Mortgage Servicing Fraud
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Anyway, can I  ask for a Motion to Dismiss the Case with Prejudice inside the Answer, or separate, as in our county in NY, you have to pay to file a Motion, $45, and send it out with an affidavit. See, this is the kind of info that gets mixed up with defending your foreclosure. You have to know the exact procedures to follow and the proper order. Also, how do you send out interrogatories to the opposing counsel? Don't you have to have permission to do this? I am asking these questions as there is not set way to proceed as each case is different, but if you follow one that has produced results, then that is the one to take. I will await some counsel, before I begin rehashing the Motion or Answer I have been working on for 2 months.

I could file a Motion to Dismss for Insufficiency of Process first? I mean, I know for a fact that it gives you more time with this option, esp. since I have all the information that none of us ever received RPAPL 1304 notices, can't believe they didn't send them out, that is standard procedure. Any attorneys out there reading this thread, "you have to send out the RPAPL 1304 notices and their accompanying warnings, 90 days before a foreclosure summons can be sent out or delivered, hello". You know what, I have discovered even more errors since then. Those RPAPL 1304 notices have to file with the New York State Banking Department, 3 days afterwards. My credit union, a little birdie told me, never heard of that even. I believe what has happened is, a lot of attorneys, don't know about the new updates in the RPAPL, RESPA, and the Dodd-Frank Act changes.

Well, please get back to me in this thread asap as I have to iron out all the wrinkles in my Answer or Motion this weekend. If someone has had success with either format, also please explain so I can make up my mind about which avenue to proceed down, thanks for helping, DR

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Bill
You need to read the local rules in your jurisdiction.  That is the simple answer.  They will explain what you can and cannot do. 

I have never seen a motion to dismiss as part of an answer.  Usually you would file your motion to dismiss and await a decision on this PRIOR to your answer.  You could answer and then file a motion to dismiss, but these are NOT combined.

In most jurisdictions once you have answered the complaint a party may move for Summary Judgment.  The quicker you answer the quicker you will move things along which is NOT going to benefit you.  The more time you have the more you can work on your case and do research. 

Having outstanding discovery usually will prevent the court from granting SJ in most jurisdictions.  You need to read the rules and they will explain when and how to serve discovery.  In my jurisdiction I can serve discovery 10 days after the complaint is filed.  No one will tell you to serve discovery.  If you don't know the rules and fail to serve discovery in the time provided this will usually result in a waiver of discovery.  You can't wait until a week before a SJ hearing to start discovery, the judge won't be amused. 

Read the local rules!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I'm not an attorney, this isn't legal advice...............
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HI, thanks Bill, I can see now that a Motion to Dismiss should come first, as I was counseled on it again, early this evening.

You keep saying read the local rules for my jurisdiction. I have asked a few people about that and they don't know how to go about it at all. Where do you go, the county court area. I admit that would be great. If you came to my little county court here in NY state, you would say, whoa, there is no place to find this out. There are three small areas, one for Surrogate Court, one for the clerk of the County Court, who just take money for RJI and Motions etc. and, of course, the Supreme Court, with 2 clerks who really do all the work kindof like nurses in a hospital in relation to the doctors. In fact, the acting Supreme Court judge is pretty much the only one who rules in this area.

Anyway, serving discovery sounds interesting, so must look into that more. However, don't know how to go about that, either. Well, will await the decision for a time extension, which is already up a long time ago, but have the Motion in the background ready to be moved upon. Thanks for the assistance, keep the info coming in, Derrick
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Bill

Derrick Richards wrote:
HI, thanks Bill, I can see now that a Motion to Dismiss should come first, as I was counseled on it again, early this evening.

You keep saying read the local rules for my jurisdiction. I have asked a few people about that and they don't know how to go about it at all. Where do you go, the county court area. I admit that would be great. If you came to my little county court here in NY state, you would say, whoa, there is no place to find this out. There are three small areas, one for Surrogate Court, one for the clerk of the County Court, who just take money for RJI and Motions etc. and, of course, the Supreme Court, with 2 clerks who really do all the work kindof like nurses in a hospital in relation to the doctors. In fact, the acting Supreme Court judge is pretty much the only one who rules in this area.

Anyway, serving discovery sounds interesting, so must look into that more. However, don't know how to go about that, either. Well, will await the decision for a time extension, which is already up a long time ago, but have the Motion in the background ready to be moved upon. Thanks for the assistance, keep the info coming in, Derrick

Derrick,

When we discuss local jurisdiction we are referring to the local rules for the state you are in.  There may be some small nuances imposed by the local courthouse/trial court but ALL the rules are available on line.

http://codes.lp.findlaw.com/nycode/CVP

It appears the rules governing discovery are Incorporated in Article 31: Disclosure.

To be successful you have to read and understand these rules.  Then read them again to make sure you understand them.

You will also need to look up and read the cases for the jurisdiction in NY that you are in which will give you a better understanding of how to APPLY these rules. 

This is a lot of work.  An attorney goes to school for years to learn these and how they are used.  You don't have that kind of time.  You need to really focus and apply yourself to be successful.  IF you fail to follow the rules, you will not even have a chance to prevail, and things will end poorly for you.

While it is overwhelming at first, many of us have done it.  Don't give up.

I'm not an attorney and this isn't legal advice.....



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Angelo
DR

This is not legal advice, as I am not an attorney......

First off, In NYS their is manditory settlement conferences once an RJI is filed.  Depending on how big/busy your county court is, it could take months, if not year to proceed to judgement. 

You have 20-30 days to respond to a summons and complaint depending on how service was obtained on you.  IMHO the best play is to file a motion to dismiss first, you wouldn't need to file an answer YET, but you would also need to file an RJI too, as the banks attorney's don't usually file the RJI until you default in answering the complaint. If the MTD is denied, you them get 20 days to answer the complaint. 

Furthermore, If you are basing your MTD on a condition precedent, I would look up the threads about that topic from william roper, which you might find VERY helpful.
Also, there was a great NY appealate decision during the summer that is KEY to your problem!
Here is the link to that decision:

http://www.nycourts.gov/reporter/3dseries/2011/2011_04184.htm

Hope this helps, good luck
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Thanks Bill and Angelo for the excellent responses. I do want to find out more about the local, or NY rules but they don't seem to pertain that much to my case, though they keep the legalities in line.

I do realize now, that the Motion to Dismiss path is the best avenue to take, though I entertained the Answer route for awhile, but now know that I can answer later if need be, though I believe that when the lender's attorney realizes that the RPAPL 1304 notices have to be sent out first and, to all the defendants as that,now famous, legal precedent, esp. in NY, there will be possible dismissal until other action is taken.

I wanted to tell you about what happened quickly when I went to pay my request to start the process, you know, the RJI. I had to filel the motion then for an extension of time and I think there was a check needed for setting up a mandatory settlement conference but the Motion took precedent, hehe, had to type that. So, they have to offer me that option, right, will the judge intercede in this setting up? I am asking because perhaps there is something else I have to do.

I will begin making my motion more solidified, just wish I knew when I should make that move, as this whole timing issue is mostly where I get off track. All the parties involved make up their mind at the last minute, always changing and rearranging things, and I know for a fact there are timelines. The plaintiff's attorney and even the court, have done this quite a bit already. Well, appreciate all your assistance, any more thought, just keep sending them in, with the saving the house cards and letters, hehe, have to have a sense of humor, gratefully, DR


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Angelo
DR

I'm a little lost, did you file anything yet, becuase your questions seem to indicate that you haven't yet.  But your responce leads me to believe that you have already made some moves.

Secondly, local and NY rules always apply to your case!!!
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George Burns
Derrick

I am totally confused by what you have posted, for example, you state that "when I went to pay my request to start the process". What "process" are you starting? What was the fee for?

You initially indicated that you were served the Complaint and wanted to file a Motion to Dismiss etc but you have later indicated that many other things have happened because you just posted that "always changing and rearranging things, and I know for a fact there are timelines. The plaintiff's attorney and even the court, have done this quite a bit already." I do not understand what they could have done when your time to answer the Complaint is still open.

Overall, nothing you have posted makes much sense.
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Nothing makes sense, well, actually, that is what I am trying to prove. Why all these procedures need to be followed, which I didn't know anything about and am trying to figure out, i.e. there are too many factors influencing each other in the decision-making.

When I mentioned the RJI, everyone in this forum, should know what that is, that is the first thing you have to file when you defend your foreclosure, DUH, if noone had to do this, then I apologise for the last comment, but I know that is the way it is handled in almost every state. How they can make you pay for defending something that you didn't bring up, is what doesn't make sense.

The judge will be looking at my Motion for an Extension of Time tomorrow. See, he will be just like all those who read this thread when all the papers are perused by him. He will have to look at it, cook it, cut it up, chew on it, digest it and try to rule in like 3 days, when he has no idea of why the credit union is trying to foreclose on a house being lived in by the son whose MOM died a year ago, and he has lived in the home the past 30 years.

Back to the topic, the next move will be a Motion to Dismiss for Insufficiency of Process. Has anyone done that before, if so, please assist, if not, then head on to the next thread. If you have filed an Answer with a grounds for dismissal due to insufficient process or service of process, then please admit anything you know about this procedure, if not, move on to the next thread also. OK, thanks for any wisdom that you have added to my understanding of foreclosure defense, DR
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Bill

Derrick Richards wrote:
Nothing makes sense, well, actually, that is what I am trying to prove. Why all these procedures need to be followed, which I didn't know anything about and am trying to figure out, i.e. there are too many factors influencing each other in the decision-making.

When I mentioned the RJI, everyone in this forum, should know what that is, that is the first thing you have to file when you defend your foreclosure, DUH, if noone had to do this, then I apologise for the last comment, but I know that is the way it is handled in almost every state. How they can make you pay for defending something that you didn't bring up, is what doesn't make sense.

The judge will be looking at my Motion for an Extension of Time tomorrow. See, he will be just like all those who read this thread when all the papers are perused by him. He will have to look at it, cook it, cut it up, chew on it, digest it and try to rule in like 3 days, when he has no idea of why the credit union is trying to foreclose on a house being lived in by the son whose MOM died a year ago, and he has lived in the home the past 30 years.

Back to the topic, the next move will be a Motion to Dismiss for Insufficiency of Process. Has anyone done that before, if so, please assist, if not, then head on to the next thread. If you have filed an Answer with a grounds for dismissal due to insufficient process or service of process, then please admit anything you know about this procedure, if not, move on to the next thread also. OK, thanks for any wisdom that you have added to my understanding of foreclosure defense, DR

I'm not an attorney and this isn't legal advice..........

I am going to have to agree with Angelo and George, what you are posting shows a total misunderstanding of what is going on and the entire legal process. 

If you feel that the rules don't apply to your case, for any reason, you are going to be very disappointed in the results of your case.  The Plaintiff WILL FOLLOW THE RULES, and your failure to follow the rules and procedure will result in a waiver of issues.  May Pro Se litigants are very upset because they got a negative decision from the Courts even with very robust defenses.  Most of the time it's because they don't know the rules and follow them or read the case law. 

You seem to be very confused about WHAT can be grounds for a motion to dismiss, what a defense is, and what an affirmative defense is. 

You plan on now filing a motion to dismiss for Insufficiency of Process???  You are going to go to the judge and say you were not served the complaint????  Even though you have an enlargement of time pending before the judge????????  REALLY????????????      That makes no sense at all. 

Fail to read the case law and rules at your own peril.


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Well, I have read the case laws and still don't see why, for example, the plaintiff's attorney is sending all these documents to the court for the time extension motion. I talked to an attorney and he has no idea why he is doing it either. The only thing that he must be trying to do, is get the judge to somehow rule in his favor early on about something, lilke you have hinted at, that I know nothing about.

I will just file my Motion to Dismiss this Tuesday, and see where it takes me. I am finding out, they do have to look at every motion and if they rule against me, I will then submit my Answer. This is the way, most foreclosures travel in their procedural path, so why everyone is saying that I am getting them all mixed up, must have gone about it very differently, somehow.

After drawing up the Motion and showing it to a few people, the only feedback was ,that it was very truthful but not filled with all that legal jargon, but laced with Federal and New York laws that the lender and their attorney failed to follow in their preforeclosure timing. Thanks for helping, must get back to the movment, DER
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I think the opposite Attorney is preparing the ground for the battle. During the lawsuit you and the other attorneys can file whatever is beneficial for each side.

My guess is that at the Hearing for Motion for Time Extension, the Judge will give you few days or few weeks extension . Then you can file the MTD.

Don't get too excited about your Motion to Dismiss, it has 89% chance to be denied. It will be a miracle if it is granted, even Without Prejudice.Put in it as many case law or Appeal Court Opinion favorable to your cause you can find.  

I hope you are starting to look for a good attorney to represent you before you make many legal mistakes that no attorney will accept to represent you.
The Answer to the Lawsuit is a critical document, it lays the foundation for future defensive strategies. If you still want to do it yourself, read carefully how other foreclosure defense lawyers word their pleadings.

You should at least hire a lawyer when the Bank serves you with Motion for Summary Judgment. The hearing for this Motion is a bench trial. Lost this hearing you could lose your house. It is nearly impossible to reverse the Summary Judgment . An experienced foreclosure defense lawyer will carefull lay the foundation to the trial so good that the Bank lawyers often cancel the MSJ hearing.
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Derrick Richards
Thanks Ann, you have been very helpful and your comments and directives very beneficial. I am just asking some of these questions and inquiring so I can be better prepared and prepped for later proceedings.

I do have a minor askance that is bothering me some. How can an attorney who is handling a foreclosure for a lender afford the time to tend to the case after it has entered foreclosure? I mean, I have spent, like around 8 hours a day, a few days a week, working on my defense and it is coming around thanks to all those in this forum and on other places around the Net and here in my small town.

The reason I ask, is, regardless of his expertise, there is no way that he is privilege to all that I have discovered in my search and research. I see, that a lot of people on this forum are a bit perturbed with my responses, but often they are just frustration with the justice process or the procedures that are engaged in defending my foreclosure.

I don't believe some of my inquiries are that difficult to fathom, but perhaps I will be afforded some wisdom, with the defending. I keep running into legal snags like using federal laws in state courts, stuff like that, but will keep persevering. Thanks for the listening ear and the assisting. DR
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Lawyers has lots of legal assistance from their Paralegal, Legal secretaries etc and sometimes they hire other attorneys to help in their offices. Plus they have experience in the subject  

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