I recently acquired proof from a reliable source that the bank has engaged in the unlawful practice of 'robo-signing' in connection with the alleged verification of their 'Verified Complaint to Foreclose Mortgage' against me. It is also believed that they have forged my signature on an alleged 'recreation' of the original note. Fortunately, I saved a copy of the original note that was signed at the time I took out this mortgage, and while it does appear to be my signature, even the average set of eyes can see that they clearly do not match. Can I file a Motion for Dismissal with Prejudice for Fraud on the Court? Can I do this Pro Se, or should I hire a foreclosure defense attorney to help me? I have been in my home for 25 years and would like to remain.
If someone is trying to use fradulently signed documents to foreclosure on your house, it's definitely a defense to foreclosure. However, the process and legal basis for asserting these claims is not something to try pro per unless you're very familiar with both the legal process and the legal arguments. Otherwise, best to get local counsel to assist.
Evan A. Nielsen
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Evan A. Nielsen is licensed to practice law in California. The information provided here is for educational purposes only and is not intended as legal advice for a particular matter. This response does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult an attorney.
Real Estate Attorney
Failure to verify the truth of the documents needed for foreclosure (which is what robo-signers did) and failure to witness signatures (which is what the notary publics at the bank did) are a legitmate defense against foreclosure, but must be articulated properly before the Court. Providing a forged Note is, as you said, a fraud on the Court, and grounds for dismissal. As suggested below, these are very complex defenses and should only be raised by counsel competent in foreclosure defense.
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As stated by the previous answers using these defenses requires legal skills that you may or may not have. If you proceed pro se the court may have some deference to you lack of knowledge but you are still accountable to present a proper defense of your case.
Also, I have seen in your facts anything about if you if you in fact have stop making payments on your mortgage and note. If this is the case, your defense may delay the foreclosure but will not resolve your issue.
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Criminal Defense Attorney
In light of the unique facts of your case and the potential motion, I strongly recommend contacting a foreclosure defense attorney in your local area to ensure your legal rights are properly protected. There are many qualified foreclosure defense firms in the Tampa area. Good luck with your case.
This answer does not, nor is it intended to, create an attorney-client relationship or constitute attorney advertising. Rather, it is offered solely for informational purposes. The facts of each case are different and unique, it is critical to consult with qualified counsel with whom information can be shared and assessed under attorney-client privilege, so that competent and quality advice can be obtained on which you can make informed decisions
If you wish to keep your home then you will need to develop a strategy, hopefully with counsel of your choice, that will allow you to do so. Ultimately, this means that you will either have to modify your current mortgage or reinstate it. In the meantime, you have a right to defend your case just like any civil lawsuit, and the discovery you obtain may help you get leverage for a modification. Propounding discovery and following up should give you enough time to explore modification options. Some banks/servicers, such as Ocwen, recently have offered generous principal reductions, though most simply dump all unpaid amounts into the back end of the modification which increases your principal. If you fail at a modification then you typically need to pay all unpaid interest accruing during the foreclosure process, along with your lender's attorneys fees and other charges, to reinstate your mortgage.
As others have pointed out, you raise some very interesting issues. You can discuss these issues in more detail through a consultation with a local, experienced foreclosure attorney. Please understand that, even under the "best case scenario" you present, a dismissal "with prejudice", your bank/servicer will be entitled to foreclose again on based on another or subsequent default (for example, non-payment). So again, your best opportunity to keep your home means modification or reinstatement. Good luck.
Even if you get a dismissal, it will invariably be without prejudice. You should contact a local foreclosure attorney like Mr. Klein right away. As Mr. Navaro stated, if the verified complaint, the original note, any assignments, or affidavits submitted are fraudulent, you have a strong foreclosure defense. In addition, if individuals who signed affidavits regarding inspection of and custody of the original mortgage or note were made by "robo-signers" without personal knowledge of these facts, they may not be admissible in court. As pointed out, at the end of the day, even if you defeat foreclosure entirely, that is not going to give you back ownership of the home. At best, it puts title into limbo, and with rare exceptions you will not simply be able to quiet title without paying off the original Note, which is also a contract.
The "produce the note" defense or "robo-signer" defense are really most effective at giving you substantial bargaining leverage. You should go into this with that goal in mind, not something unreasonable. Now that you have received a Complaint, you absolutely need an attorney to Answer it. If you want to make out these defenses your attorney needs to request production of documents, send interrogatories, and likely depose some of the signatories. These are not simple things to do right either procedurally or in terms of developing a case.
If you have stopped paying, if the bank has held you in default for a good reason, the Court is not going to be sympathetic to you even if you can demonstrate fraud. The Court understands that these lenders have a business process to deal with these problem loans, that it is imperfect, and that fraud does occur. But they are getting more homeowner friendly all the time.
I make that point in order to say this. If you try every procedural avenue to rehabilitate or modify the loan, if you challenge the bank's standing and ask to see original documents, if you contest the amounts they claim are owed, and you put aside the amount you can pay in a separate bank account -- if you take a strategy like that -- and the bank absolutely refuses to work with you, and you can prove fraud through a competent attorney, you stand a much better chance of having the necessary leverage to ultimately stop the foreclosure for the time being and by doing so get a principle reduction or other advantageous result.
I have seen cases where the bank would not negotiate anything, denied modifications, and stonewalled the homeowner in their efforts to fix the situation. In cases like this, I've seen the bank be unable to come up with the note. In cases like this, I've also seen homeowner's use attorneys to investigate the bank's standing to foreclose by requesting to see original documents, investigating the custody of those documents, and develop a robo-signing case. I've done so myself. In these instances, I've actually seen the homeowners delay the foreclosure for years or stop it altogether. These, of course, are the rare cases.
However, there has to be an end game. Delay, in and of itself, is not a strategy. A really excellent attorney can investigate this "fraud" and if you are right, put these roadblocks in the bank's way. But, you've stated you'd like to "remain" in your home, and I assume you want to retain ownership, even if you are underwater. While your immediate pain is the threat of losing the home, you should take the long view.
It is not enough to defend against the foreclosure. You need to work with a local attorney to also take the necessary steps to come up with a resolution you can manage, and start developing a paper trail documenting efforts to get the bank to agree with that resolution. Then, if your defense of the foreclosure succeeds, you can leverage that victory into getting that result and rehabilitating/modifying the loan so you keep the house.
This is a long, arduous, emotional and expensive process, so count the cost before you begin it.
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