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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That phrase, taken from other post within this forum, just struck me.

and then I saw the complaint that says:
"the plaintiff is existing under the Laws of United States..."
my plaintiff is one of those soup letters: (xxbank, as trustee under pooling and servicing agreement...etc"

then I thought that an elegant way to dismiss the plaintiff is to
prove that the trust does not exist anymore

and I read somewhere that a lot of these trustees they no longer exist, or
at least they do not function as supposed to be.  But I do not remember where I saw that.        If somebody can direct me to the right location, would be great help

I mean:"can I prove that the trustee does not exist?"  where to start to investigate
if plaintiff exist as of today?

or my reasoning would not accepted in the court for "X" reason

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Bill

I am not an attorney and this is not legal advice............


The existence of the trust can be an interesting argument.  Not because the trust doesn't exist, but because most of the time the Plaintiff's unauthenticated, unexecuted, COPIES of documents purporting to create and transfer assets into a trust are not admissible as EVIDENCE in court UNLESS the defendant does not object when they are offered. 

Challenging the existence usually would fall under a lack of capacity to sue argument.

I really do think this is where your argument goes astray:

Quote:

I mean:"can I prove that the trustee does not exist?"  where to start to investigate if plaintiff exist as of today?



As your post suggests "it is not what you know, it's what you can prove".  Which ever party is asserting a fact or position has the burden of proof.  The existence/creation of the trust as well as the transfer of assets to the trust is the Plaintiff's assertion.  THEY have the burden of proof.  At no time would I want to relieve them of this burden and attempt to prove "the trust doesn't exist".  You have an obligation to raise the question before the court and let the Plaintiff PROVE these facts. 

This is the importance of keeping the UNAUTHENTICATED, UNEXECUTED, COPIES of the PSA and other trust documents OUT of evidence.  Without this inadmissible evidence, it is very difficult for the Plaintiff to prove ANYTHING.  If you fail to object to the offering of this evidence, it will be admitted into evidence and you are on the fast track to a foreclosure judgment.  Even worse, would be a defendant foolish enough to enter these documents into evidence themselves essentially handing the Plaintiff the football at the 1 yard line.

A good place to start would be researching case law in your jurisdiction on Capacity.  Often the local rules may have requirements to challenge capacity, such as it must be done at the commencement or in your answer.

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"This is the importance of keeping the UNAUTHENTICATED, UNEXECUTED, COPIES of the PSA and other trust documents OUT of evidence."

pardon my ignorance, but what are the unauthenticated, unexecuted copies
of the PSA Aand other trust documents out of evidence?
I know  what is the PSA. , but I need more light in the unauthenticated unexceuted
thing.      also, when you refer to "evidence", you are talking about the proof that
could submitte the defendandt, right?
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So, what you are saying is that as soon as plaintiff try to submitt ANY evidence,
I will start objecting.

and if I don't raise an objection, any evidence will be deemed accepted.

I will object...based on  what...? 

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Bill

culpa lata wrote:
So, what you are saying is that as soon as plaintiff try to submit ANY evidence,
I will start objecting.

and if I don't raise an objection, any evidence will be deemed accepted.

The simple answer really is "YES", you should be objecting to ANYTHING the Plaintiff tries to introduce.  You should also be objecting to any improper arguments ie.  the opposing counsel is attempting to "testify" to facts not in the record while they are unsworn and do not have personal knowledge.

Here are some common objections to give you an idea.  I do not endorse the site, I'm merely posting this because it does show SOME COMMON objections and a few will apply to foreclosure. 

http://juryargument.homestead.com/objections.html

Quote:
I will object...based on  what...? 


As far as evidence, it would seem that you should be able to look up case law in your jurisdiction and learn what a Prima Facie case of foreclosure would be.  This is what they will need to prove and introduce into the record. 

1.  The note

2.  The mortgage

3.  An assignment

4.  Payment records

5.  Any documents that show they are the owner/holder and can enforce the note

This would be common things I could think of off the top of my head.  My suggestion would be to start searching for objections to the introduction of these one at a time.  Research what the common objections are.  For some things there may not really be a valid objection, but you should try to find one whether over-ruled or not.

This is a HUGE PITFALL for a Pro Se litigant.  If you do not KNOW AND UNDERSTAND the local rules and rules of evidence in your jurisdiction a trained attorney will eat you alive.  You will fail to object and allow inadmissible evidence into the record.  A sure way to a quick defeat. 

This is just as much work as drafting pleadings and researching case law.

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


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I can not thank you enough.

this is an "eye opener" for me, unbelievable.  thank you.

As far as evidence, it would seem that you should be able to look up case law in your jurisdiction and learn
 what a Prima Facie case of foreclosure would be

So, in order to "lookup case laws" I will go to the local law library, and ask
about the "transcript of the rulings" (*I don't know what I'm talking about*) of
foreclosure cases,  or ask the clerk that I want to see samples of how to object
in a possible trial...something like that right?

"prima facie" I will find out

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William A. Roper, Jr.
Quote:
culpa lata said:
So, in order to "lookup case laws" I will go to the local law library, and ask
about the "transcript of the rulings" (*I don't know what I'm talking about*) of
foreclosure cases, or ask the clerk that I want to see samples of how to object
in a possible trial...something like that right?


Going to a good law library is a TERRIFIC IDEA.  But there is a LOT that can be learned from online sources.

There are two prior threads that offer some specific research suggestions. 

 

"Some Online Legal Resources for Those on a Tight Budget (or Not)" [08/01/07 at 06:43 PM]

http://ssgoldstar.websitetoolbox.com/post?id=2060046

 

"Online Sources of Law" [11/17/10 at 01:36 AM]

http://ssgoldstar.websitetoolbox.com/post?id=4974639


Frankly, I FORGOT that I had posted the first thread and started a new thread on roughly the same topic.

*

Other excellent research suggestions can be found throughout other threads.

*

Finding and reading a good book on legal research or legal writing would also be a good idea.  But you will need to balance various approachs depending upon time, resources and ability.  IF YOU HAVE AN URGENT ISSUE, IT IS ALWAYS A GOOD IDEA TO CONSULT A QUALIFIED ATTORNEY.  This is a good idea even if you do NOT think that the matter is urgent.
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Is definitive:  I surely will donate / support this site when I got better financial shape!
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Angelo

I know that i'm not an attorney but I trying to learn all I can about the practice of law for my own knowledge.  Does anybody know how to object to purported evidence that the plaintiff tries to pass along in pleadings in NY because there aren't any hearing to verbally object to like in a courtroom.  Do you have to file a motion to.....???

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William A. Roper, Jr.

Quote:
Angelo said:

I know that i'm not an attorney but I trying to learn all I can about the practice of law for my own knowledge.  Does anybody know how to object to purported evidence that the plaintiff tries to pass along in pleadings in NY because there aren't any hearing to verbally object to like in a courtroom.  Do you have to file a motion to.....???


I would encourage you to block out some time and go to a good NY law library and find a good book on New York evidentiary issues.  It will be more efficient to learn this from a good book on the subject than to try to piece things together through cases.

*

That having been said, generally what appears in pleadings are allegations.  Allegations are usually NOT proof.

Usually, in most places, the allegations in the complaint or petition are contested in the defendant's answer.  Rules vary considerably from place to place as to what is necessary in an answer.

In some places, one can simply "generally deny" the allegations.

In other places, one has to specifically respond to each of the plaintiff's allegations.

Even in places where a general denial is permitted, certain pleas or defenses have to be specifically raised and sometimes even have to be raised in a verified (sworn) response.

IT IS VERY HARD TO GET UP TO SPEED ON THE LAW IN THE TIME REQUIRED TO FILE AN INITIAL ANSWER.  This is one very good reason to seek out and employ an attorney.

*

Separate from the complaint/petition and answer, the parties sometimes file motions.

The two most common motions by a foreclosure plaintiff are probably a motion for default, when a defendant fails to answer, and a motion for summary judgment.

Usually, the plaintiff is required to put on its proof in support of these motions.  In a motion for default, though, many courts do not even really look at the proof.  The borrower who fails to answer is going to usually have a default judgment taken against him.

In a summary judgment setting things are somewhat different.  The plaintiff is usually required to show that there are NO DISPUTES AS TO FACTS as to the central elements of the case.

The Rules of the jurisdiction will specify what proof may be considered in a motion for summary judgment, but usually ONLY affidavits and discovery responses are accepted as evidence.

Sometimes there is no hearing on a motion.  In many places, this is called deciding by submission.  This can be very disorienting for a pro se litigant.  In many instances, the pro se defendant shows up at the summary judgment hearing thinking that he or she will be allowed to testify as to their understanding of the facts, only to learn that no testimony is taken at summary judgment hearings.

All of the evidence needs to be presented by affidavit or in the form of discovery responses IN ADVANCE OF the hearing.

Having the court decide by submission isn't really a BAD THING.  One really sharp attorney I know thinks that decisions by submission are usually BETTER for the pro se defendant, because the defendant can deliberately prepare all of the material and submit it in writing.  He thinks that pro se litigants are more likely to get tripped up at hearing.

NO ONE AT THIS FORUM CAN TEACH YOU ENOUGH NY EVIDENTIARY LAW.  YOU NEED TO GO TO THE LIBRARY AND READ UP ON THE TOPIC!!
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Bill
Bill wrote:

So, what you are saying is that as soon as plaintiff try to submit ANY evidence,

The simple answer really is "YES", you should be objecting to ANYTHING the Plaintiff tries to introduce.  You should also be objecting to any improper arguments ie.  the opposing counsel is attempting to "testify" to facts not in the record while they are unsworn and do not have personal knowledge.

Here are some common objections to give you an idea.  I do not endorse the site, I'm merely posting this because it does show SOME COMMON objections and a few will apply to foreclosure. 

http://juryargument.homestead.com/objections.html

Quote:
I will object...based on  what...? 


This is an article I found when I began researching representing yourself Pro Se.  I am not familiar with the author of this article.  While the cases cited apply ONLY to Texas, I found that if I search case law in my jurisdiction for the POINTS made in the article they did mirror Texas law.  This can help Pro Se litigants to start to get prepared to face a Plaintiff in court, but is not legal advice.


http://www.scribd.com/doc/56802810/Texas-Evidence-Complete

I would enjoy any comments by Mr. Roper or anyone else familiar with Texas Law and litigation in Texas.
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