What Do You Guys Think, Would This Be A Smart Move?

kraftykrab

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Jan 27, 2014
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So by now, most of you know about my fight with Caliber Home Loans. It's been more than a year since this all began, and I am further away from being able to understand what is actually happening now than I was when they first entered the picture.

I've sent them numerous QWRs, jumped through every hoop they have asked me to jump through in an effort to get the issues resolved. Caliber is beyond worthless when it comes to resolving disputes. Recently, I was informed by Caliber that they retained an attorney(same attorney that represented the original lender in the foreclosure proceedings that are still in limbo). Caliber told me at the same time that Caliber itself has already begun litigation against me on the same loan. The attorney is Dean Morris LLP, down here in Louisiana, for anyone who might be familiar. About the only thing I have found when researching them is that they are labeled a foreclosure mill on various websites, but I have not seen cases that show this.

I was told that I should contact their attorney for more info. So I did. After a week of trying to get a call back, I finally caught up with the right person. And she basically knows nothing about what is happening here, pretty much what I expected. She has no knowledge of who actually owns the loan, has seen no documentation of really anything. I informed her that her client has violated so many laws in so many ways it isnt funny, and that I fully intend to not only defend against what would be an unlawful foreclosure, but that I will also challenge Caliber over every violation of law. She then asked me to fax her a written request for documentation, to list out my disputes for her and she would try to get some answers from Caliber. I don't want to come off as paranoid, but ever since this all began with the OC, they have worked overtime to try to use any info I provided to them against me. I can see this going the same way. At the end of the day, this attorney owes me nothing, they have a duty to represent their client, and so I'm wondering if this would be a good or a bad idea. On one hand, I believe that I have provided more than enough notice to Caliber about the problems that exist. On the other, I want this attorney to understand that so much has gone wrong here, on a loan that never should have been placed in foreclosure in the first place, and that I intend to fight every step of the way. I dont know, perhaps an attorney would be less willing to take a case like this to litigation, maybe I'm just dreaming but that is the purpose of this post. So, for those who know better than I do, would YOU send that kind of notice at this point to the servicer's attorney? Please discuss reasons for doing so, and also reasons not to do this.

Thanks in advance!
 

wanda robo

LoanSafe Member
Sep 29, 2012
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I think they're all smoking something, that's for sure. How has Caliber begun litigation, on a loan that is already in litigation? How can the attorney know nothing about what's going on, if it's the servicer, that calls the shots & tells the attorneys how to proceed? Are you SURE your case is still active? In NJ if a case gets dismissed for lack of prosecution, you don't get notified, by the court, & the plaintiff's counsel conveniently forgets to let you know.

They either have to substitute the Plaintiff, or dismiss & refile, period.

I wouldn't waste my time, krafty, because the attorney is going to get what she can get, from the servicer, and you've already been down that road. Also, even if the attorney understands, your position, she's not going to care.
 

kraftykrab

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Jan 27, 2014
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Yes, I am sure that the case has not been dismissed for want of prosecution. I call the court clerk's office every so often, checking to make sure nothing new has been filed. As of last week, the last activity on the case took place in August 2013, when HFC filed their general denial to my counter claim. The judge/court has done nothing and neither has the plaintiff. Down here, there is a 3 year limit before want of prosecution applies. So, I'm about halfway there.

The attorney stated quite plainly to me that there is no new case, and that Caliber has not substituted in the current case. She could not explain to me how Caliber can charge me over $1100 in attorney fees and litigation fees when there has been no litigation to speak of.

Caliber can substitute, you are correct, but Caliber CANNOT dismiss and refile, because Caliber is not the plaintiff. only the plaintiff can dismiss his case, someone else cannot come in acting as the currently named plaintiff and motion to dismiss.

I tend to agree that the attorney won't care, she is only there to represent her client, which at this time appears to be Caliber. I asked her how Caliber can be her client, and she did not understand. I asked her, "How can Caliber even be considering legal action when by their own admission they are only the servicer and not the real party in interest?" Her response to me was that she has no idea who the actual investor even is. So, this attorney, apparently, seems to have plans to insert Caliber as the new plaintiff eventually...and does not even know if Caliber has the legal right to be a plaintiff in this case!
 

moretrouble

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Nov 14, 2009
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I wouldn't waste my time doing anything, not even thinking about it. Deal with them when they file suit. Enjoy the weather. My guess is: your original HFC loan was securitized into one of the HSBC Trusts. HFC was the seller, already sold the loan to the trust. LoneStar hedge fund bought your loan after the alleged default , Caliber is servicing it. Nobody has any document to prove anything. Wait till you don't need the house anymore then file a quiet title. Till then enjoy the free rent.
 
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kraftykrab

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where can I find information about HSBC trust? it's possible that my loan was sold a long time ago into one of these truSts. if it was HFC could not have sold my loan to anybody in 2013. how can I check this out
 

pennygram

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Sep 29, 2010
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I am going to give it a shot here but definitely can not say I know better...

I personally would not play any more and just sue;/counter sue them for whatever I have and be done with it. Why? Because you are trying to save your home, you mean business, you have a strong case, they have threatened and damaged you for many months, you may lose claims due to sol, you have strong discovery first, etc. I actually did this so I am not just saying.... I usually, but not always, like the file first then lets talk plan...

BUT a different approach as well....

First you may have FDCPA which opens a whole new ball game for you. Send the attorney what she has requested and include a FDCPA dispute and try to do this BEFORE she files anything on behalf of Caliber.

Attorneys wear different hats depending on where they are in the equation. IF there is no lawsuit filed for their client then they are collection attorneys and can not sue until they verify and validate. If they have sued then they are attorneys representing their clients and you may lose your fdcpa claim against them. You may not want to directly sue them but you can sue their client for their actions which will put them at odds with their client.

FDCPA is your friend - this is on the foreclosure attorney end - it gets you fee shifting that could look attractive to an attorney should you need one in the future. Also FDCPA is strict liability so if they don;t follow up correctly they could face a lot of damages especially if this action was slanderous and damaging to you. AND if they are not covered by FDCPA then they owe you nothing... safeguard for you as long as your claims are not frivolous or outrageous.

How about any FCRA claims - brush up on them as well. if they are reporting inaccurate information then dispute with the CRAs asap and see if it is fixed. If not then add that to your claims.

Next get your "just the facts" in order and list them. This is something you would have to do to prepare any claim or counter claim and no harm in them receiving at least the strong basics at this point. Also it will give you a fresh view of your overall case and see what claims you have that you can sue for and what claims may have become defenses that are out of sol, if any.

List these in 3 rows: Major, Minor, worth mentioning to tie the case together

Major is anything that has strict liability and has fee shifting, minor is usually the state laws and those broad laws and tieing the case are the small things.

When writing you need to play to the eyes of the judge and a jury - these two entities may not be interested in your tug of war due to unclean hands or the attitude that still exist of you didn't pay so why am I here. It was told to me many years ago that you always have to treat a judge and a jury like they don;t want to be there listening to you - they were suppose to be off on their 25th wedding anniversary and momma is not happy that she is stuck home making them unhappy as well. So if home life is unhappy and they don't want to be there how is it NOT your fault but the other parties fault.

the foreclosure attorney will take the case for the mortgage servicer because they give them many cases and they are not in a position to pick and chose - they probably have a contract. however, you finding an attorney may be a different story because they can and will pick and chose so tidying up your case could make a difference especially making it attractive in fee shifting so they can get paid.

jmo - consult an attorney in your area for legal advise...
 
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moretrouble

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Notice on the HSBC website 2003 thru 2005 Trusts were paid off, no longer exist, an no more more reporting. Payments are going to the new pool owner.
 

kraftykrab

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OK, so how would I go about finding out if my loan was ever in one of those trusts? It was originated by HFC in April 2006. Here's the thing, by my understanding, if your loan was securitized, the note and mortgage were bifurcated. Once your loan is bifurcated, it cannot legally be made whole again. Think of an orange. You put an orange through the juicer--that's what bifurcation is like. Once you made orange juice, you cannot go back and make that juice back into an orange. In the same way, a bifurcated loan cannot be made back into an unsecuritized, secured loan again. So, if it was placed into one of those loan pools, how could they simply revert back to the originator?
 

moretrouble

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You can buy a securitization audit. Used to cost about $1000. If your loan was originated in April 2006, it's was likely put into Series 2006- 2 Trust ,which was paid of at the end of Jan 2015, just read the servicing certificates on the web site I gave you. HSBC exercised the right to pay off the bonds, got all the loans in the pool from the Trust , sold them to somebody (LoneStar? re-secutirized), Caliber is servicing for the new owner. All this argument about bifurcation won't get you anywhere. All you care about is the Note Holder status. Can they prove it? My guess is they can't, otherwise, they sue you already. It's a poker game. Bluffs and calls and folds. Kind of fun. Good luck. Don't think about it too much, especially don't let it bother you. Be happy, enjoy life. Do your research and deal with them when they come.
 

wanda robo

LoanSafe Member
Sep 29, 2012
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You can buy a securitization audit. Used to cost about $1000. If your loan was originated in April 2006, it's was likely put into Series 2006- 2 Trust ,which was paid of at the end of Jan 2015, just read the servicing certificates on the web site I gave you. HSBC exercised the right to pay off the bonds, got all the loans in the pool from the Trust , sold them to somebody (LoneStar? re-secutirized), Caliber is servicing for the new owner. All this argument about bifurcation won't get you anywhere. All you care about is the Note Holder status. Can they prove it? My guess is they can't, otherwise, they sue you already. It's a poker game. Bluffs and calls and folds. Kind of fun. Good luck. Don't think about it too much, especially don't let it bother you. Be happy, enjoy life. Do your research and deal with them when they come.


moretrouble I couldn't agree more (as krafty already knows). I think going down the securitization road, gets one nowhere. In krafty's case, there was no Holder in Due Course, in the chain of title & no matter who forecloses, they will be stepping into the shoes of HFC, and be responsible for HFC's bad deeds in losing and or mis- applied payments. HFC drove him into default and who ever comes next is just as responsible. As long as you raised this defense in your Answer to the complaint, krafty, you'll still be able to use this as a defense, no matter if they try to substitute the Plaintiff or not.It's all about the original note and the fabricated Assignments being prepared & recorded after the default occurs.
 

kraftykrab

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Jan 27, 2014
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moretrouble I couldn't agree more (as krafty already knows). I think going down the securitization road, gets one nowhere. In krafty's case, there was no Holder in Due Course, in the chain of title & no matter who forecloses, they will be stepping into the shoes of HFC, and be responsible for HFC's bad deeds in losing and or mis- applied payments. HFC drove him into default and who ever comes next is just as responsible. As long as you raised this defense in your Answer to the complaint, krafty, you'll still be able to use this as a defense, no matter if they try to substitute the Plaintiff or not.It's all about the original note and the fabricated Assignments being prepared & recorded after the default occurs.

I agree that the securitization route alone will lead nowhere. But I am trying to take in the whole picture here. Everything I can find that they did wrong will be put in front of a jury. At the very least, this should provide some leverage and cause the plaintiff to be more willing to step up and want to settle. I dont think they will like my settlement terms, but they would like a jury's decision a whole lot less! So, that is my plan--to build such a case by using every detail that's relevant, so that they absolutely do not want this to go in front of a jury. Once that is accomplished, and once this stands a chance to get in front of said jury, we' ll see just how confident these folks are in their ever-changing story then.

The thing is, there WAS a holder in due course. At least, as far as i know at this point, there was. The original lender did have possession of the note, in their name, and so on. I have reason to believe that our loan was securitized shortly after it was written, though, and then everything goes out the window at that point. I do also know this--the note WAS lost. It HAD to be. In my state, a lender can foreclose using one of two methods in the courts. The more common method for an original lender to foreclose is by "executory process". This method is reserved for holders in due course--the standard for proof is stiffer than "ordinary process", which is what the lenders file when they don't have all their documentation in order. Strangely enough, in my case, the original lender filed ORDINARY process against me. This is something that every attorney I have spoken to has scratched their head about.....I now know why, thanks to the June 2012 lost note affidavit prepared by the OC. But none of the attorneys I discussed this with wanted to act any further than "we file bankruptcy, we dont really go after the banks". So thats why I feel like I have to go it alone, and thats why I wont leave any stone unturned. The one attorney that I spoke to that did not only want to file BK wanted me to give him a $6K retainer....I spoke with him for over an hour, and we discussed the documentation that I had and the recorded phone calls. But $6K as a retainer? Seems awful steep to me, and I dont have that kind of cash just laying around.

There certainly is no holder in due course now. But I'm still trying to plan out my next move. I've been working on getting all the info and details in order for some time now. I literally have more than three dozen microcassettes, filled with recordings from all the phone calls. I've got documentation from all over the place. I've even seen where one guy filed BK, declared that the mortgage he had was a $100 unsecured debt, and dared the lender to prove otherwise. I know that this needs to go to a courtroom sooner or later, I'm just concerned because I know that many courts do not take a pro se plaintiff seriously at all. I'd hate to go through all of this only to be screwed over by a court as well as by the servicer. Ultimately, I know the fight has to take place. Just not sure how to go about all of this
 

kraftykrab

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Jan 27, 2014
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I've been looking over the prospectus info for the HSBC trusts. It would seem more likely that our loan would have been included in 2006-1. 2006-1 had a cut-off date of June 14, 2006. 2006-2's cut off date was July 17, 2006. Our loan was originated in April of that year, and they have 90 days to place a loan into the pool, ending on the cut-off date.

Something else, don't know how much this matters or if it matters at all. According to the prospectus, the mandatory repurchase clause states that either the depositor or the servicer would have to either repurchase the non-performing loan back, or they would have to cure the delinquency themselves. Depositor is listed as HSBC Home Equity Loan Corporation I. Servicer is listed as HSBC Finance Corp. Our loan was serviced by HFC, not by HSBC. Up until 2009, HFC was separate from HSBC, they were not combined at that time. Even once the combining took place, HFC was still referred to by its own name. Neither of those entities ever serviced the loan that we know of. Kinda makes me wonder if the loan was ever securitized back then or not.

I did find where a "free writing prospectus" was usually submitted during and after 2006 with the SEC, and this would normally list out all the loans contained in the pool for a given trust. However, I located that document on the SEC website for the trust and it contains none of that info. I believe that I could send a written request to the SEC, now that I can identify a specific trust, and they would send me copies of the documents within 30 days. Gonna have to look into that. If they sold it way back then, and they are not listed as the servicer or the depositor, then there are going to be a lot of other problems with how this has been done.
 

Survivor_IN

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Jun 2, 2008
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The attorney stated quite plainly to me that there is no new case, and that Caliber has not substituted in the current case. She could not explain to me how Caliber can charge me over $1100 in attorney fees and litigation fees when there has been no litigation to speak of.
......Her response to me was that she has no idea who the actual investor even is. So, this attorney, apparently, seems to have plans to insert Caliber as the new plaintiff eventually...and does not even know if Caliber has the legal right to be a plaintiff in this case!
Hi Krafty!
my 2 cents
I think the attorney is ethically bound to be truthful in their dealings with others. HOW can this attorney represent, ummm, no one, and not have the name of the investor owner??? It appears to me that you can file a complaint with the State's Bar (attoney discipline/complaints) regarding 'less than truthful dealings and misrepresentatiom of facts' to others. Isn't there supposed to be a legal recording of ths? (yes)Your phone recording is evidence of frivolous or untrue statements. Attorney could have stated that it is a conflict to discuss, but used opportunity to request information to be used against you. In some states, attorneys are refusing to represent the banks after realizing they are liable and can face potential disbarrment for filing unsubstantiated documents, etc, in these foreclosures. These Bar complaints have shut down several foreclosure mills. Check your County Clerk for current Assignement information, (my state can be accessed online in land records) and do so regularly, as this needs to be done pre-foreclosure in order to create legal claim of ownership. Also realize that once the 'assignement' is presented to the court as 'proof,' then an attorney may be subject to sanctions or disbarrment if they particpate in filing 'fraudulently created' docs with the judge.

I agree that sending opposing attorney letter or legal request may work against you by providing them info they can use against you. For example, requesting investor info means you do not have correct info, so maybe they can 'fabricate' the docs instead? Technically, information requests should be a part of 'discovery' process and done by motion thru the court.

However, you might request certain info from Caliber... and then add same request in "discovery'process. Then compare the two for errors and misrepresentations. But again, this is a tipoff to your concerns.
 

Survivor_IN

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Jun 2, 2008
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also, maybe you could include a request for 'complete and accurate history of securitization and ownership' in discovery?
 

kraftykrab

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Jan 27, 2014
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Survivor...

A few things. First, the attorney's office did not state to me that they represent no one. They stated to me that they represent Caliber, which claims to be the servicer only. Caliber has identified several different trusts as the actual owner, often telling me two different ones within the same period of time. The attorney did say that she has no idea who actually owns the loan, and stated to me that they have been retained but nothing really at this point has been reviewed. So, Caliber's been charging me over $1100 in legal fees and "litigation fees" when there's been absolutely nothing done, not even a basic review according to the attorney that Caliber's trying to get me to pay for. And yes, that's on tape.

I'm not sure about whether or not this is enough to file a complaint with the bar. I can tell you that it seems strange to me that the exact same attorney who represented the original lender all of a sudden represents Caliber now as well. Their client HSBC has done nothing in the case, but they now represent a new client with regard to the same case.....sure seems like something funny's going on. Do you have any links to complaints like that that have been filed elsewhere?

Regarding the assignments, I've been checking every so often already. As of right now, the last assignment recorded on this property was done in 2006 by the original lender. Caliber does not appear in any document relating to this loan or this property, and neither do any of the trusts that Caliber has named. The only documentation that shows these entities are the documents that Caliber has manufactured fraudulently. In fact, they even were kind enough to send me a huge mistake---they sent me an assignment of mortgage with a document creation timeline printed on the reverse side of the same paper....the timeline was created using LPS Desktop, which is the well known document manufacturing setup. the timeline shows that the document was manufactured, sent to Caliber to be signed, and then sent back so that it could be entered as a "legitimate document". Total fraud. And they actually sent me the timeline that proves it....

Regarding information requests, I've already sent several QWRs to Caliber in the last year. They have been either outright ignored, or else Caliber responded with the most ridiculous responses that did not answer any of my questions....
 

Survivor_IN

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Jun 2, 2008
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Survivor...

A few things. First, the attorney's office did not state to me that they represent no one. They stated to me that they represent Caliber, which claims to be the servicer only. .. Their client HSBC has done nothing in the case, but they now represent a new client with regard to the same case.....sure seems like something funny's going on. Do you have any links to complaints like that that have been filed elsewhere?

Regarding the assignments...

Regarding information requests, I've already sent several QWRs to Caliber in the last year. They have been either outright ignored, or else Caliber responded with the most ridiculous responses that did not answer any of my questions....
Filing a Bar Complaint is typically confidential. Lawyers protect their own, but word gets around, and for a period of time there was lag due to attorneys quitting in my area. This had to do with subnitting robosigned docs. If I run across something concrete I'll share. Learner Sampson Routhus (sp?) in OH comes to mind.

I do like PennyMacs FDCA complaint idea. I also thought you might be able to complain to NMS Oversight Monitor, but HSBC isn't on it. There are 28 points that are being monitored, but this site has 'simplified down' to a few majors. So, they direct you back to CFPB for complaints. The Mortgage Settlement puts a timeline on information requests with the new rules in effect jan 2014. At least now you can complain about 'ignored' QWR and it effects their servicing scores and then trickles into their SEC report.

Wish I could be more help.