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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Friday  23 December 2011

I am new to this site and do not have a feel for it, yet, despite attacks for
misreading what I posted.  Many, most of those who choose to be self-represented,
lack knowledge of procedures, and can often lose in not knowing procedures,
even with a winning-type of argument.   One very common argument that
gets waived early is the challenge of standing re the plaintiff [pf], filing the complaint to foreclose.

Ann posted "Control the judges with appellate case law," and at #9, provides
a few links to other sites.  I have seen both of them, but I am not a regular
reader of either.  I happened to click on the link to,
on 21 December, and noted a case, EMC Mortgage Corp v Carlo.  It was
vacated because pf did not demonstrate ownership of mortgage and note
prior to commence foreclosure action.

I am always looking for arguments that beat the fraudulent, lying lenders,
so I read the case.  It is a little gem.

      "The issue before this court is whether the pf had standing to
      commence this action; and it the pf did not have standing, did
      Carlo waive this defense by failing to interpose an answer raising
      it as an affirmative defense, or by making a pre-answer motion
      to dismiss.  This court concludes that the pf has failed to submit
      evidence demonstrating that it had title to both the mortgage
      and the note at the time it commenced this foreclosure action.
      Furthermore, based on the current body of law, failure to have
      standing at the commencement of an action is a jurisdictional
which is covered by CPLR section 3211(a)(2) and
      therefore not subject to the waiver provisions of 3211(c) [or
      (e), I could not tell which from the small print]. [the emboldened
      emphasis is mine].

What a great way to attack, from a different ,if the standing issue has
been waived, as it often is.  Attacking jurisdiction has much more bite
because it renders the case void!

Take another look at your own situation, and see if it applies, or see if you
can find a way to make it apply. 

This case makes reference to Kluge v Fugazy, 145 AD2d 537, also from an
appellate case, and worth your time to read. 


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George Burns

A jurisdictional defect as referred to by the court is not the same as and has nothing to do with attacking jurisdiction.

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Standing is a central element of subject matter jurisdiction.  Absence of standing in many jurisdictions deprives a court of subject matter jurisdiction.  Ripeness and mootness are closely related concepts.

In U.S. Courts, the Article III restraints on the judiciary limits the jurisdiction of Federal courts to cases and controversiers.

Similar state constitutional restraints, often within the open courts provision of a state's constitution, limits state courts to consideration of cases where there is an injury.

New York's courts require that standing be affirmatively pled in a defendant's first responsive pleading.

You didn't discover anything new or novel.  Some state courts in New York have sought to be a little more aggressive in expanding the standing defense.

EMC Mortgage Corp. v. Carlo is a State Supreme Court decision by Justice Maltese, of Richmond County (Statan Island).  The State Supreme Court in NY is the trial court.  This decision has essentially no precedential value in any other NY Court.

Although the Appellate Division recently relaxed the rule and allowed a late assertion of the standing defense upon properly supported application, NY defendants would be well counseled to simply follow the established law in NY and get the standing defense in place up front.

Those in other jurisdictions need to look to their state constitution, statutes, civil rules and cases for guidance.

Asserting that a defense involving subject matter jurisdiction is something new or an innovation is simply absurd.  This has been the argument all along, since standing is simply as aspect of subject matter jurisdiction in most places. 
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By my prior post, I do not mean to criticize Justice Maltese's decision, which is thoughtful and meritworthy.  But his result is contrary to the mainstream holdings of the appellate division in New York State.

While it is certainly possible that this decision will go up on appeal and that the appellate division could embrace Justice Maltese's reasoning, which is generally sound, in the absence of such a holding it seems unlikely that there will be any significant groundswell of similar decisions by trial courts in other New York counties.

This is an interesting and important decision.  But it has no precedential effect.  While it probably ought ot be cited by those that fail to timely interpose the standing defense, a better strategy is to simply make the standing defense in the first defensive pleading as has been required by prior appellate decisions.

This case is of no moment whatsoever in other jurisdictions.  In some places, like Texas and Connecticut, the rules on standing are crystal clear and based upon a constitutional restraint.  In other places, like Maine, standing has been found to be a prudential restraint.

Carlo cracks open the door to a possibility that an appellate court in NY could concur and affirm Maltese's decision.  It is of no practical significance anywhere else.
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This decision does raise a point that is beat to death on this forum.  You need to know the rules and read the case law of YOUR jurisdiction.  Things like standing VARY greatly from jurisdiction to jurisdiction. 

Mn, who claims to be from Illinois will most likely get NO mileage out of a case like this.  He would need to read the standing cases in Illinois. 

The same applies to MY jurisdiction.  In MY jurisdiction standing is considered a threshold issue.  It directly affects whether or not the court has subject matter jurisdiction and has a controversy before it.  The question of standing is a question of whether or not a party can invoke the powers of the court and CAN NEVER BE WAIVED.  In MY jurisdiction a lack of standing can be raised at any time and even for the first time on appeal.  Other jurisdictions have adopted a quite different "standing doctrine". 

I personally read cases from all jurisdictions to learn more arguments that were accepted by different courts, learn new language and terms, and find FEDERAL CASES (that can be used as guidance, but are NOT binding) because my jurisdiction does NOT have the strong case law that NY does.  But it is VERY important to understand WHAT cases you can use and which ones you CANNOT.  If you are in FL and base a pleading on NY law you are in for a quick loss. 

Know the rules and know the cases in YOUR jurisdiction.
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Bill's points are well made.  Out of jurisdiction cases case be informative and enriching.  Defendants can improve both their understanding and legal vocabulary.

These cases might also sometimes be persuasive in jurisdictions where authoriive legal precedent as to mortgage foreclosure related issues remains thin.

But any persuasive weight or influence will be influenced by not only the strength of the legal reasoning and opinion, but also the authority of the court rendering the decision.  A trial court in a different state, such as Illiionois, Indiana or Ohio, is likely to place only minimal weight, if any, to a decision of a trial judge from another state, as opposed to an appellate decision.  This would particularly be the case the the jurisdiction in which the litigation is taking place has established appellate precedents reaching different conclusions.

In my view, the trial court decisions of this sort are of greatest possible value when one can identify a case which has almost identical facts, including the identity of the plaintiff mortgage investor and/or servicer.  The effect is probably only incremental, but might help a waiving judge overcome any reticence that in ruling for a defendant he or she is deviating from orthodoxy.  In short, the decision by another judge on substantially identical facts merely shows that it is OK to rule for the defendant and validates that the legal theories presented in defense are not merely whimsical.    
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