Summary of Defendant’s Case:
WAMU made material misrepresentation of the facts to induce Defendant to sign an illegal contract in addition to violating numerous Florida and Federal Laws before and after Defendant’s signing of the mortgage. Beside the civil charges that are involved with Defendant’s case, there are also criminal charges that are inherent within these violations.
Chase Bank who purchased the assets and liabilities of WAMU included the note/mortgage of John Koles that was a fraudulent contract.
Fraud VITIATES all contracts therefore making the claim that Chase Bank has against John Koles on the note/mortgage…invalid
Defendant suffered substantially because of this fraud by WAMU and continued illegal persecution by Chase
Contract Fraud and Fraud Defined:
Contract fraud is a particular type of fraud where the misrepresentation of a material fact is made in relation to the formation of the contract. Both Fraud in the Inducement and Fraud in the Factum were present as a part of Defendant’s process and mortgage.
Some penalties to be assessed by the court for Defendant being defrauded by Plaintiff include:
Rescinding the contract
Return of consideration (what Defendant already paid to WAMU/Chase)
Defendant obtains damages (what does Defendant get for being forced into bankruptcy, other…)
According to the FBI, “each mortgage fraud scheme contains some type of material misstatement, misrepresentation, or omission relied upon by an underwriter or lender to fund, purchase or insure a loan." The origination of this misleading information can be from a variety of sources.
· Inflated Appraisals (exclusive use of one appraiser)
· Increased Commissions/Bonuses to Brokers and Appraisers (higher than customary)
· Falsifications on Loan Applications (Buyers told/explained how to falsify the mortgage application, request to sign blank application…)
· Fake Supporting Loan Documentation (no income verification)
· Purchase Loans Disguised as Refinance (Purchase loans that are disguised as refinances requires less documentation/lender scrutiny)
· Investors-Short Term Investments with Guaranteed Re-Purchase
Other Important Facts
Typical Underwriting Process Includes (asked, but didn’t get from underwriting file) review of all the following aspects of the file:
If a Refinance or you own Rental Property
LET”S LOOK AT HOW JOHN KOLES WAS DEFRUADED
Defendant’s Evidence and Facts About WAMU (Chase) Fraud:
1) Mortgage was Changed from One Represented to One Signed
Defendant received NO REVISED CLOSING DOCUMENTS REFERRED TO
by the above 11/21/06 TILA Statement that resulted in the signed mortgage on 12/1/2006
Truth in Lending Statement (TILA):
APR Finance Charge Amount Financed Total Payments
11/6/06 6.535 $837,681 $554,033 $1,391,794
11/21/06 7.805 $1,000,505 $556,797 $1,557,303
Important Violations of Florida Law
Specific Florida and Federal Law states that “each licensee shall notify a borrower of ANY MATERIAL CHANGES in terms of the mortgage loan previously offered to the borrower within 3 days of being made aware of such changes by the lender but not less than 3 days before the signing of the settlement or closing statement”
“the licensee bears the burden of proving such notification was provided and accepted by borrower…not less than 3 business days BEFORE the signing of the settlement or closing statement”
2) WAMU (Chase) used an Appraisal to Approve the Mortgage (note) that significantly overvalued the Property…only ONE appraisal was found in files). WAMU valued 14058 Tivoli Terrace at $715,000…or approximately $155,000 more than it was worth…in a Declining Market.
Appraiser’s Five Comparison’s Used to Determine Appraised Value:
14117 Lavante $710,000 3 BEDROOM
14113 Lavante $950,000 3 BEDROOM (3,884 sq ft)
23648 Via Carino $618,000 3 BEDROOM
14045 Lavante $740,000 3 BEDROOM (2514 sq ft)
23616 Via Carino $580,900 2 BEDROOM (2397 sq ft)
Defendant’s Property: 14058 Tivoli Terrace: $560,000 2 BEDROOM (2005 sq ft)
Other Items of Note:
a) Appraiser used FOUR 3 Bedrooms (only FIVE in sample) as reason to determine valuation…only ONE 2 BEDROOM; real estate information, tax records, etc. prove 3 Bedrooms far more valuable than 2 Bedrooms
b) Appraiser used square footage comparisons that were FAR GREATER Than approx. 2005 sq ft at 14058 Tivoli (defendant’s house)
c) From when builder priced house in December 2006 at $560,000… prices had fallen by approx 5% in 2006 from their high (see Zillow)
d) Appraisers only 2 bedroom at 23616 Via Carino proves the point that around $560,000 was to right price for the value of 14058 Tivoli…as this was the only 2 BEDROOM used to approve the mortgage…AND still the square footage was more.
e) Research of the Lee County Property Appraisal Data Base Bears Out Some Interesting
Information on Tivoli Terrace:
Basically sales of 2 Bedroom Homes on Tivoli Terrace were in the $400,000-$500,000 range from 2004-2007
Tax records of estimated property values show Lavante far more valuable than Tivoli Terrace in Palmyra Community where both streets are
f) “In order to determine value, the properties should be approximately the same size, with the same bedroom and bathroom count.” FHA
3) Base income of Defendant was listed as $23,250/month on WAMU
Uniform Underwriting and Transmittal Form (11/24/06)
Defendant has no idea where this number came from but it significantly
affected Defendant’s ability to pay back loan
On searching through the documents provided by Chase attorney the following records could not be found that are typically part of the underwriting information.
Most recent two years W-2's, 1099's, etc.
Most recent pay stubs covering one month period.
OR…any back-up information to substantiate Base income
4) Was it a Refinance?
In a refinance, the following documents appear in the underwriting information;
Copy of Note & Deed from current loan.
Copy of Property Tax Bill.
Copy of Hazard (homeowners) Insurance Policy.
Copy of Payment Coupon for current Mortgage.
Defendant did not find any of these during search of documents provided
5) Many other violations of Florida Law include:
a) Broker and brokerage firm were not licensed in Florida yet WAMU paid
excessive broker fees NOT disclosed in advance of closing to defendant
(validated with state of Florida…reviewed state records and spoke with State
Official representative); Total Fee was $17,800
b) Mortgage brokerage agreement must state…nature of relationship with lender, how compensation is paid by lender…how the mortgage interest rate affects the compensation paid to the mortgage brokerage business. Broker
bears burden of proof such notification provided to the borrower
c) It is unlawful for any person…”to pay a fee, commission…” who is not under an active license from the State of Florida.
d) It is unlawful to knowingly and willingly employ any device, scheme, or artifice to defraud
e) It is unlawful to engage in any transaction, practice or course of business which operates as a fraud upon any person in connection with the purchase or sale of any mortgage loan
f) It is unlawful to obtain property by fraud, willful misrepresentation of a future act or false promise
NOTE ON FUTURE COURT SCHEDULNG:
DEFENDANT IS OUT OF UNITED STATES FROM JUNE 12 till JUNE 28, 2013 AND WOULD APPECIATE THE COURT SCHEDULING TO TAKE THIS INTO CONSIDERATION.
DEFENDANT IS ALSO IN BOSTON HELPING CARE FOR PARENTS 93 and 96 AT TIMES AND WOULD APPRECIATE SIMILAR ADVANCE NOTIFICATION OF COURT APPEARANCE DATES HE HAS BEEN RECEIVING
A different lawyer here and I have read your questions and reviewed your second response setting forth the fraud claims that you claim are or were a part of the mortgage process. My colleague was not trying to be nasty or sly or anything like that to you when he pointed out that the facts you had listed in the Original question above did not rise to the level of fraud or seem to be fraud. You see, when you are a plaintiff or a defendant and you file the original complaint or you file an answer and counterclaim (if you are defendant), when you have causes of action against the other party that are based in Fraud and misrepresentation, then you must set out those complaints (or counterclaims if you are the defendant and you are suing them also for their actions against you in these matters) with particularity. The Florida and federal rules of civil procedure require that any matter of fraud be plead with particularity -- and what that means is when you are the plaintiff writing up the complaint or you are the defendant preparing to file an answer and counterclaims against the plaintiff, then you must write out the fraud allegations very explicitly and with enough detail so that the other side knows exactly what it is you are alleging fraud about. So, while your first question above could not meet the civil procedure requirements to plead fraud with particularity, you did a decent job of setting out what you are claiming are the fraudulent elements of the transaction in your second response. And THAT is the manner in which you must write up the counterclaims against the lender's foreclosure action in this case.
Now, if you have already filed an answer and counterclaims in this case (you said you had a lawyer on this matter and it seems to me that the natural response of the lawyer when a client is served with a complaint for a lawsuit is to prepare a written answer to the complaint/lawsuit and file those response documents with the court so that the court could then begin scheduling for hearings, arbitration, etc). If there is already a written answer and counterclaims on file at the court for this case and you want to add to those then you have to ask the judge for permission to amend those documents -- you will have to prepare a written document called a Motion for Leave to Amend Defendant's Answer and Counterclaims.
You can most likely get a blank "generic" motion form at the clerk's office of the civil court where you are dealing with these matters that you can adapt to ask the court for permission to amend your initial filing documents -- but if you cannot get a form then you will have to prepare the motion from scratch -- and in the motion you simply ask the court to be permitted to amend the answer and counterclaim documents that you originally filed in the case (or that were filed by your attorney at the time) and tell the court WHY you did not put these expanded items into the initial documentation (Much of the information regarding the particular fraud items has come to light during discovery and meetings between the plaintiff and the defendant since the date that this matter was filed in court for foreclosure -- and it was not available to you when you wrote your answer and counterclaim at the beginning of the lawsuit).If the Plaintiff objects to your wanting to amend the original answer and counterclaims to bring in all of the fraud elements of the claim that were not listed in the beginning by your original lawyer then the court will set the matter up for a motion hearing and you will have to attend the hearing and convince the judge that it is in the interests of justice to permit you to amend the original filings to bring forth the specific fraud and misrepresentation claims. It is then completely up to the judge regarding whether or not he/she will permit you to amend the filings.
Please let me know if you have further follow up questions regarding getting this additional information before the court/judge in your case. I wish you the best of luck with this -- even with the problems with foreclosure cases all over the country and the Attorney Generals of many states suing over these practices, it is still very difficult for the individual owner to challenge their mortgage and the foreclosure tactics and practices used by these crooked lenders.
Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money -- it simply works as the trigger to Just Answer to pay me for my time. THANK YOU VERY MUCH !!!
Thank you for the info...follow-up question?
My lawyer at the time filed an initial resp to the foreclosure without any fraud issues as you thought...so do i need to file the Motion for Leave...etc. that you suggested or can't I file a Counterclaim discussed below...and which one?
Counterclaims may be "permissive" or "compulsory." Fla. R. Civ. P. 1.170(a), (b). A counterclaim is "compulsory" and, therefore, must be raised in he current action if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction." Fla. R. Civ. P. 1.170(a). On the other hand, a counterclaim is "permissive" if it does not arise out of the transaction or occurrence that is the subject matter of the opposing party's claim. Fla. R. Civ. P. 1.170(b). This designation determines whether the counterclaim must be raised at this time or whether the defendant/counterclaim plaintiff can bring a separate action on the counterclaim. Fla. R. Civ. P. 1.170(a), (b).
Hello again John --
You will still need to file the motion/leave to amend the answer and counterclaims because even if a counterclaim is compulsory and must be brought in this action, your attorney had the duty of writing it up in the FIRST answer and counterclaim and when he did not then you must ask permission to amend and include them. When you write up what kind of counterclaims these are you should write that they are compulsory -- that as allegations of fraud have surfaced during the discovery phase, more issues and claims have come up. These additional fraud counterclaims would not be "permissive" counterclaims because they cannot stand alone as separate lawsuits that you could bring against the lender once there is a foreclosure -- the fraud is all part of the overall picture of the mortgage loan process and the mortgage foreclosure process and should all be heard by the court in the one single claim / case.
I hope that this helps. Please let me know if you have further questions. If not, can you please press the 3rd, 4th or 5th smile face underneath this ANSWER box so I will be paid for my time? I am paid NOTHING unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you today. THANK YOU VERY MUCH !!
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