosure mill attorneys can pay off an employee in the Clerk's Office to make a document disappear from the file!

You are about as vulnerable as vulnerable can be and even mention that you think you have some basis to conclusively establish limitations OR entitlement to Quiet Title suggests that you have drunk the Koolaide and are going to get crushed.

I think you can WIN (defensively) IF YOU PLAY YOUR CARDS RIGHT.  If you even think about approaching this problem as a plaintiff, you are going to get crushed and just join the homeless crowd of gullible borrowers who have been taken in by the Quiet Title scam!
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Lucky
Daniel and Chris are correct.

The bank has a right to accelerate the loan but they have no obligation to do so.

You will have to prove the limitations have passed. Without a letter of acceleration, the next place to look is the complaint of the prior suit. Get the certified copy and look for explicit language of acceleration. They will usually not use that word but simply declare the full amount due. You would have to make the argument that that language constitutes acceleration. You should be able to do so but you never know what the court will rule.

Don't draw attention to yourself. Wait it out, the longer the better. If they eventually do file again then assert your affirmative defense.

As for quiet title, get that notion out of your head. Just lay low and enjoy the free house.

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Kip
There is a new decision out of the First Court of Appeals in Texas relating to limitations in that state. It pretty much shows that what others in this thread have been telling you is mostly right. Bear in mind that the holding is really only directly applicable in Texas, because it applies Texas law.

The case is:

[i]Hickey v Huntington National Bank, No. 01-12-00670-CV (Tex. App. -- Houston [1st. Dist.] June 11, 2013)[/b]
http://www.search.txcourts.gov/Case.aspx?cn=01-12-00670-CV
(Follow the link under Case Events for the Memorandum Opinion on June 11, 2013)

The briefs can be viewed from this site, too. These are instructive. The case isn't up yet on Google Scholar, but will probably appear there within a week or so.

It kind of looks like the Hickeys may have been taken in by the scam!
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texas
What scam?

There is no evidence of a scam, nice try.
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Pam
Quote:
The case is:

Hickey v Huntington National Bank, No. 01-12-00670-CV (Tex. App. -- Houston [1st. Dist.] June 11, 2013)
http://www.search.txcourts.gov/Case.aspx?cn=01-12-00670-CV
(Follow the link under Case Events for the Memorandum Opinion on June 11, 2013)

The briefs can be viewed from this site, too. These are instructive. The case isn't up yet on Google Scholar, but will probably appear there within a week or so.

This case is on Google Scholar now, giving better links to the cited cases:


The briefs shown from the original link are interesting.
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texas
Actually, where one knows what to argue the opinion aids.
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