Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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bill

If the servicer is acting under a power of attorney from the trustee of a trust to foreclose (I guess standard operating procedure) does this open them up to written discovery also?  If the attorney claims the servicer is their client and they are acting under a power of attorney for the trust and I ask them for a history of the note, am I going to get an answer from the Trustee or the servicer?  Any thoughts?

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William A. Roper, Jr.

Bill:

First and foremost, you need to read the Rules of Civil Procedure and cases interpreting those rules for your jurisdiction.  There are a variety of nuances to these procedural Rules which will control the answer to almost any question pertaining to discovery.

This having been said, in most places there are certain forms of written discovery which relate to discovery available from parties to the suit.

If you are involved in a judicial foreclosure, look at the petition or complaint and ascertain the identity of the named party plaintiff.

Usually, you will be entitled to run certain written discovery, possibly including a request for disclosure (available in a few places), interrogatories, requests for production and requests for admission, against this particular party.

Sometimes a suit is brought in the name of the mortgage investor.  Sometimes a suit is brought in the name of the servicer.  Sometimes a suit is brought in the name of MERS, though this is becoming far rarer.  The distinction is important.

You should take great care in asking those questions for which there might be a limitation as to count (often interrogatories and sometimes requests for admissions).  If you ask a question, for example of the servicer, that pertains to MERS, the servicer is probably going to both object and deny knowing the answer.  Even if you could get the court to order an answer, the denial that they know the answer with certainty may immunize them and the question is wasted.

*

You have three strategic alternatives as to discovery to those who are not parties to the suit. 

First, you could MAKE the non-parties parties by naming these in a third party complaint and serving citation or summons upon them.  Once so served, the others become parties.  And then you could run written discovery against them, too.  You will need a fairly strong theory and valid cause of action to survive the inevitable motion to dismiss.

You should weigh this option very carefully, because there could be some disadvantages to bringing in the real party at interest.  In fact, you need to bear in mind that there may be some questions you would prefer NOT to have properly answered.  You might very well be taking the plaintiff to school and SHOWING THEM the correct answers to the questions by bringing in those with actual factual knowledge of certain facts of the case.

For example, the service ALMOST NEVER HAS ANY DIRECT PERSONAL KNOWLEDGE OF THE INDORSEMENT AND DELIVERY OF THE PROMISSORY NOTE.  Neither does the servicer typical have custody of the promissory note, original mortgage or REAL assignments of mortgage.

This is one of the reasons why, as a matter of convenience, the mortgage servicer and mortgage foreclosure mills are fabricating assignments for use as false evidence in the case.  They LACK the real evidence and so they just forge an assignment and create a perjured affidavit of merit.  Sometimes, they also forge an allonge or plead a perjured lost note affidavit.

To a certain extent, you are FAR BETTER OFF letting the plaintiff bring in this false evidence!  IT IS THE SUREST AVENUE TO A FREE HOUSE!

But you need to be prepared to PROVE the forgery and the perjury.

If you bring the mortgage investor in quickly and get to the investors records or custodial files BEFORE the false evidence is pled into evidence, the plaintiff is actually quite UNLIKELY to make the sort of blunders that might assure your victory.

The two other approaches are, at least at first, somewhat more tentative.

In most places, you can do a deposition on written questions to a non-party.  This is usually more expensive than the regular written discovery to a party, but usually less expensive than an oral deposition.  Check the Rules of your jurisdiction to see if a deposition on written questions is available to you.

You can also usually subpoena and take an oral deposition of a non-party.

But as mentioned above, you really do NOT want to do this prematurely.  It is usually going to be better to run some written discovery first and even possibly to depose the servicer's employees before turning to the mortgage investor and institutional custodian.

You can probably run discovery against MERS a little earlier, but I still wouldn't be inclined to do so before getting a couple of rounds of written discovery to the party completed.

*

One additional caution is that in many places a party cannot use an interrogatory response as affirmative evidence in support of its case at summary judgment.  They will need to make their affirmative case using affidavits.  But a deposition, incuding a deposition on written questions may very well be admissible in support of their summary judgment motion.

So if you begin to take depositions, make sure that you are ready.  The evidence can be used and can cut both ways.  If the plaintiff makes a wooefully defective motion for summary judgment based upon a purjured and conclusory affidavit, I certainly wouldn't want to help them clean up their mess by deposing witnesses that might help prove their case!  

*

You will gain the greatest leverage by catching one or more of the plaintiff's witnesses making material false statements under oath.  Given a choice of lying or telling the truth, the servicer and the foreclosure mill law firms usually prefer to LIE, if only to keep in practice.

If you appear to be well represented and sophisticated, the plaintiff will take greater care.  If you are litigating pro se and are underestimated as an adversary, your opposition is far more likely to make an exploitable blunder.

I am NOT recommending that you litigate pro se if you have the resources to afford an attorney, but I am merely suggesting that you are less likely to be taken serious  by BOTH the opposition and the court when you are representing yourself.

*

READ THE RULES.  THEN READ THEM AGAIN.  READ THE CASES ON THE RULES.  AFTER EACH PLEADING AND MOTION IS FILED, RE-READ THE RULES IN CONSIDERATION OF THE NEW PLEADING OR MOTION.  READ THE RULES BEFORE AND DURING PREPARTION OF YOUR DISCOVERY.  READ THE RULES UPON RECEIPT OF EACH RESPONSE.  ALSO RE-READ ALL OF THE OPPOSITION'S PRIOR PLEADINGS, MOTIONS AND RESPONSES AFTER RECEIVING EACH NEW FILING.

While you will almost ALWAYS find yoruself at a substantial disadvantage in terms of understanding of courtroom practice, with a little serious study, you will be quite surprised that the opposition continues to make rather egregious mistakes which reflect ignorance or indifference to the Rules.  Make this work for you! 
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Bill
William,
   So who is a party?  If MERs is a defendant, that would make them a party?

I am not really clear with your answer. 

Let me try to ask it a little better.

For example:

The complaint is Bank of America as trustee for xxxxxxxxxxxxx loan trust Series XXXXXXXXxx

vs

Defendants ME

and MERS


No assignments of the mortgage.  I file a motion to dismiss.  The response is the attorney for the plaintiff prepairs an assignment of mortgage from the original lender (who is out of business) strait to the trust using the servicer's MERS vp.  Can I ask questions about MERS and the servicer to BOA in a discovery request?  The servicer I'm guessing is considered part of the trust.  Depositor, Servicer, and Trustee.   What are your thoughts on a situation like that?
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Bill:

While I certainly CANNOT give you legal advice, as I am not an attorney, and I am unfamiliar with the laws of your jurisdiction, it appears based upon the facts recited that Bank of America, as trustee is the plaintiff.  To the extent that you are alleged to have a second mortgage in which MERS is the mortgagee, it would appear from what you describe that MERS is also a defendant.

Remarkably then, BOA would seem to be a party AND MERS would seem to also already be a party.  Now bear in mind that MERS has been named in place of the actual unknown owner or holder of the alleged promissory note secured by the junior lien.

So it is possible that the actual owner could make an appearance and request to be substituted in MERS' stead.

READ THE RULES OF YOUR JURISDICTION.  But in many places, it is likely that a defendant, already properly served by the plaintiff, can be named in a crosscomplaint, rather than a third party complaint.  The essential difference would be that MERS is already a party, but might at any time cease to be a party upon the appearance and a request by another entity to be substituted as a defendant.

If you have claims against the plaintiff, these are usually termed counterclaims.  If you have claims against another party in the litigation other than the plaintiff, this would be a crosscomplaint.  Bringing in another party not already named would usually be done with a third party complaint as already mentioned above.

In most instances and in most jurisdictions, I believe that you are likely to discover from a scrutiny of the Rules that a party already properly served with the plaintiff's complaint can be served with a crosscomplaint by ordinary service, rather than service of citation or summons.  BUT CHECK THE RULES AND CASES.

To the extent that MERS is already a defendant named and served with citation or summons of the suit (check the docket for proof of service of MERS), it would appear to me that MERS would already be subject to ordinary written discovery.

You might find that absent the filing of a crosscomplaint, that your discovery of MERS might be somewhat more limited.  But I would think that you could probably serve some very useful discovery questions directly on MERS.

Bear in mind that absent your service of a crosscomplaint, substitution of the real party in interest of the alleged second mortgage would probably dispose of MERS as a party and possibly excuse their answering of regular written discovery.

The most important thing is to understand the Rules and the cases.  Then you can formulate a coherent stragety in consideration of those Rules.

I would tend to begin by serving an initial set of discovery on the plaintiff and possibly even wait for an answer.  Or IF I served any intial discovery on MERS right away, I would possibly start with some really basic and easy questions that do not signal how much you understand about their criminal enterprise and the cases going against them.

Then, I might be preparing a crosscomplaint against MERS.

Substitution of the real party in interest as to the junior lien as the defendant would probably require a court order.  So this probably cannot be done instantly, EXCEPT that the plaintiff might be able to freely amend its pleadings to substitute the real party in interest.  In some places, a plaintiff can freely amend.  In other places, amendments have to be approved by the court.  In some places, additions or substitutions of parties have to be by court order.  But BEWARE that the sweetheart arrangements between the foreclosure mills and some of the more corrupt judges may make it possible for MERS to obtain an order substituting another defendant without a hearing, possibly without an opportunity for you to respond and before you could get a crosscomplaint filed.

So you are on a strategic tightrope.

This is why it is critical to read and understand the rules.

If I was defending before Justice Arthur SCHACK, I would feel pretty comfortable that I was going to get a fair hearing and an opportunity to respond.  By contrast, before the worst of the Florida "Rocket Docket" judges, I might not take any chances and would file a crosscomplaint sooner.  A lot depends upon the jurisdiction and the judge.

*

One problem with a crosscomplaint is that you may not want to fully reveal how much you know and understand about MERS involvement.  It might be better to hold the crosscomplaint in reserve to interpose at the instant that a substitution is attempted.

*

On the other hand, if you are litigating in Florida, the courts and dockets are in almost total turmoil there right now, due to the implosion of the David Stern Law Firm and criminal investigations of other firms.  You will probably generally find under these circumstances that the other side is not particularly agile in responding to discovery.
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William A. Roper, Jr.
I really would try to smoke out an assignment forgery BEFORE adding pressure through discovery addressed to MERS.  That is, get them to plead in the forged assignment before you let them know how much you know about their criminal conspiracies.

BUT YOU REALLY OUGHT TO ADDRESS SOME OF THESE QUESTIONS TO AN ATTORNEY!
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Bill
William,
     I understand what you are saying about letting the Plaintiff plead their false evidence BUT there is a point where I want to get evidence on the record before a motion for summary judgment.  Should I be pushing this evidence before SJ in my motion to dismiss or save it for SJ?  Once it's on the record it's there.   If the judge wants to rule contrary to the Appeals and Supreme court decisions there is nothing I can do but appeal.   How much evidence/arguments should I save if any for SJ?
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William A. Roper, Jr.
Bill:

That is a very tough question because so much depends upon the facts of your case AND the laws in your jurisdiction.

But it is very important to bear in mind that IF your central argument is a motion to dismiss due to lack of standing, that in MOST CASES this is NOT a final adjudication of the case.  Most dismissals due to lack of standing are going to be dismissals without prejudice, which means that the plaintiff beats a retreat, cleans up its case and REFILES.

Then the process STARTS OVER.

So my GUT and LAY reaction is that you would generally NOT want to press your motion to dismiss prematurely.  If you SUCCEED, this CUTS OFF the discovery, puts the plaintiff out of court and they are almost surely going to come back at you with a much stronger case.

So I would be more inclined to file the motion to dismiss, but NOT schedule it for a hearing or even schedule a defensive summary judgment prematurely.  (But CHECK THE RULES.)

You can ALWAYS press this motion LATER.  And if you show valid FACT ISSUES in your summary judgment defense, these can be used to preclude summary judgment.

If you WIN on the plaintiff's motion for summary judgment, that is if the plaintiff's motion is DENIED, then the matter will be ultimately scheduled for a trial and they will need to bring forward LIVE WITNESSES.

Another interesting nuance is that if you show that the plaintiff has NO EVIDENCE or has raised NO FACT ISSUE as to one or more of the elements of its affirmative case, then you can have the case dismissed, possibly WITH PREJUDICE through a defensive motion for summary judgment.  So pressing the motion to dismiss, BEFORE pressing a defensive summary judgment might be ill advised.  BUT READ THE RULES OF YOUR JURISDICTION.

You are certainly correct that you NEED to put on some affirmative evidence to DEFEAT the plaintiff's motion for summary judgment and it is ESSENTIAL that you get such evidence into the record in a timely way.  But I would absolutely NOT prematurely put on evidence in support of a motion to dismiss UNLESS and until it is necessary for you to do this.  READ THE RULES.

What you very much want to AVOID is taking the opposition to school.  These guys ALREADY WENT TO LAW SCHOOL and may have been litigating foreclosures for YEARS.  Why on earth would you want to TEACH THEM how you are going to beat them?

The foreclosure mills are like schoolyard bullies.  They are accustomed to winning in most instances by intimidation.  In years past, upwards of 90% of foreclosure cases were UNOPPOSED.  So these attorneys WON their cases BY DEFAULT when the defendant never answered and even in these cases, they won by putting on perjured, forged and fabricated evidence.  Most of the remaining cases are decided by summary judgment.  There are probably more than a few attorneys working for the foreclosure mills who have NEVER ACTUALLY TRIED A CASE (that is served as an attorney during a regular TRIAL).

IF YOU SHOW THE OPPOSITION THAT YOU KNOW WHAT THEY ARE UP TO AND YOU PUT ON A SPIRITED DEFENSE, THEY WILL TAKE GREATER CARE AND POSSIBLY MAKE FEWER MISTAKES.

You are very possibly BETTER OFF with a somewhat inarticulate answer that RAISES ALL OF THE KEY ISSUES AND DEFENSES, but that does so in a way that doesn't cause the plaintiff's foreclosure mill to say, "Hello, this is going to be a tough case, lets put our best attorney on it and take special care."

Let them give your case file the same ten minutes of preparation that they are devoting to OTHER cases.  Let the attorney show up UNPREPARED and UNFAMILIAR with all of the mistakes that have been made.

*

So my overall reaction is to ease into the case, get some good discovery underway, and to SAVE your evidence for the plaintiff's motion for summary judgment.

Bear in mind that in most places, all it takes for the non-movant to prevail at a summary judgment hearing is to show that there are disputed issues of material fact.  You do NOT have to actually WIN any arguments.  You need only show that the facts are IN DISPUTE.  Again, READ THE RULES and CASES.

If you succeed in defeating the plaintiff's motion for summary judgment, the mortgage servicer is very likely to be looking to settle.  Whether there is some valid basis for a settlement agreeable and affordable to you is UNCLEAR.

There are a LOT of New York cases where the case has been before the court for two or three years.  In many of these instances, particularly in Kings County (Brooklyn), NY, the Justices of the NY Supreme Court have been holding these cases on the docket.  If they DISMISSED these cases, they would be cleaned up and refiled.  But where the Court has DENIED an order of reference (a NY judicial order of foreclosure and the appointment of a "referee" to sell the property at auction), the case simply LANGUISHES and the borrower STAYS IN THE PROPERTY.

Another interesting nuance is that most of the orders DENYING the order of reference in NY are being enterred without prejudice.  This has two consequences.  On the one hand, the plaintiff can come back to court and ASK AGAIN.  But another consequence is that the order is NOT an appealable final order, so the plaintiff CANNOT appeal the denial of relief!

You may be unaware, but in most places, the plaintiff cannot appeal the DENIAL of its motion for summary judgment.  If the motion is DENIED, this decision CANNOT USUALLY BE APPEALED, in large part because the plaintiff still has an opportunity to proceed to trial.  But the grant of a motion of summary judgment is a final appealable order, so that you as defendant CAN appeal a summary judgment granted in favor of the plaintiff.

DEFEATING THE MOTION FOR SUMMARY JUDGMENT SHOULD BE YOUR PRIMARY FOCUS.  BUT YOU NEED TO PRESERVE THE JURISDICTIONAL ISSUES BY PROPERLY AND TIMELY PLEADING THESE.  IN SOME PLACES, THE JURISDICTIONAL ARGUMENT IS DEEMED WAIVED IF IT ISN'T TIMELY MADE.  IN OTHER PLACES, THE JURISDICTIONAL ARGUMENT IS DEEMED TO BE CONSTITUTIONAL, CANNOT BE WAIVED, AND CAN EVEN BE RAISED FOR THE VERY FIRST TIME ON APPEAL.  YOU NEED TO UNDERSTAND THE LAW AND RULES OF YOUR JURISDICTION TO KNOW WHICH IS THE NECESSARY APPROACH!  READ THE LAW AND READ THE RULES.  CONSULT AN EXPERIENCED ATTORNEY IF YOU ARE ABLE TO FIND AND AFFORD ONE.   
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Bill
I've been reading the rules over and over.  I'm kind of suck on this one.  Can anyone expand on the meaning of this rule?  Is this saying they must plead and prove that the plaintiff is a bonafide purchaser???? (If this is their claim)
I for some reason don't under the Answer of Distraint part.


xxx Pleading and proof of contributory negligence, assumed risk, res ipsa loquitur, consideration, bona fide purchaser, matters of judicial notice--Answer of distraint

(A)    Defense of contributory negligence or assumed risk. In all claims alleging negligence the burden of pleading and proving contributory negligence, assumption of risk or incurred risk shall be upon the defendant who may plead such by denial of the allegation.

(B)    Res ipsa loquitur. Res ipsa loquitur or a similar doctrine may be pleaded by alleging generally that the facts connected with the action are unknown to the pleader and are within the knowledge of the opposing party.

(C)    Consideration. When an action or defense is founded upon a written contract or release, lack of consideration for the promise or release is an affirmative defense, and the party asserting lack of it carries the burden of proof.

(D)   Bona fide purchaser. When the rights of a person depend upon his status as a bona fide purchaser for value or upon similar requirements, such status must be pleaded and proved by the person asserting it, but it may be pleaded in general terms. Once it is established that the person has given any required value, unless such value is commercially unreasonable, and that he has met any requirements of recordation, filing, possession, or perfection, the trier of fact must find that such value was given or such perfection was made in accordance with any requirements of good faith, lack of knowledge, or lack of notice unless and until evidence is introduced which would support a finding of its non-existence.

(E)    Presumption--Matters of judicial notice. Neither presumptions of law nor matters of which judicial notice may be taken need be stated in a pleading.

(F)    Property distrained--Sufficient answer. In an action to recover the possession of property distrained while doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good without setting forth the title of such real property.

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Bill,
1.  The Plaintiff who files the foreclosure complaint has the Burden of Proof to
prove its Standing to foreclose.
2. When the Defendant files the Motion to Dismiss the complaint due to Plaintif Lack of Standing, Plaintiff has to provide Proof i.e notes, assignments
in a  Plaintiff Answer to Defendant Motion to Dismiss.
3.  The Motion to Dismiss is a kind of discovery to oblige the Plaintiff to show
documents (if Plaintiff has them). Failure to show documents to prove Standing can be cause to have the complaint dismissed.
4. Most of the time, Plaintiff ignores discovery or provide almost nothing,
even with Defendant's Motion to Compel.  Carefully worded, the Motion to
Dismiss can smoke out the fake documents as Plaintiff scrambles to prove
its Standing.
4.  Be careful of filing Answer with Affirmative Defenses as the Answer will
shift the task of bringing Burdenof Proof to the Defendant. For example,
if the Affirmative Defense is Plaintiff commit Fraud, the Defendant has to
provide the Court the Proof of Fraud.
5.  Unless Defendant is very good at Court procedures, don't go to
Summary Judgment hearing alone. The Defendant will be steamrolled by the system and overwhelmed by the rules.
6.  It is very difficult to reverse a Summary Judgment even by experienced attorney.  In SJ Hearing, written pleading is only half of the game. The Oral argument are the other half and pro se can't beat a lawyer in oral argument.
He will throw so many case law at you that you can't counter attack .
7.  I think the best way for a Pro Se is to file a Motion to Dismiss with a strong Memorandum of Law to get the case dismissed even without Prejudice.  Don't forget the Reporter. Win one battle and prepare for the next if it ever comes.
8. If MTD is denied then file Answer with Affirmative Defenses, serve the Plaintiff with First set of Discovery. Then depose the witnesses.
9. Try to delay the Summary Judgment Hearing as long as possible and save money for a lawyer.  Strike Plaintiff's Affidavits. I would not go to SMJ without a lawyer. It is similar to bench trial.  Few Pro Se wins SMJ as to my knowlege.

Post your e-mail, I'll send you some SJ court transcripts so you can have an idea what's happen in the court room.
Not a legal advice.



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William A. Roper, Jr.
Bill:

First, I want to comment that I am very glad to see Ann weighing in with some alternative perspectives.  Particularly when it comes to strategy and tactics, there is often no single monolithic correct answer.  It is useful to get perspectives of others who have had various different experiences and outcomes from my own.

In reading the Rules, it is helpful to keep a legal dictionary at hand.  The 1856 edition of Bouvier's Law Dictionary is available online at:

http://www.constitution.org/bouv/bouvier.htm

 

Some copyright expired editions of Blacks Law Dictionary, 1st edition (1891) and 2nd edition (1910) are floating around, but these files are much too large to e-mail.  You can find a current edition of Black's Law Dictionary at any law library or university library and at many local libraries.


As you may see from the definition of distrain, it usually has little or no application in a mortgage foreclosure proceeding:

TO DISTRAIN. To take and keep any personal chattel in custody, as a distress. (q. v.)

DISTRAINOR.  One who makes a distress of goods and chattels to enforce some right.

DISTRESS, remedies.  A distress is defined to be, the taking of a personal chattel, without legal process, from the possession of the wrong doer, into the hands of the party grieved, as a pledge for the redress of an injury, the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It is a general rule, that a man who has an entire duty, shall not split the entire sum and distrain for part of it at one time, and part of it at another time.  But if a man seizes for the whole sum that is due him, but mistakes the value of the goods distrained, there is no reason why he should not afterwards complete his execution by making a further seizure. 1 Burr. 589. It is to be observed also, that there is an essential difference between distresses at common law and distresses prescribed by statute. The former are taken nomine penae, (q. v.) as a means of compelling payment; the latter are similar to executions, and are taken as satisfaction for a duty. The former could not be sold the latter might be. Their only similarity is, that both are replevisable. A consequence of this difference is, that averia carucae are distrainable in the latter case, although there be other sufficient distress. 1 Burr. Rep. 588.

2. The remedy by distress to enforce the payment of arrears of rent is so frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable space will be allotted to this article under the following heads: 1. The several kinds of rent for which a distress may be made. 2. The persons who may make it. 3. The goods which may be distrained. 4. The time when a distress may be made. 5. In what place it may be made. 6. The manner of making it, and disposing of the goods distrained. 7. When a distress will be a waiver of a forfeiture of the lease.

. . . [a total of 41 numbered definitions under distress]

From Bouvier's Law Dictionary
Imagine a situation where a landlord brought suit to recover unpaid rent (and possibly for eviction), but had taken some of the tenant's furniture as a self-help remedy.  (This would almost NEVER happen in modern landlord-tenant law, given the robust tenant protections and more strict respect for tenant property rights.)

The point is that a possibly valid defense generally to a suit in your jurisdiction might be that the plaintiff has taken possession of some of your personal property (chattels) which has made the plaintiff whole without respect to the suit and that no judgment (or a lesser judgment) is due. 

*

Whether modern or ancient, you should use a legal dictionary only to obtain the broader understanding of a legal concept.  To understand the law in your jurisdiction, you need to read the statutes and the cases explaining and interpreting that law.

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For Pro Se who is seriously want to win their case, the following book is a Must Read (in my opinion): "Civil Procedure, A Contemporary Approach" by A. Benjamin Spencer. The cost for the used version is about $30 or so in Ebay or used College law Book websites.
The book explains in easy to understand language the process of Civil Procedure Court system, various Motions, Defenses, discovery, trial rules etc.

The Law school uses this book to teach law students Civil Procedure. 
Once a person understands the process, applies it to State Civil Procedure Rules, very much similar.

It is much more effective to defend a lawsuit if the Pro Se know the rules and how to use it. Learn the Court Rules, think like a lawyer and you will have much more chance to win. The Court System provides many options to defend oneself, we just have to learn how to use them. Best wishes




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William A. Roper, Jr.
While I would NOT want to discourage those with sufficient resources to employ an attorney to retain counsel, I would observe that for the literate and intelligent, on a dollar for dollar basis, spending tens or even hundreds of dollars on good, well written law books is going to prove to be more cost effective than dollars spent on an attorney.

This is true even if you retain a good lawyer.

Better understanding of the law yourself can vastly improve your communications with your lawyer.

Moreover, in almost any case, even a knowledgable and well schooled attorney focusing on foreclosure defense is going to have to spend some time to acquaint himself or herself with the facts of your case.  And after first reviewing these facts, the attorney is then going to have to retain the information and distinguish it from all of the similar cases being litigated.

It is very hard for those who are unfamiliar with the law of real estate finance and foreclosure to know precisely WHAT FACTS ARE IMPORTANT.  A good attorney will interview you, obtain the primary documents in your possession and hone in on the critical facts and issues.  Knowing the law yourself helps YOU to understand which facts are important and will assist you in marshalling the evidence in your case for presentation to your attorney.

Similarly, the foreclosure defendant is trying to get up the learning curve about the law, to be a more effective client and partner in the litigation.  Paying the attorney at his hourly rate to teach you about the law is uneconomic.

Recognizing the central role of law in commercial transactions and the business process, most business schools require at least a one semester introductory course in the law.  This is not intended to obviate the need for an attorney in complex transactions, but rather to assist business people in organizing and structuring transactions to avoid litigation, as well as to help a business person as a more informed and effective consumer of legal services.  Someone litigating a foreclosure with the time and intellectual ability to read and master a good legal textbook would almost surely benefit from a similar acquaintance with the law.

Though I am unfamiliar with the title Ann recommends, I would heartily encourage every foreclosure defendant to find one or more academically rigororous books on law and the legal process to buy or borrow from a library and to read for better understanding.  Selecting a text that is actually used in a college level or law school course probably better assures that the book has at least some modicum of academic rigor.   
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The book helps to understand the basic of Civil Court procedures and the flow chart for civil lawsuit . For specific foreclosure defense info and pleadings, visit http://www.foreclosureprose.com.
There are a good collections of legal pleadings and info.
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Gary

Bill:

 

I noticed that Mr. Roper was giving you some advise in this thread a year ago.  Are you the same "Bill" Mr. Roper was advising in 2010?

 

How are you coming with your litigation?

 

Was this advice helpful?

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Bill
Gary wrote:
Bill:

I noticed that Mr. Roper was giving you some advise in this thread a year ago.  Are you the same "Bill" Mr. Roper was advising in 2010?

How are you coming with your litigation?

Was this advice helpful?

It appears that I am the ONLY Bill that is posting with any consistency.  I went through the same growing pains as all Pro Se litigants.  I too WANTED to believe in the "not following the PSA" defense, the "robo-signer" defense, the "invalid assignment by MERS" defense, ect.........I really didn't dip too far into wing-nut land myself, but I did STRETCH quite a few defenses and reached very far on others. 

I DIDN'T understand how to use discovery, or even what GOOD EFFECTIVE discovery was. 

I was fortunate in a lot of areas.

1.    I was SMART enough to listen to others that were more experienced in the foreclosure arena and knew more than me.

2.  I was WILLING to accept the truth and knew where I was at all times rather than believe in some magical defense.  This also allowed me to make a plan and direction for my defense. 

3.  I had time to do a lot of reading and research.  I read several hours a day.  Not just in regards to my jurisdiction, but all jurisdictions.

4.  I had a lot of help.  Some participants at this forum gave me a lot of help and time.  I know I'll never be able to repay these people, but I can never say thank you enough.

5.  I want to and I'm still willing to learn.  You'd be surprised how many people aren't.  That's why I still read this forum, new and old posts daily.

The end result?

By being willing to listen to people like Mr. Roper, people that are more sophisticated, better educated, and honestly trying to help people I've been litigating my foreclosure Pro SE for YEARS with no end in sight. 

I would encourage EVERYONE that is FORCED to litigate Pro Se (it's always better to have an attorney) to read EVERY post by Mr. Roper and heed his words.  If not, that's okay also, maybe you know more than him.  I'd just be looking for a place to rent.  While Mr. Roper is no longer posting here he left a HUGE wealth of knowledge in the archives of this forum.  That is the ONLY reason I'm still here after his departure.  He was a big loss when he left.

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John Lewis

What Bill Said ~ I Ditto it 4x+ ~

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Steve Anderson
True, True, I have gone back and read and reread most of Mr. Roper's posts as well as a lot of forumites with foreclosing wisdom. I wanted to chime in about time spent on my case. I just found out from a source that the lender's attorney spent a lot of time preparing the summons and complaint but almost none since then as he didn't expect anyone to object or defend the lawsuit. Welll, I have spent a lot of long late hours doing my homework and it has been very rewarding in the learning aspect but the court sends me back like 2 sentence responses to my inquiries. It is obvious they don't spend any time on hearing it, so to speak, but would like the matter to just go away.

The legal energy to defend and protect can be daunting, but they have to recognize your efforts eventually. I am confounded by their lack of understanding of all the recent changes and updates esp. in NY law. I mean you aren't even supposed to be able to serve a summons or complaint without proper prior notification. Somehow, the attorneys and the court get around all these statutory issues. I have already found around 20 violations but they don't want to hear it when they are disputed. Finally, isn't there some kind of legal time limit for some of these responses? Oh well, will keep rounding theh learning curve. SA
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George Burns
Maybe it is just me, but, I find it very difficult to understand much of what you post.

You stated "but the court sends me back like 2 sentence responses to my inquiries." I cannot think of any inquiries that are made to a court in a lawsuit. What do you mean by "inquiries"?

You also stated " you aren't even supposed to be able to serve a summons or complaint without proper prior notification". I have never heard of any jurisdiction that requires "prior notification". What form does this "prior notification" take and what jurisdiction has such a requirement?
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He may be speaking to the 90 day notice to cure before the bank can first file a complaint.

Steve what county in NY is your case in if you care to say, mine will be in Suffolk.

Happy New Years anyway................



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ka

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I just found out from a source that the lender's attorney spent a lot of time preparing the summons and complaint but almost none since then as he didn't expect anyone to object or defend the lawsuit.

 

Eurika!

 

Your source is BRILLIANT!  He discovered the critical and obvious dynamic to foreclosure litigation that has been staring you in the face all along.  But still you fail to understand.

 

One fact that is poorly understood and poorly appreciated by foreclosure defendants is that foreclosure mill attorneys typically do foreclosures for a fixed price.

 

This is counter-intuitive, because lawyers almost never work that way in litigation in most areas of the law.  But it has some rather obvious and critically important implications as to time and resources allocated.

 

The foreclosure mills make their money on the volume work, where routine pleadings can be cranked out by a larger constituency of paralegals working with minimal supervision to obtain a very large portion of default judgments.  Even before the robo-signing crisis, the law firms were not staffed or compensated to actually litigate any large volume of these cases when actually defended

 

Since the law firm makes money by litigating undefended cases and these are the cases which require minimal time, there is a natural tendency to favor taking on and completing ten new cases BEFORE applying resources to a single case the is opposed.  The defended case is set aside and languishes.

 

The defended case is picked up periodically and some effort is made, but the effort is not consistent, thorough or well thought out.

 

In better days for the foreclosure mills, this was still often effective for a different reason.  Usually, in a defended case, the borrower would obtain counsel from an inexperienced attorney will little expertise or familiarity with foreclosure.  This attorney would take the borrower's money, usually including a stiff up front retainer.  The defense attorney would throw some poorly conceived defensive pleading into place.

 

The economics of fixed price versus per hourum attorneys can actually work for the lender in this situation.  The foreclosure mill attorneys would crank out a few motions, a little discovery, make some calls to the defendant's attorney, essentially ANY ACTIVITY that caused the defense attorney to spend some time to bill the client and chew up the retainer.  After billing several hours and making a court appearance on the defendant's behalf, the defense attorney then asks the distressed borrower for an additional cash amount for legal fees, with essentially nothing to show for the effort.  The defendant also comes to appreciate that the ineffective attorney is UNLIKELY to prevail and the prospect of advancing more funds against an almost certain loss seems uneconomic.  (The honest but inexperienced defense attorney tells the defendant that the case is hopeless AFTER securing the retainer.)

 

The borrower fails to make further payments and the defense attorney withdraws.  Thereafter, the plaintiff steamrolls the now unrepresented borrower and quickly wins when the defendant misses a filing deadline or fails to make some critical court appearance.  These cases usually quickly ended in summary judgment, when the borrower shows up at the summary judgment proceeding unaware that no testimoney will be taken at the hearing, or even failing to appreciate that the matter will be decided by submission on affidavits and submits no admissible evidence at all.

 

What I am trying to get across, is that the mills were routinely winning these cases not through superior preparation and legal skill, but rather by simply waiting for the defendant's attorney to become bored about not getting paid and then pressing for advantage when the unrepresented borrower made serious mistakes after teh first attorney withdraws.  The plaintiff wasn't winning, the defendant was instead losing.

 

When attorneys are paid by the hour, they have an incentive to devote more time to a case.  When attorneys represent a client for a fixed price, their incentives are distorted and they make the most money by minimizing the amount of time and effort devoted to each case.

 

When a foreclosure case become protracted and the defendant is consistent, what tends to happen is that the foreclosure mill begins to make mistakes, very often many of them.  Drawing the matter out not only keeps you in the house longer, but also contribute to the plaintiff's accumulating errors and an ongoing lack of familiarity with the case.  You are litigating a single case and can readily keep the facts, the filings and various nuances in your head (if you are reasonably intelligent).  Each foreclosure mill attorney is usually litigating upwards of several hundred cases simultaneously, of which your case is only one undifferentiated case.

 

Use this to your advantage!

 

I am dismayed that you are complaining about the amount of time it takes the court to decide motions.  What are you smoking?  It reflects a fundamental disconnect with foreclosure litigation reality.  You are NEVER, EVER in a hurry for the case to be resolved.  Resolution most often means a judgment is taken against you with the lose of your home.  If you are operating under the false premise that even a small fraction of foreclosure cases result in a final dismissal of the action and a total win for the defendant, you have been sorely misled by the swindlers operating other sites.

 

One of the fastest ways to discover the fraudulent nature of the representations of criminals such as Mike H. and Chris Dix is to simply look at their fraudulent claims.  If the assertions of these con men are to be believed, these non-attorneys are responsible for essentially ALL of the successful outcomes nationally which number less than one hundred over the past five years. 

 

This is roughly the equivalent of someone telling you that they hit the megajackpot at the same casino mulitple times.  If someone told you that they had hit a $2 million slots jackpot, you would have reason to be skeptical.  If someone tells you that they are able to do this on every casino visit, there is no reason for skepticism, as yo may be certain that they are LYING.  Probability doesn't work that way.

 

Your GOAL is never to get a sooner decision by the court, but rather to draw things out.  This (a) keeps you in the property rent and payment free for an extended period of time, (b) clouds the plaintiff's memory about the specifics of your case, which must be re-learned with each new motion, hearing or other setting, allows you to slowly and thoughtfully build up a strong defensive case, where your pleadings may go unread and key evidentary points are overlooked (no one is paying the mill to read your pleading so they go unread or if read are forgotten in the muddle of all the other cases), (d) vastly increases the chances of a transfer or sale of servicing rights during the pendency of a case, creating evidentiary problems for the plaintiff (the witnesses who might authenticate documents are no longer employees of the new servicer and plaintiff), (e) vastly increase the chances that an individual attorney or law firm litigating, resigns, is replaced or the case reassigned with another new person picking up in the middle, (f) that there are useful appellate decisions opening new avenues of defense or attack, (g) that the legislature or court system changes the law or the rules to your benefit, and (g) that you might actually get to the statutory limitations period for suits on an unpaid promissory note and that a dismissal without prejudice of the first case is ALL YOU NEED TO WIN.

 

Are you as eager for the contest to begin when you are playing goalie for your local rifle team, while the opposing team is using .50 cal rounds on targets you are going to protect without a vest by interposing your body?

 

You are SO SURE that you have a terrific case that you want the Judge to rule right away?  If this is how you are approaching your case, you are truly an IDIOT.  You need to take a sedative, sit back and learn to ENJOY the rush of glaciers!  Practice fishing.  But to avoid any false comparison at prospects of actually catching a fish, practice fishing in your neighbor's swimming pool.  Learn to enjoy it.

 

As long as no judgment has been taken against you TIME IS YOUR FRIEND in judicial foreclosure states, NOT your enemy.  What's the HURRY?  Do you really crave homelessness that badly?

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I am totally concur with ka on the above post.
One question : Some foreclosure defense attorneys have a different payment formula - They require about $1500 upfront then they require a monthly payment of few hundred dollars as long as they are able to keep the Homeowner in the house (the  monthlypayment is determined by the mortgage amount). The Homeowner can stop the payment anytime then the attorney would withdraw from the case.

What is your opinion about this formula which now has become popular.
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ka
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One question : Some foreclosure defense attorneys have a different payment formula - They require about $1500 upfront then they require a monthly payment of few hundred dollars as long as they are able to keep the Homeowner in the house (the monthly payment is determined by the mortgage amount). The Homeowner can stop the payment anytime then the attorney would withdraw from the case.

What is your opinion about this formula which now has become popular. 


Ann, some businesses, particularly in less affluent communities also have rent-to-own plans for everything from household appliances, furniture, and consumer electronics to tools and equipment.

These are almost uniformly far more expensive than purchasing the very same item for cash at a mainstream store and even more oppressively priced when compared to discount retailers.

The sticker price of the item is usually marked up.  If mainstream stores are charging "suggested retail" and discounters are marking items down, these places are marking items up beyond suggested retail. 

But that is not the only markup.  When one carefully examines the monthly rental price and the amount of each rental payment applied towards the purchase of the premium priced item, one discovers that one is getting hosed a second time on effective finance charges.

It is always far less expensive to (a) defer the purchase and save up to buy the item, (b) to shop around and pay cash, and (c) to shop around for credit.

These rent-to-own arrangements are attractive to those who (a) must have the instant gratification of the purchase without the discipline of savings, (b) who lack convenient transportation and cannot conveniently find their way out of their distressed neighborhood to a reasonably priced convenient store, and (c) those lacking employment or credit necessary to finance a purchase at attractive interest rates from a discount outlet, and (d) those who have only a real need for a short term rental.  These merchants also prey upon idiots, some of whom fall into these categories, but idiots will sometimes overpay even when attractive alternatives exist.

One could beat one's breast and declare that all of these rent-to-own locations should be shut down, since they are almost all total rip-offs, not unlike payday lenders.  But for those with inferior credit, no steady income and/or lacking in transportation, the alternative (usually a better one) is foregoing the purchase.

Distressed borrowers would almost always save a great deal of money by paying a good foreclosure defense attorney an upfront retainer and then paying per hourum for work actually done.  But for those who cannot even afford the attorney's retainer, the smaller up front fee, coupled with a fixed monthly amount may be the only means of obtaining legal representation at all.  While these arrangements, like rent-to-own stores, should therefore usually be avoided, they seem to serve a useful function.   
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ka
Ann, one thing about the described arrangement which still has much to recommend it is that it better aligns the attorneys' interest with the interests of the borrower, at least up to a point.

When payments are structured in this way, the attorney has a very real incentive to keep the borrower in his or her home. 

By contrast, when payments are made by an up front retainer, the attorney has the borrower's money and can profit even by doing nothing at all.  The attorney gets paid even if the attorney files no pleadings or ineffective pleadings with the retainer arrangement.  And the chances of recovering any money through a malpractice action is negligible of worse.

The trouble with this incentive is that for some borrowers with negative equity, other assets, good employment and income and other steady cash flow or opportunity, it may be better to let the property go.  As long as the foreclosure litigation persists, the borrower's credit is likely to remain impaired.  A short sale or deed in lieu puts the distress at least somewhat behind the borrower.

Even for borrowers without good income, there may be reasons to give back the property and move on.  Suppose, for example, that one has a marketable skill in high demand in another region, state or munipality, but finds oneself in a deeply depressed job market with an upside down mortgage (e.g. Nevada).  Employment might still be readily found in another place with a better job market (e.g. Texas).  Is it better to stay in the property unemployed and fight to the death, or to give the property up and move on?  Contrast this situation with an unskilled, elderly person with health issues.

The pay as you go legal plans give the attorneys an incentive to draw the matter out, but do NOT give the attorneys a good incentive to settle.  Borrowers who could benefit from settling or just giving up the property and moving on should probably avoid these pay as you go arrangements, which are poorly structured to yield the ideal result for the borrower.
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Unregistered

Bill seemed to be first learning about discovery from Mr. Roper in this thread from a little more than a year ago.  Maybe Bill can tell us how his discovery is going now.

 

Were you able to get the responses you needed?

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Steve Anderson
Jack, well my county is Delaware in NY. I know all about the 90 day prior notification, but I have been hammered on this knowledge in a lot of posts and even by the plaintiff's attorney, who said, I was not a borrower, mortgagor, or homeowner as I am just the heir and executor of an estate. 

I have some new information for anyone needing some new updates on NY property laws. I was filing for my S.T.A.R. program, that alleviates NY school taxes in my district. I took it in to my local assessor and we chatted and she said, "if you are a trustee or beneficiary in an estate", then you are considered owners according to NY Law. I said, wow, Thank You, Thank You, and told her I had been researching this concept for 4 months. Then she directed me to the proper authorities and I have one of my affirmative defenses solidified.

Finally, and this is really by accident. I just found out that as a tenant in the house, I am protected by more NY Real Property Laws than the aforementioned borrowers, mortgagors and homeowners, strange, eh. Anyway, I didn't purposefully mean to rehijack this thread, but just wanted to add my sacrificial offering. Please don't attack but accept my humble news, SA
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Unregistered

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I have some new information for anyone needing some new updates on NY property laws. I was filing for my S.T.A.R. program, that alleviates NY school taxes in my district. I took it in to my local assessor and we chatted and she said, "if you are a trustee or beneficiary in an estate", then you are considered owners according to NY Law. I said, wow, Thank You, Thank You, and told her I had been researching this concept for 4 months. Then she directed me to the proper authorities and I have one of my affirmative defenses solidified.

 

Well, Duh!  That is what Forum contributors were telling you all along.

 

You didn't listen and everyone got bored when they perceived that you were endangering all of the other heirs by your irresponsible behavior.

 

There is little doubt that tenants have many rights in New York State.  It is also true that the other heirs will have an open and shut slam dunk case against you for breach of fiduciary duty when you have extinguished the equity in the property by litigating and enjoying the personal use of the property rather than selling the property and realizing the equity for the benefit of all the heirs. 

 

Your selfishness is really quite unbelievable.  I hope that your fellow heirs realize your deceit and tortious behavior and bring the action you are inviting.

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John Lewis
The actual purpose of this thread is not SA as his "... selfishness is really quite unbelievable." but a question to a respect contributor of this forum ~ Bill ~ so to that end, I too would like to know:


"Bill seemed to be first learning about discovery from Mr. Roper in this thread from a little more than a year ago. Maybe Bill can tell us how his discovery is going now.

Were you able to get the responses you needed?"
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Unregistered
What are good questions to asked in discovery? My lawyer has his lined up but he told if I had any questions to let him know. I have been reading this post and it seems that these questions should be asked in a way the does not help the plaintiff out. My lawyer has experienced in this but I would like to hear from others to have more options.  Mr. Roper, KA and J Lewis have of great help and made some very statements in this and other post. I hope to hear from them.  I have been on this forum for the last nine months. I am not all that experienced in some of these matters but I come here just about every day to read and learn.
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t

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What are good questions to asked in discovery? My lawyer has his lined up but he told if I had any questions to let him know. I have been reading this post and it seems that these questions should be asked in a way the does not help the plaintiff out. My lawyer has experienced in this but I would like to hear from others to have more options. Mr. Roper, KA and J Lewis have of great help and made some very statements in this and other post. I hope to hear from them. I have been on this forum for the last nine months. I am not all that experienced in some of these matters but I come here just about every day to read and learn.

 

You really ought to e-mail Mr. Roper about discovery issues.  He is unquestionably the master in this area!

 

I understand that Mr. Roper's discovery questions to MERS in his own litigation resulted in some incredible judicial admissions totally gutting the plaintiff's case.

 

Mr. Roper is clearly the premier national expert when it comes to MERS! 

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Ziobeo
Yup..... I really agree to your post. Please click on the link below if you want to be aware about each and every law related with the case of Power of Attorney.

Power of Attorney

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J

Bill, ur commentary is missed!

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