Consumer complaint received 2017-05-22
Product: Debt collection — Mortgage debt
Issue: Attempts to collect debt not owed — Debt was already discharged in bankruptcy and is no longer owed
Company: SELECT PORTFOLIO SERVICING, INC. (FL)

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