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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Frank, Brad, JL

Frank:

Today at 04:43 PM

Reply with quote

#17


Maybe the discussion on pleading special matters belongs in its own thread.

Today at 03:09 AM

Reply with quote

#12


In some states, any denial of indorsement or assignment is also subject to special pleading rules. In a few places such a denial must come in the form of a verified answer or the issue is waived.

Seeking to attack a judgment through a collateral attack on an indorsement, allonge or assignment years after a judgment is entered is totally useless and will never succeed.

 

 

Today at 04:21 PM

Reply with quote

#14


Quote:

Could one elaborate on "..subject to special pleading rules. & how does one determine if their jurisdiction "such denial must come in the form of a verified answer or the issue is waived."

Under the Federal Rules, pleading special matters falls under Rule 9:

http://www.law.cornell.edu/rules/frcp/rule_9

One would usually begin one's inquiry by looking at a State's Rules of Civil Procedure at the state equivalent of Rule 9.

Take a look, for example at Indiana's Rules of Trial Practice, focusing on Rules 9, 9.1 and 9.2:

http://www.in.gov/judiciary/rules/trial_proc/index.html#_Toc313019770

Perhaps Walt has some other examples.

READ THE RULES! READ THE RULES! READ THE RULES!

 

Today at 04:23 PM

Reply with quote

#15


Maybe everyone at the Forum could consult their state's Rules and post whether there are special provisions for pleading endorsement and assignment!

 

Today at 04:35 PM

Reply with quote

#16


Florida: Rule 1.120 -

The Florida Rules of Civil Procedure

1.120 Pleading Special Matters

This rule was published to the web on Sunday, 25 October 2009

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally.

(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, a judicial or quasijudicial tribunal, or a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.

 

Quote 0 0
J

READ THE RULES! READ THE RULES! READ THE RULES!

Quote 0 0
Chris

The Rule in Texas is found in Rule 93:

 

RULE 93. CERTAIN PLEAS TO BE VERIFIED
A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

 

1. That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.

 

2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.

 

3. That there is another suit pending in this State between the same parties involving the same claim.

 

4. That there is a defect of parties, plaintiff or defendant.

 

5. A denial of partnership as alleged in any pleading as to any party to the suit.

 

6. That any party alleged in any pleading to be a corporation is not incorporated as alleged.

 

7. Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed.  Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it states that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority.  In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.

 

8. A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved.  The denial required by this subdivision of the rule may be made upon information and belief.

 

9. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.

 

10. A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit.

 

11. That a contract sued upon is usurious.  Unless such plea is filed, no evidence of usurious interest as a defense shall be received.

 

12. That notice and proof of loss or claim for damage has not been given as alleged.  Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted.  A denial of such notice or such proof shall be made specifically and with particularity.

 

13. In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

 

(a) Notice of injury.
(b) Claim for Compensation.
(c) Award of the Board.
(d) Notice of intention not to abide by the award of the Board.
(e) Filing of suit to set aside the award.
(f) That the insurance company alleged to have been the carrier of the workers' compensation insurance at the time of the alleged injury was in fact the carrier thereof.
(g) That there was good cause for not filing claim with the Industrial Accident Board within the one year period provided by statute.
(h) Wage rate.

 

A denial of any of the matters set forth in subdivisions (a) or (g) of paragraph 13 may be made on information and belief.

 

Any such denial may be made in original or amended pleadings; but if in amended pleadings the same must be filed not less than seven days before the case proceeds to trial.  In case of such denial the things so denied shall not be presumed to be true, and if essential to the case of the party alleging them, must be proved.

 

14. That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.


15. In the trial of any case brought against an automobile insurance company by an insured under the provisions of an insurance policy in force providing protection against uninsured motorists, an allegation that the insured has complied with all the terms of the policy as a condition precedent to bringing the suit shall be presumed to be true unless denied by verified pleadings which may be upon information and belief.

 

16. Any other matter required by statute to be pleaded under oath.

 

I have highlighted in bold those provisions which might be a defense in a judicial foreclosure action.  Most foreclosures in Texas are non-judicial foreclosures by a private right of sale set forth within the deed of trust.

 

Quote 0 0
J

author: should read: Walt, Frank, Brad, JL, since Walt actually initiate the Topic! 

Quote 0 0
Brad

Since everyone else is posting the full text, I will elaborate my prior post:

 

Quote:

Under the Federal Rules, pleading special matters falls under Rule 9:

http://www.law.cornell.edu/rules/frcp/rule_9

One would usually begin one's inquiry by looking at a State's Rules of Civil Procedure at the state equivalent of Rule 9.

Take a look, for example at Indiana's Rules of Trial Practice, focusing on Rules 9, 9.1 and 9.2:

http://www.in.gov/judiciary/rules/trial_proc/index.html#_Toc313019770

Perhaps Walt has some other examples.

READ THE RULES! READ THE RULES! READ THE RULES!

 

 

See http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1272848370&postcount=14 

 

Indiana's Rules of Trial Practice, Rules 9, 9.1 and 9.2:

 

Rule 9. Pleading special matters

(A)   Capacity.  It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organization that is made a party. The burden of proving lack of such capacity, authority, or legal existence shall be upon the person asserting lack of it, and shall be pleaded as an affirmative defense.

 

(B)   Fraud, mistake, condition of the mind.  In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be specifically averred. Malice, intent, knowledge, and other conditions of mind may be averred generally.

 

(C)   Conditions precedent.  In pleading the performance or occurrence of promissory or non-promissory conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed, have occurred, or have been excused. A denial of performance or occurrence shall be made specifically and with particularity, and a denial of excuse generally.

 

(D)  Official document or act.  In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

 

(E)   Judgment.  In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

 

(F)   Time and place.  For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. However, time and place need be stated only with such specificity as will enable the opposing party to prepare his defense.

 

(G)  Special damages--Damages where no answer.  When items of special damage are claimed, they shall be specifically stated. The relief granted to the plaintiff, if there be no answer, cannot exceed the relief demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the facts or matters pleaded.

 

Rule 9.1. 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.

 

Rule 9.2. Pleading and proof of written instruments

(A)   When instrument or copy, or an Affidavit of Debt must be filed.  When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.  When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached.

 

(B)   Proof of execution of instruments filed with pleadings.  When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution.

 

(C)   Oath or affidavit of denial of execution must be made upon personal knowledge.  An oath or affidavit denying execution as required and made under subdivision (B) of this rule shall be made upon the personal knowledge of the person making it, and, if general in form (Rule 11(B)), shall be deemed to be made upon such personal knowledge.

 

(D)  Burden of proving execution.  The ultimate burden of proving the execution of a written instrument is upon the party claiming its validity, but execution is presumed. “Presumed” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

 

(E)   Inspection of the original instrument.  When a copy of a written instrument is filed with or copied in the pleadings under the provisions of this rule, the pleader shall permit inspection of the original unless it is alleged that the original is lost, whether by destruction, theft or otherwise, or unless it is alleged or established that the instrument is in the possession of another person and out of the control of the pleader or that the duty to allow inspection is otherwise excused. The pleader shall allow inspection promptly upon request of a party, and inspection may be ordered by the court upon motion without a hearing at any time. A party failing to comply with such request or such order shall be subject to the provisions of Rule 37(B). This provision shall not diminish a party’s rights under Rules 26 through 38.

 

(F)   Effect of non-compliance--Amendments.  Non-compliance with the provisions of this rule requiring a written instrument or an Affidavit of Debt to be included with the pleading may be raised by the first responsive pleading or prior motion of a party. The court, in its sound discretion, may order compliance, the reasons for non-compliance to be added to the pleadings, or allow the action to continue without further pleading. Amendments to correct the omission of a required written instrument, an assignment or indorsement thereof, the omission of a denial of the execution of a written instrument as permitted or required by this rule, or an Affidavit of Debt shall be governed by Rule 15, except as provided by subdivision (A) of this rule.

 

(G)  Exceptions--Infants, incompetents, dead and insolvent persons.  The requirement of this rule that execution of a written instrument be denied under oath or otherwise, shall not apply against a party who is not required to file a responsive pleading, or against a party who, at the time the responsive pleading is due or before the pleadings are closed, is or becomes dead, an infant or adjudicated incompetent or is the representative of such person or of a person who is dead, an infant, an adjudicated incompetent, or in insolvency proceedings. Such parties shall be deemed to have denied execution or admissibility without any responsive pleading or denial. The presumption of execution as provided in subdivision (D) of this rule shall not apply to establish execution of a written instrument by a person who, at the time proof is required, is dead, an infant or adjudicated incompetent.

 

(H)  “Execution” of a written instrument.  “Execution” of a written instrument includes the following requirements:

 

(1)    That a signature was made with express, implied or apparent authority and was not forged;

(2)    That the instrument was properly delivered, including any requisite intent that it be effective;

(3)    That the written terms of the instrument have not been materially altered without the express, implied or apparent authority of the person bound thereon;

(4)    That the person seeking its enforcement is in possession of the instrument when required; and

(5)    That the names or identity of the persons named in the instrument are correct.

 

(I)    “Written instrument”:  When pleading is founded thereon--When pleading is not founded thereon term includes documents. When a pleading is founded upon a written instrument, any written indorsement or assignment of rights thereof upon which the pleader’s title depends is included in the term “written instrument.”

http://www.in.gov/judiciary/rules/trial_proc/index.html#_Toc313019770

Quote 0 0
Ellen

Quote:
author: should read: Walt, Frank, Brad, JL, since Walt actually initiate the Topic!

 

Walt is pretty sharp to know about these arcane provisions of the law!

 

Thanks to all for the examples.

Quote 0 0
Write a reply...