As victims of bank forgery, where the bank forged both our signatures, notarized and recorded the falsified deed, we have just spent the last six years through the federal court system, fighting the bank on their insistence, even though we, as the homeowners, were 100% innocent, that we should owe them an equitable mortgage. Finally on January 3, 2012, the US Circuit Court came back with a final ruling…there will be no equitable mortgage. We are currently looking for an attorney, who is willing to go against these institutions on contingency, for the damages that their actions have caused in our lives. The following is just a taste of what we have been through.
HOW NIGHTMARES BEGIN…
When we approached World Wide Financial (a.k.a. LoanGiant) for a mortgage in January of, 2004, we were trying to come out of a year made in hell. In 2003 we had endured:
**Losing a position that I had held and excelled in at the local municipality for over 8-1/2 years in April of 2003;
**Sending a son to war and finding out that he was in Baghdad on the night of Shock and Awe; Enduring day in and day out of news report wondering if he was going to come back to us from October 2002 through June of 2003;
**Losing a son-in-law and grandson to a head-on collision at the start of Labor Day weekend 2003;
**A bankruptcy that we entered into due to medical bills being garnisheed from my wages and almost cost us our home in 1997, cost us $75,479.17 only to realize that, because of dishonest information by our first attorney, we were led down the wrong path, placed in the wrong chapter and was a major waste of time, effort and money; cost of attorney fees for this legal malpractice: $2,102.45
The realization that only a $351.01 reduction from our original principal was the result of five years of payments through the federal courts system, even though we had a federal court report that stated that $55,847.05 had been paid on our home with a total of $52,165.74 being paid on the principal;
**The humiliation, hurt and anger of having paid $9,263.92 on a 1993 Chevrolet Lumina (whose blue book value when we went into the original bankruptcy of $7,100) only to have it repossessed within the first 12 hours of converting from a Chapter 13 to a Chapter 7, less than two weeks after burying our grandson and son-in-law. We could have had the car back if we were willing to pay additional monies even though the Trustee Report stated that the claim was paid in full. We had just paid $1,034.05 in repairs on the day that our son and three-year-old grandson were killed.
To say that we were stressed out tremendously by January of 2004 would be an astronomical understatement. Our only goal was to get the Chapter 7 bankruptcy discharged and be done with it; get our home refinanced and try to get on with what was left of our lives after the devastation leveled on us in the previous year.
The pressures of our everyday lives were very intense and I let the loan officer know that clearly and directly. I was in no mood to have someone, as I termed to him, yank my chain. I explained to our loan officer that our Chapter 7 bankruptcy was due to be discharged on at the end of January. I further advised the loan officer of the reasons behind the two bankruptcies and he assured me that he and his company would be able to help us and that I just needed to relax and let him handle things.
The loan officer then took an application over the phone and requested that we set up a meeting . I met with the loan officer at that time to discuss our application. My husband had to work so I went by myself as the loan officer assured me that my husband’s presence was not necessary until the closing. It was there, again, I reiterated the stress that my family had been under. I also restated that my husband and I were both self-employed. We just needed to lighten the burden that we would be under when the bankruptcy did finally become discharged and we were saddled with 15.5% interest and high payments to our, then current, mortgage company. The loan officer assured me that he could definitely get us a better rate and lower payments and to just leave it up to him.
I then presented the loan officer with the documentation that he had requested over the phone on the previous day. Those documents being tax returns, evidence of my layoff and such that he needed to process the loan. He told me that we would most likely be closing on Saturday, January 24, 2004. I remember that I was amazed that they would do a closing on a Saturday. The loan officer assured me that they did it all the time and not to worry. I should have know then that I should have to start worrying because from that day forward nothing went the way this loan officer said it would.
Again, my husband and I were put into another stressful situation. This was just what we did not need. On or around the date of the proposed closing of January 24, 2004 I received a call from the loan officer, who stated they could not close on the loan until the bankruptcy was fully discharged. I asked the loan officer why I was just now hearing this and he said that he had just found it out himself. He, again, reassured me that everything was in place and as soon as we had the discharge, we could close. I tried not to get too agitated by the turn of events because I knew that the bankruptcy only had a few days to go before it would be discharged.
As soon as I was aware of the discharge being final, I notified the loan officer so that we could proceed to closing. Once again, we were duped. On February 20, 2004 we received, via the mail an application package from New Century Mortgage Company. I called the loan officer asking why we were going through the application process again and the loan officer stated that he was having problems with the original loan and that this company was willing to finance us at a rate of 9.121% with payments of $613.28 a month. I was beyond annoyed. Here it was, six weeks after I had initiated this refinancing fiasco and I was back at square one, applying for the loan. The loan officer assured me that it was not as big of a deal, as I was making it out to be. He stated that we would be closing on March 9, 2004.
Everything inside me told me that this was not going to end up, as he kept promising. I could not have been more right. On Friday, March 5, 2004, I received a Statement of Credit Denial from New Century Mortgage Corporation. By this time I am beyond livid. We were now into two months of trying to get this mortgage finalized and the loan officer was evasive. I finally was able to contact the loan officer, who by now had my nerves shattered. I demanded to know what he was trying to pull on us. I asked him if he was trying to help us lose our home. At that point, the loan officer said, “Fine. I will just drop this mortgage right now. I do not need your shit. Go find another mortgage company.” By this time, I have been reduced to tears, begging him not to do that to us. We had already been through so much and now this…I just wanted to get through this. On March 31, the loan officer requested a Letter for Explanation from us that he could give to New Century Mortgage Company. He stated that he had did a lot of finagling and was able to get an approval as long as we could provide a Letter of Explanation for the reason that our credit was so messed up. I reminded the loan officer that my husband and I were leaving town, to enjoy a gift from our daughter, and would be in California from April 5-9th and that we would be then in Hawaii from April 10-20. The loan officer assured me, again, that this would not present a problem because there were title companies in both states and that we would get this finalized.
On Tuesday, April 6, 2004 I began to keep in close contact with the loan officer after we arrived in California, calling him everyday, awaiting to hear what time and where this, again promised, closing was going to be. Here we were, suppose to be on a much needed vacation, trying to shed off what the previous year had put so heavily put upon us and we were dealing with a closing that was suppose to have happened back in January and several times in between.
Finally, on the morning of Thursday, April 8, 2004 I received a call from the loan officer on my cell phone telling me that the closing was going to occur at a title company located in Sacramento, California. We arranged for a ride and arrived on time for our appointment.
When we arrived, we were greeted by the woman that was going to help us through our signing. She stated that she would be notarizing the documents that we were going to be signing that day in relationship to the business dealings that we had with LoanGiant out of Michigan. The notary then sat two identical loan packets in front of my husband and me. She stated that we would go page for page through the documents and sign them one at a time. She also stated that she would take the documents from us, as we signed them, from the left pile and those documents she would notarize; the documents in the pack on the right would be our copy of the papers that we signed on that day. She stated that LoanGiant would be forwarding copies of the original notarized documents to us in the near future. We did have an issue with one thing, but nothing that would stop the proceedings.
We had finally had a closing. We thought that it was all said and done; so, on Friday, April 9, 2004 we readied ourselves for an evening flight to Honolulu to meet up with three other couples who had flew out to Honolulu from Michigan earlier in the day.
On Sunday, April 11, 2004, we boarded the Norwegian Cruise Ship the Star for a week cruise around the Hawaiian Islands. We had waited along time for this trip and were looking forward to the escape. That is until my cell phone rang while we were on the ship on Monday, April 12, 2004. There was a problem with my youngest daughters name being on the deed and they needed a quitclaim deed before they could release the funding. I could not believe my ears. The nightmare was not over. I had to spend a couple of days on the phone, in between ports, on the phone between my oldest daughter and my lawyer tracking down my other daughter and get a quitclaim deed signed and sent to the loan officer. Then only to find out that the quitclaim deed that was suppose to be so important has still to this day not been filed with the Lapeer County Register of Deeds. Here we were on the vacation of a lifetime, a vacation that my husband and I sorely needed and we were still dealing with a refinance that should have been over with months ago. It took until April 28, 2004 to straighten out the dispute that we had regarding the paying of a certain creditor. By that time I was glad to be done with the whole mess and the loan officer as well.
Fooled again. After the mortgage company tried to foreclose on us, without due process, after falling only one month behind in our payment in the Fall of 2005; we were again forced to file for a bankruptcy, that we didn’t need, to figure out what was going on and try to save our home. While reviewing the paperwork sent by that company to file a claim with the bankruptcy court I noted that their was a copy of a recorded mortgage attached, so, I sat down to look it over, seeing I had never received a copy from our loan originator, Worldwide Financial, as originally promised. When I got to the signature page, I was shocked, and knew full well the reasoning behind us never receiving a copy. These were not our signatures. It was obvious to my husband and me that both signatures had been forged. Then I turned the page and the date popped out at me like a dagger…April 8, 2004. Then in the upper left hand corner, I saw the words “State of Michigan” and “County of Oakland”. It was a notarized statement saying that Dan and I were in Oakland County Michigan on April 8, 2004 and signed this document and then it was recorded! All the feelings that were associated with that horrific loan came rushing back. I could not believe my eyes. After all that, we had been through with this loan and then they forge our names to the mortgage.
We had been subjected to lie after lie in regards to the status of this loan for over three months. I had been belittled, embarrassed and threatened to the point of breaking down and collapsing to the floor in tears; we had a wonderful gifted vacation marred by constant worrying over finalizing something that should have been completed months earlier.
The loan officer was more than aware of the painful year we had just experienced. We were lied to and made fools out of repeatedly. The loan officer and Worldwide Financial had many opportunities, not to mention the responsibility to contact us and ask us to come in and sign any unsigned documents. We, at that time, would have gladly come in and finalized anything that was not been handled in California because that would have been our duty. We would not have shirked our responsibilities in the matter, if we would have known. However, we were negated the chance to do so. Instead, someone took it upon himself or herself to forge our signatures on a mortgage, securing our home to a note, notarized it and then recorded it as being a legal document. Our public trust has been severely damaged not to mention our rights have been stepped all over. It has caused undo hardship and added aggravation to both of us and we are devastated that we were taken advantage of in such a manner that was both unwarranted and unnecessary. Little did we know that it wasn’t going to end there. Our victimization was to get kicked into high gear.
A CRIME IS COMMITTED…REPORT IT….RIGHT?
In 2005, our mortgage servicer, Saxon Mortgage, tried to illegally foreclose on us and in order to straighten out the mess they had made of our account, we were forced to enter another Chapter 13 bankruptcy. Upon receiving Saxon’s Proof of Claim, attached was a copy of our mortgage and a document I did not remember seeing before…and I was correct. When I got to the signature page, I immediately recognized that the two signatures on the page were not mine or my husbands. When I turned the page, the document was notarized, in Oakland County, Michigan on the very day that we were signing documents in Sacramento, California, and it had been recorded. In June of 2006 we filed an Adversary Proceeding against the bank, the mortgage companies and the notary based on forgery of the mortgage. Immediately, the trustee jumped on the bandwagon, hiring his own attorney, becoming a plaintiff with us, against Saxon and US Bank. We finally won in July of 2007.
The court also ignored the other counts against the defendants because, in the words of the judge, “Is your client the only one on the first terms if this court were to grant your motion of summary judgment on Count I, would that be sufficient what you believe to be the task at hand?
It was also acknowledged by the bankruptcy judge that when New Century came out of bankruptcy we could pursue avenues against them.
After winning, the trustee submitted an AP requesting the court to hold a forged mortgage void ab intio. The judge, then also held that the trustee had the right to avoid debtor’s mortgage under 544 and state law at pgs 53 & 54. The judge granted relief to us and then to the trustee which was totally inconsistent with each other and demonstrates that the judge did not follow state law. We did not appeal the order. At that time, we believed that the issue had become what is the value of an “avoided” mortgage to the trustee which was determined by the court void ab intio.
The trustee then asked the court to approve a sale of the “avoided”mortgage back to the defendant (US Bank/Saxon) for $30k and reinstating defendant’s 90k mortgage back on our property which would fracture our plan. For once the little guy had won and the trustee was attempting to completely undo the court’s holding of stripping the defendant’s lien due to debtors’ signatures having been forged on the mortgage.
To add insult to injury, the judge then ruled that the trustee could sell the mortgage back to the bank for the benefit of the estate without even determining whether the case merited an equitable mortgage. How is giving the defendants back the mortgage that they had just lost, due to forgery, benefiting the estate? What this amounted to was the bank getting the house and us being out on the streets for reporting a crime. That meant that the bankruptcy court didn’t care that there was a crime committed; their only concern was that the creditor was getting paid. The voiding of the mortgage was just house-cleaning…no harm no foul.
We understand that creditors need to get paid. We understand that we are all responsible for making sound financial decisions when it comes to our money and how we manage it. We get all that. What we don’t get is why we, as a people, are bound to laws that dictate proper “public policy” protocol; however, when the banks happen to be the defendants, those public policy protocols seem to go out the window. If we forged your name are we not guilty of a crime? If our forgery involves a contract, is that contract and all documents pertaining to that contract not void? Yes it is. It never existed. If the contract is void, so is any document pointing to that document as a reference. The document never existed legally, therefore, reference to it is negates that document as well. That not only is common sense, it is a point of law.
In Whittlesey v. Herbrand Co., 217 Mich. 625, 628, 187 N.W. 279 (1922), quoting Short v. Van Dyke, 50 Minn. 286, 52 N.W. 643 (1892), the Court stated that “ ‘[i]n a written contract a reference to another writing, if the reference be such as to show that it is made for the purpose of making such writing a part of the contract, is to be taken as a part of it just as though its contents had been repeated in the contract. ’ ”See also United California Bank v. Prudential Ins. Co., 140 Ariz. 238, 258, 681 P.2d 390 (1983).
The Arizona Supreme Court also held: Although neither physical attachment nor specific language is necessary to incorporate a document by reference, the incorporating instrument must clearly evidence an intent that the writing be made part of the contract. When the question of whether another paper or term has been incorporated by reference depends on the “exercise of speculation, surmise and conjecture” the court will refuse to rewrite the contract. [Citations omitted.]
In all these years of litigation, the bank still stands that it has a note on the property and with that can go and sue us civilly and get a lien against our home. However, because this wasn’t part of the argument, we still have to deal with this issue.
The Arizona Supreme Court held: Although neither physical attachment nor specific language is necessary to incorporate a document by reference, the incorporating instrument must clearly evidence an intent that the writing be made part of the contrac t. When the question of whether another paper or term has been incorporated by reference depends on the “exercise of speculation, surmise and conjecture” the court will refuse to rewrite the contract. [Citations omitted.]
Due to these abuses of law, we were forced to appeal to the US District court. Since then we have have had two appeals with the US District Court of which we won both cases. The bank then felt the need to take it to the US 6th Circuit Court on appeal. Finally after 4 years and 6 months, the court finally got the message that the bank was not entitled to an equitable mortgage.
Throughout the 2011 holidays our anxiety was high. The mind plays tricks on you at this stage of the game. Is the agonizing longevity to a decision ever going to end? Will it be in our favor? The mind bends around how the system takes something that seems so obvious and turns it in favor of the defendants? The fear comes from witnessing these types of twists in our “just” legal system, within the walls of our country’s bankruptcy court system.
We were looking toward our seventh year on this journey. Each milestone we were hoping that it is our last on this road of mortgage purgatory that we have been forced to endure. I could not believe that I was entering another year in the same spot. Do we have our home? Will we have to move? Does us fighting for what is right going to just end up with us out on the street anyways? Every year it’s the same. Don’t put money into the house, just in case…meanwhile the house is exponentially deteriorating.
We are raised to believe that if you see a crime committed you report it. After what this case has put us through, we are very sure that we will think twice, before we ever report another one. After being re-victimized, not only by the bank, but the bankruptcy trustee and court as well, when they went against the stat law to ensure a victory by the creditors.
POINT OF CONTENTION
To say that we, as the homeowners in this case, have not been harmed by the actions of this bank is to say that the lack of oxygen doesn’t cause brain damage. When the bank states that they are innocent victims in this case, they are communicating a serious misnomer. Whose responsibility is it, when it comes to reviewing the documents, in relationship to the masses of transferred properties that go in between these banks on a daily basis, to inspect for consistency and legal compliance? Was it the homeowner’s duty to review the documents for discrepancies? Was it the homeowner’s responsibility to compare all signatures on every document to ensure that all forms were unfailing in regards to the compliance with mandates of state and federal law and the rights of these homeowners?
Banking institutions pay immense amounts of money for high-priced legal representation and yet these expensive counselors’ overlooked a huge red flag on the paperwork, in regards to this property. In the real world this is called inferior work and is most likely a cause for dismissal.
The red-flag in regards to this property was:
The fact that there were two different notaries, on two different sides of the country, signing that the homeowners’ were, both, in their presence on April 8, 2004.
A cursory review of the documents would have given notice to this imperfection in the paperwork. This should have been followed by a review of the signatures. How were the homeowners to know that someone thought that it was alright to forge their signatures, notarize and record them? When does the bank take responsibility for their lack of efficiency, therefore, costing their employer and the true victims of the crime, the homeowners’, hundreds-of-thousands of dollars litigating a case such as this? It takes 15 minutes to review a mortgage package; it’s taken six years of these homeowners’ lives for this neglectful act. Six years where these homeowners’, trying to regain their lives through job loss, family loss and a son serving four deployments overseas, have been burdened continuously wondering when the axe is going to fall.
If you would believe the banks’ interpretation of us you would expect to see two devil-like creatures in your midst. We understand that we, like millions of Americans, could have lost the roof over our heads over the past six years, due to tough economic times. They are not unique in today’s world. The only difference regarding our circumstance, as to everyone else, is that we were the first to find such a fraud, and for that finding they have suffered considerably. That is why this case is so “not on point”. There are no past cases where the homeowners’ had 100% clean hands. That is why the bank tried so hard to blind the court with cases where this is not the circumstance, hoping the courts will allow equity, based on cases that are, again, “not on point”. The bank not only refuses to see where their failure, in this case, is culpable; they refuse to accept accountability for the fact that it was their duty to review all documents and not the responsibility of these homeowners’.
Our point of contention is that the bank had a duty to take reasonable steps to ensure that the mortgage sought was being obtained through lawful means, by both the bank and the homeowners’, and should not be awarded, at the expense of the innocent homeowners’, for its failure to exercise due diligence. To reward the bank for failing to exercise due diligence is against public policy and support of such policy would allow the banks to step into the shoes of the court in making determinations of equity when it has been clearly demonstrated that the banks were negligent in their duty to ensure that all documentation was legal and authentic. This lending institution had several recourses that they could have utilized in this case in order to recoup the losses that were due to their own negligence, which included:
**Pursuing remedies against the notary;
**The bank’s closing counsel; and
**The title insurance carrier.
Instead, we were forced into bankruptcy perdition due initially to an underhanded foreclosure attempt by the mortgage company, when the evidence showed that we were only one monthly payment behind on their mortgage. Since this case was instated the evidence of this company’s’ practices have went off the charts. Had the mortgage company been upright in their bookkeeping and practices we would have never known about the crime committed against us and we would have lost their home. It can be correctly assumed that there are multitudes of people who have lost their homes that have had this crime committed against them as well. Is it right that we have been made to suffer due to due diligent negligence of the bank?
There is a question of ethics as well, on several fronts. The trustee hired an independent attorney to stand with us against this atrocious behavior; only to find that attorney, upon avoidance of the mortgage, was making backdoor deals with the defendants to sell the avoided mortgage back to the guilty party for $30,000. The trustee took all the monies that had been paid into an unnecessary bankruptcy to pay the trustee’s attorney. The second ethical question comes when we discovered that the bank then took it upon them to collect on the notary’s bond, citing a loss that they had yet to incur. They lost title to this property in 2007 and yet they still have this property as a valid mortgage in their systems as evidenced by the constant reporting and viewing of our credit reports. The bank has obviously lost nothing. Let us review what we have lost:
Loss of public trust due to this banks greed, recklessness and irrationality has caused us to discover the laws that pertain to them do not pertain to the banking world; knowing that our name can be signed and notarized without any consequences to the offending party.
Loss of respect and belief in the justice system; which has been shattered beyond repair as we have watched a pro-creditor system award bad behavior and accept excuses that would have sent us straight to jail.
We have watched as these public institutions get away with their corruptions while we, the victims were left defenseless; having our reputations, credit and home tore apart by the offenders.
Loss of the ability to improve credit rating; we have to live with restrictions on our lives that have been magnified by the fact that this invalid mortgage has been on our credit report for years after the mortgage and note were avoided. The mortgage never existed; however, the bank has been allowed to persecute us by reporting a $74,000 deficit on our “mortgage”. This mortgage never existed in the eyes of the law; however, it exists and is very present on our lives, hindering us from moving forward making necessary repairs to our property and our lives.
We wonder why we even reported the crime; it would have been less painful and damaging to just lose the house to the fraud and move on.
Let’s reverse the situation. What would the consequences have been to us had we been the ones to sign and notarize such important documents? All one needs to do is pick up a current newspaper and read what happens to “people” who break these laws. How is it that these banks are allowed to get away with such crimes with a “pat-on the back mentality? Does the court realize that by allowing these atrocious behaviors to go unpunished is saying that its’ alright to break the law if you are a big bank or business; the laws don’t pertain to you? Per Michigan law, we would have been facing up to a 14-year prison sentence and would have had to pay restitution until our dying day.
Another issue at hand is that we paid for title insurance; however, instead of enforcing the title policy, the bank has elected to go after us, tarnishing our credit beyond repair as well as our reputation within this court and with anyone who reads the court documents. The bank found pleasure in using a gifted trip against us, paying no heed to the fact that this trip was a gift from our daughter, after the death of our son-in-law (her husband) and three year old grandson (her son), touting irresponsibility on the part of the homeowners’. Through every brief submitted by the bank, since the inception of this case, it is noted how irresponsible we were for going on such a trip and insinuating that we used the proceeds from the “mortgage” to go on this trip. We were already suffering from an unimaginable tragedy, yet the bank used this beautiful gift against us in an attempt to win the case. Are the banks’ slanderous accusations against us an attempt to blind the courts to their own tortuous behavior? Could it be that the bank realizes that the title insurance won’t pay off because there was a forgery, by the bank, which invalidates the insurance; not allowing the arsonist to be paid for the fire as it were? What message are we sending to the people of this country when we go after the victims so vigilantly, furthering their pain as with our case, for reporting offenses such as these?
The bank, by continuing to go after us and not taking other avenues available to them (i.e., sue the Notary; collect the title insurance), have demonstrated their contempt for us, as homeowners’ instead of, again, doing their job. Why is it alright that we paid for a title insurance policy, to protect the bank, yet the policy is ignored, as if it doesn’t exist? Why did the bank not go after the notary such as we did, get a judgment and then legally go after monies that may actually belong to them instead of sneaking in and grabbing money that they were not awarded?
We are mortified by this experience, praying that we will never witness a crime and be put in the position of having to decide whether it will be worth the next x-amount of years of our lives to report it. We’ deserve to be able to move on with our lives without this fear. We have the right to protect the rights of our children and our children’s children. By the courts ignoring the culpability of this bank and others, we are sending a message to the American public that our laws mean nothing. Awarding equity in this case would have been the equivalent of awarding the arsonist. Signing your name in front of a notary would have become a joke. What would necessitate this action if it doesn’t matter? This case has the power to further muddy the waters of an already outrageous situation; or it has the power to put the banks on notice that this will not be tolerated. Our only crime was that we fell one month behind in our mortgage; it was the unethical actions of all banking representatives involved that have cost us many years of our lives and we may likely never recover from the damage that this case has caused in our lives.
What is the Point of Title Insurance?
The risk of forgery or a void instrument in the chain of title is commonly covered by title insurance, so why wasn’t the policy honored in this case. We, the homeowners, purchased title insurance to cover the bank.
A title insurance policy is a contract to indemnify, or protect, the insured, either the owner or the bank, from certain losses or damages suffered as a result of unknown liens, mortgage or any other defects in the title to real estate. Even though we nor the title insurance company knew that our property’s mortgage release was forged our title insurance policy, for the bank, should have protected them from a loss when the forgery is discovered. We may even presume, seeing that the bank took the notary bond, which was suppose to come to us, that the title insurance company did pay the bank. After all, we do know that they collected that bond before they had actually sustained a loss. We were still in the judicial process of finding out whether or not they were going to get an equitable mortgage. Instead of the US Bank recouping their loss from title insurance that we paid for…they have went after us.
The following damages are, in our opinion, considered to be part of our case, and possibly yours as well.
Breach of Contract occurred when the bank failed to fulfill the duties under the contract terms. A contract can be breached in the following ways:
One party does not perform as he or she promised, In our case the bank used a document against us, where we signed that if any documents that were not signed, upon contact by the bank, we would be legally mandated to come in and sign the documents.
One party does something that makes it impossible for the other party to perform the duties under the contract; in our case, we were never contacted about the missing signatures, so therefore the bank made it impossible for us to perform the duties assigned under the contract
One party makes it clear that he or she does not intend to perform the contract duties; when the bank did not contact us, they violated the very contract that for the past five years, have used against us in the judicial system.
The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:
**the nature of the interest to be protected (our home),
**the relative adequacy to the plaintiff of injunction and of other remedies,
**any unreasonable delay by the plaintiff in bringing suit,
**any related misconduct on the part of the plaintiff (none on our part),
**the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
**the interests of third persons and of the public (this should be obvious), and
**the practicability of framing and enforcing the order or judgment.
Unconscionable conduct is also found in acts of fraud and deceit, where the deliberate misrepresentation of fact deprives someone of a valuable possession. Whenever someone takes unconscionable advantage of another person, the action may be treated as criminal fraud or the civil action of deceit.
Forgery is the creation of a false written document or alteration of a genuine one, with the intent to defraud.
The court has already deemed that the crime of forgery was committed. Therefore, the court, by finding that it was a true forgery, means that the court believed that it was the banks “intent” to defraud.
Violations of TILA (the Truth in Lending Act) the law that dictates that as a part of every loan transaction, the bank must provide the homeowner correct disclosures (Never received a disclosure that the mortgage had not been signed, actually never received a copy of the mortgage) at or before the time of closing, including the amount of the finance charge and APR. If these disclosures are inaccurate, the loan may be statutorily rescind-able under TILA. The lender must also provide a “Notice of the Right to Rescind.” This is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescind-able up to three years after the date of closing. Rescission means the loan is canceled and all money paid to the lender is refunded. Moreover, if you purchased the property or used the proceeds to refinance and proper disclosures were not given, then you may also be entitled to money damages to offset the foreclosure.
Violations of RESPA (Real Estate Settlement Procedures Act), the federal law that dictates many type of disclosures that lenders must provide at the time of closing, in addition to prohibiting things such as kickbacks and unearned fees
Breach of Fiduciary Duty occurred when the lender lied about our bankruptcy status on the mortgage application (although they had to wait until the bankruptcy was confirmed to finish the loan).
Wrongful Intent/Negligence by the Bank occurred when they did not review the documents and allowed for forgeries to exist.
Intentional Infliction of Severe Emotional Distress occurred when the conduct of the bank was shocking and outrageous in character beyond all bounds tolerated by society
Abuse of Relationship of Trust occurs when a person or business in authoritative position abuses our trust, in our case, by signing our names, notarizing the document and recording it as well as the threats that were made against us during the loan process and negligence by the bank by not insuring that the documents that they were assigned were in proper order,
Act for Improper Purpose occurs when the conduct caused severe emotional distress and mental suffering; i.e., the inability to hold a job due to the anger and anxiety caused by the case; our loss of all public trust in regards to our government/banking institutions; extreme stress from the years of having to defend our innocence and the banks constant throwing of money into this case in an attempt to take our property even though they were aware that the laws that they were citing against us were not on point.
An Intentional Tort occurred when the forgery was committed and is not based on fault or culpability. This bank, although not the originators of the forgery, by consistently forcing us to fight this crime, is a civil wrong. Also, deeded a civil wrong:
**Alienation of Affection occurred when the stress of this case has caused
**Trespass occurred when the bank, for the past four years, has committed a wrongful interference with the possession of our property. They lost their mortgage in 2007 and yet, here it is 2012 and their name is still on our deed and credit report.
Tort of Negligence occurred when
Violation of Consumers Protection Act is when a company engages in unfair or deceptive trade or practice if it “does not attempt in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear by failing to communicate and failing to conduct a reasonable investigation when it was made aware of Defendants’ claim against it. Reprehensibility is found to have malice, oppression, or fraud because it thought the defendant’s conduct reprehensible in some way. If forgery by the bank is not reprehensible, I don’t know what is.
Violations of the Consumer Fraud Act occurred when the banks violated the law by engaging in “unconscionable commercial practices, deception, fraud, false pretense, false promises, misrepresentations, and/or the knowing concealment, or omission of material facts.” To state a claim under this act, a plaintiff must show:
**unlawful conduct by defendant (the forgery);
**an ascertainable loss by plaintiff (six years of litigation and life); and
**a causal relationship between the unlawful conduct and the ascertainable loss (this is obvious)
The subject will be considered with reference to:
**The making or alteration requisite to constitute forgery.
**The written instruments in respect of which forgery may be committed.
**The fraud and deceit to the prejudice of another man’s right.
**The statutory provisions under the laws of the United States, on the subject of forgery.
**With regard to private writings it is forgery fraudulently to falsify or falsely to make a deed or will or any private document whereby another person may be prejudiced.
Libel occurred when the bank, in their briefs, which are published, defamed us regarding our “vacation” in Hawaii. The bank intentionally used that trip against us as if to show that we were being and are financially irresponsible. The trip was gifted to us, by our daughter, after the death of her husband and son-in-law, because our daughter felt that we had been put through hell the previous year and that we needed a break; not because we were financially irresponsible…and falling only one month behind on our mortgage does not demonstrate financial irresponsibility either.
These are just a few of my points. Here is the reality of our situation. For six years we fought a fight we never should have been in in the first place. Our home is falling around our feet…as I type this we were just served by the city for being in violation because our garage is falling to the ground. This bank, unjustly went after us. The title insurance company did not pay out for a policy that we paid for. We have been damaged…we are reduced to being on food stamps and have lost six years of our lives for “doing the right thing”. We need an attorney who will help us…how can a woman who discovers robo-signing win a multi-million dollar suit when no homeowners signatures were signed…and yet they have destroyed our credit…we have no way of clearing the title…our credit is screwed because they are reporting a mortgage that never existed. It’s getting to the point where it’s affecting my husband and my health…we were victims…will someone please help us go after the damages that this bank and other entities have caused us…