Date Received: 2017-05-22T00:00:00
Product: Mortgage debt
Issue: Attempts to collect debt not owed
Consumer Consent Provided to Share Complaint: Consent provided
Consumer Complaint: RE : XXXX XXXX XXXX , ALLEGEDLY AS SUCCESSOR TRUSTEE/Creditor violating bankruptcy discharge The alleged servicer for XXXX XXXX XXXX on the alleged Loan XXXX is Select Portfolio Servicing Inc. The attorneys allegedly hired by XXXX XXXX XXXX are XXXX XXXX XXXX XXXX that violated the bankruptcy discharge – yet there is no evidence that XXXX XXXX XXXX hired XXXX XXXX XXXX XXXX to represent it. Alleged creditor XXXX XXXX XXXX and its agents ( Select Portfolio Servicing Inc ) an d alleged predecessor creditors obtained an in personam judgment for monies against bankrupt discharged debtor XXXX XXXX in violation of federal bankruptcy laws and orders. THis is about Discharged Bankruptcy Debtor, XXXX XXXX . An alleged Creditor, XXXX XXXX XXXX as a successor sought monies/monthly loan payments pursuant to the Note and was granted an Order for XXXX XXXX to make monthly Note payments preforeclosure to the Creditor. See attachments. This is in violation of bankruptcy discharge orders. In addition to the violation of the bankrupcty discharge orders re ordering payments and failing to inform court of XXXX XXXX ‘s discharge, the alleged creditor or predecessors harassed XXXX XXXX re making payments on the Note/Mortgage and that sheriff ( without any court order ) would be removing her from the propeprty – a property should had already moved out of since on or about XX/XX/XXXX . Neighbors complained ab out drug dealors and squatters i n the abandoned house and the alleged creditors did nothing to maintain or care for the property and instead discharged debtor XXXX XXXX received harassing calls and mail from allegedly XXXX XXXX agents and or servicers for payments and threats of sheriff and writ of execution/garnishment and her reputations was ruined with the prior neighbors and the XXXX county who provided violation notices re the property to XXXX XXXX . A procedural bankground of the 1 . On XX/XX/XXXX ( ove r 8 y ears ago since the filing of the XX/XX/XXXX Complaint in this action and since alleged acceleration of the alleged Lost Note and Mortgage ), a different Plaintiff than the Plaintiff in this action filed a foreclosure complaint against Defendants on the same Lost Note and Mortgage as this currently pending second action. ( fir st action or Case No . XXXX . The first action was dismissed by The Honorable Judge XXXX XXXX on XX/XX/XXXX . A certified copy of the Case No . XXXX Mortgage Foreclosure Complaint and the Order Dismissing the Case has been filed in this action, and Defendant has requested judicial notice of these documents and Case No. XXXX . 2. On XX/XX/XXXX , an Order Granting Relief from the Automatic Stay dated XX/XX/XXXX in Case No. XXXX was entered by the Honorable Judge XXXX XXXX XXXX which Orders that XXXX [ XXXX XXXX XXXX , XXXX XXXX as successor by merger to XXXX XXXX XXXX as trustee for XXXX XXXX Mortgage Pass-Through Certificates XXXX Series XXXX ] shall not seek an in personam judgment against the Debtor ( s ) [ XXXX XXXX ]. ( see Exhibit XXXX ). 3. On XX/XX/XXXX , an Order of Discharge of Debtor, XXXX XXXX dated XX/XX/XXXX in Case No. XXXX of the United States Bankruptcy Court for the XXXX District of Florida ( see Exhibit XXXX ) was entered which discharged the debt relating to the alleged Lost Note in this action. 4. Then, on XX/XX/XXXX a different Plaintiff filed this XXXX action . ( XX/XX/XXXX Complaint or XXXX action ) on the same Lost Note and Mortgage and it was not XXXX XXXX XXXX , XXXX XXXX . 5. In this case, there is no evidence that US. Bank, NA , the Plaintiff in this case is the successor trustee to XXXX XXXX XXXX XXXX . In fact, Plaintiff in this XXXX action has filed allegedly a Lost Note Affidavit ( see Exhibit XXXX ) regarding an Adjustable Rate Note without the proper verification as required pursuant to Florida Statutes 702.015 ( 5 ) ( 6 ) and 92.525 and Florida Rule of Civil Procedure 1.115 ( d ). Despite Florida Rules of Civil Procedure and Florida Statutes, the alleged Lost Note Affidavit was not executed under penalty of perjury ; does not detail a clear cha in of all endorsements, transfers, or assignments of the lost Adjustable Rate Note ; does not set forth facts showing that the plaintiff is entitled to enforse the lost, destroyed or stolen instrument pursuant to s. 673.3091 ; does not include exhibits to the Lost Note Affidavit such as audit report showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the Lost Adjustable Rate Note ; does not state a written declaration which is printed or typed at the end of or immediately below the Lost Note Affidavit document being verified and above the signature of the person making the declaration ; does not state that she/he has read the foregoing Lost Note Affidavit and that the facts stated in it are true ; and does not state Under penalties of perjury, I declare that I have read the foregoing Lost Note Affidavit and that the facts stated in it are true, followed by the signature of the person making the declaration. 6. Moreover, the Assignment of Mortgage ( XXXX BK XXXX Pg XXXX recorded XX/XX/XXXX and allegedly recorded XX/XX/XXXX ) attached to the Amended Complaint reflects information inconsistent to the allegations in the alleged Lost Note Affidavit attached to the Amended Complaint. Fore example, paragraph XXXX of the Lost Note Affidavit claims that the Plaintiff acquired the Note on or about XX/XX/XXXX ; however, the Assignment of Mortgage reflects that there was no assignment until more than two years later on its execution date of XX/XX/XXXX . 7. The XX/XX/XXXX Complaint includes a Count I Mortgage Foreclosure and Count XXXX Re-Establishment of Lost Note, and in the WHEREFORE clause of the Complaint, Plaintiff states that Plaintiff request judgment foreclosing the Mortgage and such other relief as the Court may deem just and proper, including that the Court reserve j urisdiction to enter a deficiency judgment for any portion of a deficiency, should one exist, in accordance with Chap ter 702 of the Florida St atutes, but not against any defendant discharged from personal liability pursuant to the provisions of the United States Bankruptcy Code 11 U.S.C. section 101, et. Seq. 8. Then, on XX/XX/XXXX , Defendants Bankruptcy attorney, in Court Filing # XXXX , filed in this action ( see Exhibit XXXX ) a Suggestion of Bankruptcy re Defendant, XXXX XXXX , Case No. XXXX of the United States Bankruptcy Court for the XXXX District of Florida ; 9. T hen, on XX/XX/XXXX , in Court Filing # XXXX , Plaintiff filed in this action ( see Exhibit XXXX ) a Notice of Filing of Order Granting Relief from the Automatic Stay dated XX/XX/XXXX in Case No. XXXX which Orders that XXXX [ XXXX XXXX XXXX , XXXX XXXX as successor by merger to XXXX XXXX XXXX as trustee for XXXX XXXX Mortgage Pass-Through Certificates XXXX Series XXXX ] shall not seek an in personam judgment against the Debtor ( s ) [ XXXX XXXX ]. 10. Then, on XX/XX/XXXX , the Honorable Judge XXXX XXXX entered an Order to Stay this action ( see Exhibit XXXX ) due to suggestion of Bankruptcy filed on XX/XX/XXXX . 11. Then, on XX/XX/XXXX , without any leave of Court and adding a new Defendant, Plaintiff filed an Amended Verified Complaint to Foreclose Mortgage again with a Count XX/XX/XXXX Mortgage Foreclosure and Count XXXX Re-Establishment of Lost Note, and in the WHEREFORE clause of the Amended Complaint, Plaintiff states that Plaintiff request judgment foreclosing the Mortgage and such other relief as the Court may deem just and proper, including that the Court reserve jurisdiction to enter a deficiency judgment for any portion of a deficiency, should one exist, in accordance with Chap ter 702 of the Florida S tatutes, but not against any defendant discharged from personal liability pursuant to the provisions of the United States Bankruptcy Code 11 U.S.C. section 101 , et. Seq. 12. Despite Plaintiffs knowledge of bankruptcy orders of discharge and not to seek an in personam judgment against the Debtor ( s ) , XXXX XXXX , Plaintiffs filed in bad faith on XX/XX/XXXX a Motion for an Order to Show Cause for Payments During Foreclosure ( see Exhibit XXXX ) seeking an in personam judgment against discharged debtor, Defendant, XXXX XXXX . 13. Subsequently, an Order dated XX/XX/XXXX [ fi led in Court Docket on XX/XX/XXXX ] was entered requiring payments of monies pursuant to Plaintiffs motion ( see Exhibit XXXX ) in violation of the related bankruptcy orders and in contradiction to the WHEREFORE clauses of the Complaint and Amended Complaint seeking Count I Mortgage Foreclosure to foreclosure a mortgage on real property ( paragraph XXXX of the Amended Verified Complaint ) and allegedly not against any defendant discharged from personal liability pursuant to the provisions of the United States Bankruptcy Code 1 1 U.S.C. section 101 , et. Seq.. 14. On the same day the Order requiring Defendant, XXXX XXXX to Make Payments During Foreclosure was docketed, XX/XX/XXXX , pursuant to Plaintiffs motion and knowledge of the violation of bankruptcy related orders, a deposition was held in XXXX , Florida whereby Plaintiffs counsel appeared telephonically in violation of Florida Rules of Civil Procedur e 1.310 ( b ) ( 7 ) ; nevertheless, Defendant, XXXX XXXX testified and notified Plaintiffs counsel of the bankruptcy discharge relating to the subject Lost Note. 15. Apparently, on XX/XX/XXXX , a hearing was held, without Defendants counsel, on an untimely and improperly noticed hearing on Defendants Motion to Dismiss the Amended Complaint. This hearing was unilaterally set by Plaintiff without Defendants counsels approval ; the Notice of Hearing ( Court Filing # XXXX ) was rejected by the Judge and is reflected as rejected on the Court docket ; and the Honorable Judge XXXX XXXX clear instructions on her website that states NOTICE OF HEARING AND MOTIN MUST BE FILED AND SUBMITTED VIA XXXX SEVEN ( 7 ) B USINESS DAYS PRIOR TO YOUR HEARING OR YOUR MOTION WILL NOT BE HEARD. ( see composite Exhibit XXXX ) However, for some unknown reason the Motion to Dismiss seems to have been added anyway to the hearing calendar in violation of the due process rights of the Defendants in this case. Plaintiffs counsels appearance at the XX/XX/XXXX Motion to Dismiss hearing is raised herein because despite the passing of 15 day s since the docketing of the Order to Make Payments During Foreclosure in violation of bankruptcy orders and despite the fact that Plaintiffs counsel knowledge of the discharge at the time of its appearance at the XX/XX/XXXX hearing, there does not appear to be any evidence in the XX/XX/XXXX court order that Plaintiff notified the Court that the Order [ for XXXX XXXX ] to Make Payments During Foreclosure was not justified nor authorized under federal bankruptcy laws and court orders. 16. Plaintiff and its counsel have acted in bad faith by pursuing in personam money remedies relating to the subject Lost Note against Defendant, XXXX XXXX especially where there is no proper Lost Note Affidavit nor evidence of Plaintiffs right to foreclose. Sincerely, XXXX XXXX
Company: SELECT PORTFOLIO SERVICING, INC.
State/Zip: FL 338XX
Company Response to Complaint: Closed with explanation
Was Company Response Timely: Yes
Did Consumer Dispute Company Response: N/A
Complaint ID: 2491882
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