Four Year Old Foreclosure .. Oops, Wrong Bank
“Equity imperatively demands of suitors in its courts fair dealing and righteous conduct with reference to the matters concerning which they seek relief. He who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice, or unfairness will appeal in vain to a court of conscience, even though in his wrongdoing he may have kept himself strictly ‘within the law.’” Epstein v. Epstein, 915 So.2d 1272 (FL 4DCA, 2005), emphasis added.
I’ve written several times about my own foreclosure. I purchased a house with a girlfriend, the idea being it would appreciate then she would refinance and pay me back the $75K I brought to closing.
First, let me say to readers, friends .. this is an awful idea. I’d say don’t try it at home, but it’s more accurate to say don’t try it on a home. :)
Predictably, we quickly split up and I eventually purchased my own house, that I’ve since paid for.
My ex-girlfriend still lives in the other and soon after we split I asked the “bank” — knowing then virtually nothing about the mortgage industry — what to do. ”Stop paying for three months then you can short sell it,” they answered. ”This is a full-doc loan with a substantial down-payment, no second, in an area with rapidly decreasing value; a short sale should be easy.”
I followed their advice, even going so far to paint, improve landscaping, and pretend I really was selling a house rather than mitigating a breach. That worked well because I received two short-sale offers, both above generally acceptable values. One was for cash and the other a 50% down-payment on a pre-approved loan.
Both legally binding offers had clear, unambiguous deadlines, and I was asking the bank for no concessions other than to close the deal. That is, I was attempting to mitigate a breach in good faith. This wasn’t a strategic default, though I do not see anything wrong with strategic defaults; this was “owning” a house with an ex-girlfriend and reasonably desiring not to.
My “bank,” perennial bad-boy Aurora Loan Services — who had “purchased the loan” from the originating “bank,” GMAC not long before — accepted the offers months later, after they’d expired and after the value of the house plunged. Needless to say, those buyers were long gone.
While Aurora was extremely slow to mitigate the breach they’d induced they were extremely fast to hire fraudster David J. Stern to file a foreclosure.
I honestly find many foreclosure stories boring, and a little sad, so I’ll cut to the end: the latest law firm — the formerly venerable Broad & Cassel — filed their third amended complaint, and an umpteenth copy of the note; that is, the loan. It is clearly and unambiguously endorsed to Deutsche Bank, who is named nowhere in the lawsuit.
Deutsche Bank, the owner of the loan, appears nowhere in the foreclosure except on the note itself. Assuming Stern didn’t forge the note — which, for Stern, is admittedly a big assumption — I’ve been sued by the wrong bank.
At this point, I’m ready to write my own foreclosure.
This should have been a short-sale years ago, with little or no loss to investors. Instead it’s turned into a fiasco: years of protracted litigation and junk fees as Aurora continues to slog along. No doubt the loss severity will reach some threshold — 100% give or take a little — where they’ll magically figure out how to either prosecute their foreclosure or reappear and offer to close this never-ending saga.
Every month investor losses needlessly mount. Every month my credit sits in the tank. Oh yeah, and every month Aurora continues to collect higher servicing fees.
If Aurora had fulfilled their obligation to investors and to me to mitigate this breach, and closed that short sale, they would have collected nothing for the past couple years. Zero is much higher than the net amount I suspect they’ll end up with on this loan after the inevitable lawsuit against them by investors and/or the mortgage insurer.
Aurora can forget a statute of limitations defense: every month this continues they reset the clock for the inevitable fraud claims.
Forget the “living for free,” nonsense: if I amortize the amount I put down for that house, the payments I made, and the time I lived there I could have purchased it for cash at its current value. My ex-girlfriend has been living for free for years (no comment on my current longtime girlfriend’s feelings about that), but she is not me.
At least one law firm that worked on this fiasco, Stern — who Broad & Cassel has plead deserves to be paid for his malpractice — has disappeared in a fabulous and famous explosion of fraud after my data proved he was a sociopathic liar. Boom.
The second law firm, outfit run by Elizabeth Wellborn, quickly vanished after I wrote to Lizzie that I looked forward to finding out who her “friends at the courthouse” that will “speed your eviction” are, a statement she’d posted on her website. Ciao.
I have no idea what’s happened to Aurora’s OCC loan reviewer, Allonhill, after I found the company was founded and run by the same woman who’d run a prior company, Murrayhill, that created and audited Aurora’s default practices. I suspect it’s see ya’ Susie.
At some point I hope to find out which trust actually owns this loan — even with my large data sets my own loan has disappeared — so I can work with the investors and the mortgage insurer to bring about some justice to Aurora Loan Services. They deserve to join the ranks of the incompetent vendors they’ve hired.
Something is seriously wrong when a borrower spends years trying to bring a foreclosure to fruition only to be frustrated by vendors of the servicer — who, thanks to Lehman’s bankruptcy, may not even have paid for servicing rights — at the expense of bond investors and the mortgage insurer.
Foreclosure is what lawyers call an “equitable remedy.” Any party with “unclean hands” is theoretically unable to receive “equitable relief,” in courts operating under equity, mainly foreclosure and family court. The rule is easy and ancient: if you lie you lose.
Dismissal for unclean hands seldom happens though strict enforcement would be better for everybody that matters. Investors and mortgage insurers could sue servicers and their lawyers for the losses as the cases are dismissed. Judges would clear their dockets and, thanks to malpractice insurance, investors would get paid. Investors would still be able to force borrowers to pay something under a doctrine where you can’t get free houses, but that something would likely be something affordable.
Hopefully I’ll get the chance to work with the genuine parties who lent me money to rip back the money Aurora meant to make for month after month of delay, for this loan and every loan like it.
The problem with suing servicers is the upfront cost. As a fraudclosed homeowner, I can’t begin to put together the resources to sue my “lenders” (AHMSI and Deutsche Bank), and the SOL on their fraud is fast approaching for a civil case.
On the other hand, the SOL for criminal fraud is twice as long in New Hampshire. Bring on the handcuffs!
Investors and mortgage insurers, but especially investors, should be suing servicers. In the grand scheme of things investors and MI’s have a gripe as bad or even worse than borrowers. At least borrowers got to live in the houses for awhile and MI’s were paid premiums. Investors loaned money at very low interest rates and ended up getting completely screwed by rampant corruption. Borrowers should sue crooked appraisers, who they paid and who failed them, but that’s much more difficult than it should be.
Hello,
I’m suing Aurora Loan Services, Aurora Bank, MERS, Quality Loan Services etal in CA.
By the way, Aurora Bank FSB was sold to Nationstar in Texas the other day 3.6.12. Although I’m in Pro Per, I’m using a fantastic attorney who is also a California Law Professor who has completely wrapped his head around the bankster/servicer “identity thieves”. He also understands REMIC Securitized Trusts and how necessary it is to be able to find your trust. In addition, he charges by the project and NOT by the hour so you know what your costs are going to be. The PSA (Pooling & Service Agreement) sets forth the parameters of the trust and what is expected by all parties. If those parameters are not followed, even though your note/revenue stream made it into the trust, it’s as if nothing ever made it to the trust. Also, once the note/revenue stream got there, it is no longer the same. It has now become a liquid security. If and When the bankster/servicer claims they can’t find the original note and the Court refuses to accept a supposed copy, the bankster/servicer can no longer pull it out of the Trust and bring it into court as if they just found it. This is because once put into the Trust and now a liquid security, it can no longer be reconstituted back into a Promissory Note. There are several things when suing the bankster/servicer that need to be in your complaint and most attorneys simply don’t understand that. The banks still are doing dual tracks while supposedly giving you a workout/forbearance agreement while trying to foreclose on you at the same time. All documents need to be checked for robosigning, notary parties checked within your State to see if real and/or when commission expires; was it active at the time of signing, etc. You as a borrower/homeowner need to become completely involved with your case which includes time consuming research, reading up on your State laws and Rules of Court, etc. I can’t express enough how important this is. One of the homeowners I’ve been helping had some of my documents (I had shared them with her) and believe it or not, she found that MY Promissory Note Signature of MY NAME was NOT my signature. It had never occurred to me to look at my own signature. I had it checked by a Certified Handwriting Specialist that has already gone up against Aurora, Bank of America, Wells Fargo and others who affirmed that it is NOT my signature and does NOT match any of my other signatures on the Deed of Trust, and other signed documents. This past year, Aurora send me a letter with attached documents (I don’t believe they meant for my eyes to see) which included an Allonge allegedly selling my Note from the REMIC Securitized Trust to Aurora Loan Services which was signed by a Robosigner and dated 23 days after I filed my initial complaint. If they even try to present this to the Court, I believe it will be considered a “fraud upon the Court”. Try and find a lawyer within your State, either judicial and/or nonjudicial that will work with you on a “limited attorney representation basis” and that way you can pay him/her for the project and for their appearance. Or find an attorney out of your state that will write your complaint, motions, etc., according to your State Rules of Court and then hire someone in your State to represent you only in the Court Room. This will save you considerable money. I’m fortunate in that my attorney writes everything and then stands in for me at the Court. And MOST IMPORTANT, when looking for the attorney one of your first questions should be “Tell me what you know about MERS”. If they stammer or can’t recite you tons of information, hang up the phone IMMEDIATELY because they don’t understand this area of the law and you will only be paying them to educate themselves. Thus far, I have a standing Court Order that no one can foreclose on me until further order of the Court. My first complaint, which included the name of the REMIC Trust, was filed 1 year ago in California State Superior Court. However, I am only suing the parties on the front end of the loan (named above) because NONE of them have any real interest in the property (the original lender is bankrupt, however, was owned by the major party in the REMIC Trust). We believe we will prevail against the above mentioned parties because pursuant to our allegations, NONE OF THEM HAVE ANY AUTHORITY TO DO ANYTHING! Later, if necessary, we will add the parties named within the REMIC Securitized Trust. If any of you out there want any information as to how we have managed to get this far, please send me a note to kensington dot taylor @ verizon dot net. and I will be more than happy to share. Please send your phone number as well. Meanwhile, best of luck to all.
Hi Kensington, I tried to email me but it got return. Please email me info of your attorney. I live here california and we have similar situation.
Could you please supply the name and information on your attorney. I too am in California and have a problem with Aurora/Nationstar
I know its been almost months any updates on the nationstar Front?
I am in Florida Palm Beach County. Same Aurora Bank –> Nationstar setup as several others here. I am in need of teaming up with someone here to sharpen my knowledge and share resources. Lawyer or non Lawyer if you have a similar case information that would be great. Any suggestions. feel free to email me direct at steve at sennex dot com.
I like how Kensington has said it:
“Try and find a lawyer within your State, either judicial and/or nonjudicial that will work with you on a “limited attorney representation basis” and that way you can pay him/her for the project and for their appearance. “
Great find r.e. Nationstar, Kensington! The rest too, but especially Nationstar. I’ll write a whole piece about it. Nationstar is preparing for an IPO, which means there will be lots of data about what they’ve been up to. I suspect it will do about as well, over the long term, as David J. Stern’s DJSP did. Aurora is one of the few “banks” that have not released an action plan by the Federal Reserve. I don’t know if that’s because they disclosed the pending acquisition, or because there may have been issued w/ the OCC auditor they chose, since it was run by the same woman that ran an “independent” company which wrote and audited their default policies .. the same one’s her new firm, located down the street, was supposed to be “independently” auditing.
Nationstar!!! A few years ago, my loan was sold to Nationstar, who gave me an in-house modification of 2% interest only for 5 years, which doesn’t help the situation that I’m underwater about $250,000.00. But my loan was just sold again to Bayview. My loan has changed at least 5 hands. Don’t know what to do anymore. I’ve been paying my minimum interest payment of 2%, but I want to resolve this and modify my loan to stay in the house.
I am also having horrible experience with all of the above. Property is located in California. I was told by Aurora June 2011, that the lender ( Duetsche Bank ) had ran out of money, and was no longer doing modifications. In March of 2012, I was told that they started doing modifications again. I sent all paper work to Aurora. They gave me the run around, the lost this item, re-send this item., etc. I know that I have mailed and faxed all paper work 2-3 times. They kept stalling on an answer. Then the 3rd week in June, I was told that Nationstar was being sold by Aurora, as of July 1, 2012, and that they would forward all paperwork to Nationstar. Nationstar claims to have lost paper work, and had to send everything again. They have changed contact person every month ( 3 times ) , and none of them know anything. Keep being told it is in review. meanwhile, Aurora quit accepting payments last June, and have not been able to get them to accept a payment. Told today, September 19, 2012, modification was denied? No expalination except ” didn’t qualify”? Does anyone have a good attorney in California to file a law suit. this is a MERS loan, and I am dealing with fraudulant companies, and unknowledgable employees. Please email me with information on a good attorney ( I am in Orange County). Is there any knowledge of a class action law suit? Thank you. Kathy 949-295-6898 kdehaven@aol.com
I am in Florida Palm Beach County. Same Aurora Bank –> Nationstar setup as several others here. I am in need of teaming up with someone here to sharpen my knowledge and share resources. Lawyer or non Lawyer if you have a similar case information that would be great. Any suggestions. feel free to email me direct at steve at sennex dot com.
I like how Kensington has said it:
“Try and find a lawyer within your State, either judicial and/or nonjudicial that will work with you on a “limited attorney representation basis” and that way you can pay him/her for the project and for their appearance. “
I have a serious situation here in Cleveland Ohio. Our family home was foreclosed on 2007. The original loan was with Peoples Choice Home Loan Inc. out of Irvine California in my daughters name. On the mortgage MERS is acting soley as a nominee for the Lender, she got the loan 10/29/2004. It wasn’t one month into the loan payments when we were told to pay Chase Home Finance and we did. Up until her job was lost and she got 2 months behind, We called tried to make arrangements and after a month we were told there was nothing Chase could do. A month and a half later we received forclosure papers from a debt collector Lerner Sampson & Rothfuss. We did nothing we thought that the bank had the right to foreclose if we were behind. Boy was I naive. Anyway there was a Default Judgement entered on 1/8/2007 and a sheriff’s sale followed 4/7/2007 at which HSBC bought back our house for $50,000. We asked for stay to arrange a purchase back of the property and it was granted. I got financed for $55,500 which we offered through the court. HSBC through LS&R refused the offer stating that the amount they lost was $99,000 and what I offered was not enough. The sale was confirmed.
HSBC never sent anything to vacate the premises until 11/4/ 2011 (They have new lawyers now Manley Deas and K& Kochalski) and they sent it to my husband and I (reason: the recorders office never recorded my daughter as owner. The house on record went from my mom to my husband back to the bank. When in reality it went from my mom to my husband to my daughter back to the bank. Anyway, we have fought the eviction and fought the eviction until 8/10/2012 when our atty. said it was time to give up because they had the sheriff’s sale deed and there was nowhere else to go. So we signed an Agreed Judgement Entry on 8/14/2012 that said we would be out of the house by November 7, 2012 and if we weren’t they could activate a set out. This Agreed Journal entry had to be turned in by 8/16/2012 or the case would be dismissed without predjudice, each party to pay their own costs by Court Order. Well they missed the turn in and we thought the case was dismissed. In the mean time I made one last ditch effort to get someone from HSBC to sell us this delapidated old house. I called HSBC corporate in New york and after a runaround was connected to the Executive Mortgage Team on 11/1/2012. I explained what was happening and that we had made numerous offers for the purchase of this house etc. On that day the girl couldn’t find any records relating to our house and finally she was told that our house was a Trustee Acount. She said she would investigate what they could do and get back to me. on 11/5/2012 the called me and said we can’t help you HSBC only has an interest in your property you will have to talk with Chase. Wow this was so weird. I said you bought back the property and you owned it – what’s going on. Well I then started looking and calling and pulling records – and I found Peoples Choice never assigned the mortgage to HSBC until after the the foreclosure was filed by 2 months. Then the note was assigned to HSBC with an Allonge (plain paper) no certification or anything and sent to the court 3 months after the filing. The lady that signed the mortgage transfer is on the Robo Signers lists online. and a bunch of other stuff we found.
Now remember I said there was an order for the case to be dismissed if they did not turn in the Agreed Judgement Entry? Well on 11/13/2012 they came in and got a writ of restitution and we were on the set out list 11/26/12 I pro se filed for a stay stating many of the new found information under Civil Rule 60(b) and asking for time. I then filed also a Vacate the Agreed Judgement Entry because they missed the filing and by Court order journalized the case was dismissed (at best they would have to start the eviction procedings all over again 90 day notice, 3 day notice then file the case. The court granted the stay and set up a Settlement Conference for 12/21/12 (Friday this week)
I need someone to tell me if we can ressurect the old case from 2007 in Common Pleas Court. The statute is usually 1 year after default judgement. Except when there is fraud upon the court. Which this was and a whole lot of fraud I have hard copies of some. Also is there some other option using the promissory note as a contract or the mortgage as a contract in Contract Law that in Ohio would give me 6 years to file and or 8 years. Where do I look? What can I do now to hold off the municipal court in this Settlement Conference. How should I approach this meeting? How can HSBC negotiate anything when they said they could not entertain a purchase offer we had to go to chase? Why? Maybe they hold the Mortgage and Chase holds the note. I don’t know. I suspect they do cause chase sent them a copy of the note in september 07 and left the fax endenture on the top of the pages that were faxed. When they filed the foreclosure they said HSBC c/o chase home finance, san diego, CA. Then no more is heard of chase. No assignments, no transfers no nothing. WHAT’S GOING ON? HELP PLEASE SOMEONE. At present we have run out of money, we need a lawyer that will work with us temporarily pro bono and let us pay incrementally. Also I thing we should be entitled to damages for this madness — is that possible? Again anyone can you help/advise?
Sorry forgot to leave my email : It is pamloury@gmail.com please help anyone
I am also having a battle withAurora and than Nationstar. They say Deutsche Bank is the owner of the note. They are the trustee of the MBS series in which my loan is . It made it into the Trust. I found it in the Bloomberg report. the Lender, Homecomings Financial , Residential Funding, Residential Accredit Loans, all parties in the securitization chain are in Chapter 11 Bankruptcy as is GMAC. Aurora sold/transferred my loan after the loan was already in default for 4-5 months to Nationstar. I disputed the amount and they basically ignored it. Would love to team up with someone who has gone through this experience, on what to do next. I did my securitization chain, partial Bloomberg report send QWR’s, but need someone experienced/ who has gone through this to collaborate with. Find a lawyer who will help with court filings etc. lohsehanneke@yahoo.com