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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doh
I have been looking at various posts, and always had this question.

Lets say you win a motion to dismiss without prejudice. What then? In most cases the bank has already refused to accept payment from you, take your account of their website, and various other things.

But what happens if you win the dismissal? Does the bank have to reinstate your account? Can you make payments on your balance? Do they have to send a letter of acceleration to file again?
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Unregistered

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I have been looking at various posts, and always had this question.

Lets say you win a motion to dismiss without prejudice. What then? In most cases the bank has already refused to accept payment from you, take your account of their website, and various other things.

But what happens if you win the dismissal? Does the bank have to reinstate your account? Can you make payments on your balance? Do they have to send a letter of acceleration to file again?

 

No, the bank does not have to reinstate your account.

 

Precisely what happens depends upon the nature and wording of the dismissal order.

 

If the dismissal was due to lack of standing, the dismissal will be without prejudice.  The plaintiff waits a little while, cleans up its case, possibly reassigning the matter to a competent law firm experienced in litigation.  Then the re-file and usually WIN in the second outing.  If their case is a MESS, WHY would you want to litigate this matter after giving them an opportunity to FIX EVERYTHING? 

 

The plaintiff would usually not have to send a new letter of acceleration, though some might elect to do so in an abundance of caution.  If they accelerated before, then they can really only "undo" the acceleration by mutual assent with the borrower.

 

If their notices were previously defective, then they will try to get these right in a second suit.

 

Although a dismissal on a failure to show conditions precedent is usually a dismissal on the merits, courts in some places have expressly held that a new suit based upon a different notice (or making the failed or omitted notice) is a suit on a different claim not barred by res judicata.

 

Similarly, suppose that the borrower were to successfully prove, even at trial, that there had been no default as alleged.  Absent some judgment on counterclaims, etc., the plaintiff might still be able to sue asserting another different and later default.  If they fear assertion of res judicata, they may also negotiate the note to a new entity, serve new notices, assert a new default and file another suit.

 

Contrary to the assertions of swindlers and buffoons like Mike H., a dismissal does not either discharge or bar the debt!  Neither does it extinguish the mortgage.  Neither does the extinction of the named Lender, going out of business ever extinguish the lien.  This is just nonsense he has invented as a talking point for his swindle.  (Ask him to prove ANY case authority for his ridiculous propositions and he NEVER CAN.  All he can do is SELL YOU his unlawful services as a pretend lawyer.) 

 

Each and every case is different and the effects of an order of dismissal heavily depend both upon the claims and defenses adjudicated and the wording of the order.

 

Once again, those telling you that you need to get the matter dismissed right away or as quickly as possible are simply armchair quarterbacks with no real experience and no meaningful strategic understanding.

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arrgy
Unregistered is correct, however, I believe it is in written into all FHA loans (which I think the OP has), if I am not mistaken, that full payment to bring the loan current would reinstate the account. I do know of someone who did this, delayed the foreclosure long enough that they were able to scrape together enough money to bring the account current even as the foreclosure was sitting waiting for trial. That is something to consider.
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    Many times, the first attempt by the plaintiff will be voluntarily dismissed because the plaintiff realizes it made a serious mistake and can not win a contested action. Usually their mistake concerns a blatant lack of standing
which is pointed out by the defendant either in a motion to dismiss or in an affidavit in opposition to motion for summary judgment.
    MY view is that once  it is dismissed, you should attempt a Quiet title
in US Federal Court. Unfortunately, you will need a lawyer certified in federal
court who is willing to take the case. That will not be easy to find. Also, many who win a first dismissal, don't want to spend money on a lawyer to finish the job.
    The situation reminds me of when the Scots chased the English out of
Scotland, all the way to London but instead of finishing the job while they
had the chance, they entered into negotiations. The English promised to never bother them again but warned they had 50.000 warriors in London,
well fed and well armed (in fact they only had 10,000 famished, broken
troops who had thrown away most of their armaments while retreating.)
     The Scots decided to sign the armistice and return to Scotland, thinking
they had won their independance.
     A year later the English were back, stronger than ever, and this time
they were well prepared and destroyed the Scottish resistance.
     So, the moral to the story is this, when you have the enemy on the run,
finish him off, so he can't come back at you again. (ie do a Quiet title)
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Texas
MikeH said:

"MY view is that once  it is dismissed, you should attempt a Quiet title in US Federal Court."

Quiet Title is normally a state action and a federal court is not the correct venue.

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Unregistered

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MY view is that once it is dismissed, you should attempt a Quiet title
in US Federal Court. Unfortunately, you will need a lawyer certified in federal
court who is willing to take the case. That will not be easy to find. Also, many who win a first dismissal, don't want to spend money on a lawyer to finish the job. 
 

 

Mike's view is that when the plaintiff is having trouble winning its case because it has the burden of proof, that the distressed borrower should snatch defeat from the jaws of victory by bringing a specious action in another court where the borrower will bear the burden of proof as plaintiff, despite the fact that there has never been a successful case using his vacuous theory.

 

This strategy admittedly has some advantages and disadvantages.  The disadvantage is that this strategy always results in the distressed borrower being homeless and broke, possibly even assessed with the legal fees of high priced lawyers retained by the servicer.  The advantage is that it presents an opportunity for Mike to swindle the very last dollar you have, which he can then spend toasting your stupidity and misfortune.  Mike will not only swindle you in the Quiet Title action, but after you have lost and have an additional judgment against you for $40,000 to $50,000 in legal fees, Mike will help you hire your wife out as a hooker to pay for his additional services in the unauthorized practice of law preparing your Bankruptcy petition.  This way Mike gets to f**k you twice and your wife gets f****d as often as he can hire her out to pay his fees.

 

Another simpler approach is to lay low and to hope that your case is lost in the chaos of the next wave of foreclosures, all the while studying various cases, as well as Mr. Roper's posts so that you will have a chance to beat the bank on the second outing.   This has the advantage that you can probably delay foreclosure for at least another year or two, rebuild your finances and possibly even get past limitations.  It has the disadvantage that it throws Mike out of work and he might have to instead find work either in a different swindle, or, heaven forbid, doing something honest.

 

My goal is to help find Mike a very small prison cell with a large, ugly and hairy cellmate, who will do to Mike what he has been doing to distressed borrowers over the past several years!

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