Bagels at a Bar mitzvah Part II

M

moretrouble

LoanSafe Member
Another case to study if you need more info. You can get documents from related cases (district court, ad proc) listed in the brief in case you go pro se. Adversary proceeding in bk case, appeal to BAP, removal to district court, appellate court... stretch them out for years and cost them maybe another 100K in legal fees.
 

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Survivor_IN

LoanSafe Member
M

moretrouble

LoanSafe Member
As a result of my bk filing, all of my credit cards got cancelled and my score decreased over 100 points. I have been damaged by this illegal debt collection (or purported foreclosure). I'll put that in my list of claims. Make sure you obtain a credit report and your score before you file bk to stop the sale.
 
J

Javagold

LoanSafe Member
The Servicer Says they Mailed Notice of Intent to Fraudclose letter in May. We tell them we never received any certified NOI letter. They send us the tracking # and it shows as NOT delivered in USPS system since May. On top of this we weren’t even 2 full months behind so not even sure why they would have sent a NOI letter in May. Starting to think they never mailed before filing for Fraudclose Complaint with Judicial Court in NJ and this alleged NOI mailed in May is some kind of cover your ass.

What’s the Law on this ???. Any Violation if they Filed a Complaint to Foreclose with Court before a NOI Letter was/is received.
 
K

kraftykrab

LoanSafe Member
Javagold said:
The Servicer Says they Mailed Notice of Intent to Fraudclose letter in May. We tell them we never received any certified NOI letter. They send us the tracking # and it shows as NOT delivered in USPS system since May. On top of this we weren’t even 2 full months behind so not even sure why they would have sent a NOI letter in May. Starting to think they never mailed before filing for Fraudclose Complaint with Judicial Court in NJ and this alleged NOI mailed in May is some kind of cover your ass.

What’s the Law on this ???. Any Violation if they Filed a Complaint to Foreclose with Court before a NOI Letter was/is received.
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Need to check your state's laws and case law for that, its different from state to state. In some states, evidence that it was sent is sufficient, but in the case of a certified NOI, if your state has a requirement that it be sent certified, that could point to a requirement that they show it was received.

Also, you need to secure that tracking info evidence ASAP. The USPS reuses tracking numbers and after a while your tracking info showing it was never delivered will disappear from their online system.

Either way, I dont think it was some kind of CYA move---unless you can show that the tracking number was only secured--in other words, that they notified USPS of the certified mailing but never actually sent anything. That would probably be difficult to prove, but I'd certainly secure that evidence. Screen shot it, etc.

Not even being two full months behind? I'd check your state laws on this too--some states have laws that require them to declare you in default and show that you've been notified of the default and right to cure default before they can foreclose.
 
K

kraftykrab

LoanSafe Member
Javagold said:
The Servicer Says they Mailed Notice of Intent to Fraudclose letter in May. We tell them we never received any certified NOI letter. They send us the tracking # and it shows as NOT delivered in USPS system since May. On top of this we weren’t even 2 full months behind so not even sure why they would have sent a NOI letter in May. Starting to think they never mailed before filing for Fraudclose Complaint with Judicial Court in NJ and this alleged NOI mailed in May is some kind of cover your ass.

What’s the Law on this ???. Any Violation if they Filed a Complaint to Foreclose with Court before a NOI Letter was/is received.
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I did find this--the law you're looking for is N.J.S.A. 2A:50-56. Known as the FFA. It requires that they send notice by registered or certified mail at least 30 days prior to filing foreclosure. You have an interesting dilemma here, because the tracking info proves that you never received it....but more importantly, that tracking info proves that they should be aware that you didn't receive it. They have the duty of diligence, to ensure that they fully comply with the law before filing suit. Just as you used the tracking info they provided, they should have done the same. Especially if you told them you never received anything. That's on them.

The downside to this is that, generally, it appears that NJ courts have simply allowed them to cure this defect, rather than to dismiss their suit. Not always, but it seems to be the more common method of the courts' handling this.

Note--this is a strict statute, and courts there have said that "substantial compliance" is not good enough. They must strictly comply with it. See EMC Mortg. Corp. v. Chaudhri, 946 A. 2d 578 - NJ: Appellate Div. 2008.

That case also states that if a homeowner received notice of a certified letter but did not retrieve it from the post office, that's not on the foreclosing party. I would absolutely see what you can find out about why that notice wasnt delivered....
 
S

Survivor_IN

LoanSafe Member
Well, I never received notice and the Servicer presented that they had a "reference number for certified mail" and it was even printed on the letter! Who does this? Really? Hmm...(Don't get me into the letter generation department. It's a scam and they outsource it. Just because its ordered, doesn't mean it's actually printed, processed and delivered.) I do know for a fact that they assign these numbers and charge you for them on your statement under "fees" once it's ordered. This is 30 days in advance. So, if you make a payment then they might have to hold it to "make the letter true!" True story.

Fortunately CFPB laws have been further updated and the Servicer MUST apply payments even if payment does not incorporate fee. In other words, no suspending payments or non-applying payments to make it "appear" as if you are in 3 month default. (old rules were not to foreclose before 3 months, new servicing rules apply 6 month rule)

The NOI letter is a condition precedent. People win on this one in NJ. Krafy is right, screen shot or download what you find. If they don't have a signed receipt, then they don't have proof of delivery. Yes, they technically have to start over. And they will. In that sense, they are given the opportunity to cure defects in notice and proceed with a refiling.
 
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Survivor_IN

LoanSafe Member
Also, if you aren't there for signing the certified mail such as restricted delivery, it's possible that the Post Office slipped you a little notice saying you had certified mail being held and you should pick it up in 5 days. Sometimes they re-notice and sometimes they directly return to sender as non-delivered. If this happened when you where say, on a roadtrip for the holidays, you may not get the notice. In this case, once the servicer gets notice of return, it would be prudent of them to resend the NOI.
 
J

Javagold

LoanSafe Member
And mind everyone …..

1. May is less than 2 full months behind & was because I was waiting for the finalized paperwork to arrive on the modification with the correct balance which was always changing.
2. I only just received this tracking in October from Servicer, when I received a letter from them , that we were sent to law firm for Fraudclosure. I told them we never received a NOI. It took me less than 2 minutes to confirm no receipt of any certified or return labels. And yet they still had law firm file a Fraudclosure complaint with NJ Office of Fraudclosure this week !!!
 
S

Survivor_IN

LoanSafe Member
Where is the end point on that clip? The servicer or the property address. I'm not 100 percent sure of what a return receipt is. IE whether it is request for article to be returned if no delivery or a return(ing) a receipt on the certified mail signature.
 
J

Javagold

LoanSafe Member
They are 2 separate tracking numbers.

The top one , which they didn’t send me, but I was able to track on my own, shows the green return label never even made the trip or if it did, most definitely was not returned to the Servicer as signed & received. (This clearly backs up the first tracking of the Alleged letter was never delivered, received and signed for).

The second one , shows the alleged NOI that was mailed May 18. Was delayed and/or lost in the system on May 26. (I had no idea of any of this until October)
Clearly is confirming what I told the Servicer in October. Yet they went ahead and filed the Fraudclosure complaint, ignoring my warning to them and their very own USPS tracking numbers. If they only took 2 minutes, but of course they are always right and the homeowners always wrong deadbeats.
 
J

Javagold

LoanSafe Member
PS. And as an added Bonus Twist. The plaintiff is US Bank NA Trustee for ABC Trust.

But in September I received a welcome letter from Servicer that the investor is US Bank NA Trustee for XYZ. But last week. The Fraudclosure complaint is that the plaintiff is ABC Trust.
 
K

kraftykrab

LoanSafe Member
Javagold said:
PS. And as an added Bonus Twist. The plaintiff is US Bank NA Trustee for ABC Trust.

But in September I received a welcome letter from Servicer that the investor is US Bank NA Trustee for XYZ. But last week. The Fraudclosure complaint is that the plaintiff is ABC Trust.
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So, as it stands now, you have three issues.
1--failure of condition precedent, they never provided you the NOI and you can prove it
2--violating servicing guidelines, trying to foreclose before 6 months delinquent
3--lack of standing. I dont know of any state that says it's legal for a party with no standing to "stand in" as a proper plaintiff in place of the actual party. Do you still have that letter from September? I'd absolutely countersue....

It may or may not constitute FDCPA violations that they are lying about who has standing to enforce. Your state probably also has some unfair practices law as well. In addition to this, I don't know if the changes in servicing laws from the CFPB contain any private right of action. If they do, you could also pursue that as well for trying to foreclose when you're not even 2 months behind at that time.
 
M

moretrouble

LoanSafe Member
Javagold said:
PS. And as an added Bonus Twist. The plaintiff is US Bank NA Trustee for ABC Trust.

But in September I received a welcome letter from Servicer that the investor is US Bank NA Trustee for XYZ. But last week. The Fraudclosure complaint is that the plaintiff is ABC Trust.
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They used the ABC trust to make it appeared legal to foreclose, paid off the balance in the ABC trust then resecuritized into XYZ, or XYZ just a recovery trust from one of the investors.
In my case my original loan is still in RAAC 2005-RP3, been paid down by excess cash flow. However, my account on the phantom debt serviced by Bank of America is actually for the benefit of NewRez recovery trust with US Bank as trustee. My case is easy to discover because I have access to Bloomberg and RAAC is not called yet.
 
S

Survivor_IN

LoanSafe Member
Krafty is on point. I would throw in FDCPA for good measure as you are still under a year for violation. Plus, yes, you have a cause of action for CFPB servicing violations too as it is prevailing law. Both Federal and State Law UDAP applies. The whole reason for the servicing rules is to resolve the unfair and deceptive practices.
 
S

Survivor_IN

LoanSafe Member
Happy
Thanksgiving!
Even though my fam does not do turkey, we have enough side dishes and some roast beef for the non-picky and an abundance of general happiness for dessert. I got my turkey fix at friends' pre holiday gathering so all is good. ;)
 
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