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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Hi All

I hope everyone had a Great Holiday.

Today I received the plaintiffs response to my admissions.

Here goes.

1- P objects to D request for admissions to the extent that it requests P to take a position on the genuineness of a document that P has not prepared. In such instances, P is in no position to make an admission on the " genuineness" of a document except to say that P has seen the document before. In such cases, P does not admit to the truth of any statements made is such documents. P reserves its rights to contest any and all statements made in any document  produced by P that were not prepared by P. P further reserves its rights to assert the defense of hearsay to any such documents.

2- P objects to the D request for admissions to the extent D request require P to admit to a certain interpretation of the law or of P's compliance with it or to the extent that it requires a legal conclusion on material issues.

3- P based its responses on the assumption that D's, in propounding their request, did not intend to seek(i) information protected against discovery by the attorney-client privilege, joint defense/common interest privilege, and/or the work product privilege, afforded under the common law and/or under NJ rules of Court.

4- These General Objections and Reservation of Rights apply to both portions of D's Request for admissions including those regarding the genuineness of a document and those regarding the admissions of facts.

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PlAINTIFF'S RESPONSE TO D'S REQUEST FOR ADMISSIONS
------------------------------------------------------------

The Plaintiff Objected to each and every Request with the following statement.

Objection. These request for admissions have been served by you upon the Plaintiff and it is therefore inappropriate to directly Query Plaintiff's counsel. Furthermore, Plaintiff is represented by the attorney's of XXXX not solely Mr.???


I actual wonder if my error in querying plaintiff counsel will get my hearing rescheduled,postponed for a later date? This is getting interesting.

Opinions and comments are most welcome.

Best regards and Happy Holiday's

Acesfull




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Hi All

The word Query is not listed in Black's Law Dictionary. Does that fact mean Query is not a legal term?

Let me give a couple examples of my admissions request to the plaintiff.

Mr.XXX counsel for plaintiff the docket number for this case is XXXX

Admit   Deny

Mr. XXX counsel for plaintiff the mortgage note is recorded in the County Clerks Office.

Admit   Deny

TIA for comments and replies.

Acesfull


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ka
acesfull: 

Your post is somewhat incohent and suggests that you did fairly little in the way of research in preparing and serving discovery.  If anything, this seems to be an example as to WHY a defendant needs to seek the services of a competent attorney with both litigation experience and experience in foreclosure defense.

Usually, a defendant has only a very limited opportunity to engage in discovery.  The pro se litigant will also find that foreclosure mills routinely engage in discovery abuse, even when discovery questions are thoughfully and properly framed and served in accordance with the rules.

When, as with your questions, you are out in left field, the foreclosure mill is going to chew you up and spit you out.

When you ask foolish, ill thought out and inarticulate questions, the plaintiff is going to make you look like a FOOL!

You give two examples of questions posed:

Quote:
Mr.XXX counsel for plaintiff the docket number for this case is XXXX

Admit Deny

Mr. XXX counsel for plaintiff the mortgage note is recorded in the County Clerks Office.

Admit Deny


I have NO IDEA what you are trying to ask, because these questions are themselves nonsensical.

The first of these questions, might be valid if phrased simply:

"The docket number for this case is XXXX."

But what is the POINT of the question.  This hardly seems to be something that would be necessary to get the Plaintiff to admit.  To the contrary, it seems to be a COMPLETE WASTE of the Plaintiff's and the Court's time.

If the purpose is to lull the Plaintiff into a sense of complacency by coming across as a complete idiot, then this is possibly successful.  You certainly have me convinced!

So when the Plaintiff fails to respond, objects, or otherwise makes an issue, IF you take this to the Court, YOU APPEAR TO THE COURT TO BE A FOOL!  What is the value in that?  It invites the court to disregard your defenses and even to prematurely truncate an inquiry into other discovery abuse.

YOU NEED TO FOCUS!

Similarly, the latter question might be reframed:

"The mortgage note is recorded in the County Clerks Office."

But even that is pretty incoherent.  The promissory note is the instrument which evidences the indebtedness.  The mortgage is a security instrument that secures the repayment of the note. 

The mortgage is usually recorded.  The note is NOT recorded.

There is no such thing as a "mortgage note" and the NOTE is NOT recorded.  So even removing the surplusage regarding the attorney, the statement is incoherent and makes the defendant appear to be an IDIOT.

Perhaps a better formulation would be something like:

"The mortgage security instrument forming the basis for the Plaintiff's foreclosure action was recorded on mmm dd, yyyy, at Book nnn, Page mmm."

But even this better formulation of the question rather fundamentally BEGS the question as to WHY a defendant would be seeking to PROVE UP the Plaintiff's case.  Establishing the authenticity of the note and mortgage is the Plaintiff's burden.  Using discovery to AUGMENT the authenticity by seemingly showing that the instrument was properly recorded seems to be similar to Cleon Little's strategy as Sheriff inthe movie Blazing Saddles of pointing a gun at himself and threatening to kill the Sheriff if the crowd failed to cooperate.  Are you trying to prove that even if the plaintiff cannot make out a prima facia case against you that you can do it yourself?

Why are you trying to use discovery to help the Plaintiff WIN?  Duh?

*

As a Defendant, your job is NOT to lead the Court to the TRUE facts of your case.  To the contrary, your chore is to PREVENT the Plaintiff from proving its case.  Sometimes this is accomplished by KEEPING FACTS OUT OF EVIDENCE.  If you are able to prevent the Plaintiff from properly proving its case, YOU WIN.  You might not need to prove anything at all.

Instead of doing this, you seem to be trying to HELP YOUR OPPONENT OUT, albeit with inarticulate and poorly worded questions.

*

In most jurisdictions, Courts tend to be very keenly attuned to preserving attorney-client privilege.  As soon as you begin to INQUIRE as to things that the attorney says or does, you are INVITING the Plaintiff to invoke attorney client-privilege.

If you ask a question, whether as an interrogatory, request for production or request for admission that seems to intrude on attorney-client privilege, the Plaintiff is likely to Object. 

So in framing ANY QUESTION, you need to ask yourself whether the wording introduces the Plaintiff to interpose a valid Objection.

*

You have expended time and powder asking USELESS questions.   It is UNCLEAR whether you will be given another opportunity.

Perhaps you found these questions on the back of a cereal box.  Maybe  they were suggested to you by some of the pond scum that masquerades as non-attorney experts being 'helpful' to borrowers, while actually victimizing the distressed by SELLING material or poor or uneven quality to the unsuspecting.

I WOULD NOT EXPECT ANY COURT TO BE PARTICULARLY SYMPATHETIC TO A REQUEST FOR MORE TIME AS A CONSEQUENCE OF YOUR ILL CONCEIVED DISCOVERY.  YOUR BEST COURSE IS TO FIND A CAPABLE ATTORNEY RIGHT AWAY.  A GOOD ATTORNEY MIGHT STILL BE ABLE TO SAVE YOU FROM THE DISASTER YOU HAVE CREATED BY POORLY THOUGHT OUT AND ILL CONCEIVED QUESTIONS!

The Plaintiff's attorneys probably had a good laugh at your expense.  You can either suck it up and take corrective action or watch as your case implodes.

Hopefully, your other pleadings are not similarly incoherent.

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Bill
It is really hard to comment on the objections without seeing the questions.

I would note, the Plaintiff's attorney is NOT a party to the lawsuit.  Why would you address ANY discovery to the Plaintiff's attorney?  All discovery requests should be addressed and directed to a PARTY.



Quote:

Let me give a couple examples of my admissions request to the plaintiff.

Mr.XXX counsel for plaintiff the docket number for this case is XXXX

Admit   Deny

Mr. XXX counsel for plaintiff the mortgage note is recorded in the County Clerks Office.

Admit   Deny




If you did use questions similar to the ones above I think it shows a LACK of understanding of the local rules concerning discovery.  You really need to read the rules until you understand them.  These are NOT open to your interpretation.  If a rules says you can serve discovery UPON a PARTY that is what it means.  You can look for definitions or cases that explain what a PARTY is if you do not understand but I'm sure it doesn't include the attorney representing the Plaintiff.  You may be able to serve discovery on a NON-PARTY but there will be certain conditions and requirements (you may have to serve the opposing side the discovery in advance so they can quash your subpoena or other discovery). 

Because you deliver discovery to the Plaintiff's attorney does NOT mean you should address it to them or you would even WANT them to answer.  To the contrary, you would want things like interrogatories answered UNDER OATH by the Plaintiff so they have the optimum opportunity to perjure themselves.  You want the party answering questions to make these assertions as someone with personal knowledge of the facts.  Most of the time the Plaintiff's counsel does NOT have personal knowledge of many facts in a case. 

Another observation would be if you used these questions, you are wasting your discovery which could be limited by the rules.  I can NOT see any benefit to any of the questions you posted, or how they can help in ANY case. 

If you ask pointless questions that have NO direction, you are begging the Plaintiff to go to the Judge and ask for a protective order from your frivolous discovery. 

Read the rules again (and again) so you understand the discovery process, make out a plan on what you are going to ask in discovery and how it is going to help your case, then make a focused, well written, discovery request that you can take to a judge to compel the Plaintiff to answer or decide the objections. 

Are you really going to ask a judge to COMPEL the Plaintiff to answer under oath questions about the docket number??  While you would NOT ask the judge to compel answers on admissions (you would usually ask the judge to decide the objections), I hope the rest of your request was more focused, properly addressed to the Plaintiff, and think you really need to revisit your request. 

 I'm not an attorney, this isn't legal advice.................
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I totally agree with Ka and Bill. Especially the following point:
...As a Defendant, your job is NOT to lead the Court to the TRUE facts of your case. To the contrary, your chore is to PREVENT the Plaintiff from proving its case. Sometimes this is accomplished by KEEPING FACTS OUT OF EVIDENCE. If you are able to prevent the Plaintiff from properly proving its case, YOU WIN. You might not need to prove anything at all.

Here are some discovery samples written by attorneys :
http://www.scribd.com/doc/36654410/Foreclosure-New-York-Discovery?in_collection=3011898

http://www.scribd.com/my_document_collections/3011898
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HungarianProse

I am looking for a "request for production if documents"  specifically regarding the Note. Any documents pertaining the endorsement and delivery of the note. Like to have something short and to the point.

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John Lewis
Not sure you really want to get this into evidence, but you asked sooo at your own peril:

http://www.jdsupra.com/post/documentViewer.aspx?fid=9d972e77-580d-491e-99f9-c27b41a1fca3
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HungarianProse

Thanks John.....

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Bill
HungarianProse wrote:

I am looking for a "request for production if documents"  specifically regarding the Note. Any documents pertaining the endorsement and delivery of the note. Like to have something short and to the point.


This is REALLY the WORST example of a request for production I have ever seen for a pro se.  (Nothing Personal John)

This kind of request is going to yield NOTHING except a protection order that bars further discovery requests.  100 requests for production that will produce THOUSANDS of pages is going to be oppressive, costly, and over-burdensome.  No way around it.  In my discovery I have NOT asked for more that 5 things be produced at a time (thanks Mr. Roper).  It is VERY easy for the courts to rule on a motion to compel with only 5 requests and very difficult to find valid objections.    After they answer I'll submit 5 more.  (in reality, I'm not even requesting 5)

I would suggest that you go to the Court House and obtain some discovery request from FL.  (brevard county has their documents online)  They I would suggest you only lift a few questions from these requests.  You can and possibly SHOULD use several smaller, well written, focused, requests.

I also think you are making tactical mistakes.  It may be a good time to read a few posts on discovery here.  

1.  You need to have a plan and focus your discovery on answers and documents that support your position.  We're not fishing.  You should have a defense laid out and know what supports this defense.

2.  You are looking for the Plaintiff to produce documents that HELP THEM and HURT YOU.  

3.  As a pro se in foreclosure you really aren't going to want them to produce a whole lot.  Can you really tell me what they can produce that helps you????  I personally think foreclosure discovery should be HEAVY on Interrogatories and Admissions and only ask for the production of documents you NEED.  

I agree that the request John posted was prepared by an attorney.  This attorney will argue the motion to compel.  You are NOT an attorney.  You need to make things a little more simple so you have a more simple argument to make.  

I'm not an attorney and this shouldn't be considered legal advice......Just a few thoughts to really consider.
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Bill
John Lewis wrote:
Not sure you really want to get this into evidence, but you asked sooo at your own peril:

http://www.jdsupra.com/post/documentViewer.aspx?fid=9d972e77-580d-491e-99f9-c27b41a1fca3

I'd also like to note, John too feels this is NOT stuff you want in evidence or to have the Plaintiff produce.  My post was not an attack on John's comments, just the example.
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John Lewis

HungarianProse

First, and foremost, I strongly implore you to follow Bill's advice.

re Florida visit Gingo Law's website it offers alternative strategies for each discovery mechanism.

and let me reiterate Bill's advice, outline exactly the purpose behind your discovery, then review each of the 3 methods of discovery at Gingo and chose only those that fit your game plan.  and follow this procedure for each 'game plan' separately.

http://gingolaw.com/default.aspx

ps:  use the 'search' here ie search term discovery interrogatory etc there is a wealth of info available.

also, i would suggest that you download the info from gingo law, print it out, highlight what you like, then when it comes time to finalized your actual request just copy and paste.


 
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HungarianProse

What i am looking for any documents that pertains the transfer and endorsement of the note. When and how the Note got to the plaintiff. The rest is meaningless as we can see in the recent DCA cases. (Duke,McLean,Fetus) in Florida.

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Bill
HungarianProse wrote:

What i am looking for any documents that pertains the transfer and endorsement of the note. When and how the Note got to the plaintiff. The rest is meaningless as we can see in the recent DCA cases. (Duke,McLean,Fetus) in Florida.


I'm not quite sure you are understand what John and I are saying.  

These documents are PROVING THE PLAINTIFF'S CASE.  They may not even be aware these documents exist.  You are "taking the opposition to school" as Mr. Roper use to put it.  You are showing the Plaintiff the flaws in their case and what they need to fix it.  You want the Plaintiff to PROVE how and when they got the note.  You may be far better off boxing the Plaintiff into a position using admissions and interrogatories FIRST then only asking for a document like this when it conflicts with their UNDER OATH responses.    
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Bill
HungarianProse wrote:

What i am looking for any documents that pertains the transfer and endorsement of the note. When and how the Note got to the plaintiff. The rest is meaningless as we can see in the recent DCA cases. (Duke,McLean,Fetus) in Florida.


I also think you need to make sure you really thought out your defense.  If the Plaintiff is the "holder" of the note (read the UCC) they can enforce the note.  "When" is a lot more important then "how" (read the UCC).  You really would want the Plaintiff to PROVE the "when" or at least box them into a "when" before you should even THINK about asking for these things.  You really risk proving that they are the holder and proving their case for them.  
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Bill

§ 3-301.  PERSON ENTITLED TO ENFORCE INSTRUMENT.

"Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d)A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

http://www.law.cornell.edu/ucc/3/article3.htm


While all the facts are important and have implications, "how" they got the note is not as important as "when" they got the note because even if they are not the owner or are in "wrongful possession" they can enforce the note.  You can't enforce the note if you don't/didn't have the note at a certain time.  Someone else would be the "holder"



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John Lewis
http://scholar.google.com/scholar_case?case=18107412727357923549&q=authenticated+note+mortgage+assignment&hl=en&as_sdt=4,10


"The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action." Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank & Trust Co. v. Lord, 851 So.2d 790, 791 (Fla. 4th DCA 2003). Moreover, if the note does not name the plaintiff as the payee, the note must bear a special indorsement in favor of the plaintiff or a blank indorsement. Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So.2d 708 (Fla. 5th DCA 2006).


Guiseppe SERVEDIO a/k/a Joseph Servedio, Appellant,
v.
US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee.

No. 4D10-1898.

District Court of Appeal of Florida, Fourth District.

October 27, 2010.

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Texas
Maybe one should inquire as to what kind of note exists in relationship to public records.

Is it a Secured Note where the Secured Party can be identified in accordance to local laws of jurisdiction or an Unsecured Note?
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Manny

Quote:
What i am looking for any documents that pertains the transfer and endorsement of the note. When and how the Note got to the plaintiff. The rest is meaningless as we can see in the recent DCA cases. (Duke,McLean,Fetus) in Florida. 
 

 

Bill really laid this out for you.  Why do you want to find documents to help the plaintiff prove its case?  The plaintiff has the burden of proof on this point.

 

Why not let the plaintiff prove its case and focus on assailing the plaintiff's allegations and proof?

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