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LADYLAWYER
LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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My ex closed on a mtg re-finance 4 days after our divorce was

Customer Question

My ex closed on a mtg re-finance 4 days after our divorce was finalized without my signature. We remained joint tenants. He used a POA that was drafted by the title co and the signature was forged on the same day as the closing. He deposited the cash-out check in his personal account. The mtg states we are husband and wife. I found out about the mtg when he defaulted and the mtg co called the house. They refused to talk to me claiming that it was only his financial obligation.
Submitted: 1 year ago.
Category: Legal
Expert:  LADYLAWYER replied 1 year ago.

LADYLAWYER : Hi again!
LADYLAWYER : Reading your question...
Customer:

Hi!

LADYLAWYER : I see many failures here on the part of the original mortgage company and the thing is, if the original mortgage was fraudulent, then the original mortgage company had no interest to convey to Citi. Citi would basically be up a creek and would have to bring an action against whomever sold it to them to recover the funds. This is way too complicated of a case to do by yourself. Citi will steamroll you if you don't have an attorney--even though they don't have proper title. Are you working with an attorney?
LADYLAWYER : You need to counter sue for fraud and to quiet title and make your ex a co-defendant.
Customer:

I had an attorney give me some free advise, and another attorney willing to look at the docs, but he is pressuring me to take 5,000 and that a trial is too expensive. i have a physical disability and am on SSI so I have no savings for an attorney.

Customer:

Who do I sue for fraud? the closer, notary or my ex?

LADYLAWYER : Oh wow. I am so sorry to hear that. You would name your ex, the notary, the closer and the mortgage company itself.
LADYLAWYER : Have you tried legal aid yet?
LADYLAWYER : Does you ex have any money at all?
Customer:

they said they were not able to take the case - that they have very little funds. What does quiet title mean? my ex had a large inheritance, but he is hiding it with his brother and claiming to have no money

LADYLAWYER : An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title.
LADYLAWYER : I was thinking that you may be able to open up the divorce case again to pursue a contempt action against your ex. The judge could order him to pay your legal fees to try and save your house.
Customer:

Is quiet title used in torrens property? I had an atty help with a response to Citimtg's petition for proceedings subsequent, and that court proceeding is on hold. I wondered if the divorce court would help. the 2003 mtg was to be his financial responsibility. Could the divorce court order him to reveal his inheritance?

Customer:

what is the definition of possession in real estate? the divorce held him responsible for the mtg he re-financed, if he remained in possession of the property. He left all his possessions in the house a few years ago and is living in a room with a friend, he is unemployed.

LADYLAWYER : Yes, it is. And yes, that is what I was thinking. The divorce court may make him reveal his inheritance if you are able to subpoena his records. Because he has gone against the divorce court's order, they may open this back up and award you money based on his contempt.
LADYLAWYER : when you say the divorce left him responsible for the mortgage he refinanced...are you saying that this is the mortgage that you didn't know your name was also on?
LADYLAWYER : So do you love in the house?
LADYLAWYER : Sorry, LIVE
LADYLAWYER : The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58,XXXXX 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. I don't know how the court was using it in the instant case and unless they defined it, no one else really could either.
Customer:

in 2003, I agreed to refinance an existing mtg at a lower rate. However, I found in his papers he left that he went back and re-did the closing and took out $50,000 in cash. these are the same closers and title co that used a POA to re-finance again a year later for another $7,000 cash out. the 2003 did not have my signature on any documents, and the closer affidavit states that only my ex was at the closing. we were married and my signature is not on anything. that is why i knew of a 2003 mtg, but not the one that was filed with a $50,000 cash out. I never saw that check either and did not know that he did that until i found closing papers when he left the house. i think the closer did not want me to know about the 2003 mtg so when he re-financed for more cash and a fixed rate, they had to hide the 2003 so they used a POA the second time.

LADYLAWYER : I see, thanks. So do you live in this house or are you some where else?
Customer:

i live in the house, the eviction hearing was stayed until this i resolved in district court

Customer:

is

LADYLAWYER : okay. Just wanted to make sure since you said he had left all his possessions there.
LADYLAWYER : This is really complex litigation--which is why the one attorney you saw said to settle. I do not think you should, but you are going to have to have some sort of legal counsel.
LADYLAWYER : find out if legal aid will help you reopen the divorce case to file a contempt motion
LADYLAWYER : ifnyoumotioning you can get some money from your ex, you should be able to afford an attorney
LADYLAWYER : *If you can
Customer:

that sounds like a good idea, would i ask for a stay in district court until the divorce issue is resolved?

LADYLAWYER : Yes you would.
Customer:

do the estopple laches law apply when they refused to talk about the fraud issue and proceeded to foreclose?

LADYLAWYER : Latches is a doctrine that estopps them from a successful claim if they waiting too long to pursue their claim.
LADYLAWYER : this wouldn't apply here
Customer:

Ok, thanks, XXXXX XXXXX mtg follow contract law, so if it is improperly executed it is null and void?

LADYLAWYER : But you could argue that they foreclosed in bad faith and also alledge unclean hands since you told them about the fraud and they proceeded to foreclose.
LADYLAWYER : Yes, totally follows contract law.
Customer:

what does unclean hands mean?does the notary have to have prove that she asked for a photo id or do i have to prove it is not my signature?

LADYLAWYER : it is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with "unclean hands".
Customer:

how does freddie mac, backed by our fed gov, get involved? do i include them in a complaint? they have the title at this time

Customer:

can i get help by the fed gov?

LADYLAWYER : Yes, you would have to include all parties who may have a claim against your title. No, the federal government won't get involved. It is a private, civil action.
Customer:

freddie mac is private and the fed gov just insures the loan? will the fed gov pay them for their loss?

LADYLAWYER : No, whatever parties are deemed to be at fault in the fraud will be forced to reimburse all other parties for their losses.
Customer:

the title ins co? are they part of the suit? the closer did not follow their closing instructions, ie get a photo id for the POA, they have a photo id for my ex. the title policy states that the closer is responsible for any fraud or negligence, so how are they involved?

LADYLAWYER : Yes, you would name ALL parties that may share in the blame for this. The court can find more than one party responsible.
Customer:

Do i have to sort out who is responsible or do they do that as long as i prove fraud- ie not my signature

LADYLAWYER : it may be 20% for one party, 30% for another and 50% for another
LADYLAWYER : No, absolutely not.
Customer:

did the title co have to make sure the closing followed closing instructions?

LADYLAWYER : the judge and/or jury will do that
LADYLAWYER : Yes, they were professionally negligent by not doing so.
Customer:

Oh- i just name the parties, get a hand writing specialist?

Customer:

legal aid told me that courts only accept about 50% of handwriting specialists- it is not a guarantee that the signature is not mine- is that true?

Customer:

if they never produce the original for a hand writing specialist, what happens? One attonrey told me i probably can't get the original

LADYLAWYER : Yes, you name all the parties and draft your complaint against all of them, aledging the torts for each party. That is true, but if you cannot get the original, the best evidence rule states that a copy will suffice.
Customer:

a detective stated that the circumstances around the POA means more than a specialist- the fact that we were recently divorced and it did not make sense to give him POA over my share.

Customer:

Didn't i also have to sign a Right to Rescind by fed law?

LADYLAWYER : Right. There are many things that you can argue besides just trying to prove the handwriting.
Customer:

Do the HUD docs have to be signed? and not by POA?

Customer:

i think i did not get the last message

LADYLAWYER : A POA gives a person rights to sign all mortgage docs for the other party. There would be multiple documents he signed using the POA, that is, if they made him sign all the proper documents. If they didn't, that is part of their negligence.
Customer:

Can he alone sign the promissory note?

LADYLAWYER : The botXXXXX XXXXXne here is that he fraudulently conveyed your interest in the property, which makes the mortgage null and void.
LADYLAWYER : Yes, but he would sign for him and then for you as your attorney in fact.
LADYLAWYER : You will have to subpoena all the original documents. If you cannot get the originals, copies will suffice.
Customer:

he did not sign as atty in fact on the note, one atty told me that was a problem.and the closer let him and the title ins did not check either?

LADYLAWYER : Yep, that's an issue too.
LADYLAWYER : fraud on his part, negligence and breach of truth in lending on theirs,
Customer:

wow, this is complicated- and alot of parties!!

Customer:

So i name all the laws broke, and then show how they colluded, and failed to stop his fraudulent conveyance?

LADYLAWYER : Yes, honestly, it is not something I would ever recommend you do alone. You will spend a lot of time and then will lose by a technicality.
LADYLAWYER : I can't even begin to tell you how you would draft the complaint. It takes years of school and experience to do it properly.
LADYLAWYER : But the gist of it is that you would name the parties and then list the torts against each party and why. Then you list what you want as relief.
Customer:

ok, i understand, it helps to know how complicated- i can see why an atty doesn't want this pro bono- volunteer lawyers network accepted the case, but have not found a law firm to take it.

Customer:

thank you for all your time- the issues are complicated and the laws involved are complicated. i can see why the foreclosures have gone on without check- people who cant pay their mtg anymore, cant pay an atty to protect their rights if the mtg was not done right to begin with. Thank you again

LADYLAWYER : You're so welcome. Although I am sad this is happening to you. I will keep you in my prayers.
Customer:

thank you so much, that means alot to me, I am praying for a miracle here!! have a good weekend!

LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience: Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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