DISCOVERY in Foreclosure Cases: Aggression can be a good thing

For further information please call 954-495-9867 or 520-405-1688

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see http://www.insidecounsel.com/2015/05/12/litigation-management-for-the-in-house-generalist

Discovery can be grouped into three categories: oral discovery (depositions), written discovery (interrogatories and requests for admission), and visual inspection (requests for production). These are collectively referred to as “discovery requests.” As a handy rule of thumb, you can think of discovery requests as requests to either discuss something (depositions), answer something (interrogatories), admit or deny something (requests for admission), or produce something (requests for production). You will be on both sides of discovery—you get to send discovery requests to the other party or parties, and you will receive them from the other parties. The tips and thoughts below are from the perspective of a party receiving discovery requests.

For most lawyers, discovery is simple — ask a bunch of questions or demand a visual inspection. The problems start after that. And what the banks have been counting on with considerable success is that the lawyer won’t do the REST of the work. The Banks and Servicers are going to object all your demands or nearly all of them. What then?

A Motion to Compel or a notice of hearing on the objections should be filed as early as possible. Very often the Motion to Compel is denied or the objections are sustained — most often because the attorney for the homeowner did not make the case for why he needs this information from the opposing side. The usual reason why the order is against the homeowner is the question of relevance and then you have confusion over (1) the requirements of pleading (2) the scope of discovery that is allowed and (3) proof required at trial. If you want to leave your footprint in the courtroom on this you should have a memo and cases that support your position. Discovery is usually liberally allowed. But in foreclosure cases, many judges are improperly limiting discovery because they think they know everything that is going to happen anyway.

As to the requirements of pleading — the court frequently conflates pleading requirements with proof requirements at trial. basically they treat anything the banks and servicers are pleading as already established, so there is no reason to expand discovery beyond what is already assumed. It is circular reasoning but it is prevalent. The fact that a complaint was filed in a judicial state or a notice of default was filed in a non-judicial state does NOT mean that the case is over. The fact that they can survive preliminary motions also does not mean the case is over. All that has happened is that they have fulfilled the bare essentials of pleading and procedure. They must still prove their case. So if they properly plead the facts for standing, that doesn’t mean you can’t inquire — that is exactly within the proof required at trial. But beyond that you can ask broader questions which might lead to the discovery of admissible evidence.

While both the attorneys and the judges might contest your right to receive information about the origination or sale of the loan, you are absolutely entitled to inquire about whether anything they said is true or if it is all a lie. And the only party who has that information, and the only party resisting with all their considerable might is the originator and the participants in the chain of the alleged securitization or even in the chain of the securitization which is denied by them. The scope of discovery is intended to be broad but to prevent mere fishing expeditions that are intrusive on the other party toward no end. They will argue that holding the note closes the issue and the judge will agree with them until you pull out the statute and point out that the proof of the actual loan is necessary in all cases except where they allege to be the holder in due course, which they never do. And having not alleged that they are obviously not alleging that they were a purchaser of the loan in good faith and without knowledge of the borrower’s defenses and before default, it is perfectly in order for you to ask which elements of a holder in due course don’t they meet and why. Since the note and mortgage arose from an alleged closing, it is perfectly acceptable for you to ask “a closing of what and for whom?” Why shouldn’t the borrower know who the lender really was? After all TILA requires exactly that disclosure. Some “successor” down the line does not get greater rights than the original lender had unless they have HDC status.

And this leads to the proof required at trial. If the alleged borrower denies that the loan contract ever took place, then the burden is on the “holder” to prove that it did take place. They must prove the loan. They must prove the funding of the loan. They must prove that they are in fact the lender. Does the court really want to grant a foreclosure against a borrower by someone who has never spent one dime lending money to the borrower, never acquired any authority from the true lender top collect and enforce?

What I know is that virtually all mortgage loans were sham transactions starting at around 2002 and continuing right up tot he present. It is up to the lawyer to educate the judge and make a clear record on appeal. That is done by both getting answers to discovery and by not getting answers that the banks and servicers are stonewalling. Don’t say you are ready for trial when you have not received answers to discovery (assuming you have already attempted to compel those answers).

I have said for years that these cases will end during discovery. either you get the order you want at which point the other side immediately settles — or you don’t get the order you want and you need to prepare your client for a loss at trial and then an appeal. Aggression during discovery is a good thing.

49 Responses

  1. I read a woman came back from one week vacation and some one squatted in her home and the police said it was a civil matter and did not make the squatter leave.
    I have issue with MERS. If they don’t want to pay and with the bankers backing and money, they can sue the county, where the county by name is a registered business with the secretary of the state just like MERS is a registered business.
    Some things were created for the people by representation and MERS has caused more damage holding the real property records than the county over hundreds of years; and with the county you can tell your neighbor owns the entire block of homes whereas with MERS, they may show ownership of entire towns by strategic means of passing documents that have no oversight as to whether anyone actually sold the property at auction, in a private sale, or with representation.
    When your posterity can not own property and live like tenant farmers on a king’s land, we shall know history does repeat itself.
    You scrape at the bottom first and then move up to the rich people who.don’t see a problem with it until it becomes a problem.
    MERS probably has documented ownership of every public building and park and all waterways and mineral rights.
    There is no oversight to their records and they could sell the property to foreign interests without our knowledge.
    Remember a bank is insolvent and can and will sell a family member it it would give them a chance to become solvent again.
    My opinion.

    Trespass Unwanted, Creator, Corporeal, Life

  2. Regarding adverse possession generally, a person must take open, continuous, non-violent, exclusive possession of non-public land without the owner’s permission, cultivate or otherwise improve it, file a legal description of it, and pay taxes on it, all throughout the statutory period. It originated in England hundreds of years ago where the king collected taxes from squatters who set up a household and agricultural or husbandry enterprise on someone else’s land that the owner did not properly utilize. The squatter put the land to a higher, better use, and obviously the owner did not notice or care, so the king allowed it. Over time the law allowed such a squatter to qualify for a quiet title to the land after 30 years of continuous, open, peaceable, unpermitted possession, with improvement, and paying of taxes.

    After an adverse possessor fulfill statutory requirements, the owner no longer has the legal right evict the adverse possessor from the property, and the adverse possessor can file a quiet title action in the superior or land court and obtain unfettered ownership of the land. Adverse possession typically consists of a landowner’s use of adjacent property for agriculture, grazing livestock, or structures like a house, garage, shed, barn, fence, etc.

    You can read various considerations about Texas adverse possession at this Houston lawyer’s web site: http://www.lonestarlandlaw.com/Adverse.html.

    As to adverse possession of homes, I consider it risky business that can put the adverse possessor into harm’s way. I would avoid it.I consider it a stupid idea to attempt adverse possession of property in foreclosure. Generally, the servicer pays the taxes, so if the owner has abandoned the property in foreclosure, someone trying to take it over can never fulfill the legal requirements. The county will auction off a tax certificate for unpaid taxes, and allow the certificate owner to initiate a tax deed sale. Adverse possession makes most sense for agricultural or ranch land, such as property a group of investors bought prior to a general financial collapse. That adverse possessor could fence it off and graze livestock on it.

    Adverse possession constitutes trespass, and the owner can defeat it either by granting written permission to use the property, or by swearing out a trespass warrant, whereupon the whereupon the sheriff will remove the trespasser. Florida sheriffs have aggressively dealt with adverse possessors, and the Legislature has tightened restrictions. I know of many adverse possessors of foreclosure-abandoned property whom State Attorneys have prosecuted for grand theft, scheme to defraud, breaking and entering, burglary, criminal mischief, and so on.

    In some jurisdictions, squatter’s rights might apply. When the owner reports a trespassing squatter in the house to the police, the police can take action to remove the squatter under trespass laws. But if the squatter has lived there for more than a month, some jurisdictions might honor “squatter’s rights” and require the owner to file a civil action for eviction, the same as if the squatter had rented the property and then failed to pay rent.

    The above reasons show why owners should have their property watched at all times by someone charged with the the authority to remove trespassers and squatters, particularly unoccupied property, and that includes one’s home when away on vacation.

    Regarding MERS, I cannot fathom why anybody has a problem with the concept of a private registration service for recording ownership of the note and for becoming the mortgagee of record. The counties have no right whatsoever to collect a mortgage recording fee every time the note changes hands. That fee becomes really excessive for securitization because the note goes from initiator to sponsor to depositor to trustee = FOUR recordings minimum, and even more if the loan goes into foreclosure. MERS cuts that down to just one mortgage recording (which the borrower pays). If you were a bank, you’d set up a similar system if you had any sense.

  3. Christine- I dont really come here to seek legal help. Just to read opinions, which are peoples theories. The facts speak for themselves, as always.
    The short postings on Dinsfla (stop foreclosure fraud) show who one and who lost, more to my liking. I also have read all of Jeff Barne’s pleadimgs and cases. Also subprime shakeout w/ Isaac Gradman. And others.
    I read livinglies as I do others, because i am horrified a d sick to my stomach over what the servicers, fc mills, courts, DOJ, state AGs, have done or havent done.
    Thanks for the offer, i’ve read all your docs. Will contact you.

  4. Hi Neidermeyer,
    It was rule of law radio and texas has a different way for averse possession, people do stuff like take a picture of a recognizable location of the property with a newspaper or magazine or something that can be dated, and then show over time improvement then file for ownership, that’s why abandoned property, ie 1099a is a big deal to me.

    I know a lady who said her neighbor asked if he could plant a tree 7 feet on her property and she let him. I told her about averse possession, that he may try to use that planting as some evidence that he has maintained that property and alter the plot lines.

    I don’t know what became of that.

    Some states have a document at the court house, you select a property that is not being attended to, give notice you will averse possess it, turn on the lights, and receive mail, and within a certain tiem frame, you advertise your use in a paper over time and no one responds and it’s yours. (who needs a bank or servicer, then?)
    You may find you move a lot, but you also get to stay rent free for the locations you do select, who needs permanent furniture and fixtures when all you need is a roof over your head?)

    As for MERS, when I think about it, the counties get taxes paid on the property they assess in their records, and those records are evidence of the real assets that belong to the county.

    As MERs slowly moves the records into it’s database, and to me that’s equivalent to someone paying your property taxes, proving they have over time, and using your own laws to take over your property by claiming to have maintained it without your objection or interference.

    There is a motive I don’t quite see, but it gets clearer.
    It is about ownership, and as we are confused about how many properties it holds, the true confusion may be where are the concentration of properties in the MERs database, are they all near water, or are they all encompassing certain states, sort of like the game Go, where it surrounds other properties and can entrap people within those areas and consider them trespassing if they try to leave.
    A berlin wall of property ownership.

    There is something and a lot of people helping them do it.

    Trespass Unwanted, Creator, Corporeal, Life, Free, People, Independent, State, In Jure Proprio, Jure Divino

  5. Ian

    “Everyone here appears to be talking about purchase money loans, where someone bought a house with money they borrowed.
    But when someone refi’d out of a loan in arrears, what was the status of their “loan” and did they actually get anything in the refi? Such as refinancing a defaulting mortgage with a new mortgage for the same amount plus of course the fees etc.
    Most of these were through the servicers, not a bank or lender. Can someone clear this up? thx”

    It’s a very important question.

    How did you make out? Did you get answers from any of the bloggers on this site? Shouldn’t you look into REAL legal help? In which state are you? Do you need help with a specific problem? You can reach me at cbrightlife@aol.com

    I may not know the answer but I can direct you where you can find it. Oh! And I never ask for anything. But I won’t let you down either.

  6. @ TU ,

    Regarding that land adjacent to a waterway … most adverse possession requires the tenant to have paid the property taxes for xx years…

    I agree MERS must be ripped out by the roots and the banks made to pay to legitimately record what is now hidden ,, I’m still waiting to see what OSCEOLA Cty FL does regarding this…

  7. I was listening to an audio where a man has a waterway behind his home that is not maintained and he wanted to clear it out and use it for his own use and wanted to know what remedy he had since he’s been maintaining it for a few years.

    This is real property owned by a school that does not back up to the waterway, but along that creek the school does have property somewhere.

    What I am getting at is the ‘real property aspect’, and the guy wanting to take averse possession.

    What you do is find something unused, show you have take it over, maintained it for a certain number of years without interference, and then claim full ownership of the real property.

    Now County Clerks maintain real property. They maintained papers and documents that recorded real property ownership.

    MERS has stepped in and has shown it has maintained for a certain number of years without interference, they have maintained real property for a certain number of years.

    While we let lawyers and judges decide whether MERS is valid as an assignee or mortgagee, we have been watching the carrot on a stick.

    Someone is not only trying to claim real property through fraud foreclosures and turning over the real property titles and ownership of the property into the MERS database, they are claiming the real property records and maintaining the recordings of real property .records through MERS.

    In my opinion, someone has set up the MERS system/company/entity/database for averse possession of all titles, real property, and real property ownership, and there are many (lawyers/judges/politicians/bankers) who are and have conspired under color of law and color of authority to help them do it, all the while not adhering to the state constitutions, trust law, contract law, statutes, codes, provisions, ordinances, law, pr whatever, thus helping MERS take averse possession of all real property, of all real property, of all real property…did you hear me? People are helping MERS take averse possession of real property!!!!!!!

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino

  8. I mention ‘trial de novo’, a new trial, and some act like I spoke blasphemy, as if the words did not exist and the option was not available,

    Yet, ForthePeople thank you for the Ham vs Nationstar information.

    I say trial de novo, ie. new trial and the response is the only option is appeal. Nice to see a case that states it clearly.

    Rule 1.530(e), Florida Rules of
    Civil Procedure provides that when “an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend
    the judgment.”

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino

  9. According to an insider all Florida senior foreclosure judge’s last day will be June 29. Funding has been terminated.

  10. http://foreclosuredefensenationwide.com/?p=586
    MASSIVE FORECLOSURE FRAUD ON PART OF DAVID J. STERN MAY BECOME SUBJECT OF ACTIONS TO VACATE TENS OF THOUSANDS OF FORECLOSURES
    May 7, 2015
    Florida law provides that a judgment can be opened or vacated if it was obtained by fraud, or if it is void, …(read more)

    Trespass Unwanted, Creator, Corporeal, Life

  11. “This case is complex from almost any angle,” she wrote, “but at its core there is a single, simple question. Did defendants accurately describe the home mortages in the Offering Documents for the securities they sold that were backed by those mortgages? Following trial, the answer to that question is clear. The Offering Documents did not correctly describe the mortgage loans.”

    Salon Article, must read. The magnitude of falsity…is enormous, Judge Denise Cote

  12. shadowcat, the terms note, mortgage note and promissory note are pretty much considered the same thing when applied to a mortgage foreclosure action, and you already knew that….

  13. Thank you for posting Ham v. Nationstar. Although, they are certainly going to refile they will have a difficult time proving the note was assigned to Nationstar because the only purchase from Aurora by Nationstar were mortgage service rights.

    China’s third ease in 12 months shows global growth is slowing. More important, we have put another top in on US Residential Home Values and we should expect the median price to begin to leg down this September, which will be exacerbated by a behind the curve FED tightening, which will occur this September, and continue for 100 basis point move during 2016.

    If you are close to retirement and mange your own financial portfolio, consider taking a close look at equities, and possibly scaling out of your positions to cash. If your money is managed – fire your investment adviser, and repeat the steps above….

    TSMIMITW

  14. Louise
    I add ” will be held to the strict proof ” i know i hear yall laugh but its a nice line.

  15. Even with an order from the judge, opp. counsel did not produce documents requested and even with a Motion to Compel including issues of holder in due course did not produce zilch.

  16. And the homeowner did not even have a transcript of the trial. If anyone wants the case post an email and I will send it.

  17. Shadowcat your an awesome teacher. Plz keep going….

    On another note Florida 1st DCA came out with a spectacular ruling yesterday with Ham vs Nationstar. No standing at inception. Case No. 1D14-4024

  18. Words….

    Mortgage Loan

    and

    Loan

    Question?
    Can anyone explain the difference?

  19. Words….

    Note

    And

    Mortgage Note

    Question?

    Can anyone explain the difference?

  20. Summing up my thoughts today….

    Ocwen has not received “going concern” letter, and French women should shave their armpits – hairy pits are not sexy on men or women…

  21. Everyone here appears to be talking about purchase money loans, where someone bought a house with money they borrowed.
    But when someone refi’d out of a loan in arrears, what was the status of their “loan” and did they actually get anything in the refi? Such as refinancing a defaulting mortgage with a new mortgage for the same amount plus of course the fees etc.
    Most of these were through the servicers, not a bank or lender. Can someone clear this up? thx

  22. All is not quiet.
    The comments are at (almost 500/comments )

    (for those that don’t get email notices of comments.)

    https://livinglies.wordpress.com/2015/04/29/back-to-the-future-rescission/

    For continued debate / discussion on rescission

    Trespass Unwanted

  23. I checked my typos corrected them and then something happens and its changed back! Sorry

  24. Deb,

    I know it’s about the sharing bit (and you and I have) but… why is it that, when humans’ natural tendency is to share what works and how to get there, cult followers coming here refuse to follow what has been proven to work? Why would they rather wallow in poor-me-i-got-the-worst-judge-ever-on-planet-earth or whoever-won-anything-is-a-bank-shill?

    Why, having gotten a bad result, would they refuse/hesitate to contact well-versed and well-meaning help, with no skin in the game, willing to help them get back some of what they lost?

    I’m stumped with this crowd. And I got 2 people regularly posting here whom I won’t forget: Cubed2k and Ivent. Garfield had 2 opportunities to prove himself and his theories by stepping in. He failed both times.

    His blog. His control. His priorities. He sells COMBO. Anyone won with those yet? You do post here, right? Did Garfield ever do anything for… you, after 4 years? Did he do anything for anyone you know and care about?

    ONE case pleaded and won by Garfield. That’s ALL I want. Very fair expectation, according to the ABA. Garfield is a cult until proven otherwise. Thing is… he can’t prove otherwise.

  25. See Christine, im just blogging sharing what i learned , its not legal advice its stuff and ideas for anothers research, we can help each other maybe its the long way round but we have no law degree, that case law may or may NOT be any good to anyone but me, but its the best i can do with what i got.

  26. Aw no worries Christine.
    I want the best for people – millions have lost their homes, so maybe its the Englishman ( and his castle) in me
    Anyhoo – my petition and rehearing EN BANC case law:

    Bevilacqua v Rodreiguez, mass: supreme judicial Court 2011 ( re power of sale and authority to enforce)

    M.L. V Federal way school dustruct 394 f.3d634 – citing “Gonzales v Sullivan, 914f.2d 1197, 1200( 9th xircuit 1990) see also 20 USC 1415(i)(2)(b)(1)” and ” rule 10e” ” anything material to either party is omitted from or misstated in the record by error or accident.”

    Then theres the 1099a and conflicting trutees deed upon sale newly discovered evidence and in the interests of justice means that supplementing the record brings ALL the facts to achieve the truth in the matter and to serve justice.

    JESINOSKI v COUNTRYWIDE HOME LOANS, INC.57 U.S.(2015)
    ” all a borrower myst do in order to exercise his right to rescind under the act is mail the notice of rescisdion within 3 years of the loan consummation” and i did and it was befire they foreclosed the power if sale.

  27. Deb,

    My point was only to reiterate what many have said all along: there’s what works and what doesn’t. Garfield has peddled everything that… doesn’t and has an entire cult behind him, ready to fight tooth-and-nail for him and to try (at their expense) all that, which doesn’t work!

    Common sense is universal, in’t it?

  28. Deb,

    I still don’t get your reactions. It’s either the Britt in you, the French in me or that damn 100 year-war…

  29. Learned a lot from that horse, find the weak spot. And jump as high as you can, no half ass jump.

  30. Christine people chose, they chose to research they chose an attorney they chose to go it alone, for their reasons. Chastising people for being ignorant is rudiculous,
    How the he#% could any of us know other than, as bob says “piss on the electric fence to test it ” ( funny we have a horse that tests the fence with his teeth because then he dare jump it, lol, he keeps trying the darn hard head)

  31. I prefer the word asserting your legal points as far as the rules and law allows ( with rebuttal case law too) rather than the word aggression, so there was a
    petition for rehearing EN BANC re my 9 th circuit appeal and i rebutted every point in that memorandum issued.

  32. SC,

    Bob is not “dishing some Hurt”. He is a doer and a helper. Just like Rock, me and others. It’s taken a while to get people to understand how much of a disservice this blog has been all along to pro se, first with finding attorneys (who’ve been available all along but… one needs to know what to do to attract them) and with devising winning strategies… which work!

  33. Bob Hurt,
    Thats my case, but theres more. I have to be careful at this stage in my case(s) i know you undersrand that.

  34. Bob is dishig out some Hurt.
    Turning up the heat.
    They are trying to avoid successor liabilities. Yes they are.
    Put them on nottice .. I did.

  35. Deborah Wynn, where can I read about your case?

  36. Deborah Wynn, is this your case?

    https://www.courtlistener.com/opinion/2775661/deborah-wynn-v-callan-appraisal-incorporated/

    If yes, what dispute did you have with the appraiser, and will you discuss it with me privately?

    727 669 5511

  37. If you cant find a great attorney and you feel you must fight for your rights get the books and put in the required time then if you lose – and you may actually win, so try to detach from the outcome and go forward knowing that you are doing your best you are trying and you then will know – if you coulda won, its amazing what you can do when you put your mind to it, i say dont be defeated until the last stone is turned, but if you say otherwise, then so it will be.
    Nolo series is great theres one called ” how to represent yourself in court” perhaps pat a pAra legal service to type up your complaints/ motions to be professional, Thompson West FRCP if in fed Court, buy used as up-to-date as you can afford ( cost $50 bucks up, ) and your State rules ( and local rules) of civil procedure if in State Court. Every State has a self help center , but you will need more than that. Be creative go hang out at the law library,get help on
    How to shepardize case law.
    http://wiki.lexisnexis.com/academic/index.php?title=Shepard%27s_Citations

    Certainly Its best to have proper council but that is hard to get especially on contingency,and the clock is ticking hence the saying ” time is of the essence” the likes of people advertizing on here will not be holding your hand in court you will go by yourself and you will have to argue from time to time, but not often, be well prepared and stick to your strong points, the nice thing us being pro se you do not need to involve yourself in the attorney so called ” etiquett, you have no license to loose, but you must remain calm and polite always and know this – they will threaten you with costs, silly sanctions, you fight that too and anything that they think will get you scared, be not, scared, but be cautious.its nerve wracking at first but each time you feel less like puking. You will be bogged down with the court minertia so get used to it. Hence 6 years of my life and ongoing.
    Class actions could gain traction because it may give rise to piercing the corp veil but it will take a big class action lawfirm to actually take on the banks with so much power it has become totally unconstitutional, at best. Such a choice is nit fur everyone im posting to balance out the negative things saud on here. Onward.And that is my message for the day.😉

  38. Neil, I’d like to know why, precisely, you consider all mortgage loans since 2002 a sham, particularly when the borrower acknowledges, within the note, receipt of the loan.

    I do appreciate one point you made: if the borrower notifies the current creditor, directly or through counsel or the servicer, that the borrower suffered an injury that put a blight on the loan, and presents basic evidence of that fact, then any subsequent assignee may have recourse against the assignor, such as rescission of negotiation under UCC §3-202, and the borrower may have a defense and claim in recoupment under UCC §3-305(a)(3).

    That shows the importance of the borrower hiring a competent professional to examine the mortgage-related documents in an effort to discover causes of action against the lender, appraiser, mortgage broker, title company, or some other party for fraud and other torts, breach of contract, legal errors, and breach of regulation. This can help protect future prospective buyers of a note from getting cheated in the purchase of it.

    § 3-305. DEFENSES AND CLAIMS IN RECOUPMENT.

    (a) Except as otherwise provided in this section, the right to enforce the obligation of aparty to pay aninstrument is subject to the following:

    (1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign theinstrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;

    (2) a defense of the obligor stated in another section of this Article or a defense of the obligor that would be available if theperson entitled to enforce theinstrument were enforcing a right to payment under a simple contract; and

    (3) a claim in recoupment of the obligor against the original payee of theinstrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.

    (b) The right of aholder in due course to enforce the obligation of aparty to pay theinstrument is subject to defenses of the obligor stated in subsection (a)(1), but is not subject to defenses of the obligor stated in subsection (a)(2) or claims in recoupment stated in subsection (a)(3) against a person other than the holder.

    (c) Except as stated in subsection (d), in an action to enforce the obligation of aparty to pay theinstrument , the obligor may not assert against theperson entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (Section3-306 ) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of aholder in due course and the obligorproves that the instrument is a lost or stolen instrument.

    (d) In an action to enforce the obligation of an accommodationparty to pay aninstrument , the accommodation party may assert against theperson entitled to enforce the instrument any defense or claim in recoupment under subsection (a) that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy, and lack of legal capacity.

    (e) In aconsumer transaction , if law other than this article requires that an instrument include a statement to the effect that the rights of a holder or transferee are subject to a claim or defense that the issuer could assert against the original payee, and the instrument does not include such a statement: (1) the instrument has the same effect as if the instrument included such a statement; (2) the issuer may assert against the holder or transferee all claims and defenses that would have been available if the instrument included such a statement; and (3) the extent to which claims may be asserted against the holder or transferee is determined as if the instrument included such a statement.

    (f) This section is subject to law other than this article that establishes a different rule forconsumer transactions .

  39. They should Always hire an Attorney in the Jurisdiction the property is Located. State Laws Vary.

  40. It is safe to say NONE of our readers know how to proceed with Discovery in these cases unless they are lawyers or paralegals as this is the MOST difficult part of the case against the banks after the pleading war is finished, and the MOST important part. We won the Janeece F. case in Calif with powerful discovery against BONY Mellon.

    WARNING: DON’T use templates as they are not fact specific. We are at 818.453.3585 and have combined over seventy years of litigation support experience and can easily assist our pro se litigants.
    Call us a Consumer Rights Defenders as we have discovery strategies and forms that we can tailor for your specific case. We are also at CRDefenders.com

  41. Lets talk about CANCELLATION. VS RECISSION.

  42. We all have well founded string suspicions what really happened BUT you cant go into court with suspicions hearsay or flimsy evidence and thats where many have failed.two words ( no its not happy birthday)
    1. Substantiate, 2.particularity.

  43. I get there was a loan ( of sorts) but i was denied the enjoyment if my home by one who did not tell the truth. The documents cant be relied upon the accounting cant be relied upon and that 1099a – well we will see in the future how that turns out.

  44. Many unfiled deeds.
    Wild Deeds!

  45. Christine FYI
    Over the six years i have been in court the opposition have hung themsleves with their own rope and they cant redact the public record or change it – i got the original record.

  46. Agreed! Money Did change hands and the seller was paid!

  47. Dont forget ” subpoena duces tecum”
    https://www.superiorcourt.maricopa.gov/sscDocs/packets/gns1.pdf

  48. Same old, same old. “They must prove the loan. They must prove the funding of the loan.” Well… homeowner borrowed money to park his butt in a house he purchased from a seller who got paid. MONEY did change hands. No amount of editorializing will change that fact. Period. And amount of denial will convince anyone that “it ain’t so.”

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