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Bankruptcy Lanigan & Lanigan, P.L.
831 W. Morse Blvd., Winter Park, Florida 32789



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3 Ways Lenders Deceive Homeowners in Foreclosures

Winter Park foreclosure attorney Eric Lanigan talks in a on the Lanigan and Lanigan YouTube channel, about three situations where deception by lending institutions can and do frequently occur in foreclosures.

Because a mortgage has changed hands many times homeowners are left to defend themselves not knowing that banks and lenders are making massive errors in their mortgages, charging excessive fees, penalties, late charges and fines among other financial costs.

However, because of the general belief by homeowners, that when you get a bill from a bank or lending institution holding your mortgage, you review it and you pay it. After all, you signed a legally binding document requiring monthly regular payments. You’re being honest and keeping up your end of the mortgage because by law you have to.

Who would believe that banks and lending institutions would be breaking the law and charging you incorrectly? Hard to believe, but it happens and it is the basis for the Robo-Signing debacle in which lenders rubber-stamped so many bad loans and then sold them many times over that no one could accurately track ownership, let alone whether the homeowner was paying the right fee, interest rate or entity. 

Deception is Occurring Because the Mortgage System is a Mess

There’s been much written over the last couple of years about chaotic situations and banks dealing with foreclosures and the records are a mess and they don’t know what they’re doing. And I’m going to give you three examples of some things that I think show that I think show that they DO know what they’re doing and what they’re doing is deceiving people.

Example No. 1: Intentionally Overcharging and Assessing Excessive Fees

The most recent thing that has occurred has been fairly widely reported in the press is a case out of Louisiana where a judge finally became so disgusted with Wells Fargo that she awarded over three million dollars in damages to one homeowner in what the judge called a continuing and unrepentant pattern of willful deception. In terms of penalties, interest and fees that the bank was charging and that they had continued to charge even after they had been caught and been exposed that they were improper.

In a related case the judge had ordered an audit of 400 random Wells Fargo mortgage accounts. And Wells Fargo fought tooth and nail to keep those records sealed. So no one’s officially seen them however it’s been reported in several different press outlets that in reality of those 400 audits virtually every single one of them contained significant errors.

Question Every Single Fee, Line Item, or Charge on Mortgage Statements

So when you get statements from any bank and the charges are confusing and they don’t make any sense and you can’t make anything out of them, don’t take the position that well it’s a big bank and they must be right and I must be wrong. Because it’s coming out more and more that not only are they wrong, they KNOW they’re wrong.

No. 2: Uncertainty in Court Pleadings as to Who Holds Your Note?

Another area that I see this deception is in actual court pleadings. And I’ll give you one very simple example. In Florida, one of the not only common but required allegations in the complaint for foreclosure is that the plaintiff, the party bringing the foreclosure action, is the owner and holder of the note. And it’s a standard paragraph that says that plaintiff is the owner and the holder of the note owed by the defendant.

I started to see complaints where they would say the plaintiff is entitled to bring an action to foreclose on the note and mortgage signed by the plaintiff,  or by the defendant. Now that would start to beg the question why are they changing the language in what is a standard Supreme Court-approved document. And the reason is that because they’re NOT the owner and the holder of the note. And the lawyer doesn’t want to come out and make an intentionally fraudulent statement in his pleading.

So he says, well, “we’re entitled to bring the action” which itself is not a statement of fact, it’s a legal conclusion. And he’s making the statement because he doesn’t want to allege that his client owns and holds the note because he knows the client doesn’t own and hold the note.

The problem is most people don’t even know or recognize the distinction between those two things and if nobody brings it up, then the foreclosure slides right on through and the fact that they weren’t even the owner and holder of the note just never even comes up.

No. 3: Backdating Mortgage Documents and Robo-Signings

A third example is backdating of documents. When promissory notes and mortgages are sold and transferred from one entity to the other, it’s just like there has to be an endorsement just like on a check where someone writes on the back of the check: pay to the order of Uncle Ned and they sign it and then that transfers ownership of that check to Uncle Ned.

Well the same thing goes on if a bank sells your mortgage loan and the promissory note to another bank. They have to have an endorsement on there that says pay to the order of whoever they’re selling it to. And these loans were being passed around fast and furious and it came time to foreclose and all of a sudden well there are no endorsements.

Well we better go back and get them. Well we don’t want them dated now, we want them dated when this thing allegedly changed hands. So you end up having these things fraudulently backdated signed by people who didn’t even work at the bank at the time it was being assigned and now they’re signing it.

We’ve actually seen documents where we found the same person signing for two different entities literally within the same week. Well who do you work for? Do you work for the entity that you signed on this note? Or do you work for the entity where you signed on this note? Or do you work for somebody else? And nobody knows but again they get away with it because it doesn’t get brought up. 

How Do You Question YOUR Mortgage and Bring Errors To Light?

So, that begs the question then how do you bring it up? How do you know that these things are going on? And that leads to something I’ve talked about before and that’s getting an audit done on your mortgage and your promissory note and basically you’ve got two kinds of audits. 

Hire An Attorney to Do a Forensic Audit to Confirm All Charges

One is a forensic audit: which commonly refers to an analysis of what kind of interest rate have you been charged vs. what the closing documents or the loan papers say that you were supposed to be charged.

And it’s incredible how many times the interest you’ve been paying for three, five, fifteen years is different from the interest rate that the documents say that you were supposed to be charged. And other fees and escrows that are supposed to be taking place. That are just wrong. And there can be significant penalties for doing this for having those mistakes. 

A Securitization Audit Tracks Loan History to Assure Rates and Loan Ownership

And the other kind of audit that gets right down to who’s really got the right to bring the lawsuit and that is what’s generally referred to as a securitization audit. Where it tracks the history of the loan as it got sold from one bank to another to another. And when these loans were bundled up. And then how those were then sold on Wall Street. And then, so who really owns those loans, who really has the right to bring the lawsuit? 

And it may not be a question of do you owe the money? All right, there’s a loan out there, somebody’s owed the money. But you want to make sure that you’re paying the right person.

Just like if somebody shows up with a check and says, “here you wrote this check,” two months ago, two years ago, and I’m here to cash it. Well how do I know you’re really the right person to have that check.

Well you have the same right in foreclosure in dealing with a promissory note. All right, I owe somebody the money. But I want to make sure that if I pay you, that you’re the person that I’m supposed to pay. And somebody else isn’t going to show up next year and say well, sorry if you paid that other guy but the reality is that you owe me. 

So it’s a very legitimate question that if somebody comes into court and in any kind of case where the defendant says, “well prove it;” bring forth the evidence. Which is what you’re required to do and under our system of law, you’ve been required to do for a thousand years. And all you’re doing is saying I want it done in my case as well as it’s done in any other.

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