QUIET TITLE ACTION VICTORY on 2ND MTG/HELOC but with a CATCH

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vegasunderwater

LoanSafe Member
Should change my name to nolongervegasunderwater :)

So I retained counsel to file a quiet title complaint to remove a defaulted and charged off 2nd mortgage HELOC that under state (NV) statutes was no longer enforceable (past the 10-year SOL from the date of acceleration).

The good news: we prevailed and the lien is now extinguished.

The 1st mortgage remains remains current.

The bad news (letter HERE): The 2nd lienholder we sued was MERS who took over from the original lender some years back.

The 1st mortgage is with Bank of America (BOA) and is an entirely unrelated loan. Somehow, BOA "retained legal counsel in an effort to protect the interest held in the property" and assessed over $2000 in legal fees to the 1st mortgage loan balance "per the terms outlined in your deed of trust that are considered recoverable from the borrower."

This was subsequent to reaching out to BOA, making it explicitly clear to them that they made an error in that the litigation was against a mortgage that is completely separate and does not in any way affect the 1st mortgage.

My attorney is completely baffled as to how this could have happened and has no idea how to resolve since he feels BOA will rely on the language in the Deed of Trust.

Side note: Upon looking at my Deed of Trust for the first mortgage, MERS is listed as "the beneficiary under this Security Instrument". What is sickening is that the legal fees it cost me to eliminate the first mortgage were less than the cost of these bastards at BOA raped me for.

It almost seems like MERS merged the loans under one case and charged back their legal defense fees to the remaining BOA mortgage so it cost them nothing even though there was no case directly brought against their BOA loan - only their 2nd. They did this in error and are making the borrower (me) pay for their mistake.

Has anyone experienced this in a quiet title action against a loan on a property in which there is more than one lender?

Would appreciate any and all input.
 
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Survivor_IN

LoanSafe Member
Well for starters, let me pat you on the back. Congrats! It really feels good to resolve these outstanding issues of being a long hauler from Great Recession days. I have a second also that as no rights to collect after x years and can no longer make claim BUT is riding the tail winds of the first lien in the foreclosure. My answer is. Yes. They do. And will. My first is definitely collecting for my second.
 
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Survivor_IN

LoanSafe Member
I would also like to add after reviewing the letter, it appears you have acted to protect yourself appropriately and that this was subverterted by BOA. Technically, this compels a lawsuit and discovery which is costly and I think they know that if you attempted such they would merely add costs for that action, again, to your loan. This presents a caveat where attempting to cure is costly. No, you should not have informed the first lien holder and sought to retain your lawsuit in privileged form. Apprising others of legal actions (as a matter of good faith and transparency) has unintended negative consequences. But who knew?

This has little to do with MERS I believe, just that you informed them and they managed to obtain a hidden agreement possibly based on a cross default provision. Those are questionably legal. Lenders do like to engage in punitive actions on their losses.

I would want to obtain details of the billing so evidence is preserved if you haven't done such. If you don't have it, request a break down of the fees charged for services and by whom and for what. A possible legal request or qualified written request may accomplish this without costs. (sounds like you've done that in objecting to the charge already) Or a direct legal request to the attorney. You might have a bar complaint which might recoup these funds on a complaint that services charged were not rendered or justified as to costs.

The only relevant thing I can think of is these "notes and mortgages" allow for a "reasonable fee" for legal services related to foreclosure and default. Odd, this is not a foreclosure or recovery for which the legal fees would be earned according to the contract and based on a default. You have not defaulted on the first lien. It is basically material that BOA (first lien holder) did not make an appearance or present legal argument in the matter, if this in fact is true, they have no cause for charging legal fees. I actually had a charge for legal services removed by the plaintiff where the charges were for an attorney that never made an appearance in the case. (did not file any docs or perform any work) However in my case, they just removed the inflated charge without penalty and continued inflating charges elsewhere.

Good luck.
 
V

vegasunderwater

LoanSafe Member
Survivor_IN said:
I would also like to add after reviewing the letter, it appears you have acted to protect yourself appropriately and that this was subverterted by BOA. Technically, this compels a lawsuit and discovery which is costly and I think they know that if you attempted such they would merely add costs for that action, again, to your loan. This presents a caveat where attempting to cure is costly. No, you should not have informed the first lien holder and sought to retain your lawsuit in privileged form. Apprising others of legal actions (as a matter of good faith and transparency) has unintended negative consequences. But who knew?

This has little to do with MERS I believe, just that you informed them and they managed to obtain a hidden agreement possibly based on a cross default provision. Those are questionably legal. Lenders do like to engage in punitive actions on their losses.

I would want to obtain details of the billing so evidence is preserved if you haven't done such. If you don't have it, request a break down of the fees charged for services and by whom and for what. A possible legal request or qualified written request may accomplish this without costs. (sounds like you've done that in objecting to the charge already) Or a direct legal request to the attorney. You might have a bar complaint which might recoup these funds on a complaint that services charged were not rendered or justified as to costs.

The only relevant thing I can think of is these "notes and mortgages" allow for a "reasonable fee" for legal services related to foreclosure and default. Odd, this is not a foreclosure or recovery for which the legal fees would be earned according to the contract and based on a default. You have not defaulted on the first lien. It is basically material that BOA (first lien holder) did not make an appearance or present legal argument in the matter, if this in fact is true, they have no cause for charging legal fees. I actually had a charge for legal services removed by the plaintiff where the charges were for an attorney that never made an appearance in the case. (did not file any docs or perform any work) However in my case, they just removed the inflated charge without penalty and continued inflating charges elsewhere.

Good luck.
Click to expand...
Somehow you misunderstood me or I didn't make it clear. I never informed BOA of the lawsuit. They took it upon themselves to first lock me out of access to my online loan account. I then made a call to find out why. They then told me it was due to pending litigation. Therefore, they already were somehow noticed. I was locked out of my account for weeks and complained to them several times that they had no right to do this as they were never named in the action. After several weeks, the freeze was rleased on the account. My last call to them was SUBSEQUENT to seeing undisclosed fees suddenly appear on my loan statement with zero advance warning and zero explanation of what the fees were for.

That should make my case against them even stronger.
 
V

vegasunderwater

LoanSafe Member
Survivor_IN said:
I would also like to add after reviewing the letter, it appears you have acted to protect yourself appropriately and that this was subverterted by BOA. Technically, this compels a lawsuit and discovery which is costly and I think they know that if you attempted such they would merely add costs for that action, again, to your loan. This presents a caveat where attempting to cure is costly. No, you should not have informed the first lien holder and sought to retain your lawsuit in privileged form. Apprising others of legal actions (as a matter of good faith and transparency) has unintended negative consequences. But who knew?

This has little to do with MERS I believe, just that you informed them and they managed to obtain a hidden agreement possibly based on a cross default provision. Those are questionably legal. Lenders do like to engage in punitive actions on their losses.

I would want to obtain details of the billing so evidence is preserved if you haven't done such. If you don't have it, request a break down of the fees charged for services and by whom and for what. A possible legal request or qualified written request may accomplish this without costs. (sounds like you've done that in objecting to the charge already) Or a direct legal request to the attorney. You might have a bar complaint which might recoup these funds on a complaint that services charged were not rendered or justified as to costs.

The only relevant thing I can think of is these "notes and mortgages" allow for a "reasonable fee" for legal services related to foreclosure and default. Odd, this is not a foreclosure or recovery for which the legal fees would be earned according to the contract and based on a default. You have not defaulted on the first lien. It is basically material that BOA (first lien holder) did not make an appearance or present legal argument in the matter, if this in fact is true, they have no cause for charging legal fees. I actually had a charge for legal services removed by the plaintiff where the charges were for an attorney that never made an appearance in the case. (did not file any docs or perform any work) However in my case, they just removed the inflated charge without penalty and continued inflating charges elsewhere.

Good luck.
Click to expand...
I had to rewrite this because this stupid 15 minute time limitation on editing wouldn't let me post it, so revised:

Thanks for the in-depth reponse, but somehow you misunderstood me or I didn't make it clear.

I never informed BOA of any lawsuit. They originally took it upon themselves to first lock me out of access to my online loan account. I then made a call to find out why. They wouldn't tell me why at first if you can believe that. The reps said it was due to a legal matter and could not comment further. After a couple weeks of being locked out of my account, repeated calls and losing my sh*t with them, I finally got ahold of a supervisor who then told me it was due to pending litigation. Since I now knew what it was about, I then made it clear to the supervisor that they had no right to freeze my account since they were never named in that action and the loan in question had nothing to do with BOA and to promptly remove the freeze. Therefore, they already were somehow noticed. After several weeks, the freeze was finally released on the account. I then thought that hassle was all over and moved on.
It wasn't until I looked at my statement and saw undisclosed legal fees suddenly posted to my loan statement with zero advance warning and zero explanation. My last call to them was subsequent to seeing these fees assessed in which my complaint was taken which resulted in the letter I posted.

That should make my case against them even stronger. What they have done is a crime.
 
V

vegasunderwater

LoanSafe Member
vegasunderwater said:
I had to rewrite this because this stupid 15 minute time limitation on editing wouldn't let me post it, so revised:

Thanks for the in-depth reponse, but somehow you misunderstood me or I didn't make it clear.

I never informed BOA of any lawsuit. They originally took it upon themselves to first lock me out of access to my online loan account. I then made a call to find out why. They wouldn't tell me why at first if you can believe that. The reps said it was due to a legal matter and could not comment further. After a couple weeks of being locked out of my account, repeated calls and losing my sh*t with them, I finally got ahold of a supervisor who then told me it was due to pending litigation. Since I now knew what it was about, I then made it clear to the supervisor that they had no right to freeze my account since they were never named in that action and the loan in question had nothing to do with BOA and to promptly remove the freeze. Therefore, they already were somehow noticed. After several weeks, the freeze was finally released on the account. I then thought that hassle was all over and moved on.
It wasn't until I looked at my statement and saw undisclosed legal fees suddenly posted to my loan statement with zero advance warning and zero explanation. My last call to them was subsequent to seeing these fees assessed in which my complaint was taken which resulted in their response letter I posted.

That should make my case against them even stronger. What they have done is a crime.
Click to expand...
 
S

Survivor_IN

LoanSafe Member
Others may have suggestions.
I can relate to all of the mentioned. The CFPB should be interested in the lockout denying access to account information. BOA is just like others and this practice needs to be identified for them.
Edit - At least they have tagged the charge on the end and did not inflate your payment and attempt to default you over it. Small conciliation prize of delayed collection payment for services not actually rendered.
 
V

vegasunderwater

LoanSafe Member
Update: Best I could get out of them was an address to send a letter requesting for the fees to be removed due to their error. They could or would not provide any breakdown or detailed accounting as to their fees, not surprisingly.
 
S

Survivor_IN

LoanSafe Member
Dancing around the legal errors. Oh my.
The inability to break down a detailed accounting has legal significance. make sure to include in your letter that these fees do not contain any breakdown of the billing for these fees and they are unreasonable (legal ref to typical note language). Legally request such unverified and unearned legal items be removed. I bet you already know that though. I'm just amazed at the post legal (loss) harassment of homeowners.
 
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