Bagels at a Bar Mitzvah

isisis

LoanSafe Member
More to learn about securitization: BlackRock v. Bank of New York
It's interesting reading just to see the application of legal standards. But the problem is that while it illustrates just how slimy their securitization transactions were it doesn't show how the borrower was injured by them.
 

arrgy

LoanSafe Member
I filed a motion to reconsider, and I actually didn't want a hearing (I checked off no hearing on the cover sheet). But apparently the judge wants to have a hearing because they are scheduling one. I received a very quick memo in opposition to my motion to reconsider from Plaintiff.

The opposition objected to the following:

1. I objected that SJ was improper since discovery was never completed. I have not yet received the paperwork from HUD. The opposition from Plaintiff states that I never filed an affidavit saying so. Except I did, I filed an affidavit stating that I received a subpeona from the court, sent it with HUD and have not yet heard back from them.

2. I objected to their affidavit expert witness and his evidence. The opposition memo states that my objection is without merit. Nothing else.

3. I argued that none of my affirmative defenses were considered. The opposition memo states "This Court’s Order for Judgment clearly set forth findings of fact showing Plaintiff established by way of affidavits and supporting documents all the elements necessary to prevail in a foreclosure action." But that wasn't all of my affirmative defenses, and I objected to the findings of fact separately and individually (the plaintiff never even addressed my objections to the findings of fact).

4. I argued that the Plaintiff is the Holder of the note and not the Holder in Due Course because they never proved the three elements: 1. Taking it for value, 2. Taking it in good faith 3. without notice that it was overdue. The memo for opposition states "At the summary judgment hearing, the undersigned represented that he was in possession of the original Note " But that doesn't make you a holder in due course, that can make you a holder. They never proved that they took it for value or in good faith, they only stated this is without merit, nothing else.

5. I also argued in the motion to reconsider that the note, mortgage and modification should be void since it was altered by the Plaintiff. Their argument is that since I didn't bring this up in SJ it can't be preserved. But I did bring it up in my answer. I denied the authenticity of and the ability of the Plaintiff to execute, enforce and transfer the note and mortgage. I also argued in my memo and in oral argument at SJ hearing that any modification that the Plaintiff tried to enforce should be declared void and that the plaintiff did not have the right to even offer a modification at all.

6. I raised again the argument of Breach of Contract. Plaintiff claims I raised that for the first time in my motion to reconsider. Except I didn't. In my memo opposing SJ I clearly stated "In order for there to be a fraud and unclean hands there has to be 1. Breach of contract...Clearly there was a breach of contract."



Nothing in the memo opposing the motion to reconsider does the Plaintiff mention altering the terms of the note (which I hammered in my motion). Nothing really about the FHA status, outside of arguing that it meets the rules of evidence, without stating why.

This is so weird.
 

Survivor_IN

LoanSafe Member
No, it's not weird. It's common practice. They aren't going to even mention your point(s) and will continue to assert ONLY their cause of action. It's as if you aren't there at all.

However, Plaintiff needs to present more that mere statements and formulaic conclusions as a legal argument. But, apparently it works in the right courts. It's a tactic of repetition to "lose" your argument and "ignore pertinent evidence" in the pounds of paper under review by "repeating statements as if they were fact" and ignoring your counter in whole.

Plus, they also lie so you have to point directly to the matter. File a surreply on it. Not sure if it is in your court rules or not but there is a saying to "better to act and ask for forgiveness than to ask and be denied." If it's not addressed in the rules, then it's not forbidden. lol Also, you can always do same tactic (in reverse) and say "item 3" is "without merit" and reiterate your claim.

Also, do ALL motions have to have a hearing? I'm finding a little bit of obfuscation on that where I basically filed a yes/no motion and it has never been heard. Opposing counsel made a big deal on wanting to know about the hearing but typicallythese go to motion hour. Opposing counsel is out of state and frequently does shit according to Michigan law which has nothing to do with my case or my State. They even presented a yes/no extension request (which I didn't object to) and there was no hearing but a ruling 6 weeks later.(which brought them 2 months of time instead of the 2 weeks they requested.) I do know there have been delays and these types of cases have been deferred due to pandemic reductions in the courts. But still.
 

kraftykrab

LoanSafe Member
No, it's not weird. It's common practice. They aren't going to even mention your point(s) and will continue to assert ONLY their cause of action. It's as if you aren't there at all.

However, Plaintiff needs to present more that mere statements and formulaic conclusions as a legal argument. But, apparently it works in the right courts. It's a tactic of repetition to "lose" your argument and "ignore pertinent evidence" in the pounds of paper under review by "repeating statements as if they were fact" and ignoring your counter in whole.

Plus, they also lie so you have to point directly to the matter. File a surreply on it. Not sure if it is in your court rules or not but there is a saying to "better to act and ask for forgiveness than to ask and be denied." If it's not addressed in the rules, then it's not forbidden. lol Also, you can always do same tactic (in reverse) and say "item 3" is "without merit" and reiterate your claim.

Also, do ALL motions have to have a hearing? I'm finding a little bit of obfuscation on that where I basically filed a yes/no motion and it has never been heard. Opposing counsel made a big deal on wanting to know about the hearing but typicallythese go to motion hour. Opposing counsel is out of state and frequently does shit according to Michigan law which has nothing to do with my case or my State. They even presented a yes/no extension request (which I didn't object to) and there was no hearing but a ruling 6 weeks later.(which brought them 2 months of time instead of the 2 weeks they requested.) I do know there have been delays and these types of cases have been deferred due to pandemic reductions in the courts. But still.

This^^^

I've repeatedly sat in the courtroom and listened to opposing counsel lie....and gloss over facts....and pretend that they have not done or said what they did do or say. It's not about what happens, it's about what you can prove. And yes, there are ethics rules in every state that attorneys are supposed to follow, but don't expect an attorney to face any discipline unless they really screw things up--like keeping a client's money, or missing a bunch of hearing dates, or not filing any motions, appearances, etc for a client in a case. I've seen repeated times in my state where attorneys are disciplined for taking part in private conversations with a judge or the judge's staff, and yet, when I filed for sanctions against this attorney---who admitted plainly that the private conversations took place---my motion was simply denied without a thought.

They WILL lie. They WILL ignore truth. They WILL play the game. It's their job to represent their client and they will do these things to that end. Sure, the RPC state that an attorney shall not lie, shall not misrepresent any facts, shall admit facts or precedent even if it's detrimental to their client's case, etc etc etc, but you have to remember that judges make the rulings, and they were once attorneys. So, a judge understands an attorney trying to represent their client. Doesn't make those behaviors right, but we need to separate ourselves from the emotions attached to watching them lie, and approach this with the understanding that for those lawyers this is not personal. Don't counter their dishonesty with emotion, counter it with facts and evidence of their dishonesty.
 

isisis

LoanSafe Member
Wow, really great responses from Survivor and Krafty. Makes me realize how far our group has come and how much we've learned in the process. Fighting foreclosure is especially demanding pro se because you need to know the applicable laws AND how the game is played, i.e., what you can get away with and what rules can be broken.

It's easy to read the law and see it as real, something solid but it's all a matter of interpretation, attention, enforcement. That's what a lawsuit comes down to with once side saying look at this set of rules and the other side pointing out another set of rules.
 

arrgy

LoanSafe Member
I sent my response to their response. This is just tiring to argue the same things over and over again.
My hearing is Tuesday, which I don't really want to go to. Just get me to the appellate phase.
Its funny (and sad and predictable) that everyone references the note in these cases as evidence of the debt, but no one actually wants to read the terms of the note.
 

moretrouble

LoanSafe Member
Just keep fighting. Make sure you preserve all your (their) errors for,your appeal. My MSJ hearing was in July 2017 I am still here. I wish there were a legitimate lender.note holder so I could turn the house over, not have to deal with a bunch of debt collectors and crooks. I am ready to be “on the road again”.
 

Survivor_IN

LoanSafe Member
Preservation!
This is true. :)

I'm ready for damages. lol. Tired of this never-ending merrygoround of lender litigation. It looks like opposing counsel is being paid by the word. Thieves. I'm not paying for that. How many bites at the pie they get without proving the note is quite amazing.
 

isisis

LoanSafe Member
It can get tedious grappling with corporate criminals whose dilatory tactics are intended to increase the debt amount with arrears accruing and fees and charges earning interest at the note rate all the while. This way even if foreclosure is shown to be unlawful they can offer a settlement with the new ballooned balance recapitalized. Who says crime doesn't pay?
 

arrgy

LoanSafe Member
I didn't even bother going to my motion to reconsider hearing the other day, I knew what the outcome would be, I just wanted to get it on record and preserve as much as I can for my appeal, which I am filing next week. I really don't expect much out of the appeal anyway either, but I will give it a shot. Worse comes to worse, if I still want my house during or after appeal, I can file Chapter 13, since I have saved up enough money to make the plan workable.

I am going to file a tort action for breach of contract against Wells, my first mortgage owner, and the law firm that represented them, as a result of them sending my home to the DASP program while telling me and the court that they were working on a modification. This is exactly like double tracking. Even though you can't sue for damages on FHA violations, the violations can amount to a breach of contract, according to the case law I read. The issue is of damages as a result. At the least, HUD paid out the full price of the home to Wells, Wells never properly accelerated the loan which means all the interest charges, legal fees, etc. plus any other statutory damages I can think of. My state has a SOL of 20 years on mortgage contracts. I will also file an ethics complaint on the law firm for trying to certify to the court something it new was patently false. Now I have to do research on how to sue someone.
 

moretrouble

LoanSafe Member
Similar to Bank of America/Ocwen/bank of New York scheme: two sets of books, one paid down balances of non-performing loans using excess cash reported to certificate holders, the other collection accounts (different loans numbers) to the home owners with accruing interest and fees often at twice the balances reported to the trusts. The differences would be settled after the foreclosures.
 

Survivor_IN

LoanSafe Member
Sounds like you have a plan Arrgy. Will be interesting to see the judgement reasons. Usually they repeat the "winning" argument. I was peeved when I saw that. Don't give up on the appeal though. Good thing you have 20 years to sue on a contract. Get it all scanned and put it in the vault cause if you start winning you might find papers missing. lol
 

moretrouble

LoanSafe Member
Yeaaaas. But you can't directly say "fraud." I prefer the term "duplicitous accounting" for those double books.
I said "fraud" hundreds of time in my court documents that I hope someday i will make public on Facebook, YouTube.

Their winning argument will be: "we are the holder... We are the holder... We are the holder of the note". The judge will take a look at the note and even the servicer stated they reprinted the note, the judge will say "that looks real to me so it has to be real, (now give me the money)".
 

isisis

LoanSafe Member
Servicer de jour, in their wisdom and benevolence has seen fit to graciously offer me a loss mitigation modification.

Now let me get this straight. Despite having overcharged, induced default and refused payments to initiate foreclosure, despite having imposed tens of thousands of dollars in charges and fees, despite having prevented me from finding affordable terms through refinancing thereby allowing arrears to accrue at a high interest rate, despite forcing me into costly litigation, despite subjecting me to thirty mock executions by scheduling a sale and canceling at the last minute, despite the fact that what they've done was unlawful, despite the fact they have no authority to enforce a contract in which they are in breach, despite the fact that the economic injury done to me exceeds the debt.

Despite all of this they want me to walk down the aisle with them and enter into a binding contract in which I agree to pay money I don't owe with amortized interest and in exchange they will not confiscate my home. That is unless they feel like it.

The whole mortgage system is a joke. It's unlawful, unfair and oppressive.

Meanwhile my attorney who had been all fired up to take these bozos to federal court and go for punitive damages goes all quiet a couple months ago and I don't know what's going on. No, I don't think he's in bed with these guys but it's possible he got spooked. Who would blame any attorney going up against the banks for having second thoughts?Just look at the inordinate number of consumer attorneys who've gone down. Most of the vocal or successful ones have mysteriously run into problems with the bar.
 

arrgy

LoanSafe Member
If I were to do it all over again, I would NEVER EVER buy a house, unless I really wanted to leave it to someone. It isn't worth it. Mortgage contracts mean nothing, absolutely nothing.
 

Annie Mac

LoanSafe Member
All the attorneys got tired of getting bashed up in court. I now regret that I managed to avoid court for all those years. It could have been easier to win back in 2010 or 2011 than now, when those foreclosure defense attorneys were eager. We are all tired of the laws, the fraud, the lack of justice, and the judges who passed things along are equally tired of the whole game. I am in a similar state of mind, Isisis. I just want peace and being able to watch the new fawns and baby ducks. Going into the courtroom, doesn't matter which court, is akin to Russian roulette. It will cost $XXX,XXX to go to appeals.... so there are lies. The payments are now fraud stacked upon fraud. I know you love your place. Just moving half a mile away would be unhinging. Well, Wandarobo moved next door and that was even more unhinging. I give you permission Isisis ,to stay put, enjoy your fruit trees and dogs and play hide and go seek and pretend the money is going into a Piggy Bank somewhere in Paradise, or at least it is the PiggyBank allowing your to remain in Paradise. Tis alright. You already won just by being there all this time and giving them the runaround. They have had to work for all their fraudulent money.
 

arrgy

LoanSafe Member
Off to Federal Court I go. I received from the FHA today some of the info on my note and mortgage to confirm that yes on the 60 month of delinquency my note was sent to DASP while still in loss mitigation.
I am proud of myself though. I have been in foreclosure for 10 years with 3 different banks, and I paid down only about $20K of the $200K loan.
Its funny how there are periods of like 5 months where the servicer is reviewing the financial reviews and then it states in the 6th month that I was ineligible because I never responded.
But since I am suing for breach of contract over $75K I have to go to Federal Court. Learn all new rules, etc. And damn, they are expensive...$450 just to file a suit.
So I am in state court waiting to file my appeal.
And now Federal Court to sue the first servicer.
Oh and that stupid storm is coming my way.
 
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