Question to Bill, or Georg e:
When the assignment states: ...."together with the Note or other evidence of indebtedness (the Note)......" is this a valid assignment of the Note as well? In Florida the possestion of the Original Note is what is required to prof of standing in foreclosure.
So should this assignment of mortgage and the note even matter?
Also, should it be attacked with a motion to strike?
You need to begin with a strategy. As has been discussed by Mr. Roper within other threads, whether to embrace the assignment or attack the assignment is almost wholly dependent upon whether the assignment is dated before or after the commencement of the suit.
While negotiation requires indorsement and delivery one of the key reasons that foreclosure mill law firms have been forging assignments is to create false evidence of negotiation. It is precisely this sort of wording which has been identified as having memorialized a valid negotiation. Some court cases have found that this language constitutes a valid assignment of the note as well as the mortgage, while other cases seem to have found that it reflects that such a negotiation took place.
If the assignment is dated AFTER the commencement of the suit the LAST THING you want to do in an initial suit is attack the assignment. Similarly, very often the plaintiff has attached an unindorsed copy of the note to the complaint. You can immediately call the plaintiff's attention to this defect OR you can wait and use this defensively at the critical time.
Generally, in an answer you do not want to get particularly specific about the evidence that you intend to use in defense. Usually all that is required is to put the plaintiff generally on notice as to the argument that you are using defensively.
WHAT IS REQUIRED VARIES FROM STATE TO STATE DEPENDING UPON THE RULES. THIS IS WHY IT IS A GOOD IDEA TO GET A LAWYER.
In most places, it would be enough in an answer to simply deny that the plaintiff was the owner or the holder at commencement without setting forth the evidence that you intended to to use to prove that this was the case.
In a summary judgment defense, you will have to both get more specific, as well as actually marshal the defensive evidence at your disposal. But when you do this, you will be taking the plaintiff to school about the defects in its case and they can then FIX THESE DEFECTS.
One thing that pro se defendants often fail to understand is that a judge can give a plaintiff more than one opportunity at summary judgment. That is, you can BEAT the plaintiff in opposing a motion for summary judgment and then the plaintiff can back off, repair its case and file a new motion for summary judgment.
Generally, you want to hold the motion for summary judgment off as long as possible, but when the hearing is going to take place, it is often in a defendant's interest to also file a cross motion for defensive summary judgment and to schedule that for hearing at the same time.
Beating the plaintiff's motion for summary judgment keeps a defendant from losing. Winning a defensive motion WINS the case.
Even here, the strategy is tricky. If you beat the plaintiff on standing, the dismissal is without prejudice and a plaintiff will refile. Getting the case dismissed sooner is therefore problematic. It may be better to wait for trial rather than getting the case dismissed sooner.
Which is the better strategy depends upon the temperment of the judge, the state of discovery and nuances of the Rules and cases on the Rules well beyond the scope of this post.
For example, suppose that you have conducted some very effective discovery and have the plaintiff fairly well boxed in. Further suppose that you have a singularly strong defensive case and a very fair and balanced judge.
In this case, you might want to simply defeat the plaintiff's motion and wait for a trial. Because the plaintiff usually has to bring live witnesses for trial and trials are time consuming, this may delay the matter for another six months or a year.
By contrast, if you have a hostile judge, very little in the way of useful discovery and are at peril of losing the case on summary judgment, the cross-motion for defensive summary judgment may be much better, because it can end the case and put you back at square one. Also, if you lose the case in a summary judgment and it goes up on appeal, you can get the appellate court to not only reverse, but also dismiss.
Faced with a hostile judge who might give the plaintiff a lot of latitude to repair its case, why take the chances.
George and others have emphasized that you really need to get a lawyer. While there are some Forum participants who have schooled themselves up and have interposed effective defensive strategies, this has been far more successful when (a) the defendant is very bright and has some initial acquaintance with the law, (b) the defendant has a LOT of time on their hands (e.g. is unemployed), (c) the defendant BEGINS EARLY and has a year or more to prepare.
By contrast, in most cases where a new participant appears weeks before a summary judgment hearing and TRIES to get up to speed, usually it turns out that ALL EFFORTS TO ASSIST SUCH A BORROWER TURN OUT TO BE A WASTE OF TIME, BECAUSE THE BORROWER FAILS TO APPRECIATE DETAILS AND NUANCES NECESSARY TO THE DEFENSE AND QUICKLY LOSES THE CASE BY FAILING TO FOLLOW THE RULES.
Well represented borrowers most often ultimately lose their foreclosure cases. Pro se defendants most often lose even faster and fail to preserve issues for appeal. You questions give me little encouragement that you are coming up to speed fast enough. YOU NEED TO GET A LAWYER BEFORE IT IS TOO LATE.