CHALLENGING THE LAWYER WHO SAYS HE REPRESENTS THE FORECLOSER

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EDITOR’S NOTE: Most lawyers, homeowners and even Judges take issue with me over whether the challenge on the right to represent the forecloser exists. Why else would the lawyer be there? But as I’ve stated before and say again, it happens very often that the lawyer standing there has no idea how he received the file or why he has any right to say “Good morning your Honor, I represent Wilmington, the Lender.”

The reason is that the rotation of cases is distributed through automation and like the assignments and transfers and substitutions of trustees is filled with the same flaws appearing in conjunction with the use of MERS. The same lawyer will go on to represent that the borrower has not made a payment in x many months, is in default and is just trying to get out of a legitimate debt — all without (a) personal knowledge and (b) ever speaking with anyone who had personal knowledge and (c) without knowing if his firm has indeed been retained to represent the party for whom he is appearing.

The objection that I counsel attorneys to use is to challenge the lawyers right to represent based upon prior experience in hundreds of cases across the country in which the attorney discloses LATER and only when pushed, that he does not in fact represent that party, he represents another party or he doesn’t know who he represents. The Motion for Proof of Authority to Represent is a standard motion that is not often used but it is there in the rules of civil procedure to prevent just this sort of chicanery.

If possible, I would go even further and ask the court if you can voir dire the lawyer. Asking him when he first saw the file, how he received the file, and whether he spoke to anyone at his firm, whether he spoke to the “client” and who the contact was, will certainly clarify the situation and unnerve the lawyer who is suddenly on the defensive when he thought he had a clear path to victory. The right to voir dire the lawyer is a gray area — one which has not been used extensively but it has been used. I used it a few times when I was litigating.

If the lawyer has already proffered “facts” to the Court the voir dire can be directed at that issue as well.

Who Do the Foreclosure Mills Represent?
http://www.stayinmyhome.com/blog/2012/01/who-do-the-foreclosure-mills-represent/

by Mark Stopa

I received a motion in today’s mail that appears inocuous but is an eye-opener on many levels. Butler & Hoesch, P.A., moved to withdraw as counsel and sought a charging lien on the Plaintiff’s recovery in a pending foreclosure case. The Plaintiff in the case is a securitized trust; Wilmington Trust Company is Trustee. In its Motion to Withdraw, though, the foreclosure mill makes no mention of Wilmington. Rather, the mill says it used to represent the servicer, Litton Loan Servicing, Inc. but that Litton has been sold to Ocwen Financial Corporation and that it has no attorney-client relationship with Ocwen.

Are you confused yet? Read the motion so you see what I mean. This foreclosure mill has been litigating a foreclosure lawsuit on behalf of Wilmington, but as far as I can tell, has never represented Wilmington. Moreover, although the mill talks about its relationships (or lack thereof) with Litton and Ocwen, neither Litton nor Ocwen is a party in the case.

So who, exactly, is the mill trying to withdraw from representing? Presumbly Wilmington, the Plaintiff, as that’s the only plaintiff in this case. But the mill’s own motion makes it clear it has no attorney-client relationship with Wilmington anyway.

Call me crazy, but shouldn’t the mill have an attorney-client relationship with the party who is prosecuting the lawsuit?

The unseemly nature of this aside, I see a few significant issues which merit discussion:

First, the Florida Supreme Court requires via Fla.R.Civ.P. 1.110(b) that the Plaintiff verify its Complaint in all residential foreclosure cases. Given the relationship between the foreclosure mills, the servicers, and the trustees, it seems clear the required verifications aren’t being done by the plaintiffs, but by the servicers. Many learned judges in Florida before whom I appear have made it clear that verification by a servicer is insufficient – the complaints are supposed to be verified by the “plaintiff.” Remember, the Rule doesn’t permit verification by a third party, but by “the plaintiff.” In fact, Shapiro & Fishman moved for rehearing of the Florida Supreme Court’s ruling on this precise issue, and the Court rejected its motion.

This prompts a significant question – if verification is required by the plaintiff, and the attorneys representing the plaintiff have no relationship with the plaintiff, how on earth can they get the required verification? Undoubtedly, this is why the mills ask for 90 days or 120 days to get the requisite verification (when complaints are dismissed with leave to amend), as they often don’t even represent the plaintiff prosecuting the foreclosure case! Literally, the mills are in the position of calling up an entity who they don’t represent and saying “You don’t know me, but I’m representing you in this foreclosure case, and I need you to verify under penalty of perjury that the allegations we’ve raised are correct.”

A bit awkward, eh? Yet that’s the position in which the mills have put themselves (in a large percentage of foreclosure cases in Florida).

Second, though I’m hesitant to call out others on ethical issues where the answer is not black-and-white, I struggle to see how the mills can prosecute lawsuits on behalf of plaintiffs without the plaintiffs’ knowledge or consent in a manner consistent with The Rules Regulating The Florida Bar. I’ve spoken with the Bar on this, and given our conversation, I’m not prepared to say it’s impossible, but I will say this. Personally, I couldn’t imagine appearing as counsel for a party in any lawsuit without that party’s knowledge or consent, much less doing so on a widespread, systematic basis.

Think about it this way. An attorney is able to act on behalf of a client because the attorney’s actions bind the client. Stipulations, representations, court filings, etc. … we as attorneys are, quite literally, agents for our clients. If a client is going to be bound in this manner, the attorney’s authority to represent/bind the client must be clearly established. This is why, for example, there are strict rules about how an attorney may appear as counsel, failing which the attorney’s actions don’t bind the client. See Pasco County v. Quail Hollow Props., Inc., 693 So. 2d 92 (Fla. 2d DCA 1997).

If these foreclosure attorneys don’t have an attorney-client relationship with the plaintiff, it seems to me they cannot represent the plaintiff at all and should be disqualified from doing so. After all, how can an attorney bind the plaintiff when the attorney has no relationship with the plaintiff? Why should any court accept the representations or stipulations of a plaintiff’s attorney when that attorney has no relationship with the plaintiff?

There must be a better answer than “there are lots of foreclosure cases in Florida, and this is just how it’s done.”

Third, on the issue of a charging lien, Florida law plainly requires that a charging lien be signed, in writing, by the party against whom the lien is sought. How does any foreclosure mill expect a court to award a lien in its favor on the recovery of a securitized trust (in this case, Wilmington), when the attorney has no relationship with Wilmington and no signed fee agreement? Should Wilmington really have to pay some of its recovery to a law firm with whom it has no relationship? And no signed fee agreement?

Fourth, you want to know why the Florida Supreme Court’s mediation program failed? Take another look at this motion. http://www.stayinmyhome.com/blog/wp-content/uploads/2012/01/Motion-to-Withdraw.pdf How can anyone expect to get a binding agreement with Wilmington Trust Company when the attorneys prosecuting this foreclosure case don’t even represent Wilmington? This is a good illustration why loan modifications and reasonable settlements are so hard to get – the appropriate parties aren’t even at the bargaining table.

Fifth, when the plaintiff alleges in the complaint that it is the owner and holder of the Note and Mortgage, what exactly does that mean? Taking plaintiff’s allegations literally, the plaintiff is the owner/holder. But in all of these cases where the entity driving the suit is actually the servicer, it seems that the servicer is the “holder” of the Note, not the Plaintiff. Remember, to be the holder, the “plaintiff” must be in “possession” of the Note. See Fla. Stat. 671.201(21). Are these plaintiffs really in possession when they don’t even know a case has been filed? I suppose it’s possible, but when the Note is subsequently put into the court file, how did it get there? If it’s from the servicer, as I’d think it must since the servicer is the only one who knows about the case, then doesn’t that show the servicer was in possession, not the Plaintiff? And that the servicer was the “holder,” not the Plaintiff? Actually, no – where the Note is specifically indorsed to the plaintiff, the servicer isn’t the holder, either. In that situation, the servicer has possession, but the plaintiff has the indorsement, so neither one is the “holder.”

So what’s the solution to all of this madness? It’s two-fold: (1) Require verifications by the plaintiff (not the servicer, the plaintiff) and dismiss all cases without it; and (2) Require the foreclosure mills to have attorney-client relationships with the plaintiff (not the servicer, the plaintiff prosecuting the case) and disqualify all attorneys who lack such a relationship. That sounds harsh, but it’s ridiculous to inundate our courts with garbage pleadings that languish for years without a resolution when the parties prosecuting them don’t even know they’ve been filed.
Mark Stopa Esq.

http://www.stayinmyhome.com

 

41 Responses

  1. Question.

    If an attorney alleges to be “attorney In Fact” for the plaintiff (pretender lender) I would assume then that the plaintiff would have to give the alleged Attorney In Fact a Power Of Attorney in order to represent the Plaintiff right?

    And if the alleged Attorney in Fact is in direct violation of the law.
    (In my case alleged attorney for the plaintiff is in violation of F.S. 454.20, Rule 2.060(f) and posted the Non-Resident Cost Bond as “Attorney in Fact as Surety” on behalf of the plaintiff.)

    Then wouldn’t it be fair to say that since the alleged attorney in fact is in conflict and violation of the law that the attorney for the plaintiff should not be allowed to represent the plaintiff?

    here is the law.
    http://www.flsenate.gov/laws/statutes/2011/454.11
    454.11 Powers of attorneys.—Every attorney duly admitted or authorized to practice in this state shall have the right to appear before any court of the state, or any public board, committee, or officer in the interest of any client, and may appear as amicus curiae when so permitted. All attorneys shall be deemed officers of the court for the administration of justice, and amenable to the rules and discipline of the court in all matters of order or procedure not in conflict with the constitution or laws of this state.
    History.—s. 11, ch. 10175, 1925; CGL 4189; s. 7, ch. 22858, 1945.

    http://www.flsenate.gov/Laws/Statutes/2011/454.20
    454.20 Attorneys not to be sureties.—No attorney shall become surety on the official bond of any state, county, or municipal officer of this state, nor surety on any bond of a client in judicial proceedings.
    History.—s. 20, ch. 10175, 1925; CGL 4198.

    in a recent motion to dismiss hearing, Judge Selph in Bartow, FL Did not care that the attorney was in violation of F.S. 454.20, Rule 2.060(f) (amongst other reasons to dismiss) and allowed the attorney to get away with it.

    after the Judge Denied my Motion To Dismiss I filed a motion for sanctions against the attorney and plan to appeal the MTD as well.

    I would love to hear every ones opinions and ideas or recommendations on this matter. reply to this post + email me if you have time. Thank you!

  2. @ Anonymous

    Jenniferwhayes(at)bellsouth(dot)net

  3. And, Ian — you do not even have to be 31 days late — do not have to be late at all — orchestrated before. – orchestrated before you even sign for anything. Target by your FICO score.

  4. Ian,

    Absolutely.

    JenniferinGA,

    Leave your email address.

  5. @Anonymous and @Ian – THANK YOU!

    Any suggestions or ideas?

    Original lender Fremont – trust sold to Freddie 12/2005.

    From PSA – I figured loan was removed/replaced early on.

    I have documents in which Fremont states Fremont is the beneficiary of the loan in 2007 and Fremont did a Loan MOD and list themselves as “lender” in 2007 too.

    Never heard of HSBC Bank as trustee until mortgage servicing was transferred to Litton 6/1/2008 Fremont filed ch 11 6/18/2008.FYI – loan in default when transferred to both Litton and Ocwen.

    Would this help me? – FDCPA 15 U.S.C.A. 1692a(6)(F) = both Litton and Ocwen =debt collectors?
    So then 15 USCA 1692f (6) “unfair practices” Threatening to take an nonjudicial action to effect dispossession…if (A)there is no present right to possession of the property claimed through an enforceable security interest (B) there is no present intention to take possession of the property

    Assignment was dated 12/09.

    Maybe I am just mixing up too many ideas – how can a borrower get it verified their loan is still included in trust? I asked Freddie – no help. I asked FHFA Executive Advisor – who said continue asking HSBC as trustee. I called HSBC as Trustee – found # on SEC document for trust and woman answered and said HOW DID YOU GET THIS # – she did call me back and said “send request in writing and they will forward it to my servicer”. I called the law firm who filed the big complaint for Freddie V. Credit Suisse because my trust was included in that complaint – they said ask your servicer.
    Ocwen and McCalla do not answer.

    Sorry I am frustrated but also open for suggestions!

  6. ANONYMOUS & JenniferinGA- “Ocwen Recovery Group” (Ocwen) is a debt collector. Address: 12650 Ingenuity Drive, Orlando Fla. They are hiding behind the fact that there is no investor. They bought the debt for pennies (unsecured) and hang the sword of damocles over the heads of homeowners who are led to believe that this is a “mortgage” backed by foreclosure rights. All debt collectors are doing the same thing. While the “mortgages” (notes) are supposed to be in a MBS/RMBS. They aren’t. They have been paid over and over by the monoline insurors, TARP, Maiden Lane, loan backstops and on and on. How many times have we all “defaulted”? (31 days late), only to catch up a bit later? When a default occurs, the lender’s policy kicks in- talk w/ M.Soliman about that one.

  7. JenniferinGA,

    Do not hold your breath, Ocwen will provide nothing, especially not the identity of the creditor. They do not think they have to.

    What happened to FTC investigation of them??? Who knows.

  8. I know enough to be dangerous – would appreciate advice.
    In Georgia – Mortgage Servicer switched from Litton to Ocwen in November. Still waiting for reply for the “QWR” I sent to Ocwen. I also sent one to law firm -same firm that worked for Litton. I asked for verification of the debt – and also verification that the assignment filed was not a robo-signed fraudulent assignment.
    INFO (I did not include in my letter) 1).The assignment signed by Marti Noriega, 2).the address they list for HSBC Bank as trustee is the address for Litton. 3).MERS transferred both Security Deed and Note (MERS is not mentioned on my note). 4).The trust was sold to Freddie 12/05 – MERS assigned this 12/09. 5).The assignment shows the law firm foreclosure file number and scheduled sale date for foreclosure (they stopped it, before the sale).
    The law firm sent me copy of original deed and note and copy of assignment – they never addressed my request for verification the assignment was not fraudulent, instead they sent a short note -” per Fair Debt Collection Practices Act – they have answered and will not respond to duplicate or repetitive versions of the same letter”.

    Here is my question – they included the total to payoff loan and itemized their fees – I found an error in what they sent – they charged me $300 for publication they did not do – I want to reply and address this billing, and also ask for a list of all the charges they have applied to my loan since 2006 so I may verify they are correct too.

    I also want to ask who they represent in this foreclosure? Do they have a attorney-client relationship with Ocwen? Do they have a attorney-client relationship with HSBC Bank as trustee?

    Is that the next step?

  9. dee

    I do not publicly divulge my email. If you want, post your email.

  10. @ANONYMOUS,

    I would like to email you some information and get your thoughts.

  11. Ian

    You are absolutely correct. What gives is a deregulated market. Derivative contracts are private (and undisclosed). Derivatives are NOT securities, they are contracts — private contracts.

    And, yes, “trigger events” occurred. – en masse. Remnants of the fallout were purchased by the US Government, via Maiden Lane, and, thereby, restructured for sale to distressed debt buyers. Restructuring includes derivative contracts from the dissolved trusts — now ONLY Maiden Lane. The original trusts are gone — pieces torn apart and restructured into one big CDO — Maiden Lane. Ultimate goal of the US Government is to sell all the restructured remnants to distressed debt buyers. And, that is what they have been doing.

    Then, have to also realize, that the original subprime “MBS” trusts were never backed by valid mortgage loans, and , therefore, were never valid mortgage-backed securities trusts. So-called “loans” were collections rights to already (falsely) classified default debt and/or GSE rejections. These so-called subprime trusts were simply securitization of cash flows to collection rights — triple A rated by credit enhancement — including derivatives. That is why all the security investors are shouting “FOUL”, but they have the backing of big law firms. Homeowner victims??? Still waiting for government and court support. Slowly, slowly, coming. But, it is it too little and too late??

  12. @Enraged,

    It looks like another back door like MERS to avoid the defunct mortgage originator since we supposedly no longer use MERS for substitution. Story line is Goldman sells Litton to Ocwen (I find it interesting that all three are unregulated domestic or foreign entities.

    It sounds like the Litton Servicing in Houston TX sold servicing rights to Ocwen (new servicer) and maybe could be in Chap 11 bankruptcy. The “Committee” could be the new method to substituting the beneficiary.

    In the American Home Mortgage (AHM), bankruptcy link I posted and AHM being another domestic unregulated lender it states,

    “On August 14, 2007, the United States Trustee for the District of Delaware (the U.S. Trustee) appointed an official committee……….since it’s formation, the committee has has participated in every aspect of these Chap 11 cases.

    Go over to New York Department of Corporations.

    http://www.dos.ny.gov/corps/bus_entity_search.html

    LITTON LOAN SERVICING LP in Delaware still ACTIVE

    OCWEN LOAN SERVICING, LLC in Delaware and Virginia still ACTIVE

    Here on page four it states Ocwen is no longer in residential servicing

    http://www.federalreserve.gov/newsevents/press/enforcement/enf20110901f1.pdf

    So my guess is the Committee is your new MERS.

  13. ANONYMOUS- after 30-60 days of default, the file goes to a default servicer, like LPS. Correct! But, it is generally acknowledged that a default rate of just 7% of an MBS collapses the entire pool, as the projected costs of foreclosing/recovery/litigation etc. negates remaining balances outstanding. So, the PSA/prospectus holds that a defaulted loan is to be removed from the trust, and replaced with a similar loan.
    Various ‘trigger events’ kick in CDS payouts, monoline insurance payouts,etc. I cannot for the life of me find out who received what from whom for what, and what is left of the pools/notes. The derivatives market is opaque. What gives?

  14. Apologies Neil. Had wrong date for post awaiting moderation. Made new year blunder — typed in 2011 instead of 2012. Old article. SORRY.

    Nevertheless, what is happening with the AG settlement and Tom Miller??

  15. Come-on Neil, why is my last comment awaiting moderation??? It simply is an article by Margaret Cronin Fisk and Prashant Gopal regarding the AG settlement.

    Would like to add from Wikipedia —

    Mortgage Dealings Investigation and Campaign Contributions

    From 2010 Miller has coordinated the national investigation into improper foreclosure practices by major financial lenders. After the beginning of the investigation, he has raised $261,445 from finance, insurance and real estate contributors. That is 88 times as much as he received over the previous decade

  16. This is was is so frustrating — 46 state AG “settlement.” Nothing will be resolved or fixed. Who lives in Iowa??? Tom Miller should be fired. Investigation should be criminal. See below:

    Big Lenders May Be First to Settle Foreclosure Probe, Iowa Says

    By Margaret Cronin Fisk and Prashant Gopal – Jan 4, 2011 12:01 AM ET Tue Jan 04 05:01:01 GMT 2011

    The five largest loan servicers, including Bank of America Corp. and JPMorgan Chase & Co., may be the first to settle with the 50 state attorneys general probing foreclosure practices, Iowa Attorney General Tom Miller said.
    No settlements have been reached yet, Miller said yesterday in a phone interview. The other three are Citigroup Inc., Wells Fargo & Co. and Ally Financial Inc., said Miller, the leader of the 50-state investigation. The five have 59 percent of the U.S. market, Miller said.
    “What we’re looking at is five separate agreements with the five largest servicers,” Miller said. “We’re still a ways away” from reaching agreements, he said. “We’re working very hard to figure out what should be in the settlement.”
    All 50 U.S. states are investigating whether banks and loan servicers used false documents and signatures to justify hundreds of thousands of foreclosures. The probe, announced Oct. 13, came after JPMorgan and Ally Financial’s GMAC mortgage unit said they would stop repossessions in 23 states where courts supervise home seizures, and Bank of America, the largest U.S. lender, froze foreclosures nationwide.
    Tom Kelly, a spokesman for JPMorgan in New York, declined to comment. Shannon Bell, a spokeswoman for New York-based Citigroup, declined to comment. Gina Proia of Detroit-based Ally declined to comment. Shirley Norton, a spokeswoman for Charlotte, North Carolina-based Bank of America, declined to comment.
    Teri Schrettenbrunner, a spokeswoman for San Francisco- based Wells Fargo, declined to comment, saying it was premature since no agreement has been reached.
    Probe Widens
    The probe has since widened to include other mortgage practices, with attorneys general suggesting a potential resolution should include improving the loan modification process, barring foreclosures when people are modifying loans and creating a general fund to compensate homeowners who may have been victims of wrongful foreclosures.
    Miller said the attorney-general group has had at least one face-to-face meeting with representatives from all five of the largest banks, along with “follow-up phone calls.”
    The group will reach individual settlements rather than a global agreement with the servicers, he said.
    “It won’t be the same document for everybody,” he said. “There are differences in the companies and in performances.”
    ‘Not Criminal’
    The group isn’t pursuing a criminal investigation, Miller said. “Our focus is to reform the servicing process and that’s inherently civil, not criminal,” he said.
    In an interview last week, Miller said the group might consider matters including whether servicers are charging borrowers appropriate fees.
    “We hear stories far too often of it taking months before servicers get back to people, or they lose documents and that they don’t modify a loan when it makes sense,” Miller said last week.
    The 50-state group “offers one of the most promising avenues to increasing loan modification and servicer accountability that we have seen so far,” said Paul Leonard, California director for the nonprofit Center for Responsible Lending in Durham, North Carolina.
    He said the group would act more independently than Congress or federal regulators because of the influence of industry lobbyists in Washington.
    “The attorneys general come at this with a fresh eye,” Leonard said in an interview yesterday. “They can assess and make changes that they feel necessary.”
    To contact the reporter on this story: Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net; Prashant Gopal in New York at pgopal2@bloomberg.net.
    To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.

  17. Mark

    After 30 -60 days of default, the “servicer” you know is no longer the servicer. All is sent to a default processing servicer such as LPS. If the court wanted something from Litton (Ocwen), the foreclosure attorney would have to go to the default processing servicer and ask them to get it from Litton/Ocwen. Foreclosure attorney does not have any direct contact with Litton/Ocwen. And, as far as the “trustee”, they do not even know they are in court.

  18. ONE WEST BANK—DEFAULT DEBT BUYER

    DEUTSCHE—TRUST “OWNER”…TRUST ALWAYS AND FOREVER EMPTY.

    INDYMAC—SERVICER FOR DEFAULT DEBT.

    NO LENDER.
    NO CREDITOR.
    NO BENEFICIARY.
    JUST UNSECURED FRAUDULENT DEFAULT DEBT AND STRAW MEN ATTORNEYS STEALING HOUSES BASED ON FRAUD FRAUD FRAUD.

  19. SOOOO…when someone says, “The Trustee for this securitized trust is the creditor/lender/beneficiary” of your loan”, it’s all total BS, because the securitized trust is and always has been empty.
    And the ONLY way they have been able to STEAL all these houses, is because they figured out how to get the county recorder to RECORD BS documents, and get the JUDGES to GO ALONG with the BS RECORDED DOCUMENTS…

    FRAUD ON THE COURT OF RECORDS.

    HOW DO WE PROVE THAT THE SECURITIZED TRUSTS ARE AND ALWAYS WERE EMPTY???

  20. http://www.huffingtonpost.com/2012/01/03/jpmorgan-lawsuit_n_1181211.html?ref=business

    JPMorgan Chase Sued For $95 Million Over Allegedly Misrepresenting Mortgage Loans

    JPMorgan Chase & Co has been sued for $95 million by the trustee for securities marketed in 2005 by the former Bear Stearns Cos over alleged misrepresentations regarding the underlying mortgage loans.

    US Bank NA wants to force JPMorgan to buy back the mortgage loans because of alleged breaches of representations and warranties regarding the Bear Stearns Asset Backed Securities Trust 2005-4, for which it serves as trustee.

    It also said JPMorgan has refused to provide the underlying loan, as the trust documents require, so it can investigate the extent of the alleged breaches.

    The unit of US Bancorp said it made its request at the direction of a majority certificate holder in the trust. US Bank also sued Bear Stearns and its former EMC Mortgage Corp unit. JPMorgan bought Bear Stearns in 2008.

    A JPMorgan spokeswoman did not immediately respond to requests for comment.

    The lawsuit was filed on Friday in the New York State Supreme Court in Manhattan, and publicly docketed on Tuesday.

    It is one of many lawsuits seeking to hold banks responsible for investor losses over mortgages that may have been toxic, defective or improperly underwritten.

    The case is Bear Stearns Asset Backed Securities Trust 2005-4 v. EMC Mortgage Corp et al, New York State Supreme Court, New York County, No. 650003/2012.

    “It also said JPMorgan has refused to provide the underlying loan, as the trust documents require, so it can investigate the extent of the alleged breaches.”
    THEY REFUSE TO PROVIDE THE UNDERLYING “LOAN” BECAUSE IT DOESN’T EXIST AND NEVER DID EXIST. THIS IS THE HEART OF ALL THE FORECLOSURES. ONLY COLLECTION RIGHTS TRANSFERRED AT CLOSING. NO UNDERLYING “LOANS”. PERIOD. NOT “ASSET-BACKED” TRUSTS—NEVER.

  21. @Steve,

    Yes, it clearly states: “Unsecured” creditors…

    What do you make of it?

  22. I can’t establish a connection but the name Wilmington Trust Company rang a bell. Here on page 30 or 24 of the file it lists a United States Trustee official committee of unsecured creditors. Wilmington Trust Company is top of the list.

    http://bankrupt.com/misc/AHM_Disclosure_Statement.pdf

  23. and stay away from god damn WALL ST.

  24. ok enraged…………

    I only hope others get it…………

    it is such BS that is allowed. And until one goes to court, they do not know………..it is so hidden under layers of complexity it is unbelievable………….

    and I will say it again,,,,,,,,,,

    get out somehow, someway,,,,,,,,,,,and then go all cash——no borrowing, no loans, no credit cards,,,,,,,,and live a life,,,,,,,,,,,earn your money and save it,,,,,,,,,and have fun………….. and stay away from the god damn banks…………..

  25. @Cubed,

    I said something like that right here, on this page. Find my post with the link budibbs.com and you’ll see that it is written…

    Took me a while but I got it. Can’t wait to be deposed…

  26. @enraged———let me repost—–

    @enraged—-
    you said—–
    “The attorney doesn’t represent Wilmington, the trust. He doesn’t represent Litton (which was sold to Ocwen) and he doesn’t represent Ocwen since it has no attorney-c;ient relationship with it.”
    “Who, then, is paying for the attorney’s legal fees and court expenses?”
    ANSWER TO YOUR QUESTION—-
    the attoney’s bought the debt for pennies on the dollar. Hence they become debt collector.

    it’s simple, duh,,,,,,the attorney bought written off debt, they paid cash on the dollar for it for pennies on the dollar, they are being debt collector, and naming who they the purchased debt from as the person owed, and suing on their behalf. This is fraud on the courts.
    Debt collectors are buying from debt collectors, and law firms are buying debt collectors and suing on behalf of the last debt buyer, when in fact the law firm bought the debt and are suing on behalf for themselves but not telling. Unless you do discovery or affirmations to find out.
    How do you know? Because the law firm will state somewhere in it’s first letter to you: this is a communication from a debt collector.
    A law firm representing a debt collector or original creditor DOES NOT NEED TO STATE IT IS A DEBT COLLECTOR.

    ———————-

    If you get sued from a law firm for a debt, check them out on google. You will find lots of them are hiring for collections, or debt collectors……………connect the dots, so sneaky. Why does a law firm need to hire an experienced debt collector,,,,,,,,,,,,because they are a debt collector hiding under the title of law firm…………..representating a client,,,,,,,,,,,,,,when in fact they are representating themselves………

  27. @enraged—-

    you said—–

    “The attorney doesn’t represent Wilmington, the trust. He doesn’t represent Litton (which was sold to Ocwen) and he doesn’t represent Ocwen since it has no attorney-c;ient relationship with it.”

    “Who, then, is paying for the attorney’s legal fees and court expenses?”

    the attoney’s bought the debt for pennies on the dollar.

    it’s simple, duh,,,,,,the attorney bought written off debt, they paid cash on the dollar for it for pennies on the dollar, they are being debt collector, and naming who they the purchased debt from as the person owed, and suing on their behalf. This is fraud on the courts.

    Debt collectors are buying from debt collectors, and law firms are buying debt collectors and suing on behalf of the last debt buyer, when in fact the law firm bought the debt and are suing on behalf for themselves but not telling. Unless you do discovery or affirmations to find out.

    How do you know? Because the law firm will state somewhere in it’s first letter to you: this is a communication from a debt collector.

    A law firm representing a debt collector or original creditor DOES NOT NEED TO STATE IT IS A DEBT COLLECTOR.

  28. @Sal—–

    I have been saying what you said over and over. Enraged, are you listening.

    “This has been going on in the Credit Card collections for years. At that time they were using NAF with attorneys claiming that they were representing the original creditor in the arbitration”

    “with attorneys claiming that they were representing the original creditor ”

    ————-

    This is happening with my current credit card case. Sued by a lawyer representing Cap 1. First communication from the lawyer, first ever letter, is stated on the bottom this is communication from a debt collector. That tells you right away they do not represent Cap 1, they are indeed committing fraud on the courts, and the courts buy it, unless you know. Very sneaky.

    And I have been saying the credit card defaulted/debt collector industry was the testing ground, and they found out they got away with it. Now, enter in your mortgages. Same shit.

  29. I get it thanks. It is all BS if you don’t have a real party to negotiate with. Securitizations I believe were made to go one way up the stream to investors. They were not made to come back and foreclose in these numbers. The only way to resolve is to stop paying and hire a lawyer and win monthly until a final resolution. I personally don’t like that because I am wired to be more aggressive and take best case scenario and move on, but I realize that or now this defensive posture is best.

  30. @Chas404,

    Yes, the “servicer” advances the fees and expenses, while, technically, the attorney must send him monthly statements. The servicers pays the attorney and the fees monthly, as the case proceeds. The attorney does not “advance” the funds over 30 days.

    That is what I understand and i am waiting for someone to tell me otherwise.

    I still believe that, if the attorney doesn’t represent the trust nor the servicer, “Follow the money” should tell us plenty as to who the real party of interest is.

  31. I thought the servicers hired the attorneys and advances the legal fees and court fees to be recovered upon sale of the foreclosed property. That’s what the PSAs say. But I still think the servicers should show how they are authorized to sue on behalf of the creditors. Why is all the mediation and modification onus on the borrower? Contracts have 2 parties.

  32. What I just wrote is not so farfetched at all.

    http://www.budhibbs.com/agency_watch_list_submissions.htm

    Attorneys do, indeed, create their own collection agency so that they can sue the poor debitor and… pocket the money.

    I don’t see why it wouldn’t be the foreclosure mills M.O. in the absence of a proven client (trust or servicer…)

  33. That’s odd,

    I posted this afternoon a follow-up to the question “If the attorney doesn’t represent the trust or the servicer(s), who is paying for his fees?” on the Mark Stoppa site. It was being reviewed by the moderator for a while but it is now gone. I wonder why…

    The follow up was along the lines of (I didn’t keep the original): “I did some research and, apparently, in many states, attorney may NOT pay for their clients’ filing fees and court expenses. I didn’t research every state but, even when the attorney is representing Pro Bono, the client MUST pay for his own filing fees and expenses. So, at the very least, who pays for filing fees in cases such as the one described above?

    I have heard of attorneys who created LLCs and INCs and purchased undecured debts (JDB) that they recovered on behalf of said LLC and INC. I don’t know any specific names but I wouldn’t be surprised if someone had names.

    Assuming that some foreclosure mills acted in that same fashion (and in view of the ongoing fraud at every level of this financial scandal, nothing would surprise me anymore), wouldn’t that give rise to additional fraud? Wouldn’t it make sense to explore it?

    As I said, the post is gone…

    I believe this is a very, very pertinent question.

  34. There is a point when we can’t ignore it any longer…

    Matt Weidner posted something ominous on his blog. Here is the link he sends us to.

    http://www.americanthinker.com/2012/01/new_nationwide_fema_camps_should_raise_eyebrows.html

  35. Question for you all.

    Do HELOCs have promissory notes?

    I have Bank of America HELOC. Asked for copy of note and mortgage.

    mortgage is variable rate HELOC line of credit. They never sent a promissory note. I am thinking that HELOC’s don’t have promissory notes more like credit card contract contained in the mortgage lien.

    It is Florida lien state. thanks. loan was 2007 during run up.

  36. What about substitution of trustee. I thought that under FDCPA a debt was not collectable if it is transfered while it was in default. I thought the transfer of a debt in default was a violation of FDCPA. Wouldn’t that be the case with all substitution of trustees?

  37. I read this post somewhere else yesterday and I have a question…

    The attorney doesn’t represent Wilmington, the trust. He doesn’t represent Litton (which was sold to Ocwen) and he doesn’t represent Ocwen since it has no attorney-c;ient relationship with it.

    Who, then, is paying for the attorney’s legal fees and court expenses?

    I know no attorney who would work for free. I therefore infer that someowne is paying.

    WHO?

    It seems to me that following the money would go a long way toward establishing agency and representation…

  38. I really think this is a key issue. A mystery creditor that has no relationship with its attorney should not be allowed to sue or seek damages. The idea that the true creditor can hide behind a lawyer, servicer, fannie mae etc yet still sue is hogwash. I sent 3 qwr’s begging Wells Fargo to at the very least prove their agency relationship to a true creditor so we can negotiate. Without that, how can I pursue mediation, HAMP, HARP, shortsale, DIL??? I can’t. I shouldn’t have to be forced to stop paying and be sued in order to find out who my true creditor is, but this is the way it works. My plan is to stop paying, hire a good lawyer and wait them out until I get to the real decision maker on their side THEN negotiate a short sale, DIL, modification, etc. The dirty secret is the end investors don’t want to sue the homeowner and are seeking damages from the depositors etc aka FHFA vs Deutsche Bank or the trust/investors vs BAC. I feel like we are getting closer to judges realizing this. A lawsuit initiated by a servicer that can not prove its agency relationship to the true creditor and who has maybe 2% of skin in the game should be thrown out.

  39. I am not sure about other States, but in California an attorney can sign the complaint for the plaintiff without ever having the plaintiff verify it simply by claiming that the plaintiff resides in a different county which will almost always be the case when the bank is in one part of the country and the attorney is in another.

    Once you lose that motion, there is another avenue that is better in a way which has to do with Requests for Admissions which must be verified and can not be signed by an attorney because the plaintiff is the only party with personal knowledge of the facts. Make sure the Admissions are signed by the plaintiff and not the attorney for the plaintiff. Then once you get their name, schedule a deposition and watch them squirm.

    Sal

  40. This has been going on in the Credit Card collections for years. At that time they were using NAF with attorneys claiming that they were representing the original creditor in the arbitration. When someone actually paid the judgment of $25,000 plus $5,000 in attorney fees to the attorneys claiming to represent MBNA, the credit report was never updated to say paid in full. That is because MBNA charged the debt off and sold it for $2500 to apparently a straw man firm actually owned by the law firms who claimed to represent them. You can read the story here.

  41. Tuesday 3 January 2012

    Last month, I issued a subpoena ducus tecum to the law firm that
    substituted itself into my case after the previous debt collectors
    that initiated the complaint 5 years ago withdrew when they read
    my Notice and Demand to Dismiss the Verification of Sale.

    The substitute judge was stern with me for filing a frivolous action
    but decided not to sanction me, as the new attorney requested.

    The plaintiff went BK in 2009, yet somehow managed to made a
    successful credit bid at auction in 2011. Not only could it not make
    a credit bid, I have no clue how a BK entity, under a BK trustee,
    could appoint a new law firm?

    After a trip to the law library, I learned that in Illinois, attorneys who
    file an appearance are PRESUMED to represent its client. The only
    case I could find said that a motion would be the only way to challenge
    representation, and a motion for proof of authority to represent is my
    next move, along with my motion to dismiss the case as void ab initio,
    which is another story.

    Let me add that I did make a challenge as soon as the new attorney
    entered the case, so I have not waived that by waiting until after the
    fact. I believe the challenge must be timely made, or it is waived.

    Cheers…

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