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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Steve Anderson
Can you use Federal Rules of Civil Procedure in a Supreme Court setting in a New York Court? I mean, F.C.R.P. 12(b)(4), says that you can file a Motion to Dismiss for Insufficiency of Process, but NY Rules of Civil Procedure are defined pursuant to NY C.P.L.R. Article 22 § 3211 and NY C.P.L.R. Article 3 § 306 b & 308, to dismiss plaintiff’s Complaint for insufficiency of process.

So, I need your legal advice as to which to use in my Preliminary Statement. I would think that F.C.R.P would be admissible but perhaps not regarded since it is not in Federal Court, but that rule defines the New York ones, I aforementioned. Actually, they don't pinpoint the motion to dismiss as well as the federal statutes. Well, will await some assistance and will keep, keeping on, SA
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TheEquitableOne
Use your state rules. Most states rules are modeled on the Federal rules.
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Bill

You HAVE to follow the state court rules.  They usually are modeled after the federal rules but there are usually many nuances.  Most of the time the only time a federal rules is referenced in a case is where there is no clear guidance on the rule and the state courts will often look to the federal counterpart (if there is one) for guidance.  The same goes for cases.  While a federal decision from your jurisdiction can have some influence and be instructive they are NOT binding in state court.  Always follow the state rules and always look for state decisions FIRST then any federal decisions that help.

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Steve Anderson
Yes, I understand that state rules apply...but, always a but, the Federal Rules of Civil Procedure pertain more to the Insufficiency of Process motion that I am going to make in NY Supreme Court.

i.e. F.R.C.P 12(b)(4) really pinpoints the insufficiency of process dismissal

the ones in NY Civil Rules of Procedure don't have that defining element to my defense.

Well, will use them if it is the best method to explain the motion. Thanx for assisting. SA
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.
Steve Anderson wrote:
Yes, I understand that state rules apply...but, always a but, the Federal Rules of Civil Procedure pertain more to the Insufficiency of Process motion that I am going to make in NY Supreme Court.

i.e. F.R.C.P 12(b)(4) really pinpoints the insufficiency of process dismissal

the ones in NY Civil Rules of Procedure don't have that defining element to my defense.

Well, will use them if it is the best method to explain the motion. Thanx for assisting. SA


FRCP has no bearing in a state court matter.
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If you file  Motion to Dismiss for Insufficiency of Process and you win, the Bank often would immediately refile the lawsuit, this time they know where to serve you and avoid all their mistakes.

I saw in many cases, the Homeowner's attorney use this tactic to Vacate the Summary Judgment and the Sale if they lost the MSJ after couple years of fighting the lawsuit . Then the foreclosure case is back to square 1. It would take again many months to fight the lawsuit again or the bank would offer interesting settlement because they don't want to fight for many months again.

In another case, the Attorney filed an Answer with Counter Claim. The bank settled (the settlement is not disclosed). Check this out
http://www.scribd.com/doc/54303556/Foreclosure-Answer-CounterClaimDeutschebank?in_collection=3011888
38 pages of pleadings. Take a couple minutes to download
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Bill

Steve Anderson wrote:
Yes, I understand that state rules apply...but, always a but, the Federal Rules of Civil Procedure pertain more to the Insufficiency of Process motion that I am going to make in NY Supreme Court.

i.e. F.R.C.P 12(b)(4) really pinpoints the insufficiency of process dismissal

the ones in NY Civil Rules of Procedure don't have that defining element to my defense.

Well, will use them if it is the best method to explain the motion. Thanx for assisting. SA


Trying to reference rules that don't apply in state court and attempting to twist the local rules is not going to go over very well with the judge.  You may consider looking up other cases in your jurisdiction that filed the same motion and see what rules/cases they are citing as well as the wording in the motion.  If you cannot find a motion on this topic, a light bulb should go off and you may really want to find a different defense.  If this is an effective defense, I'd bet that some attorney has filed the motion at some point.
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Steve Anderson
Well, after a couple of weeks of trying to decide a Motion to Dismss that would be recognized by the court, I just found out, that insufficiency of process and insufficiency of service of process only pertain to the summons delivery. Wow, all this time, it seemed like the proper defense.

Now, in NY, you can only use CPLR 3211, somehow, to file a MTD that will be accepted by the court as a Preanswer Motion. Another WOW, have you ever read that rule or statute, it doesn't apply to hardly any legal matter relating to most foreclosures. I mean, I showed a lawyer how federal rules apply to my case and he agreed, it might be a an easy one to plead, but via state rules, very difficult.

I have no idea who set these proceedings up, and let them be argued in this manner. I still feel that, although there are many stautes in NY that protect the borrower, there are way more that allow the lender to take possession of the house, due to an inability to protect and defend your residence properly.
Well, have the motion all typed up and ready to move, movin' on up, SA
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Angelo
Steve

I'm not really sure what you mean by your statement "....you can only use CPLR 3211, somehow, to file a MTD that will be accepted by the court as a Preanswer Motion."

3211 has a lot of subcatagories for grounds for dismissal, and they can be done post-answer. I had my case dismissed post-answer, almost 2 years after the summons and complaint was filed, using 3211.
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Steve Anderson

Hi, hmm, Angelo, I said preanswer motions have to use CPLR 3211. I mean, we went over it with a HUD attorney and he said, I can't believe you have to use that statute mainly. I mean there are some other MTD's, but from looking at other cases, they have to pertain to those basic 12 subsections under 3211, i.e. here in NY, OK. SA

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