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Here's the HAMMER You Need to Win a Mortgage Dispute

Copyright 16 January 2014 by Bob Hurt. All rights reserved. Distribute reely.

Law provides litigant settlement procedure


Florida statute 45.061 (see below text) might interest you with respect to settlement of a mortgage dispute (or any other in ury lawsuit) in Florida. !imilar statutes might exist in other states. "f you negotiate a settlement from a position of strength# such as by suing a lender or lenders with $alid causes of actions re$ealed in a comprehensi$e mortgage examination report# the lender has a strong incenti$e to settle.

Ultimate Negotiating Hammer


%ote that lenders seem most willing to settle when you ha$e a case against them that they &now will crush them in court# particularly in a ury trial in which the urors probably ha$e all suffered in ury by (and hate) predatory lenders. 'any lenders will not ta&e you seriously till a competent in ury(tort attorney files the complaint or counter(cross)claim against them. *hen that happens# they might beg the in ured party to come to the negotiating table. +hus# the mortgage examination report pro$ides the tort attorney and in ured client with a huge ,%egotiating -ammer, with which to intimidate recalcitrant ban&s into settling ,reasonably.,

Notice of Grievance (NOG)


+he mortgagor has a legal duty to the owner of beneficial interest in the note under section .0 of the Freddie 'ac standard mortgage security instrument /010 (Florida example)# to wit0 ))))))))) 1xcerpt From !tandard 'ortgage !ecurity "nstrument)))))))) 20. Sale of Note !"ange of Loan Servicer Notice of Grievance. +he %ote or a partial interest in the %ote (together with this !ecurity "nstrument) can be sold one or more times without prior notice to 2orrower. 3 sale might result in a change in the entity (&nown as the 45oan !er$icer6) that collects 7eriodic 7ayments due under the %ote and this !ecurity "nstrument and performs other -ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes

mortgage loan ser$icing obligations under the %ote# this !ecurity "nstrument# and 3pplicable 5aw. +here also might be one or more changes of the 5oan !er$icer unrelated to a sale of the %ote. "f there is a change of the 5oan !er$icer# 2orrower will be gi$en written notice of the change which will state the name and address of the new 5oan !er$icer# the address to which payments should be made and any other information 91!73 re<uires in connection with a notice of transfer of ser$icing. "f the %ote is sold and thereafter the 5oan is ser$iced by a 5oan !er$icer other than the purchaser of the %ote# the mortgage loan ser$icing obligations to 2orrower will remain with the 5oan !er$icer or be transferred to a successor 5oan !er$icer and are not assumed by the %ote purchaser unless otherwise pro$ided by the %ote purchaser. %either 2orrower nor 5ender may commence# oin# or be oined to any udicial action (as either an indi$idual litigant or the member of a class) that arises from the other party=s actions pursuant to this !ecurity "nstrument or that alleges that the other party has breached any pro$ision of# or any duty owed by reason of# this !ecurity "nstrument# until such 2orrower or 5ender has notified the other party (with such notice gi$en in compliance with the re<uirements of !ection 15) of such alleged breach and afforded the other party hereto a reasonable period after the gi$ing of such notice to ta&e correcti$e action. "f 3pplicable 5aw pro$ides a time period which must elapse before certain action can be ta&en# that time period will be deemed to be reasonable for purposes of this paragraph. +he notice of acceleration and opportunity to cure gi$en to 2orrower pursuant to !ection .. and the notice of acceleration gi$en to 2orrower pursuant to !ection 1> shall be deemed to satisfy the notice and opportunity to ta&e correcti$e action pro$isions of this !ection .0. ))))))))))) 1nd 1xcerpt ?)))) First of all notice that this section defeats any argument that the mortgagor has a right to &now in ad$ance who shall recei$e beneficial interest in the note. 3nd# ser$icers may play musical chairs without in ury to the borrower. 7aragraph two imposes upon mortgagor and mortgagee the obligation to issue to one another a ,%otice of @rie$ance, (%A@) and allow reasonable time to ta&e correcti$e action. +herefore# step A%1 in any negotiation consists of sending a %A@ to the ser$icer# lender# and present owner of beneficial interest in the note. 91!73 re<uires the ser$icer to tell the mortgagor# upon re<uest# the identity of the owner of beneficial interest for the purpose of such notices and of lawsuits. %ote that the original lender might ha$e gone out of business since ma&ing the loan. 1ither another ban& would ha$e purchased the assets and liabilities of that lender# or the F;"B might ha$e administrati$ely dissol$ed the original lender and transferred its assets and liabilities to another entity. 'ortgagors can in<uire about this to the F;"B if in doubt. +his means the mortgagor has potentially two targets of a %A@ ) the owner of the original lender8s liabilities and the present owner of beneficial interest in the note. 3nd# if in foreclosure# the %A@ should go to the trustee (deed of trust states) or the court ( udicial foreclosure states)# and associated attorneys# of course. Aften the targets of the %A@ will play dumb# act confused# treat it as a Cualified *ritten 9e<uest# or send a non)responsi$e letter bac&# try to discuss a loan mod# or dilate in some way. *hen that happens# the mortgagor can send another letter scolding the nonsensical beha$ior of the target# and demanding -ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes

correction again. " would not grant more than /0 days for correcti$e action.

!all in t"e Gu#munt Hammer $ !%&' and O!!


"n the e$ent of a non)responsi$e answer as abo$e# the mortgagor should write to the Bonsumer Financial 7rotection 2ureau and Affice of the Bomptroller of the Burrency# delineating the futile interaction# pro$iding copies of the correspondence attached# and as&ing them to ta&e action against the target and coerce the target to correct the grie$ance and settle in good faith. +his might suffice to get the negotiated settlement started in earnest. 2ut the mortgagor might not at all feel satisfied with the offer. 3fter exhausting administrati$e efforts to get an acceptable settlement# the mortgagor must sue. 3nd during that lawsuit the Affer of !ettlement statute of the state might come into play. +he mortgagor might find it prudent to inform the ad$ersaries of the statute# in case they don8t &now about it.

Gra# t"e 'iggest Hammer $ Lawsuit


@enerally# after filing the lawsuit# the mortgagee8s lawyer will analyDe chances of success and failure# and unless the lawyer decides to blow smo&e up the mortgagee8s behind# as in the 2rown $. Cuic&en 5oans case# the lawyer will recommend settlement. !ome lawyers ha$e such arrogant# ca$alier attitudes that they will recommend fighting a case they will certainly lose# and some ban&s &now their mortgagor ad$ersaries ha$e scant resources and little &nowledge for such a fight. 2ut this constitutes the one fight Foreclosure ;efense 3ttorneys would lo$e if they had the competence to engage and win on the merits. *hyE 2ecause a mortgage examination will re$eal salient causes of action in F0G of the single family home mortgages. 3nd the mortgagor will not beha$e so stupidly as to fight when no causes of action exist (unless a corrupt foreclosure defender cons the mortgagor into it). "nstead# the smart mortgagor will ust wal& from the house with a short sale# &eys for cash# or deed in lieu of foreclosure deal. +-3+ will sa$e the mortgagor8s credit# compared to a foreclosure final udgment which will ruin the credit rating for +1% :139!.

&ut t"e Hammer in t"e Hand of t"e ()GH* +ind of ,ttorne+his shows why " recommend that mortgagors in foreclosure hire A%5: +A9+("%HI9: 3++A9%1:! to help them with mortgage battles. 3t least +-A!1 attorneys ha$e some experience in or moxy about negotiating settlements# and they J%A* the $alue of in uries and damages they can 79AK1 in mortgage)related paperwor&.

*"e Onl- Hammer for ,LL .ortgagors


+a&e note0 a comprehensi$e professional mortgage examination has $alue to 355 mortgagors# not ust those in foreclosure. "f you doubt this# read the 15)page summary of the .010 Financial Brisis "n<uiry Bommission 9eport. "t shows the collusion between go$ernment and the mortgage industry to engage in widespread predatory lending. 'ortgagors cannot use that in their case because it does not pro$e specific culpability of their lenders for in ury to the mortgagor. 2ut the mortgage examination can pro$e the in ury# and that can lead to an analysis of the damages and a specific damages lawsuit. 3 ury -ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes

that hates lenders will surely award compensatory damages (+9"751 damages for fraud) and might award puniti$e damages in case of egregious# wanton# intentional in ury# ust to punish the lender. !o $isualiDe this0 you bought a house at an exorbitant price the realtor claimed as a good deal for you# and the appraisal came bac& at full $alue of the selling price. 3nd you suspected you didn8t <ualify for the loan# but somehow after pro$iding your tax returns# the mortgage bro&er found a lender to let you borrow the money to buy that beautiful home. :ou get a mortgage examination and it shows that the appraiser compared your house in the bowels of a neighborhood to one on a la&e# one on a golf course# and one with a bay front. :ou paid L500J# but the house has a $alue now of only L.00J# and the appraisal showed it as ha$ing a $alue L100#000 more than it actually had. +-3+ appraisal fraud# underwritten by the lender# can bring you treble damages of L/00#000. 3nd it turns out that the mortgage bro&er falsified your loan application# ma&ing it seem that you ha$e massi$ely higher income and lower expenses than actual. +-3+ ban& fraud# underwritten by the lender# constitutes a serious in ury and a federal crime. +ogether those in uries ustify a lawsuit against the appraiser# mortgage bro&er# and ban&. 3%: mortgagor# not ust foreclosure $ictims# might ha$e that &ind of loan.

.ortgagor/s ONL0 !"ance to 1in .ON20


2ut get this0 the mortgagor has M19A B-3%B1 of winning financial compensation for mortgage)related in uries without a comprehensi$e professional mortgage examination that 79AK1! those in uries "% +-1 9153+1; ;ABI'1%+!. ;on8t expect your lawyer to tell you this because the lawyer does not want you to &now that he or she lac&s the competence to do the mortgage exam. ;on8t trust the lawyer to recommend this or support your decision to do it because most of them don8t ha$e a clue how to win a mortgage dispute. +hey don8t ha$e a clue because they built the foreclosure defense industry to scam frightened mortgoragors in foreclosure out of monthly payments till loss of the house becomes ine$itable# and then to scam them into an abusi$e loan modification. 5awyers %1K19 win money for their foreclosure $ictim clients by defending against foreclosure. +hey only win it by attac&ing the lender or lender8s agents for causes of action underlying the mortgage. 3nd because they ha$e not de$eloped an industry for this# they don8t e$en &now that a mortgage examination gi$es them the &ey to $ictory and winning financial compensation ('A%1:# B3!-# AFF!1+# 5A3% 2353%B1 B93');A*%# etc) for their hapless clients. ;on8t as& your lawyer about this because your lawyer probably does not &now and has Mero experience with it. @et the examination done yourself# then find a lawyer who will use it to hammer the ban& into a settlement or sue the ban& into paying you damages for in uring you.

Summar- $ Lose t"e 1rong 'attle or 1in t"e (ig"t 'attle


"n summary# a mortgagor who fights a foreclosure battle for breaching a $alid note 35*3:! 5A!1!. 3ny foreclosure defense becomes a scam because the lawyer &nows the outcome in ad$ance. Bourts 'I!+ gi$e the in ured lender redress of that in ury according to the terms of the note and mortgage. 2y contrast# a mortgagor who fights a mortgage $alidity battle against the lender or agents# because of in ury by tortious conduct# contract breaches# or legal errors# 35*3:! *"%!. +he court must redress -ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes

that in ury. 3nd the ban&s and their lawyers &now this. !A they nearly always ca$e in at the negotiating table to the extent warranted by the ris& of loss through litigation. !uper summary0 1. Fight the foreclosure and 5A!1. .. Fight the mortgage and *"%.

)f 0ou Need Help and 3on/t +now 1"om to *rust


"f you need F911 help with your mortgage# whether or not in foreclosure# B355 (N.N 66F 5511) or 1'3"5 '1. !ince " wor& with you F911# " ha$e no $ested interest in bil&ing you out of money or leading you astray ust to con or scam you. " am not an attorney and " don8t gi$e legal ad$ice. 2ut " shall certainly explain the issues so they become crystal clear# ta&e notes on your case# and refer you to competent professionals ready# willing# and able to help you# if you cannot handle it yourself. !ee my full contact info below. ;on8t hoard this message or &eep it all to yourself. !pread it far and wide to fellow mortgagors whom the lenders or agents might ha$e in ured in the mortgage process. +ell them to write or call me free for a free no)legal)ad$ice discussion of any issue of concern. "f " don8t answer the call# "8ll return it using the caller)"; in my phone.

%lorida Statute on Settlements in t"e !ourse of Litigation


http0((www.leg.state.fl.us(!tatutes(index.cfmE 3ppOmodeP;isplayO!tatuteQ!earchO!tringPQI95P0000)00FF(0045(!ections(0045.061.html
45.061Offers of settlement.

(1)At any time more than 60 days after the service of a summons and complaint on a party but not less than 60 days (or 45 days if it is a counteroffer) before trial, any party may serve upon an adverse party a written offer, which offer shall not be filed with the court and shall be denominated as an offer under this section, to settle a claim for the money, property, or relief specified in the offer and to enter into a stipulation dismissing the claim or to allow udgment to be entered accordingly! "he offer shall remain open for 45 days unless withdrawn sooner by a writing served on the offeree prior to acceptance by the offeree! An offer that is neither withdrawn nor accepted within 45 days shall be deemed re ected! "he fact that an offer is made but not accepted does not preclude the ma#ing of a subse$uent offer! %vidence of an offer is not admissible e&cept in proceedings to enforce a settlement or to determine sanctions under this section! (')(f, upon a motion by the offeror within )0 days after the entry of udgment, the court determines that an offer was re ected unreasonably, resulting in unnecessary delay and needless increase in the cost of litigation, it may impose an appropriate sanction upon the offeree! (n ma#ing this determination the court shall consider all of the relevant circumstances at the time of the re ection, including* (a)+hether, upon specific re$uest by the offeree, the offeror had unreasonably refused to furnish information which was necessary to evaluate the reasonableness of the offer! (b)+hether the suit was in the nature of a ,test case,- presenting $uestions of far.reaching importance

-ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes

affecting nonparties! An offer shall be presumed to have been unreasonably re ected by a defendant if the udgment entered is at least '5 percent greater than the offer re ected, and an offer shall be presumed to have been unreasonably re ected by a plaintiff if the udgment entered is at least '5 percent less than the offer re ected! /or the purposes of this section, the amount of the udgment shall be the total amount of money damages awarded plus the amount of costs and e&penses reasonably incurred by the plaintiff or counter.plaintiff prior to the ma#ing of the offer for which recovery is provided by operation of other provisions of /lorida law! ())(n determining the amount of any sanction to be imposed under this section, the court shall award* (a)"he amount of the parties0 costs and e&penses, including reasonable attorneys0 fees, investigative e&penses, e&pert witness fees, and other e&penses which relate to the preparation for trial, incurred after the ma#ing of the offer of settlement1 and (b)"he statutory rate of interest that could have been earned at the prevailing statutory rate on the amount that a claimant offered to accept to the e&tent that the interest is not otherwise included in the udgment! "he amount of any sanction imposed under this section against a plaintiff shall be set off against any award to the plaintiff, and if such sanction is in an amount in e&cess of the award to the plaintiff, udgment shall be entered in favor of the defendant and against the plaintiff in the amount of the e&cess! (4)"his section shall not apply to any class action or shareholder derivative suit or to matters relating to dissolution of marriage, alimony, nonsupport, eminent domain, or child custody! (5)2anctions authori3ed under this section may be imposed notwithstanding any limitation on recovery of costs or e&penses which may be provided by contract or in other provisions of /lorida law! "his section shall not be construed to waive the limits of sovereign immunity set forth in s!465!'5! (6)"his section does not apply to causes of action that accrue after the effective date of this act! History.6s! 1, ch! 54.'471 s! '', ch! 70.117!

)) 'o# Hurt 'log 4 2 5 f t .460 7ersian ;ri$e RN0 Blearwater# F5 //N6/ 1mail Ball0 (N.N) 66F)5511 5aw !tudies0 ;onate !ubscribe 5earn to 5itigate with Hurisdictionary

-ere8s the -3''19 :ou %eed !ettle 'ortgage ;isputes