After suspecting forgery in multiple versions of the note (each and all filed as true), "B" filed a motion to compel discovery and court delayed ruling for four months, then denied discovery at the same time it granted summary judgment to the defunct servicer.
Filing a motion to compel isn't usually going to get the matter resolved unless the motion is also scheduled for hearing. If B failed to set the motion for hearing, then it is unsurprising that the court would deny the motion when it entered summary judgment.
Issues with regard to discovery are usually within the sound discretion of the trial court and are only very rarely disturbed on appeal. Whether to compel discovery is a different (though related) issue than whether to continue a matter due to a party's lack of preparedness for summary judgment. The Rules set forth an express procedure for obtaining a continuance when additional discovery is necessary. Compliance with that procedure is mandatory. See Federal Rule 56(d) or your state's equivalent:
"(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order."
If B complied with the procedure and made a compelling motion to continue under 56(d) fully supported by proper affidavit, perhaps B can get this judgment reversed on appeal. If B failed to comply with the required procedure, then the appellate court is unlikely to reverse. This would never be an issue that would void a judgment.
This servicer does not exist and had not existed for almost two years at the time it won summary judgment. Opposing counsel filed a motion for summary judgment but never substituted the Plaintiff. FTC documents show that the servicer was merged with and into another entity, so it was merged out of existence. The remaining party to the merger denied, in writing, owning the note and mortgage, and named another party as the creditor to whom the debt is due. On record.
This is an issue of capacity and does not implicate the jurisdiction of the court. Admittedly, this is a little confusing.
If X sues Y and Y is actually dead, then a judgment entered against Y is usually void for reasons discussed in other threads by Mr. Roper, myself and others. The central defect in such an instance is that a court can never really obtain personal jurisdiction over a dead person. No jurisdiction means that the judgment is void.
However if X sues Y and X is dead, this is quite another different problem. X has seemingly invoked the jurisdiction of the court (possibly through fraudulent representations about X's continued life and existence), but since X is dead X lacks the capacity to sue. Capacity is not jurisdictional. Moreover, there are special pleading rules regarding capacity. See Rule 9(a):
"(a) Capacity or Authority to Sue; Legal Existence.
(1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge."
"A" was sued in personam and in rem and remained a defendant with "B" until summary judgment was granted. In the judgment entry only A and B are defendants, the court finds that "A" should be dismissed from the case, and rendered the judgment in rem against "B" for the alleged amount due, but "B" didn't sign the note. The court did not expressly dismiss "A" but just rule against "B" in rem.
If the court had entered a judgment against a dead party, A, the judgment would be void as against A. But that would not make the judgment void against B.
Interestingly, the plaintiff has set and sprung a trap for B. By excluding A from the judgment, the plaintiff has not done anything that would implicate the validity of the judgment. The judgment is not in any way defective for failing to mention or include language which dismisses A. Rather, it is NOT a final judgment, since it fails to resolve all pending claims against all parties. What B should have done when the judgment was prepared was to demand that the language dismissing A be included.
Now, if A seeks to appeal the judgment, the appellate court can and probably will dismiss the appeal. Most interlocutory orders are NOT appealable and the court of appeals usually lacks jurisdiction to even hear an appeal unless and until a final judgment has been entered.
Thus, when B actually does appeal the Lender sits back and allows time to run by as it proceeds to move forward with the foreclosure sale of the property. The Lender gets an order confirming the sale and even an order of ejectment and has the sheriff toss B out on the street. After completing these aspects of the foreclosure, the Lender points out to the court of appeals that the trial court never entered a final order and that the appeal is premature. B's appeal is then dismissed. B is then also homeless and confused. B thinks that the courts are corrupt, but the courts are simply following well established and clearly articulated rules. The court of appeals has no authority to hear the appeal, because the judgment wasn't final!
There is nothing defective in any way about rendering a judgment against B in rem in respect of a default in the note by A. The judgment is (or should be) against the property. B agreed that the property would be security for the repayment of the loan by A.
"A" was sued in personam and in rem, but court only "finds" that "A" should be dismissed, but does not do so. Is it possible that only half of the property is in the judgment? "B" has homestead possession rights, but "B" did sign the mortgage.
Whether A's interest in the property has been foreclosed depends completely upon the form of ownership and the state laws of property of the jurisdiction. If A and B are married and took title to the property as tenants by the entirety (or B's state's equivalent) in respect of being husband and wife, B may have succeeded to A's interest in the property outside of probate upon A's death. Similarly, if A and B owned the property as joint tenants with a right of survivorship, then B may have succeeded to A's interest upon A's death.
In either case, if B owned the property, then the Lender usually completes a legally effective foreclosure merely by suing B. The foreclosure is usually effective not only against B's original interest, but also against an "after acquired" interest by B. That is B mortgage not only B's current interest but any and all later interest also acquired by B.
By contrast, if A and B are unrelated and own the property as tenants in common, then usually a foreclosure of B's interest would not implicate A's ownership interest in the property. But the failure of the Lender to foreclose A's interest does not implicate the validity of the judgment against B. There is nothing void about such a judgment. It is usually legally effective against B's interest. But the foreclosure is still incomplete. To acquire valid title, the Lender really would still need to foreclose against A. But this does nothing to reinstate B in the property and the Lender's ejectment of B can be complete even without further proceeding against A (there might be some instances where B might still have some rights to occupy the property if B was an heir at law to A, but this too would depend upon state law and the wording of the orders).
Most foreclosure mills are not particularly confused about any of this. If the Lender got a final judgment against B only, it was probably because that was all that was needed. Excluding A from the judgment was a little trick to cause A to expend unnecessary funds and energy filing an appeal, only to discover that the appeal was premature and useless.
If B was using an attorney, especially one of the sleazy Florida defensive foreclosure mills, these firms would next usually tell the defendant, "Oh, you need to pay us an additional $10,000 to supplement your retainer if you want us to get A dismissed and file a new appeal!"
Several months after the commencement, the servicer, by counsel, moved to add parties, which included heirs, assigns, personal representatives, etc, but not the estate. These added parties were not mentioned in the journal entry.
The plaintiff's motion to add other parties was defensive in case B argued that there was a defect in parties. When B failed to make the necessary and proper defensive arguments in B's answer, the plaintiff found it unnecessary to pursue the other parties.
One of the equitable defenses available to B was to argue that there was a defect in parties. In equity, a plaintiff must typically name and serve, bringing to court, every party with an interest in the equitable outcome. When the plaintiff fails to do this, the defendant should file some sort of plea in abatement (or B's state's equivalent). When effectively interposed, this does not prevent the foreclosure but abates -- stops -- the foreclosure from moving forward until all of the necessary parties are joined.
If B fails to make this defensive argument, the argument is waived. Unless B complained about a defect in parties and the plaintiff's failure to bring all of the parties before the court, then B usually cannot complain about this on appeal. The issue will have been completely waived. This is never an issue that would implicate the validity of a judgment or render a judgment void or even voidable.
See also Rule 21:
It seems that the judgment might be void and all the proceedings too, since the decedent had died two years before the lawsuit was filed, but was sued in personam and in rem--wasn't dismissed until summary judgment, if then. No personal representative was appointed when the petition was amended to add parties. Only "A" and "B" are the defendants in the journal entry.
Nothing in the facts you recite or describe is suggestive that the judgment would be in any way void or even voidable! The judgment might be legally erroneous if B raised the proper arguments in the answer and then supported these arguments with proper summary judgment evidence.
If A had been named in the judgment, the judgment might then be void as to A. Even so, such a judgment would probably be legally effective against B.
There is no duty by the court to reach a determination as to A UNLESS and until one of the parties to the matter seeks the Court's determination, by motion, for which hearing is scheduled or determination is expressly requested by submission. B could have moved for the case to be dismissed as to A and set that motion for hearing. Or B could have interposed an equitable defense as to a defect in parties through some plea in abatement and set that plea for hearing. In failing to do either, the court was under no compulsion to discover, recognize and rule on the defect arising from A being dead. Similarly, the plaintiff could have brought the matter to a head by seeking a hearing and ruling on its motion to substitute. It seems likely that they didn't both when B failed to make the correct defensive arguments.
Since the plaintiff perceived that B was an idiot and that B didn't know what B was doing, it sat back and let B make these mistakes. The foreclosure mill lawyers probably got a good chuckle over these mistakes.
There isn't an appealable issue here because B never complained of the matter to the trial court.
A court hearing a foreclosure case in most states would not have any authority at all to appoint a "personal representative". That would be something that would be done in a separate probate proceeding. In some places the same courts hear both kinds of matters, in other places, like New York and Texas, there are special courts (NY Surrogate's Court, TX Statutory Probate Courts or County Courts at Law) that hear probate matters. If both A and B were dead or if A was dead and A was the sole owner of the property, then the suit would usually have to be brought against A's personal representative OR A's heirs at law.
Here, again, is where pro se litigants are their own worst enemy. Under the probate laws in most places, where a creditor is owed money by a decedent the creditor can initiate probate proceeding. Since this is costly and time consuming, the Lender doesn't want to do this. They want for the borrower's family to go out of pocket for the fees for probate attorneys.
So the Lender engages in a form of saber rattling. They send a few threatening letters or call the borrower's widow, etc. Maybe they post a large notice on the property.
Most idiots will call up the bank and proceed to tell the bank all sorts of things that really ought never to have been communicated. The bank's representative gets the borrower to give all manner of detail as to the identity of the heirs, etc. Then, after they have obtained all of the information they want, they will tell the heirs that they cannot deal with the heirs unless and until a personal representative is appointed. Next, the heirs rush out and give $$$ to a mediocre and corrupt probate attorney. The attorney examines the matter and quickly learns that the case is already LOST because of the information communicated to the bank by the heirs before retaining the attorney. So the attorney files the routine regular probate paperwork and goes on vacation to spend the client's retainer. After returning from vacation, the heirs are told that the retainer is exhausted and that they need to send more $$$, etc.
After the heirs pay the probate lawyers anywhere from $10,000 to $20,000, they are told that they need to employ another separate law firm if they want to resist the foreclosure. Then the probate attorneys get a nice referral fee from the defensive foreclosure mills and can take another vacation at the heirs' expense.
The best strategy is usually to TELL THE BANK NOTHING and to DO NOTHING in respect of probate. If the bank sues a single decedent and gets a judgment, then the judgment is usually void. The bank may make this mistake unless they are coached by the heirs who seem always to eager to help speed the foreclosure along. The bank WANTS the heirs to initiate probate and to get a personal representative appointed, because that allows the foreclosure to go forward. Usually, a lender will wait one or two years before pushing forward with initiating probate, because they can almost always rely upon some idiot heir rushing into court to get the probate underway. (Of course there may be other valid reasons for heirs to initiate probate where there exist other assets that need to be distributed or other bills that need to be paid.)
There is no monolithicly correct strategy when the borrower has died. The strategy depends upon the unique facts of each situation and the laws of each state. But the very WORST THING TO DO is to call up the bank and give the bank a lot of information that they can use to speed the foreclosure.
When the heirs call the bank and spill their guts, a foreclosure can often be accomplished as fast or faster than when the defendant is living. When the heirs are cautious and avoid communicating with the bank and when the heirs take the time to read the probate laws, the rules and the cases, usually it takes from three to ten years to complete a foreclosure in respect of a single decedent.
The journal entry states that "A" and "B" did make and deliver a note and mortgage ... but "B" didn't make a note. This fact is clear on the record made in the proceedings.
Here, again, you show a complete misunderstanding and ignorance of the law and how things really work. When you say that the judgment recites that B made the note, you are complaining that the court reached an erroneous conclusion. Simply because the court made a mistake, it does not follow that the judgment is void or even voidable.
One of the very first problems that B is presented with is that usually B cannot complain on appeal about issues not raised and presented to the trial court. To the extent that B effectively argued in defense that A was not a maker of the note, perhaps this issue is sufficiently preserved, but this might still be a close question. It may also have been necessary for B to raise the defect in this journal entry by way of some motion to correct the judgment. (It may still be possible to do this if the order was an interlocutory order and not a final judgment due to the failure to fully dismiss A.)
It is possible that if B fails to seek correction of the error that the matter cannot be complained about on appeal. B needs to carefully read the pleadings, motions and other documents on file, as well as the rules and cases on the rules to see whether this can be complained about on appeal without raising the issue by motion to correct the judgment.
Even if this issue could be appealed, the appellate court would usually simply correct the judgment by omitting the offending language: B still loses the house, but the judgment no longer says that B was the maker of the note. I fail to see how that is a particularly productive use of time and energy. What is it that you proved? Admittedly, the offending language might seem to subject you to a deficiency judgment, so this is possibly a very valid reason to get the language corrected. But such a judgment can also be discharged in Bankruptcy. I would try to get this fixed, but by moving for a correction of the judgment. The Lender might even agree to a correction, though I doubt it against a pro se litigant who seems so hopelessly confused!
The Plaintiff named in the judgment is still the defunct servicer, who sued in its own name and did not make any claim of being an agent or rep of any other entity.
As explained above, this is an issue of capacity and was probably waived. If the argument was not properly raised in the answer, then it cannot be an issue on appeal.
Is it possible that the court had no jurisdiction over "A" and should have dismissed the case at commencement as a nullity, and if that is not correct, then is it possible that the court lost subject-matter jurisdiction when the servicer ceased to exist and no substitution was made?
The court lacked jurisdiction over A. But the court also didn't name A in the judgment. A has not been harmed and the failure to obtain jurisdiction has no effect whatsoever over the court's valid jurisdiction over B. If B was properly named and served, then the court had personal jurisdiction over B. Even if B was never served at all, if B answered and participated in the suit then the court had valid personal jurisdiction over B.
The cessation of existence of a corporate entity is a matter of capacity. Even the cessation of existence is probably problematic. A little known trick that the Lenders and foreclosure mills have been doing for several years (brought out by Mr. Roper in posts here at the Forum since deleted by the site administrator) is to continue paying corporate franchise fees for various defunct entities. If you check the corporate records in several states, you will find that entities that have been out of business for several years SEEM to still exist. (This may or may not be the case with the plaintiff in A and B's case.) When the corporate franchise taxes are paid, this makes it appear that the entity still exists and can make it hard to mount an effective capacity defense.
But if the capacity defense is not properly interposed in the answer, it is completely waived. There are no circumstances where this sort of capacity problem would divest a court of subject matter jurisdiction. You have been reading the specious posts by the scam artists. There is simply no merit to this whatsoever.
Opposing counsel concealed this material fact for two years. "B" responded to give notice of the Plaintiff's demise, but opposing counsel convinced the court that the defunct servicer was a subsidiary of the "too big to fail bank," thus it was the same as being filed in the "too big to fail bank's" name. The money, he said, would go to the bank in the end. (Fannie Mae owned in 2011, according to the lookup tool, but now the tool says it doesn't own the loan. Fannie was never mentioned.) "B" presented certified docs from Sec. of State of terminating the servicer who won. State law prohibits terminated partnerships from maintaining any action, proceeding, or suit in any court in the state. My question is how can the deed after sale go to a party who doesn't exist? Or since the law firm purports to have the original note (the authenticity was disputed) can it just fill in the blank and get the deed to my home, since it has no client?
If the capacity defense was properly plead in the answer -- and it sounds from your rambling that it was not -- then this could be a robust issue on appeal. If capacity was not properly plead, then the defense may be "outside the pleadings". The matter still might have been tried by consent, in which case it could still be an appealable issue. See Rule 15(b):
Unfortunately, because B seems to have spent his or her time reading various vacuous arguments made by scam artists and has adopted the scam artists' legally erroneous vocabulary, it seems likely that B has flushed this case down the toilet.
I am hoping that the judgment can be vacated as void due to lack of jurisdiction (neither the debtor or the creditor exist), violation of rights to due process of law (delaying then denying discovery), and fraud was used to procure the judgment. (Concealing the demise of the Plaintiff for two years, and filing forged [by-alteration] negotiable instruments.)
Again, nothing in your post suggests that the judgment would be void in any way. There does not seem to be a jurisdictional issue.
The discovery issue isn't going to be a due process problem. There exists a specific process in the rules to resolve discovery disputes. There exists a specific process to obtain a continuance when a defendant lacks evidence to defend at summary judgment. See Rule 56(d).
Since the Rules expressly ABSOLVE EVERY plaintiff of any duty to plead the valid existence of the plaintiff UNLESS and UNTIL a defendant raises a capacity defense, your assertion that the plaintiff engaged in any fraud is going to ring rather hollow. See Rule 9(a)(1). The plaintiff is going to simply point out that B didn't properly and timely make the capacity argument and that therefore the plaintiff was under no duty to make any representation to the court at all. Unless B properly raised the capacity argument with a defense compliant with Rule 9(a)(2), the plaintiff will argue that B waived the capacity issue and that the matter was outside of the pleadings at summary judgment. If B made this argument and denominated it erroneously as an affirmative defense rather than as a defense, B may have waived the burden of proof on this issue. This was discussed at length in anther recent thread.
Still, to any extent that the matter was properly raised and framed, then there could be a valid appeal issue. But the issue is NOT fraud, which is exceptionally difficult to prove. You have adopted the language of the swindlers and scam artists, which is an almost certain route to the loss of your property. The appeal issue would be that there was a [i]disputed issue of material fact about the plaintiff's capacity, precluding summary judgment.[/b] You see, you do not need to prove the plaintiff's lack of capacity. All you need to do is raise a valid fact issue about capacity to survive summary judgment.
Even uttering the word "fraud" is a complete mistake. Fraud IS an affirmative defense upon which B would bear the burden of proof. And as an affirmative defense, B would have to PROVE fraud to survive summary judgment.
However, there are a few things to realize about this. First, in order for their to be a dispute as to this material fact, B needed to put in some evidence IN PROPER EVIDENTIARY FORM. For summary judgment, this means that the information needed to come in (a) by affidavit, (b) discovery responses, (c) CERTIFIED COPIES OF PUBLIC RECORDS, etc. See Rule 56(c). If B simply attached copies of documents found on the Internet without properly proving these up, this is NO PROOF AT ALL.
Still, there is one other fleeting hope if B really properly plead capacity. And here, yet again, we see how essential it is to carefully read and understand Mr. Roper's posts, because he has clearly shown everyone the path to prevail!
If B validly interposed the capacity defense, as a defense rather than erroneously denominating it as an affirmative defense, then it was the plaintiff's burden of proof to prove its own capacity!
Here, once again, we find that the postings of the scam artists and the mediocre and crooked defense foreclosure mills are totally off the mark. Even when capacity is plead, these fools are still pleading this as an affirmative defense three years after Mr. Roper alerted everyone as to this mistake, which it is NOT. [i]Capacity is never, ever an affirmative defense.[/b] It is an essential element of every plaintiff's cause of action. But the plaintiff is relieved of either pleading or proving capacity under Rule 9(a) UNLESS the defendant properly raises the issue in the answer.
So IF B properly raised the defense and AVOIDED the legal error of denominating this as an affirmative defense, then it was incumbent upon the plaintiff to come forward with valid summary judgment evidence showing its own capacity.
Even so, a statement in the plaintiff's affidavit of merit, even falsely averring valid capacity, might very well be enough UNLESS B properly OBJECTED to the summary judgment evidence arguing that the averment was conclusory, that the affiant lacked personal knowledge or that the averment was deficient under the Best Evidence Rule.
Once again, Mr. Roper showed the way to win this sort of argument.
If B's legal arguments were as poorly formulated and articulated as your post, then B seems to have correctly LOST the case and may have no valid appealable issues.
However, if B properly raised the capacity issue in the answer, but then lost this argument due to perjured representations by the plaintiff within an affidavit, this could be an issue which might be addressed in a well written and well support Rule 60(b) motion to vacate.