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
William A. Roper, Jr. Show full post »
ka

Quote:
You seem to have challenged a vastly superior teams with larger, well trained and experienced players to a game of football, betting your mother's house on the outcome.  In your arrogance and ignorance, you also spotted the superior team four touchdowns (advising the lender of your mother's death and then filing the Will and initiating probate).

Now, you seem to be running towards the wrong goal post, by pursuing a motion to dismiss! 

 

t,

 

This is an excellent analogy Steve doesn't seem to have any coherent vision or strategy for his case.  He is just flailing around and probably making his situation far worse!

 

But I think you possibly vastly understate Steve's problem in suggesting that he has spotted the bank four touchdowns.  He may have spotted the bank seven or more touchdowns!

 

While you are right to point out the error associated with coaching the lender as to the fact of the decedent's death, as well as the identities of the other heirs, recall that Mr. Roper has repeatedly reminded New York litigants that in NY the standing defense needs to be raised in the first responsive pleading:

 

Standing and Jurisdiction Is Dependent Upon the Facts At the Commencement of the Suit

http://ssgoldstar.websitetoolbox.com/post/Standing-and-Jurisdiction-Is-Dependent-Upon-the-Facts-At-the-Commencement-of-the-Suit-5335771

 

NYS Caselaw-mortgage co out of business

http://ssgoldstar.websitetoolbox.com/post/NYS-Caselawmortgage-co-out-of-business-5332746

 

There are other similar warnings, which can be found in searches.  NY case law has been very clear on this.

 

But also see:

 

Waived Standing? Maybe Not!

 

 

If Steve simply plucked some draft or form MTD off of the Internet without reading and studying New York law, he may very well have filed the MTD without noting the plaintiff's lack of standing.  In New York State, this would probably waive the issue.

 

If the MTD included the standing issue, then Steve is seeking a premature determination of standing instead of simply letting the case languish.  If Steve omitted the standing defense, he probably already waived this issue.

 

I am totally unfamiliar with New York law and any specific reason WHY the RPAPL issues would need to be raised by MTD rather than simply as a special defense in the answer.  Perhaps there is a valid reason to do this.

 

More likely, Steve just read about this on the Internet and decided he wanted to be cool and use a MTD that might have been useful in some other place, though I am aware of NO CIRCUMSTANCE where a borrower would EVER benefit from a sooner dismissal if the matter could also be raised in the answer and determined later.

 

Filing a MTD might also be a strategy employed by a really amateur foreclosure defense attorney who fails to appreciate that just letting the case stagnate on the docket is almost always better.  Of course, the attorney has the borrower's retainer and most borrowers are probably foolish enough to think that a quick dismissal is a success rather than recognizing that this is actually a colossal blunder.  The attorney keeps the retainer and does minimal work, the borrower thinks that he has succeeded when he actually got screwed and the defense attorney avoids any real work!  On refiling, the attorney asks for a new retainer and doubles his profit, even though he has speeded the loss of the borrower's home. 

 

WHILE STEVE WOULD PROBABLY BE BETTER OFF IN MOST PLACES FILING A STRONG ANSWER AND WITHDRAWING HIS MTD, THIS WOULD PROBABLY BE ESPECIALLY TRUE IF HE FAILED TO PLEAD STANDING.

 

The foreclosure mills are sufficiently lazy and disorganized that the chance of interposing the answer to include standing would probably be quite good.  An answer, followed by the withdrawal of the MTD and cancellation of the hearing is probably BEST, but this is something that Steve should definitely discuss with a capable New York attorney skilled in foreclosure matters.  

Quote 0 0
Steve Anderson
This evening I had someone whom I trust explicably read a few of the forumites posts regarding some threads I had started. He said, my inquiries seemed plausible enough but could not figure out why the respondents were bringing such animosity to their accounts of what had transpired, was occurring and might happen in the future. I agree and object to the treatment, SA


Quote 0 0
Archer
I found this case in the Third Circuit which seems to show that a plaintiff bears the burden of proof for conditions precedent:

Mellon Bank, NA v. Aetna Business Credit, 619 F. 2d 1001 - Court of Appeals, 3rd Circuit 1980

Can I use this case in a New Jersey foreclosure?  (I think maybe NJ is in the Third Circuit.)
Quote 0 0
arrgy
People on this forum make this so complicated. In my state of South Carolina, it is very easy, the court has said numerous times:

A condition precedent entails something that is essential to a right of action, as opposed to a condition subsequent, which is something relied upon to modify or defeat the action. In contract law, the term connotes any fact other than the lapse of time, which, unless excused, must exist or occur before a duty of immediate performance arises. The question of whether a provision in a contract constitutes a condition precedent is a question of construction dependent on the intent of the parties to be gathered from the language they employ.

Worley v. Yarborough Ford, Inc., 317 S.C. 206, 210, 452 S.E.2d 622, 624 (Ct. App. 1994) (internal citations and quotation marks omitted).  Generally, "a condition precedent may not be implied when it might have been provided for by the express agreement."  Id. at 210, 452 S.E.2d at 625.


So, in my state its like a checklist before they can foreclose.
Quote 0 0
Eric
Quote:
I found this case in the Third Circuit which seems to show that a plaintiff bears the burden of proof for conditions precedent:

Mellon Bank, NA v. Aetna Business Credit, 619 F. 2d 1001 - Court of Appeals, 3rd Circuit 1980

Can I use this case in a New Jersey foreclosure? (I think maybe NJ is in the Third Circuit.)
 

The case you cite is certainly consistent with the mainstream holdings of courts throughout the United States.

However, it should be noted that in contracts cases Federal Courts follow the law of the laws of the state controlling the underlying instruments.  With a promissory note, this is typically the law of the place of execution of the note.  With a mortgage or deed of trust, this is usually the law of the place the real property is located.  (Since instruments are usually executed together and closings usually take place in the jurisdiction where the property is located, this is usually both the same place and also most often the place where the property is located.) 

Accordingly, in deciding cases within the Third Circuit -- which includes Delaware, Pennsylvania, New Jersey and the Virginia Islands -- the Third Circuit would apply the law of the appropriate state.  Realize that someone could possibly bring an action within Federal District Court in DE, NJ or PA in respect of a contract executed in another jurisdiction (e.g. Texas or Utah) if the defendant was located in those places (DE, NJ or PA), in which case the court would apply the law of an out of jurisdiction state.

From this, you need to also appreciate that the Federal courts rely upon state court decisions in these cases, not the other way around.  So while a U.S. Circuit Court decision would certainly have more than a little influential authority, the binding authority for a New Jersey case would be the decisions of the New Jersey Supreme Court and other NJ appellate courts.

I would therefore encourage you to search for a better NJ state court case, while , perhaps, using the cited U.S. appellate decision as additional authority.
Quote 0 0
Floyd
Within the thread "1st Draft of my Response to MSJ Opinions Please", contributor .... noted the decision of Florida's 2nd DCA in the case Taylor v. Bayview Loan Servicing, LLC:

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1274589814&postcount=20

http://ssgoldstar.websitetoolbox.com/post/1st-Draft-of-my-Response-to-MSJ-Opinions-Please-5963293

It seemed to me that the Taylor case belonged here in Mr. Roper's thread on conditions precedent:

[i]Taylor v. Bayview Loan Servicing, LLC, Case No. 2D10-1493 (Fla. 2nd DCA)[/b]
http://scholar.google.com/scholar_case?case=13043546069920933439

We may also need to start a thread dedicated to Bayview cases. This firm hasn't gotten as much attention as it perhaps deserves. We haven't seemed to get many Bayview victims here at the Forum. This firm deserves additional scrutiny.
Quote 0 0
Hal
Quote:
[u]A Defense, But Perhaps NOT an Affirmative Defense[/b]

I recently ran across a Texas case which clarified that, at least in Texas, Conditions Precedent is NOT really an affirmative defense. Generally, with affirmative defenses, the defense has the burden of proof in establishing the defense.

With conditions precedent, it is usually the plaintiff's burden to establish that conditions precedent have been satisfied, NOT the defendant's burden to prove otherwise.

In Texas, a plaintiff can allege that conditions precedent have been satisfied and UNLESS the defendant specifically denies satisfaction of particular conditions precedent this allegation is sufficient. But where the defendant makes a specific denial, the burden shifts back to the plaintiff to prove satisfaction of those conditions precedent expressly denied by the defendant.

Here are the Texas cases elaborating:

"FN 1: Failure to meet conditions precedent is not an "affirmative defense" on which Progressive bore the burden of proof. As the Dallas court explained regarding the burdens of pleading and proof:

A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex.Civ.App.-Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.

Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex.App.-Dallas 1983, writ ref'd n.r.e.) (emphasis added). Accordingly, appellants' "no evidence" motion for summary judgment was not appropriate in this regard."

Lidawi v. Progressive County Mut. Ins. Co., No. 14-02-00908-CV, 112 S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2003, no pet.)
http://scholar.google.com/scholar_case?case=10580880683992077079

*

"As a threshold matter, we address Bank of America's reference to Eisenhauer's alleged failure to satisfy a condition precedent as an affirmative defense. Bank of America urged in its motion for traditional summary judgment and now on appeal that the evidence established this affirmative defense as a matter of law; thus, the trial court erred in denying its traditional motion for summary judgment. See Tex. R. Civ. P. 166a(c); Ortega, 97 S.W.3d at 772; see also Tex. R. Civ. P. 54 (providing for the defense of failure to satisfy a condition precedent), 94 (identifying affirmative defenses). However, failure to satisfy conditions precedent is not an "affirmative defense" on which Bank of America bore the burden of proof. See Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2003, no pet.).

Texas Rule of Civil Procedure 54 provides that after a defendant has specifically denied the performance of the condition precedent, the plaintiff is required to prove the performance of only those conditions that the defendant has specifically denied. Tex. R. Civ. P. 54. The effect of rule 54 is to shift the burden of pleading to the defendant, not the burden of proof; the burden of both pleading and proof of performance of all conditions precedent to recovery remains with the plaintiff. Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 11 (Tex. App.-Dallas 1983, writ ref'd n.r.e.). As the Houston Court and the Dallas Court have explained:

A condition precedent to the right to maintain an action must be performed and "the fact of performance or excuse of nonperformance must be alleged and proved in order to warrant a recovery." Southwestern Associated Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex. Civ. App.-Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that all conditions precedent have been performed, he is required to prove the performance of only those conditions precedent specifically denied by the defendant. The effect of this rule is to shift the burden of pleading to the defendant, but not the burden of proof, when the plaintiff has made a general allegation that all conditions precedent have been performed.

Lidawi, 112 S.W.3d at 729 n.1 (quoting Trevino, 651 S.W.2d at 11).

Therefore, when a defendant's liability on a contract depends on the performance or happening of a condition precedent, the plaintiff, not the defendant, must allege and prove that the condition has happened or has been performed or that there was a waiver of the condition precedent. See Parkview Gen. Hosp., Inc. v. Eppes, 447 S.W.2d 487, 490 (Tex. Civ. App.-Corpus Christi 1969, writ ref'd n.r.e.); see also Hurst v. Rush, 514 S.W.2d 472, 475 (Tex. Civ. App.-Beaumont 1974, no writ). In the absence of the occurrence or performance of such a condition precedent, there can be no breach of contract. Hurst, 514 S.W.2d at 475; Eppes, 447 S.W.2d at 490-91."
Bank of America, NA v. Eisenhauer, No. 13-09-00004-CV, 2010 Tex. App. LEXIS 5519 (Tex. App.—Edinburg 2010, no pet.).
http://scholar.google.com/scholar_case?case=3039225379448942971

*

"Whether a particular fact is a matter of avoidance or defense turns on the burden of proof. Normally the plaintiff has the burden to prove all facts essential to liability, including proof of performance of all conditions precedent. Nonperformance of a condition precedent may be considered a matter of "avoidance" or "defense" in the sense that it bars recovery even though the truth of the plaintiff's allegations may be established. See Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154, 157 (Tex.1973). In this sense, of course, failure to establish one of several essential elements of any cause of action bars recovery even though all other elements may be established. The pertinent inquiry is whether compliance with a condition precedent is a matter that plaintiff must prove as an essential element of his case. The law is clear that performance of a condition precedent is an essential element of the plaintiff's case on which the plaintiff has the burden of proof unless he alleges performance of all conditions precedent and the defendant fails to deny specifically performance of the conditions, as required by rule 54. Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App. — Dallas 1980, no writ); City of Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App. — Houston [1st Dist.] 1980, no writ); Bunch Electric Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42, 47 (Tex.Civ. App. — Tyler 1972, no writ); see Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154, 157 (Tex. 1973) ("defense" of failure to give notice of accident was not available to company because the insured pleaded generally that all conditions precedent had been performed and the insurer 13*13 failed to deny specifically). Under these authorities, having made no such general allegation, Trevino cannot claim the benefit of the presumption provided by rule 54. Consequently the forwarding of suit papers is not a matter of avoidance or affirmative defense, but a fact she must prove as an essential element of her case."
Trevino v. Allstate Ins. Co., 651 S.W.2d 8, 10-11 (Tex.App.-Dallas 1983, writ ref'd n.r.e.)
http://scholar.google.com/scholar_case?case=3413259630968669960

*

A quick note relating to Texas writ history might also be in order. Texas Rules require the inclusion of the so-called writ history in citing Texas cases. Prior to 1996, the process of appealing to the Texas Supreme Court involved filing a writ of error. This was then changed to a petition for review.

The writ history shows what happened to the case after the determination by the intermediate appellate court.

"no writ" or "no pet." means that neither party appealed the matter beyond the intermediate court.


"writ denied" or "pet. denied" means that the case was appealed and the Texas Supreme Court denied a hearing of the appeal, basically that the Texas Supreme Court did not actually take the case for review. This might reflect that the court agreed with the decision, but it also might simply mean that the Texas Supreme Court thought that there really wasn't any serious disagreement between the intermediate appellate courts as to the issues presented for appeal.

By contrast "writ ref'd n.r.e." means writ refused, no reversible error. Basically, the Texas Supreme Court has refused to hear the appeal expressly finding that the intermediate court's decision was free from any error that would merit an appeal. In this instance, the Texas Supreme Court has essentially blessed off on teh intermediate appellate opinion without taking the case, hearing briefs and issuing its own opinion. Such a case bears almost the same authority as a Texas Supreme Court decision.

*

While I titled this thread "The Conditions Precedent Affirmative Defense", the reasoning of the decisions seems to me to be pretty sound. I have NOT investigated case law in other jurisdictions. But describing conditions precedent as an avoidance defense rather than an affirmative defense feels right. But EVERYONE is enouraged to READ THE RULES and the CASES for their jurisdiction to ascertain precisely how to characterize this defense and to determine which party bears each burden.

Those who locate cases in their jurisdiction as to the burdens of proof are encouraged share those cases!


See Mr. Roper's post from Posted 05/24/11 at 12:22 PM
http://ssgoldstar.discussioncommunity.com/post/show_single_post?pid=1268714956&postcount=10


The Court of Appeals for the Fifth District in Ohio handed down a decision on Monday which clearly shows that Mr. Roper was correct that conditions precedent is never an affirmative defense:

"Appellants merely argued the affidavit was inadequate and no affirmative response was required to defeat the motion. However, the default notice and acceleration provisions were conditions precedent and not affirmative defenses ([i]LaSalle Bank, N.A. v. Kelly, 9th Dist. No. 09CA0067-M, 2010-Ohio-2668)[/b] and therefore, under Civ. R. 9(C), "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." In other words, appellants could not merely rest on their denials contained in their answer once faced with an affidavit affirming default and acceleration."

[i]Wells Fargo Bank, N.A. v. Ward, 2013-Ohio-2066 (Ohio App. 5th Dist. May 20, 2013)[/b]
http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-2066.pdf

In this case, the borrower failed to heed that the special defense of conditions precedent needs to be pleaded with particularity. When a defendant fails to do this, the argument is waived.

It helps to read the old threads!
Quote 0 0
James T.
See Fla. Pro Se's new thread about Mr. Roper's conditions precedent defense:

New Opinion: Disalvo v. Suntrust Mortgage (Fla. 2nd DCA 2013)
Quote 0 0
Write a reply...