Yes I have an affirmative defense for equitable estoppel, The elements of equitable estoppel as related to the party being estopped are: (1) conduct which amounts to a false representation, or conduct which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention that such conduct shall be acted upon by the other party; and (3) actual or constructive knowledge of the real facts. The party asserting estoppel must show: (1) lack of knowledge, and the means of knowledge, of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change of position in reliance on the conduct of the party being estopped.As far as old cases and filings, I believe there is a certain amount of estoppel where a party is preventing from contradicting itself, relitigating an old case, or altering facts. The fact that certain items were hidden and only discovered later (because someone made a material misrepresentation) are in your favor where Plaintiff has lied to the court. This tends to show intent. Transferring servicing (or the note) does tend to wash things for them.
I have been arguing from day one that there has been a breach in the contract, and I have stated over and over that I do not mind paying the party that is legally entitled to the money, but I will not pay someone who isn't entitled to it, I am not one of these free house people.Arrgy,
Remember that a foreclosure court is a court of equity and equity follows the law but isn't necessarily bound by it. The court has the discretion to "balance the equities", in other words determine who would be more harmed by their decision. Many judges have taken the point of view - without saying as much - that a defaulting borrower owes somebody the money and consequently errors in procedure don't overcome non payment, clouded title notwithstanding.
Because we're perceived as having enjoyed an unearned benefit at the expense of the servicer to diffuse the prejudicial subtext it's wise to empathize the damage caused by servicer misconduct. As agent for the (alleged) lender they have a legal obligation to cooperate with your performance under the loan contract. The fact the the previous servicer dropped the ball doesn't let them off the hook or allow them to take advantage. While they were not liable in a personal capacity when they accepted servicing duties it became their obligation to correct the errors. The previous servicer's actions frustrated your efforts to perform under the contract. The fact that the actors have changed doesn't affect anything.
The current servicer has no tort liability for the prior servicer's actions but the current servicer while not directly party to the contract can't enforce - by foreclosing - without curing the prior servicer's failure to perform. In fact trying to foreclose under the circumstances is a breach of the loan contract. That they've acknowledged you were harmed should be very helpful to you.
Yes, certain acts needs to be described with specificity, such as fraud. However. Fraud is dirty word in foreclosure courts. I prefer kinder phrases such as deceptive acts, duplicitous accounting, even theft of funds is more palpable that "the F Word." lol. Courts don't like to entertain those things in foreclosure even though evidence is right in front of them. I totally agree with cause and effect to show you were harmed. Being prevented from paying down the balance is skimming if you ask me and seizing or converting property of others. (the money has been reallocated to where, the general fund account?) Servicers damaged people's credit to keep them from refinancing where foreclosure is more profitable for their balance sheet. The protracted time taken to "get a mod approved" increases their balance sheets where the "past due" is capitalized. Yo, request numbs on those. lol. Credit damage affects ability to earn income and causes reduced employment or under-employment, also affecting ability to pay. (interference with performance) By the time you get any mod approval, the paymemnt hasn't budged because of the increases in principal due to servicer's (intentional) delay and increase debt accounting. Servicers gain more with higher UPB as that is how they get paid. It's a percentage.Also, I am finding in doing my research, that appellate courts want Defendants to be specific and plead how they were damaged by the conduct of the Plaintiff. Its not even enough to say, "hey I was harmed, my note and mortgage really don't belong to you". You have to explain how you were harmed, like having a in house mod vs. an FHA mod (you don't have to state actual figures I found in one NY case, you simply need to state that a FHA mod would have had better terms then an in house one.)
So as you stated isisis, emphasizing how the conduct damaged me is important.
Failing to follow FHA guidelines before foreclosing and addressing that affirmative defense in my answer by stating the loan isn't an FHA loan without stating an actual date and reason is important.
As a result of estoppel, I was denied the ability to be heard in court, since the loan was sold and the case simply disappeared. In my state, that could also lead to extrinsic fraud.
Clouding my title and making it more difficult to sell my property.
there are others probably that I can't think of right now.
I know exactly how you feel. That's what I felt after the judge denied my motion for relief from judgment. I told you so, post #9149. The judge did not grant their SJ, we went to trial , general judgement of foreclosure granted, i filed motion for relief... Later I appealed, affirmed w/o opinion, motion for reconsideration to the affirmed, later petition to the stat supreme court... denied w/o . Judges seem to work for the banks while collecting salaries from the tax payers. I have a judgement of foreclosure but they have not attempt to enforce the judgment. When they do I will file suit in the Federal court and do other things.. don't just simply walk away, make them earn it. Stay till the sheriff kicks you out.I don't believe it. I lost and the judge ordered Summary Judgment. No reason, just I read the pleadings. He wants the plaintiff to draft the motion, he stated that I am well versed and I of course can file a motion to reconsider, and he is putting off the sale for the being, and he very very strongly suggested that we work something out (plaintiff and myself).
I am stunned but not too surprised. I now have to figure out my strategy, motion to reconsider, chapter 13, or simply walk away from the entire thing, and feel glad knowing I lived rent free for 11 years. I get the feeling that they don't want to deal with the DASP thing, assignments to FHA, etc. I believe it just might be too complicated for them to rule on.
In most places you can make a request for written reasons for judgment. Check your RCP where you live. If you're going for motion to reconsider, you're basically arguing the same thing that's been argued but making sure you didn't miss anything. if you choose to appeal, you will be assigning error to the trial court's ruling and you will want to know in that case exactly why the judge ruled as he did. That written reasons for ruling would come in handy then.It was very strange, I got the feeling that he wanted to tell me something that I was missing in my defense, but couldn't. Why would a judge go out of his way to almost insist that I file a Motion to Reconsider or very very strongly suggest that I work with the Plaintiff? I would have expected "you lost, next case".
Maybe the judge wants to know what will be other side’s response to your motion to reconsider or relief. Be careful in my state, motion to consider is not appropriate, better to file a motion for relief of judgement. Maybe after you file the motion the other may give up.It was very strange, I got the feeling that he wanted to tell me something that I was missing in my defense, but couldn't. Why would a judge go out of his way to almost insist that I file a Motion to Reconsider or very very strongly suggest that I work with the Plaintiff? I would have expected "you lost, next case".