PLEADINGS « Livinglies’s Weblog

36 Responses

Mel Simms, on November 18th, 2009 at 3:30 pm Said:

Any suggestions for defenses for Wisconsin? A friend told me about this site and thought he read that a request can be made for original documents. Is this true?
Linda, on October 25th, 2009 at 1:32 pm Said:

bt,

I found a Quiet Title action –ready for court (Fl.)call me if still interested–941 377-9930
bt, on October 5th, 2009 at 12:05 pm Said:

QUIET TITLE ACTION

does anyone have a quiet title action for securtized trust notes/deeds?

looking for 1) Florida and also 2) non-judicial state

Rock on Garfield!
C Dorman, on September 26th, 2009 at 7:52 am Said:

Very interesting, 2008 docs for Minn. Declaratory Relief etc. The foreclosing attorney signed the Assigments himself, from MERS.
david schaar, on May 21st, 2009 at 6:15 am Said:

hello i am in battle with lasalle too, i would like to exchange ideas and strategies please email me at gobb@ptd.net thanks dave schaar
bt, on May 21st, 2009 at 5:09 am Said:

donald- it sounds like you are in a foreclosure battle with Lasalle, so am i, coudl we compare notes?
Donald F, on April 28th, 2009 at 3:02 pm Said:

The judge denied my motion despite the fact that they had not produced anything. A friend of mine used the same motion and that judge in a different county gave the plaintiff 10 days to produce. I have now to answer within 20 days
Alina, on April 28th, 2009 at 10:48 am Said:

Donald,

How did your hearing go?

Alina
Donald F, on April 16th, 2009 at 4:29 pm Said:

Thank you Alina I just faxed an objection to their admissions as they took 90 days to respond. I asked the court to enter the following as admitted and dismiss with prejudice.

1.That LA SALLE BANK N.A. is not domestic to the state of Florida.
2.That LA SALLE BANK N.A. has not registered as a business entity with Florida’s Secretary of State.
3.That LA SALLE BANK N.A. is not chartered as a bank in Florida.
4.That LA SALLE BANK N.A. never at any time took possession of the original promissory note obligating (Removed) and/or alienable in their instant case.
5.That the alleged copy of the promissory note submitted as plaintiff’s “Exhibit A” attached to the named plaintiffs complaint is not a true and correct copy of any promissory note which LA SALLE BANK N.A. lost or destroyed.
6.That the alleged copy of the promissory note submitted as plaintiffs “Exhibit A” attached to the named plaintiffs complaint includes no allonge showing any assignment to named plaintiff LA SALLE BANK N.A.
7.That no paper showing any assignment of the promissory note alienable in their instant case to named plaintiff LA SALLE BANK N.A. ever existed.
8.That LA SALLE BANK N.A. is not in possession of the account and general ledger statement, authenticated by a competent fact witness, proving a deficiency owed by (Removed)
9.That absent possession of the account and general ledger statement, authenticated by a competent fact witness, proving a deficiency owed by (Removed) LA SALLE BANK N.A. cannot prove a deficiency owed by (Removed) .
10.That it is the practice of LA SALLE BANK N.A. to charge-off and sell notes in arrears after collecting insurance on the outstanding amount of indebtedness.
11.That after LA SALLE BANK N.A. charges off and sells evidence of indebtedness; the commercial paper illustrating the duty between the mortgagor and mortgagee or assignee becomes legally uncollectible.
12.That LA SALLE BANK N.A. is not the real party in interest in these proceedings.
13.That LA SALLE BANK N.A. has not contracted with (Removed) to represent LA SALLE BANK N.A. in these proceedings.
Alina, on April 16th, 2009 at 11:14 am Said:

Donald,

Ex-parte is a hearing in which a judge issues an order or verdict without the necessity of all the parties involved being present. The reason I ask is because, in my case, opposing counsel noticed my motion for a hearing. It turned out it was ex-parte, something opposing counsel forgot or intentionall left out of the notice. I think opposing counsel was banking on my not being present and this would afford him the opportunity to get a default. I ruined his day.

I just realized it may be too late to do a cross-notice of your motion to compel, but you can try anyway. You need to check the local rules to find out what the procedure for a cross-notice is in your county. Some counties require you to clear the cross-notice with opposing counsel before allowing the cross-notice to be set and, in some counties, there is also a time limit for notifying opposing counsel of the cross-notice.

You mention in your email that you sent admissions and they did not respond. Per the Florida Rules of Civil Procedure, the admissions are deemed admitted if opposing party fails to admit or deny within 30 days.

Florida Rules of Civil Procedure 1.370(a) – The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow…

Also, under the link for Florida Laws on this blog, there is a link for fl-statute-90. Fla. Stat. 90 is the Florida Evidence Code. This link will give you a pdf with some relevant case law regarding the fact that in Florida the original note is mandatory.

Alina
Donald F, on April 16th, 2009 at 6:33 am Said:

Alina

I do not know what EX-Parte means to me, and I have requested hearing previously by writing to the judge and get nowhere so I guess I do not know how to do that. All I have been doing is responding to them. and they do not respond to me.

Donald
Alina, on April 16th, 2009 at 5:46 am Said:

Donald,

It seems that this is the way these attorneys operate. I am appalled by their apathetic approach to everything. I have worked as a civil litigation trial paralegal for 20 years and have never seen attorneys totally ignore properly served pleadings. I believe, at least in Florida, that there are no hard core sanctions for not responding to discovery. As a matter of fact, opposing counsel did not even appear for the hearing on my Motion to Dismiss.

I have worked on cases in Texas, California, Georgia, and the federal courts where there are steep sanctions for jerking the other side around. This is one reason why I filed a federal action. You do not anger a federal judge and live to tell about it.

I would make a timeline of the case for the hearing. I would also schedule the Motion to Compel at the same time as the Motion to Dismiss so the judge hears both motions. Are you set on an ex-parte calendar?

Alina
Donald F, on April 15th, 2009 at 10:02 pm Said:

They did attach the original mortgage which does not name them. That is in conflict with their pleading and I believe a reason to dismiss. It has taken them 9 months since I sent the original Motion to Dismiss to schedule a hearing, they submitted a default which the Judge granted. I wrote directly to the judge and he reversed the default. it was then they set the hearing. I filed a notice and a request to produce with admissions and interogatories they answered the admissions but never produced the documents. I have sent a motion to compel and requested a hearing within 30days which has passed with no hearing. I do not think they can show anything to back their case.
Alina, on April 15th, 2009 at 6:48 pm Said:

That is odd that they have not attached anything. That is a requirement per the Florida Rules of Civil Procedure:

RULE 1.130. ATTACHING COPY OF CAUSE OF
ACTION AND EXHIBITS
(a) Instruments Attached. All bonds, notes, bills
of exchange, contracts, accounts, or documents upon
which action may be brought or defense made, or a
copy thereof or a copy of the portions thereof
material to the pleadings, shall be incorporated in or
attached to the pleading. No papers shall be
unnecessarily annexed as exhibits. The pleadings
shall contain no unnecessary recitals of deeds,
documents, contracts, or other instruments.

As a paralegal, I have worked on several breach of contract cases in Florida and know that without a copy of the contract and any other pertinent documents attached to your complaint, it will be dismissed.

As for the QWR, the same thing has happened here. I have sent 3 so far and no response. I sent rescission letters to all a year ago, no response. As a matter of fact, I have filed a federal suit against all with a Lis Pendens.

It took them 6 months to agree to schedule my Motion for Dismissal. They kept stalling because they said they needed time to gather their documents.

I wish you the best luck on your motion.

Alina
Alina, on April 15th, 2009 at 5:58 pm Said:

Donald,

I misstated when I wrote “Johns v, Gillian does not state that a party is entitled to foreclose in equity upon proof of purchase of the debt even if there is no written assignment.” Just disregard that sentence entirely.

I meant to say that Johns v. Gillian deals with a transfer of a “debt” (note) and the fact that a mortgage always follows the note, not the other way around. So if there is a transfer of the note and the holder in due course can prove the purchase of the note (consideration), then you do not need an assignment of the mortgage in Florida. Look up F.S. §§673.3021 and 673.3031.

Sorry if I may have confused you. Sometimes I think way faster than I type.

Alina
Donald F, on April 15th, 2009 at 5:50 pm Said:

Thank you Alina the hearing is on the 23rd. They have not produced anything to show they own the mortgage or the note or a financial transaction showing they paid for it. I plan to rescind as there are TILA and RESPA issues. also neither the the original lender or the entity suing has responded to my QWR.

Donald
Alina, on April 15th, 2009 at 5:35 pm Said:

Donald,

Johns v, Gillian does not state that a party is entitled to foreclose in equity upon proof of purchase of the debt even if there is no written assignment. It states:
“that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be
some plain and clear agreement to the contrary, if that be the intention of the parties.”

I have to preface this by saying that I am not an attorney and this is not legal advise. Having said that, my interpretation is that the mortgage follows the note, not the other way around. In Florida, a note does not need to be recorded. Therefore, if the note has been transferred/assigned, the mortgage would automatically follow.

However, if a mortgage has been assigned without the note, that is a nullity. For a better explanation look at the recent CA decision Saxon Mortgage Services, Inc., et al v. Ruthie B. Hillery, et al,. 2008 U.S. Dist. LEXIS 100056.

Additionally, the apparent rule in Florida is that an assignment of a mortgage without an assignment of the related mortgage note is deemed a nullity and creates no right in the assignee because a mortgage is a mere lien incidental to the obligation it secures. 37 Fla. Jur. 2nd, Mortgages, Section 511. See e.g., Sobel v. Mutual Development, Inc., 313 So.2d 77 (Fla. 1st DCA 1975). Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA 1965).

Alina
Alina, on April 15th, 2009 at 4:29 pm Said:

Donald,

This is one of the arguments I used:

The Defendants recognize the precedent set in WM Specialty Mortgage, LLC v. Salmon, 874 So.2d 680 (Fla 4th DCA 2004) regarding the assignment of a mortgage. However as the Second District Court of Appeals noted, standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim as of the date of the commencement of the action.

During the hearing on my Motion to Dismiss, the judge did not buy the arguments made by plaintiffs’ counsel which were identical to the ones you posted. I lost my motion on other grounds though and filed an answer and affirmative defenses. Opposing counsel sent me a “sample” reply with the exact language you posted.

I am in the process of researching their case law to see if it’s still good case law. I will keep you posted on what I find.

When is your hearing on the Motion to Dismiss?

I don’t know if we are allowed to post opposing counsel’s name or law firm on this blog, but I suspect the law firm you are dealing with is the same one I am dealing with. The verbiage used is identical.
Alina
Donald F, on April 15th, 2009 at 1:39 pm Said:

Hi I have a hearing on April 23rd (Florida) for my motion to dismiss can anyone point me to answers to the following responses from the plaintiff

4. Failure ofthe Plaintiff to attach a copy of the Assignment of Mortgage is not a sufficient basis
for an action to be dismissed. Pursuant to Florida law, it is not required to “attach a written and recorded assignment of mortgage in order to maintain a foreclosure action.” Chemical Residential Mortgage v. Rector, 742 So.2d 300 (Fla. lSI D.C.A. 1998). In addition, in Johns v. Gillian, the Florida Supreme Court noted that the transfer ofthe note or obligation is the same as the Assignment itself and it is not necessary that mortgage papers be passed or even that
a written Assignment be made. 134 Fla. 575; 184 So. 140 (Fla. 1938). In fact, the Florida Supreme Court further supported its conclusion by stating that any form of Assignment of a mortgage, which transfers … the interest to the assignee, will entitle him to maintain an action for foreclosure. /d. at 582. Finally, Florida law also allows for a note or debt secured by a mortgage to be transferred without any formal assignment of mortgage or delivery ofit WMSpecialty Mortgage, LLC v. Salomon, 2004 WL 1161839 (Fla 4th D.C.A.) citing Johns v. Gillian. In WM Specialty Mortgage, the co~ concluded based on Johns v, Gillian rationale that a party is entitled to foreclose in equity upon proof of purchase of the debt even if there is no written assignment. /d. a,t *2

5. Failure of the Plaintiff to attach a copy ofthe Note to the Complaint is not a sufficient basis for an
action to be dismissed. Pursuant to Florida law, a litigant is entitled to the opportunity to prove up the existence of a contract. National Loan Investors v. Joymar Assoc., 767 So.2d 549 (Fla. 3rd D.C.A. 2000); Amiker v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1sl D.C.A. 1981); Helton v. Gunderson, 802 So.2d 1152 (Fla. 3rd D.C.A. 2001). The referenced Florida cases further stand for the proposition that a case should not be dismissed when a Note is not attached to the Complaint. Plaintiff currently holds the Note that is the subject of the above-referenced foreclosure
action.

They have not produced a note or any evidence that they own it.

Donald
David, on February 28th, 2009 at 1:22 pm Said:

Anyone prepared or know of an initial response to a Lis Pendens where you are questioning “legal standing” in bringing the lawsuit into court?

Basically, if you want to use the defense on the front page of the blog asserting that the plaintiff has no legal standing. I need to respond and am going pro se. Would like to see an example so I can prepare my own.

Thanks,

DB
Michael Sullivan, on January 28th, 2009 at 5:39 pm Said:

Does anyone have experience with http://www.NACA.com? I would like to refer a client to the best help available for a loan modification. She lives in Orlando Florida.

Thanks!
delta daddy, on January 22nd, 2009 at 4:27 pm Said:

wondering the same thing as j stewart above in regard to a template to use to build a complaint for an ARM.

thx
d
J Stewart, on January 13th, 2009 at 10:27 pm Said:

What complaint template should be used if you
have an ARM? The one complate template on the site appears not to be used for an ARM.

Thanks
J Stewart
mike linton, on December 16th, 2008 at 3:34 pm Said:

http://www.consumerwarningnetwork.com/wp-content/uploads/2008/06/motion-to-compel-template.doc
Sam Adams, on December 16th, 2008 at 12:56 pm Said:

Does anyone have a good template for motion to compel production?
Sam Adams, on December 12th, 2008 at 4:29 pm Said:

Neil – will the link to “11.cyruswellstexascase-excellent-verbiage-on-securitization-conspiracy-with-charts-and-causes-of-action ” be enabled any time soon?
Guillermo Calixtro, on December 11th, 2008 at 3:26 am Said:

Any defense against Non-Judicial foreclosure when homeowner receives the Notice of Default or Notice of Trustee Sale in California
livinglies, on December 8th, 2008 at 4:38 pm Said:

It’s on the blog. Or you can come to a seminar, or you can go to one of the attorneys or you can buy a workbook. You probably need a mortgage review and evaluation that includes a TILA Audit. Got to “In Trouble Now” on the blog.
Guillermo Calixtro, on December 8th, 2008 at 3:50 am Said:

Please provide more information for non-judicial foreclosure defense.
Allan (Frustrated In Miami), on December 4th, 2008 at 10:32 pm Said:

HELP, HELP ME RHONDA!

Here’s a career profile for one of the people who are engaged in processing those documents we are challenging in court. Counterparts to mortgage fraud investigators?

http://64.233.169.132/search?q=cache:wLAruactwvsJ:www.linkedin.com/pub/4/926/252+Edison+Mortgage+Decisioning+Solutions&hl=en&ct=clnk&cd=10&gl=us

RSVP
Allan
BeMoved@AOL.com
Allan (Frustrated In Miami), on December 4th, 2008 at 10:16 pm Said:

Dan, though I appreciate your laudable conciliatory and bipartisan tone, you don’t know the lawless wild west nature of Miami, quite the way I do.

For all of you fellow consumer advocates, be aware there are hot new “due diligence” companies out there opening offices all over our great nation hiring underwriters and such to “repair” these document-challenged “toxic loans” that lately make the news.

Here for instance is Hanover Capital Partners (the “authorized agent” that “assigned” my WaMu mortgage to SASCO, AND provided other dubious assignments) that has morphed into Edison Mortgage Decisioning Services (in NJ and AZ) that has itself morphed into Allon Hill. Check out what products they offer clients who may need to file lost note affidavits, or otherwise get the notes to where they could again prove collectable.

http://www.edisonmds.com/mortgage_assignments.aspx

Allan
BeMoved@AOL.com
Dan, on December 4th, 2008 at 9:25 pm Said:

Allan,
This is not because of the Republicans and it is not because of the Democrats. Both parties are to blame and the blame is fairly equal. Where is your help from the government? I doubt there will be much. We can all work together to gather evidence but whenever a settlement is done the evidence usually cannot be used.

Thanks,
Dan Edstrom
dmedstrom@hotmail.com
Allan (Frustrated In Miami), on December 4th, 2008 at 5:42 pm Said:

“While some anti-mortgage fraud proposals have focused on amending federal law, federal law currently empowers law enforcement officials with sufficient authority and tools to combat mortgage fraud” so the MBA claims, but when I tried approaching the feds in Miami to prosecute mortgage fraud that impacted me, the feds were totally disinterested unless the amount was in excess of $1 million.

This of course is the same Miami that delivered Florida to President Bush in 2000, and the same Miami that seems to have been given a green light to thereafter become with impunity the “fraud capital of America.”

Any thoughts on how to get the reluctant U.S. Justice Department, severely compromised during the Bush/Cheney era, on board?

RSVP
Allan
BeMoved@AOL.com
wallace, on November 29th, 2008 at 6:07 am Said:

any lawyers in california, need your help, asap please in riverside california.

thank you
Sam Adams, on November 21st, 2008 at 10:34 pm Said:

same problem with “Complaint Attacking Assignment with Sec Filings US Bank” – link disabled -
Sam Adams, on November 21st, 2008 at 10:28 pm Said:

what happened to “cyruswellstexascase-excellent-verbiage-on-securitization-conspiracy-with-charts-and-causes-of-action”

- link is disabled