FORECLOSURE OFFENSE AND DEFENSE — GO DIRECTLY AFTER LENDER ATTORNEY: TEXAS LAW ON COLLECTION OF DEBT PROBABLY HAS TEETH IN OTHER STATES

GOOD COMMENT FROM AngellaMorning@aol.com

THIS IS SIMILAR TO THE NOTICE TO TRUSTEE AND NOTICE OF NON-COMPLIANCE FOUND ON THE BLOG. THE ATTORNEY IS SUPPOSED TO PERFORM DUE DILIGENCE. IF HE/SHE DID, THEN HE/SHE WOULD KNOW THAT THE FACTS ARE NOT QUITE AS SIMPLE AS THE DEMAND LETTERS, NOTICES OF DELINQUENCY, NOTICES OF DEFAULT AND FORECLOSURE PROCEEDINGS WOULD HAVE OTHERS BELIEVE.

COMMENT: FROM ANGELLA: I found something interesting in the Texas Finance Code for Texans in foreclosure. (Texas Finance Code Chapter 392 Section 306). This area of the finance code states:

Ҥ 392.306. USE OF INDEPENDENT DEBT COLLECTOR.
A creditor may not use an independent debt collector if the creditor
has actual knowledge that the independent debt collector repeatedly
or continuously engages in acts or practices that are prohibited by
this chapter.”

The attorney firm that is foreclosing on my home has been sanctioned multiple times in Texas for failing to verify defaults before initiating foreclosures.

To make sure that my mortgage servicer (posing as my “lender”) had ACTUAL KNOWLEDGE that they were using the services of a debt collector that is known to violate Texas debt collection laws, I sent them a certified letter to give them ACTUAL KNOWLEDGE of this fact.

Here is my letter:

First Horizon Home Loans
4000 Horizon Way
Irving, TX 75063 October 17, 2008

To Whom It May Concern,

It is a violation of Texas law (Texas Finance Code Chapter 392 Section 306) to knowingly employ an independent debt collector that continually or repeatedly engages in acts or practices that are prohibited under Texas debt collection laws.

AngellaMorning@aol.com: The attorney firm of Barrett Daffin Frappier Turner & Engle, L.L.P. (also known as Barrett Burke Wilson Castle Daffin & Frappier, L.L.P.) located at 15000 Surveyor Boulevard Suite 100 Addison, Texas 75001 has been sanctioned multiple times in the state of Texas for its violation of debt collection practices.

This letter is official notice of this information.

Your subsequent continued employment of this attorney firm for your debt collection purposes is a violation of Texas law.

Angella Soileau
9195 Gross Street
Beaumont, TX 77707

(When pushed into a corner, we are sometimes forced to swing a punch…)

14 Responses

  1. I would attached a copy of the note Chase produced swearing that its not your signature on it. They can’t foreclose in Texas without the note and your TRO should be automatic. I would also sue under the Fair Debt Collection Practice Act and the Texas Fair Debt Collection Act, the lawyers, service company and each and every trustee. You need to send a letter requesting that they verify the debt. If they fail to do so, you’ll be looking at a debt collection violation and wrongful foreclosure. Also, get the lawyer to prepare a Lis Pendes that you can file with the County Recorders Office so if you’re house does get foreclosed and a third party buys it, they are not a bona fide purchaser and you can get it back.

    Good luck!

  2. These guys are still at it! Shocker, nah. JP Morgan Chase hired Barrett, Daffin, blah, blah, etc. after jerking me around for almost 3 years on my request for (need of) modification. Thank you Angela for leaving your letter and other info. And Mike your notice is terrific. I did send a QWR in response to Notice of default. Their response, they could not accept service because 12 U.S.C. requires it be sent to “mortgage servicer” (their quotes not mine). Sent with the letter was a copy of the note with DIFFERENT signatures from my copy plus fraudulent lender signatures (company’s been out of business since
    2009). This was my 2nd QWR, first sent 7/11 with no response from Chase except we’re researching your request form letter. How did the case for friend turn out?? I know having your assistance was a huge blessing!

    If any can recommend a honest #1 and reasonable #2 attorney in Denton County, TX – LivingLies reason #37 to suspect mortgage fraud – please let me know. Sale is scheduled for 4/3/12. I was referred to a lawyer in Dallas who will draft TRO and complaint but will not come to Denton so I would have to represent myself in court. Forced to do this in divorce by #@$%%$ thief who called herself a lawyer but billed 11 hours + costs to prepare for temporary hearing and judge who would not grant continuance. Horrible experience I’d rather not repeat.

    The primary reason for my comment is to thank Mike and Angela for posting. Yall helped immeasurably and unselfishly. I wanted you both to know this kind of help just keeps on giving!

  3. true… you know what they say…Successful investing requires a delicate mix of positive thinking and paranoia.

  4. To: MARK HARRISON

    Gus Pappas is an excellent lawyer and he’s reasonable. He’s a great guy and a brilliant lawyer.

    His number is 713-621-2678.

  5. I am needing legal advice on a foreclosure problem in harris county (houston). can someone reccommend a lawyer in the area that is reasonable. thanx

  6. These guys skate all over the law, getting paid at the same time. We were forced to become pro se litigants after our attorney stole us out, I mean sold us out, after we sued BBWCDF and Midland Mortgage for violating our 2000 discharge order for years. 2010, We filed a 42 USC1983, Civil Rights Complaint against Barrett Burke Wilson Castle Daffin Frappier for conspiring with MidFirst Bank, Midland Mortgage, Jeff Records,CEO of MidFirst and Midland, Attorney Steven Leyh, Leyh & Payne, and Judge Wayne Mallia, a (State Actor) for 14th Amendment Rights deprivation.
    Attorney Leyh, stated to the Court that my husband and I agreed to settle for 40,000 and that we made changes to Midland & BBWCDF settlement agreement on May 11, 2009. May 11, 2009, I was still in patient at InTra Care Hospital since May 3, 2009. We informed the Judge that Leyh was lying and we filed a hospital affidavit to proof it was impossible. But better yet the SA was not signed and it was ambigious, it also included the 2000 discharged debt all over again.
    In stead Judge Malli signed a judgment against us to force/coerce us to sign the never-before -seen SA that Leyh drew up, but wait we filed the darn lawsuiot. If we dont sign it, Leyh said he will get the Judge to hold us in contempt, that mean we could go to jail/fine he said. Have anyone ever heard of a state judge over riding a Federal Judge discharge order to make us sign to get the debt back. There is 40,000 that we are being forced to take and end the lawsuit without a fair trial. We have appealed to the 14th Court of Appeals in Houston and the Fifth Circuit Court of Appeals (10-20173), pro se. Hey watch out, some courts will manipulate your court records too. Just because you file suit, dont mean the Courts will protect you from these pack of wolfes, they will fix the case and send you out the door. Over 10 long years and this debt wont die. Follow these two case,google Prince Ella Green, “Zombie Debt Refuse To Die” and Jerrold Petterson.

  7. Ҥ 392.306. USE OF INDEPENDENT DEBT COLLECTOR.
    A creditor may not use an independent debt collector if the creditor
    has actual knowledge that the independent debt collector repeatedly
    or continuously engages in acts or practices that are prohibited by
    this chapter.”

    What if your case is built, at least partially, around the fact that the alleged lender is not a creditor in your case (did not loan anything)? I can see a judge or opposing adversary saying, “Oh, so you admit we are the ‘creditor’.” Can this potentially cause problems?

  8. LOOKING FOR A TEXAS ATTORNEY TO FILE A LAWSUIT ON THIS FIRM.I HAVE TWO FRAUD ASSIGNMENTS FROM THIS FIRM.I HAVE FILED A CASE WITH THE STATE OF TEXAS THEY ARE INVESTIGATING THIS MATTER. I ALSO HAVE A STATEMENT FROM MERS, AGREEMENT FOR SIGNING AUTHORITY, STATING THIS FIRM ATTORNEY HAS SIGNING AUTHORITY EFFECTIVE 09/15/2009. WELL A FRAUD ASSIGNMENT WAS SIGNED AND FILED 05/12/2008. ALSO IT WAS VERY SHOCKING WHEN I STARTED TO INVESTIGATE THE PROPERTY THEY ILLEGALLY FORECLOSED. IT WAS THE SAME ATTORNEY FROM THIS FIRM SIGNED A FRAUD ASSIGNMENT IN 2007.BUT WAIT HE HAD AUTHORITY AS OF 09/15/2009 FRAUD.THE NOTARY STATED SHE KNEW HE HAD SIGNING AUTHORITY WHEN SHE NOTARIZED THE DOC.PURJURY. IM GOING TO FILE A LAWSUIT ON HER TO.LOOKING FOR ATTORNEY WHO FILED ON THIS CASE

  9. I thought I read an article where a judge dismissed a case because the bank did not send timely notices to a person with an outstanding loan – over 4 months.

    Do you know if there is such a rule? I cannot find the article again?

  10. Texas law requires Debt Collectors to be bonded. Sec. 392.101. BOND REQUIREMENT. (a) A third-party debt collector or credit bureau may not engage in debt collection unless the third-party debt collector or credit bureau has obtained a surety bond issued by a surety company authorized to do business in this state as prescribed by this section. A copy of the bond must be filed with the secretary of state.

    (b) The bond must be in favor of:

    (1) any person who is damaged by a violation of this chapter; and

    (2) this state for the benefit of any person who is damaged by a violation of this chapter.

    (c) The bond must be in the amount of $10,000.

    Also, the Texas Fair Debt Collection Act has a tie-in statute for the Texas Deceptive Trade Practice Act. See Sec. 392.404. REMEDIES UNDER OTHER LAW. (a) A violation of this chapter is a deceptive trade practice under Subchapter E, Chapter 17, Business & Commerce Code, and is actionable under that subchapter.

    Also The Federal Trade Commission published this release:

    For Release: September 9, 2008
    Bear Stearns and EMC Mortgage to Pay $28 Million to Settle FTC Charges of Unlawful Mortgage Servicing and Debt Collection Practices
    The Bear Stearns Companies, LLC and its subsidiary, EMC Mortgage Corporation, have agreed to pay $28 million to settle Federal Trade Commission charges that they engaged in unlawful practices in servicing consumers’ home mortgage loans. The companies allegedly misrepresented the amounts borrowers owed, charged unauthorized fees, such as late fees, property inspection fees, and loan modification fees, and engaged in unlawful and abusive collection practices. Under the proposed settlement they will stop the alleged illegal practices and institute a data integrity program to ensure the accuracy and completeness of consumers’ loan information.

    “Like other companies that send a bill, mortgage servicers must make sure that the amount they say is due really is the amount due,” said Lydia B. Parnes, Director of the FTC’s Bureau of Consumer Protection. “Consumers have the right to expect accuracy from the company that collects their mortgage payments.”

    As stated in the FTC’s complaint, Bear Stearns and EMC have played a prominent role in the secondary market for residential mortgage loans. During the explosive growth of the mortgage industry in recent years, they acquired and securitized loans at a rapid pace, but they allegedly paid inadequate attention to the integrity of consumers’ loan information and to sound servicing practices. As a result, in servicing consumers’ loans, they neglected to obtain timely and accurate information on consumers’ loans, made inaccurate claims to consumers, and engaged in unlawful collection and servicing practices. These practices occurred prior to JP Morgan Chase & Co.’s acquisition of Bear Stearns, which became effective on May 30, 2008.

    According to the complaint, EMC is the mortgage servicer for many of the loans Bear Stearns and EMC acquired. Many of these loans are subprime or “Alt-A” (less than prime) loans, including nontraditional mortgages such as pay option adjustable rate mortgages (“pick-a-payment” loans), interest-only mortgages, negative amortization loans, and loans made with little or no income or asset documentation. EMC’s loan servicing portfolio has grown significantly in recent years; as of September 2007, it serviced more than 475,000 mortgage loans with a total unpaid balance of about $80 billion.

    THE FTC COMPLAINT

    The complaint charges Bear Stearns and EMC with violating the FTC Act, the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Truth in Lending Act’s (TILA) Regulation Z.

    FTC Act Violations: The defendants are charged with unfair and deceptive loan servicing practices in violation of the FTC Act. They allegedly misrepresented the amounts consumers owed; assessed and collected unauthorized fees, such as late fees, property inspection fees, and loan modification fees; and misrepresented that they possessed and relied upon a reasonable basis for their representations about consumers’ loans.

    Fair Debt Collection Practices Act Violations: The defendants allegedly violated several provisions of the FDCPA in collecting loans that were in default when they obtained them. They also allegedly made harassing collection calls; falsely represented the character, amount, or legal status of consumers’ debts; and failed to communicate that debts were disputed. In addition, they allegedly used false representations or deceptive means to collect, and failed to send consumers a validation notice containing the amount of the debt and the consumer’s right to dispute the debt and obtain verification of the debt.

    Fair Credit Reporting Act Violations: The FTC alleges that the defendants furnished information about consumers’ payment status to credit reporting agencies (CRAs). When consumers informed the defendants that they disputed the completeness or accuracy of the reported information, the defendants failed to report the dispute to the CRAs as required by the FCRA.

    Truth in Lending Act’s Regulation Z Violations: The complaint also states that the defendants charged borrowers a loan modification fee, typically $500, and automatically added the fee to the modified loan’s principal balance. In doing so, the defendants failed to provide the borrowers with required TILA disclosures.

    THE SETTLEMENT

    The proposed settlement requires Bear Stearns and EMC to pay $28 million to redress consumers who have been injured by the illegal practices alleged in the complaint. In addition, the settlement bars the defendants from future law violations and imposes new restrictions and requirements on their business practices. Specifically, the settlement:

    bars the defendants from misrepresenting amounts due and any other loan terms;
    requires them to possess and rely upon competent and reliable evidence to support claims made to consumers about their loans;
    bars them from charging unauthorized fees, and places specific limits on property inspection fees even if they are authorized by the contract;
    prohibits them from initiating a foreclosure action, or charging any foreclosure fees, unless they have reviewed all available records to verify that the consumer is in material default, confirmed that the defendants have not subjected the consumer to any illegal practices, and investigated and resolved any consumer disputes; and
    prohibits the defendants from violating the FDCPA, FCRA, and TILA.
    The proposed settlement further requires Bear Stearns and EMC to establish and maintain a comprehensive data integrity program to ensure the accuracy and completeness of data and other information that they obtain about consumers’ loan accounts, before servicing those accounts. The defendants must obtain an assessment from a qualified, independent, third-party professional within six months and then every two years, for the next eight years, to assure that their data integrity program meets the standards of the order.

    The proposed settlement also contains record-keeping and reporting provisions to allow the FTC to monitor compliance with the order.

    The Commission vote to authorize staff to file the complaint and proposed stipulated final order was 4-0. The documents were filed in the U.S. District Court for the Eastern District of Texas.

    Including the case announced today, the Commission has brought 23 actions in the past decade alleging deceptive or unfair practices by mortgage brokers, lenders, and servicers. Several of these landmark cases have resulted in large monetary judgments that have returned more than $320 million to consumers.

    CONSUMER HOTLINE: If the court approves the settlement, consumers who are eligible for redress will be contacted by mail. The Commission’s consumer hotline regarding the settlement is 1-877-787-3941. Consumers who have changed their address recently may provide updated contact information by calling the hotline. Consumers also can find information about the settlement on the FTC’s Web site at http://www.ftc.gov.

    NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the defendants have actually violated the law. The stipulated final order is for settlement purposes only and does not constitute an admission by the defendants of a law violation. A stipulated final order requires approval by the court and has the force of law when signed by the judge.

    The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,500 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

    MEDIA CONTACT:
    Frank Dorman,
    Office of Public Affairs
    202-326-2674
    STAFF CONTACT:
    Lucy Morris,
    Bureau of Consumer Protection
    202-326-3224
    (FTC File No.0623031)
    (EMC)

    http://www.ftc.gov/opa/2008/09/emc.shtm

    Lastly, if the company hasn’t verified the debt, they cannot proceed with the foreclosure.

    Lastly, you need to ask to see the original note, any endorsements and assignments, and the chain of sale.

    The Texas BUSINESS AND COMMERCE CODE
    TITLE 1. UNIFORM COMMERCIAL CODE

    CHAPTER 3. NEGOTIABLE INSTRUMENTS

    SUBCHAPTER A. GENERAL PROVISIONS AND DEFINITIONS

    Sec. 3.101. SHORT TITLE. This chapter may be cited as Uniform Commercial Code-Negotiable Instruments.

    Sec. 3.201. NEGOTIATION. (a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

    (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

    Sec. 3.202. NEGOTIATION SUBJECT TO RESCISSION. (a) Negotiation is effective even if obtained:

    (1) from an infant, a corporation exceeding its powers, or a person without capacity;

    (2) by fraud, duress, or mistake; or

    (3) in breach of duty or as part of an illegal transaction.

    (b) To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy.

    Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.

    Sec. 3.203. TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER. (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.

    (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course. The transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

    (c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.

    (d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this chapter and has only the rights of a partial assignee.

    Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.

    Sec. 3.204. INDORSEMENT. (a) “Indorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser’s liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.

    (b) “Indorser” means a person who makes an indorsement.

    (c) For the purpose of determining whether the transferee of an instrument is a holder, an indorsement that transfers a security interest in the instrument is effective as an unqualified indorsement of the instrument.

    (d) If an instrument is payable to a holder under a name that is not the name of the holder, indorsement may be made by the holder in the name stated in the instrument or in the holder’s name or both, but signature in both names may be required by a person paying or taking the instrument for value or collection.

    Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.

    Sec. 3.205. SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT. (a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special indorsement.” When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 3.110 apply to special indorsements.

    (b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a “blank indorsement.” When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.

    (c) The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.

    (d) “Anomalous indorsement” means an indorsement made by a person who is not the holder of the instrument. An anomalous indorsement does not affect the manner in which the instrument may be negotiated.

    Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.

    Sec. 3.206. RESTRICTIVE INDORSEMENT. (a) An indorsement limiting payment to a particular person or otherwise prohibiting further transfer or negotiation of the instrument is not effective to prevent further transfer or negotiation of the instrument.

    (b) An indorsement stating a condition to the right of the indorsee to receive payment does not affect the right of the indorsee to enforce the instrument. A person paying the instrument or taking it for value or collection may disregard the condition, and the rights and liabilities of that person are not affected by whether the condition has been fulfilled.

    (c) If an instrument bears an indorsement (i) described in Section 4.201(b), or (ii) in blank or to a particular bank using the words “for deposit” or “for collection,” or other words indicating a purpose of having the instrument collected by a bank for the indorser or for a particular account, the following rules apply:

    (1) a person, other than a bank, who purchases the instrument when so indorsed converts the instrument unless the amount paid for the instrument is received by the indorser or applied consistently with the indorsement;

    (2) a depositary bank that purchases the instrument or takes it for collection when so indorsed converts the instrument unless the amount paid by the bank with respect to the instrument is received by the indorser or applied consistently with the indorsement;

    (3) a payor bank that is also the depositary bank or that takes the instrument for immediate payment over the counter from a person other than a collecting bank converts the instrument unless the proceeds of the instrument are received by the indorser or applied consistently with the indorsement; and

    (4) except as otherwise provided in Subdivision (3), a payor bank or intermediary bank may disregard the indorsement and is not liable if the proceeds of the instrument are not received by the indorser or applied consistently with the indorsement.

    (d) Except for an indorsement covered by Subsection (c), if an instrument bears an indorsement using words to the effect that payment is to be made to the indorsee as agent, trustee, or other fiduciary for the benefit of the indorser or another person, the following rules apply:

    (1) unless there is notice of breach of fiduciary duty as provided in Section 3.307, a person who purchases the instrument from the indorsee or takes the instrument from the indorsee for collection or payment may pay the proceeds of payment or the value given for the instrument to the indorsee without regard to whether the indorsee violates a fiduciary duty to the indorser; and

    (2) a subsequent transferee of the instrument or person who pays the instrument is neither given notice nor otherwise affected by the restriction in the indorsement unless the transferee or payor knows that the fiduciary dealt with the instrument or its proceeds in breach of fiduciary duty.

    (e) The presence on an instrument of an indorsement to which this section applies does not prevent a purchaser of the instrument from becoming a holder in due course of the instrument unless the purchaser is a converter under Subsection (c) or has notice or knowledge of breach of fiduciary duty as stated in Subsection (d).

    (f) In an action to enforce the obligation of a party to pay the instrument, the obligor has a defense if payment would violate an indorsement to which this section applies and the payment is not permitted by this section.

    SUBCHAPTER C. ENFORCEMENT OF INSTRUMENTS

    Sec. 3.301. PERSON ENTITLED TO ENFORCE INSTRUMENT. “Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3.309 or 3.418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

    Amended by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 1996.

    Sec. 3.302. HOLDER IN DUE COURSE. (a) Subject to Subsection (c) and Section 3.106(d), “holder in due course” means the holder of an instrument if:

    (1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and

    (2) the holder took the instrument:

    (A) for value;

    (B) in good faith;

    (C) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;

    (D) without notice that the instrument contains an unauthorized signature or has been altered;

    (E) without notice of any claim to the instrument described in Section 3.306; and

    (F) without notice that any party has a defense or claim in recoupment described in Section 3.305(a).

    (b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under Subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.

    (c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken:

    (1) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding;

    (2) by purchase as part of a bulk transaction not in ordinary course of business of the transferor; or

    (3) as the successor in interest to an estate or other organization.

    (d) If, under Section 3.303(a)(1), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.

    (e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument, and (ii) the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument that, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.

    (f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.

    (g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.

    You can find the above at:

    http://www.statutes.legis.state.tx.us

    Hope this helps.

  11. I am interested in angella soileau’s responses. We have dealings with the same firm. Does violation on the Texas Finance Code invalidate the substitute trustee or the sale?

  12. I had some additional thoughts that came to me about Texas Finance Code Chapter 392 Section 306 (as well as similar codes in other states) that I wanted your opinion on…
    If the “lender” hires an attorney firm in violation of Texas Finance Code 392.306 and a Substitution of Trustee has been recorded in which an attorney employed at this firm is named as Substitute Trustee, does the lender’s unlawful employment of this firm invalidate the Substitution of Trustee and thereby also invalidate/void the Substitute Trustee Sale?

    Angella Soileau
    9195 Gross Street
    Beaumont, TX 77707

  13. This was a tactic I used for a friend of mine in foreclosure and let me elaborate on it here to help others get more damages.

    The debt-collector attorneys are required to send out a dunning letter or notice of default.

    To comply with the Fair Debt Collection Practices Act, the debt-collectors are required to verify the actual amount you allegedly owe, as well as give you the name of the original creditor. You must request this information within 30 days of the debt-collector’s first contact.

    We first sent all parties the RESPA request I shared with Neil (located in the glossary). The attorney’s responded by basically restating everything the notice of default/dunning letter.

    Here’s how I responded:

    ORLANS ASSOCIATES PC

    Cc:
    FIFTH THIRD BANK

    ASSURED CAPITAL FUNDING

    Dear Orlans Associates PC,

    This is in response to the letter dated January 29, 2008 sent by your law firm Orlans Associates PC.

    I do not understand why you sent this letter. I did respond to your prior letter of January 3, 2008 and received verification that all parties concerned signed for its receipt. I am surprised that your law firm has to date not complied with my request for documentary evidence contained in that letter.

    It is my understanding that the letter sent by me was a “qualified written request” in compliance with and under the Real Estate Settlement Procedures Act, 12 USC sec 2605(e).

    A statement in your second letter sent January 29, 2008 is the “total estimated reinstatement amount due as of February 7, 2008 is $16,711.43”. Because you also state in that same letter to send payment to your office, I regard you as a “debt collector”. The case sited below reinforces that:

    Heintz v. Jenkins, 514 US 291, at 291 (1995) FDCPA applies to lawyers engaged in debt collection and states specifically as follow: “…a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings meets the Act’s definition of ‘debt collector’: one who ‘regularly collects or attempts to collect, directly or indirectly, [consumer] debts owed… another.” 15 USC sec 1692a(6). Additionally, a 1986 Senate report 99-405 included attorneys as well as judges in the prohibitions.

    In adhering to 15 USC sec 1692, have you suspended your efforts to foreclose on my property with receipt of my request for documentary evidence regarding the alleged amount you say I owe? See:

    Rabideau v. Management Adjustment Bureau, 805 F.Supp, 1086 (at 1092) states that “If the consumer disputes the debts or requests, in writing, the name of the original creditor, then the collector must halt all collection efforts until it sends verification of the debt or the creditor’s name to the consumer. 15 USC sec 1692g(b). However, absent such dispute or notification during the thirty day validation period, the debt collector may continue its collection efforts. “While continuing efforts to collect debt may occur within 30-day validation period provided under Fair Debt Collection Practices Act (FDCPA), those efforts must terminate for at least that period from date validation demand is received by debt collector, within the 30-day period, until date that information demanded is provided to debtor.”

    The following is my second request for documentary evidence of the alleged amount you say I owe.

    There are a number of issues that your letters raise that could amount to violations of the Fair Credit and Billing Act, the Fair Debt Collection Practices Act, and the Truth In Lending Act in general.

    This is my formal dispute of the accuracy of the alleged debt and my request for original documents that would prove the accurate amount of money to be paid, who actually is the original lender and who is the truthful lender in due course. It is essential that the correct person/entity be paid the correct amount so that no future claims can be made against my property or my person for having paid the wrong party because of the lack of careful scrutiny of your claims. In addition, the following issues have been raised by your collection efforts:

    The reinstatement amount you stated in your letter sent January 29, 2008 shows a lack of credibility as to its accuracy, as you did use the term “total estimated amount”. This is definitely not a detailed statement since it also does not show any past payment history or how these figures were arrived at. At the face of it, it appears fraudulent and I contest its accuracy. To know for certain the correct amount to be paid, I am requesting a verified witness/witnesses; the individuals at each step of the process who are personally knowledgeable about the accuracy in accounting and proper transferring of the documents will need to testify in court with complete, original documents in hand to verify there testimony.

    At the beginning of your letter sent January 3, 2008 you state “This office represents Fifth Third Bank which is the creditor to whom your mortgage debt is owed or the servicing agent for the creditor to whom the debt is owed.” Which is it?

    This is extremely confusing and my contention is that it is intentionally misleading and a possible violation of the Fair Debt Collection Practices Act and the Fair Credit and Billing Act. I have been led to believe that Fifth Third Bank is the entity to whom I owe money and to whom I have been sending money to for over 2 years. However, the statement you made implies that Fifth Third Bank may be the servicing agent only, not the actual creditor you allege I owe. How can this be?

    Please provide me with the following information:

    1) Who is the actual creditor and who is the servicing agent?

    2) If Fifth Third Bank is the servicing agent, for whom are they a servicing agent?

    3) Is there a trustee? Does not a trustee act on behalf of someone else? Is that person or entity the creditor? Can you understand how confusing this is to average consumers as I am?

    4) What was the original source of funding? I was led to believe that I received money from Assured Capital Funding originally so why has Fifth Third Bank been collecting from me?

    5) If Fifth Third Bank bought the loan from Assured Capital Funding, how much did they pay? Was this a payment in exchange for the mortgage note I signed? Was an account opened in my name for the purpose of monetizing the note I signed? Shouldn’t this process have been disclosed to me? If it was and I simply didn’t understand, I request the original document both front and back to clarify the matter properly.

    6) Have I been paying the wrong person? The front and back of each original document will be needed to be presented to a judge to clarify this matter as well.

    7) I was led to believe Assured Capital Funding was the original creditor. What is the point of presenting some apparent compliance to the Federal Debt Collections Practices Act by offering to provide, on request of course, the name of the original creditor, when the original creditor did not receive a single payment from me? Are there interest and late fees accruing that need to be paid to Assured Capital Funding that are unbeknownst to me?

    8) If Assured Capital Funding did provide the original valuable consideration to fund the loan, there should be bank bookkeeping entries to verify that fact and these entries need to be verified by an expert witness to attest to their accuracy and completeness and presented to the court. This would establish that indeed Fifth Third Bank, or whoever it might be, is being harmed.

    9) You stated in your letter dated January 3, 2008 that I can get the name of “the original creditor if the original creditor is different from the current creditor”. Please provide certified documentation of the “original creditor”.

    You assert in your letter that I may make a “request for a proof of a debt or any portion thereof or if I request the name of the original creditor” as though they are the only points subject to legal scrutiny.

    I believe the source of the original valuable consideration and all legal disclosures of material facts of the loan transactions and also each step of the financial paper trail are important facts to establish before any further collection efforts should be made.

    Ever since the corruption of Ken Lay of Enron and the accounting firm of Arthur Anderson, we citizens have had a healthy skepticism about the accuracy of the financial records of large institutions and so it is important that expert witnesses be called for verification of each step of the paper trail to establish the identity of the lender as “principal holder in due course” and that complete and accurate disclosures have been made to all parties involved in a timely manner.

    END OF LETTER

    Another thing you may want to consider or read up on is the Fair Credit Reporting Act, as the debt-collector’s response (or lack of) to your request to validate the debt could mean another violation of the FCRA if they continue to report non-payments to any credit reporting agencies. As always, check with local counsel as the language of the FCRA is vague when reporting is done after the loan is considered in default.

    The violation of the FDCPA allows you to name the “lender’s” attorneys as a party to the suit, as well as entitle you to more damages.

    I served the summons on all parties on behalf of my friend in person. When I served the attorneys, they first responded by assuming I was dropping off a copy of the summons we served on the lenders. You should have seen the look on the face of the agent who had to sign for the summons when she discovered their firm was also named as a defendant. She was furious!

    Me, I smiled.

  14. GREAT JOB!!!!

    YES WE DO NEED TO THROW A PUNCH,

    I WILL SEARCH ON VIRGINIA AND MARYLAND

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