For example, if the plaintiff admits in its responses that it is not in possession of the original note at commencement of the suit, one could successfully argue that it lacks standing. However, if it goes ahead and attaches to the complaint a "true and exact" copy of the alleged note with only the originating lender's indorsement in blank, then later in discovery provides a second copy with additional undated indorsements from a lender out of business years before the suit, would it be wise for the defendant to move for summary judgment (or some other motion ??) to get a final court determination about fraud on the court, filing and recording false documents, slander of title, etc?
Are homeowners missing an opportunity for an effective counterpunch by not aggressively seeking the court's decision about the plaintiff's filing sworn false documents?
Your post reflects a misunderstanding not only of the law, but also of the processes actually used in most judicial foreclosures. I would encourage you to review some of Mr. Roper's older posts on this. Also study the pleadings in other foreclosure cases in your jurisdiction.
You describe the filing of different documents as fraud on the court.
Most complaints are unsworn. When the plaintiff attaches a copy of the note, sans indorsements, this is usually a judicial admission that the note was unindorsed on the date the complaint was filed. But the plaintiff is not swearing to anything.
Mr. Roper has posted about how exhibits to complaints are considered part of the complaint, control the allegations in the complaint and are judicial admissions in most places.
If it turns out that the plaintiff attached an incorrect copy to the pleadings, there is nothing either fraudulent or criminal about this, even if it was deliberate. This is so, because the complaint is unsworn.
Mr. Roper has presented defendants with a fantastic avenue to defeat the plaintiff with its own evidence.
It is not necessary to prove any fraud in order to get the court to dismiss for lack of standing. Using Mr. Roper's suggested argument, the defendant merely points out that the attachment of the unindorsed copy is a judicial admission that the note was unindorsed at commencement and it is game over. IT DOES NOT MATTER WHETHER THE NOTE WAS INDORSED LATER.
Now, very often when the plaintiff realizes that a defendant is contesting its holdership and standing, the plaintiff will very often file with the court another copy of the note that contains indorsements missing from the original copy. In many places, this is done by filing something along the lines of a "notice of filing of promissory note", but without amending the complaint. (In many jurisdictions, a plaintiff must seek court permission to amend the complaint.)
Very often, this notice of filing is also unverified. No one will swear to the authenticity of this new copy or even the original. Rather, it is merely presented.
Most defendants are too ignorant to object or object too early or too late.
Unless the plaintiff amended its complaint, the copy attached to the complaint usually still controls in most places. But the plaintiff's attorney will focus the court's attention on the newly filed copy.
Most defendant's never make Mr. Roper's suggested argument about judicial admission as to exhibits, even though appellate courts in many states have already ruled that Mr. Roper is correct.
Since the notice used to furnish the new copy of the note is also unsworn, still no fraud on the court has occured (UNLESS you can prove that the indorsements are forgeries).
Usually, contested foreclosures are decided at summary judgment. A third copy of the note will then usually be attached to the motion for summary judgment. For the very first time, the plaintiff will furnish a sworn affidavit which will authenticate the new copy of the note. The affidavit will omit any mention of the indorsements, will neglect to address of explain the discrepancy as to the prior copy and will not discuss when or where the note was indorsed.
Instead, the affidavit will include the conclusory averment that "The plaintiff is the owner or the holder [without specifying which] of the note." (See Mr. Roper's discussion of conclusory affidavits.)
Since the prior two copies were unsworn and the new copy is authenticated in as evasive a way possible, WHERE IS THE FRAUD?
You need to GET OVER your fixation of trying to prove fraud, at least in the first outing. Instead, ALL YOU USUALLY NEED TO DO IS ARGUE THAT THE ORIGINAL COPY OF THE NOTE FILED WITH THE COMPLAINT IS A JUDICIAL ADMISSION THAT THE NOTE WAS NOT INDORSED AT COMENCEMENT. THEN YOU WIN THE STANDING ARGUMENT.
If you are litigating a second time after an initial dismissal, you would want to focus on attacking the negotiation. But you are never going to prove any fraud on the court in respect of documents attached to unsworn pleadings.
You need to get the plaintiff to answer sworn interrogatories or OBJECT the the admissibility of the exhibits without sworn authentication and force the plaintiff to SWEAR TO THINGS.
YOU DO NOT WANT TO DO THIS IN RESPECT OF THE UNSWORN EXHIBITS ATTACHED TO A COMPLAINT. THIS IS A SHORTCUT TO LOSING WHEN THE EXHIBIT IS A NOTE THAT LACKS INDORSEMENT. WHY WOULD YOU WANT TO EXCLUDE AN EXHIBIT THAT WINS THE CASE FOR YOU?