FORENSIC COUNTERMEASURES, PART 4: FDCPA

The author of this post is not an attorney, but is a consulting expert to attorneys and paralegal who has drafted numerous FDCPA-related complaints. If you feel you may have a cause of action that is FDCPA-related, contact an attorney who is well versed in these matters.  If you intend to proceed pro se, at least do the research and get it right the first time!  Because this is not to be construed as legal advice, despite what you’re reading in this post, understand that the author the post is working on a new book on the FDCPA for good reason … it’s a new counterpunch!

 I cannot stress that research is the most important thing that matters when preparing to file any kind of lawsuit.  Most homeowners are so pissed off that the first thing they run into court with are fraud claims and these are the most difficult to prove.  In light of the fact that servicer fraud and the complicit behavior between servicers and the law firms they retain to steal homes is at an all time high, it becomes necessary to discuss a new and effective countermeasure: the Fair Debt Collection Practices Act (“FDCPA”).

Lazy or Ignorant?

What’s worse, it appears that most foreclosure defense attorneys do not want to employ the use of the FDCPA because it requires going into federal court, a place in which many of them are not familiar with.  Federal Rules of Civil Procedure and pleading standards are heightened beyond what are plead in state cases; thus, the lack of desire to approach that level.  However, that is where the FDCPA can be your best achievement.  Some homeowners are using the FDCPA to build a war chest to fight foreclosures and to scare off the servicers by making them and their law firm lap dogs defendants in an FDCPA action.  The more attorneys that come forward with 12(b)(6) motions, the more times I’ve seen the Plaintiff amend the Complaint to include the new attorneys, because after all, they appear to continue to proliferate the fraud upon the Court.  Most state-based attorneys wouldn’t want to engage in something where they actually have to “prove” something occurred.  After all, that goes against the business model of “getting paid to delay the end result”, which I think many of them believe is the final taking of your property.

Federal judges are smarter than state judges! 

At least most of the time.  There are a few “appointees” out there that are not fair, have an agenda or are politically motivated to rule certain ways. Fortunately for those living in the 2nd, 9th and 11th federal circuits, which is where a bulk of foreclosures are either pending or have occurred, these respective courts of appeal have properly ruled on FDCPA-related actions. Unfortunately however is the fact that unless the pleadings meet the requisite heightened federal standards, they won’t pass muster, even with the judges that have a proverbial attitude against homeowners.

Strategic planning for an FDCPA action … 5 simple steps:

  1. The one thing that research has shown us is that if you’re going to do an FDCPA action, stick to FDCPA and nothing more.  Don’t plead fraud claims. Don’t plead damage claims and most of all, don’t plead common law claims unless they relate to FDCPA claims (like fraudulent concealment or misrepresentation).
  2. It doesn’t matter how many FDCPA claims you have, stick to those only.  When writing pleadings, I like to draft them like an indictment. Most federal judges understand indictments.  If you have a problem understanding what I’m talking about, Google” indictments” and read HOW they are plead.  “Structure your complaints like indictments”, is what one attorney (who clerked for a federal judge after getting out of law school, for many years, and knows the system) I work with has stated.  Truly, it made it easier for me to “get it”.
  3. Do the homework required when it comes to statutory citations. Don’t skimp.  Here’s where you’re going to have to precede the actual claims with general allegations that tell a story.  Attach as many supporting exhibits as you need to.  The exhibits should include at least the page that is the one that is clearly misrepresentative (I attach the entire exhibit, including the envelope the exhibit came in).  If you don’t tell the whole story, then how do you expect the allegations to reinforce the FDCPA claim itself?
  4. Study the case outcomes of others in your district who have gone before you.  There’s nothing like making bad case law, again.  Find out HOW the homeowner (or his attorney) failed to meet the heightened federal pleading standards, especially if you can find where the case was appealed.  Look at the strength of the cases that were reversed by the appellate circuit and study WHY they were reversed.  Look at all of the issues that were plead.  You’d be surprised to find that the simplest of claims that could have been plead, weren’t … and that’s what caused the failure.  When you know why cases failed, then you can begin to understand those that were successful.  Study BOTH sides of the coin!
  5. Study 28 U.S.C. … Federal Rules of Civil Procedure, regarding statutory pleadings.  Study all of the elements of case presentation.  Study the requirements for discovery.  Understand what “scheduling orders” mean and are used for.  This is where both pro se litigants AND attorneys screw up.  If a mandatory settlement or case management conference is required, you had better damned well be paying attention, or you’ll find yourself out of a case or postured to where there’s no turning back, resulting in more bad case law.

Subscribe to PACER if you have to!

If you need to do step-by-step case research, then you may have to subscribe to the PACER system.  This is the federal docketing system for each case that has ever come into federal court.  You want to be FDCPA specific.  If you need instructions to use the PACER System, CLICK HERE: pacer manual.   The quicker you can learn how this system works, the better off your understanding will be when it comes to success in researching cases.

There are plenty of successful appellate decisions out there on a wide variety of procedural issues related to FDCPA.  Your mission, before proceeding, is to find them and make use of the points that parallel your case.  Try NOT to plead outside of your circuit, as the rulings by the appellate circuit in your jurisdiction carry more weight than rulings outside your appellate circuit, which is only persuasive, but still can be effective if you can’t find the goodies you want.

Registration is OPEN for the Quiet Title Workshop in Honolulu!

In other news, registration is open for the Quiet Title Workshop in Honolulu.  This is the last DK Consultants LLC-sponsored event in 2016. Visit the Clouded Titles website to sign up (as others already have).  We anticipate a packed house for this workshop, since the last two hours are going to be broadcast live over iHeart Radio and the former Governor of Hawaii, John Waihee, will be in attendance along with The Foreclosure Hour host attorney Gary Dubin.  There will be attorneys from all over the U.S. attending this workshop, due to the nature and location of it (working vacation).  Encourage your attorney to attend if you’re contemplating a quiet title action (it’s called, “increasing your success rate”).  Knowledge is power!  All attendees receive a free copy of The Quiet Title War Manual!

 

 

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Clouded Titles Author Dave Krieger and Quiet Title Attorney Al West on The Foreclosure Hour!

Join Hawaii Foreclosure Defense Attorney Gary Victor Dubin today on THE FORECLOSURE HOUR!

Special guests: Clouded Titles Author Dave Krieger and California Quiet Title Attorney Al West!

9:00 p.m. EDT, 6 p.m. PDT on KHVH-AM, Honolulu; streaming live on iHeart Radio worldwide!

We will be discussing quiet title actions and the upcoming Honolulu Quiet Title Workshop!

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FORENSIC COUNTERMEASURES: PART 3 … BACKGROUNDING YOUR JUDGE

Op-Ed, Research —

I am attaching a 3rd DCA opinion [Martinez v Bank of New York Mellon et al, 3D15-2350 (July 27, 2016)] as an example of what constitutes Abuse of Discretion, which I attribute strictly to bias on the judge’s part, based on two things …

(1) AGENDA – Your judge may have a mortgage loan that he/she pays on every month, so why shouldn’t you be paying yours?  This creates bias, especially in light of servicer fraud.  The judge does not care that the banks and their servicers, especially the servicers, have already either been made whole multiple times over through securitization or about potential frauds on the court.  You can bet that opposing counsel knows how this judge behaves and is betting on the fact they know how to push his buttons to get what they want.  They’ve studied this judge long enough because they’ve used his court to steal homes from Florida homeowners, vis a vis servicer fraud.

(2) MANDATE – Many judges strictly adhere to state-mandated orders to “clear their dockets” AT ALL COSTS … even if it means turning into a royal prick and trampling all over the homeowner’s rights!  The 3rd DCA, after reading the transcript, must have been “shitting its pants” to think that a judge could act like that.  But … then again, we have come to expect this given the servicer’s propensity to create documents, record them and then lie to the court to steal the property, relying on their recorded and “completely manufactured, self-serving and self-dealing” assignments of mortgage.

Notice in this Appellate Ruling, the case was reversed and remanded for a new trial in front of a DIFFERENT JUDGE?   The 3rd DCA (in my humble opinion) should have called this judge and read him the riot act.  This judge does NOT need to be on the bench!  I’m wondering (out loud) whether this judge has to be bonded to serve on the bench.  I would wonder why someone hasn’t contacted that county’s risk manager and launched a complaint, attacking the judge’s bond (BTW, that’s who is in charge of the county’s insurance policies … the risk manager … hint, hint).  Now, you know I can’t give you legal advice, but I’ve seen some issues involving the counties across America quickly resolved when someone contacted the risk manager for the county and asserted a claim against a judge or any public official who has to be bonded to act on behalf of the county in one issue or another.

Let this be a warning to all of you about backgrounding your judge BEFORE you go to trial.  Here are two websites to check out:

http://therobingroom.com   You can click on the maps until you get to the area of the country you’re looking for!  Then, look up the name of the judge and read the comments others have left about them!

http://judicialwatch.org/judge  You can look up federal judge’s financial statements to see if there’s a conflict of interest!

I also have to find fault with Martinez’s lawyers for not backgrounding Bank of New York Mellon because it probably does NOT know that it is a named Plaintiff in the action!   What is up with these foreclosure defense attorneys NOT doing their homework?   We have the research team to aid in finding stuff like this out … directly from Bank of New York Mellon!

UPDATE: The State of Florida set up a Judicial Qualifications Commission (JQC) for the purposes of reviewing egregious behavior on the part of a judge. This could relate to instances from a judge attempting to friend a litigant on Facebook to behaviors such as this (or in Judge Murphy’s case, assaulting a public defender outside the courtroom and talking down to people).  Several attorneys have confided in me that they think some of these judges are bi-polar, which in of itself is a potential reason that if an attorney or judge has medical issues that prevent them from adequately serving in their respective capacities, they should cease performing them!  

If you’re in Florida, I would also check to see how many JQC complaints might have been filed against the judge you’re facing.

The FBI has now been tasked with looking into servicer fraud claims.  Loan officers are mandated under the USA Patriot Act to report all such suspect fraudulent loans to the FBI for further investigation.  We know of several of these loans that the FBI is currently investigating.

All of you with WaMu loans should also know that the FBI is still investigating money laundering that WaMu was allegedly involved in, running money through Florida on behalf of the South American drug cartels.  Do you think Chase really owns your loan?   Think again.  We have resources to vet loans with a transition chain like this.

BREAKING NEWS —

Registration is open for our final sponsored Quiet Title Workshop in Honolulu, Hawaii.  If you’re planning to attend, you should register as soon as possible at http://cloudedtitles.com!  Seating is limited and there is an October 1st cutoff date!

California Quiet Title Attorney Al West and I will be on kdwradio.com at 6 p.m. EDT (WKDW-FM 97.5) this coming Friday night (the 5th of August) on City Spotlight, talking about foreclosures, securitization, servicer fraud and related topics!  A must listen!  Find out how a $500,000 mortgage loan made the bank $7,000,000!  And now they want your home too!

 

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CLOUDED TITLES AUTHOR DAVE KRIEGER … ON CITY SPOTLIGHT … TODAY!!!

BREAKING NEWS! 

Clouded Titles author Dave Krieger will be presenting a one-hour “State of the Union” address as to the current foreclosure mess in the United States on WKDW-FM 97.5!

You can hear the broadcast streaming live on the internet by going to http://kdwradio.com and clicking on the “Listen Live” link and select which format you want to listen to the program in.

The program airs tonight at 6:00 p.m. Eastern Time.  You don’t want to miss this program!   Dave is going to reveal some interesting things the banks don’t want you to know!

If you’re facing foreclosure or know someone who is, you’ll want to tune in tonight to get the “scoop” on what’s going on behind the scenes most Americans are not aware of!

Have a question, email Dave through the “Contact” page on his website: http://www.cloudedtitles.com!

Just a reminder, we still have seats left at the upcoming Fort Myers, Florida Quiet Title Workshop.  Homeowners, attorneys, paralegals and investors are welcome to attend.

Contact Dr. Klaus to register at (239) 410-7299.  There is a fee to attend this Workshop and lunch is included.

Have a loan with “America’s Wholesale Lender” or “American Brokers Conduit”?   You may wish to attend the free open forum, Sunday, July 31st at 5:00 p.m. at the La Quinta Inn & Suites, Fort Myers Airport to learn about our new “attack plan” against these two frauds!

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FORT MYERS, FLORIDA QUIET TITLE WORKSHOP OPEN FORUM FEATURES “AWL PLATFORM”!

BREAKING NEWS!

THE QUIET TITLE WAR MANUAL’s author Dave Krieger, along with California quiet title attorney Al West, will be hosting an open forum Sunday evening at 5:00 p.m., July 31, 2016, following the end of the scheduled quiet title workshop to specifically discuss America’s Wholesale Lender loans!  This would also include loans made by American Brokers Conduit and New Century Mortgage Corporation.

If you are an affected homeowner who has one of these loans and you wish to attend this forum, it is FREE OF CHARGE to attend.  You must bring your mortgage paperwork with you, along with any assignments that might have been filed in the land records affecting your property, so we can evaluate it.  We have an attack platform that you may be interested in and there will be other attorneys in the forum that you can meet with while you are there that deal in foreclosure defense issues.

Again, the event is being hosted by Dr. Klaus at the La Quinta Inn & Suites at Fort Myers Airport (RSW) at 9521 Marketplace Road, Fort Myers, Florida at 5:00 p.m. in the meeting room. We will have a presentation that will last about 30 minutes, followed by a Q&A session.  At that point, you can decide how you wish to deal with your specific situation.

For those wishing to attend the Quiet Title Workshop, there are only a few seats left.  Please contact Dr. Klaus directly at (239) 410-7299 since he is the Workshop host/sponsor.  All attendees at the Workshop (not the forum) will receive a FREE COPY of The Quiet Title War Manual along with a 16GB USB flash drive that contains over 12,000 files of over eight years of research data!  This event is for attorneys, investors, homeowners, and paralegals, slated for Saturday and Sunday, July 30-31, 2016 from 9 a.m. to 5 p.m. both days.

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