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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 37952
Experience:  Retired (mostly)
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i have provided a declaration regarding missing loan payments

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i have provided a declaration regarding missing loan payments I was not credited for from a CPA. Im in the foreclosure process and have been asking for detailed accounting from them in discovery. What they have provided is a loan history schedule but it doesn't show my missing payments. Are there laws that require a lender to at least examine missing payments?
Hello,

How were these payments made by you (personal check, money order, electronic funds transfer, etc.)?
Customer: replied 3 years ago.

wire transfers and provided proof from my bank showing the outgoing funds to lender. Lender will still not acknowledge or show where on the loan history these payments were credited.

If you have proof of payment, then that evidence submitted to the court as part of your defense at trial or summary judgment, would be sufficient to prevent the foreclosure. If you have provided this proof to the creditor, and it has refused to acknowledge that proof, and if that is the sole reason why you are claimed to be in default, then you may have grounds for a malicious prosecution lawsuit against the creditor. You could also file a counterclaim against the creditor for slander of title, right now.

I would encourage you to hire a lawyer, if this is your circumstances, because the lawyer can get his/her fees reimbursed from the creditor, and you may be able to get substantial damages on a slander of title claim.

Please let me know if my answer is helpful. And, thanks for using justanswer.com!
Customer: replied 3 years ago.

what hawaii rules or statutes would refer to slander of title claim


 

After further research, it turns out that slander of title is unavailable, due to the Hawaii "litigation privilege," which bars counterclaims made against a plaintiff based upon defamatory statements made in the plaintiff's complaint.

However, malicious prosecution and/or abuse of legal process are viable options. These claim would have to be brought in a subsequent legal action, once the foreclosure action is dismissed.

See, Isobe v. Sakatani, 127 Haw. 368, 279 P. 3d 33 (HI App. 2012).

Hope this helps.
Customer: replied 3 years ago.

does that apply only to the lawyers? is the lender still open to slander of title

The lawyer represents the lender. Anything the lawyer pleads to the court, even if it's a lie, protects the lender from a defamation action, which would include slander of title.

It's possible that a notice of default, if recorded by the lender, prior to the foreclosure action, may be grounds for a slander of title claim. That's something that could be claimed, and then the lender would have to try to show that the litigation privilege should cover all notices recorded prior to the actual foreclosure action.

The malicious prosecution and abuse of process actions remain a possibility, but must be filed after the foreclosure action is dismissed.

Hope this helps.
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