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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JJ
  1. Bank A filed foreclosure suit.
  2. Bank A transferred interest to Bank B.
  3. Bank B moved for sub of plaintiff (granted)
  4. Bank B transferred interest to Bank C, no motion to sub plaintiff.  Transfer of interest occurred before Bank B moved to sub plaintiff.

My answer to the complaint is not yet due.  I am currently weighing the pros and cons of filing a MTD for lack of standing and/or failure to join an indispensable party OR proceeding as is with my answer and discovery.

I am assuming, at best, the MTD will be granted and plaintiff will have to amend its complaint providing me additional time to perfect my answer.

What I am really wondering is... what risk(s) am I taking by not pointing out the transfer of interest prior to answering?

Will any answers or productions from Bank B be admissible as evidence once Bank C is revealed?
I am assuming all that all defenses that are typically waived when not raised in the responsive pleading will again become available once Bank C is brought into the picture.  I am also assuming that I will have ample opportunity to amend my answer when and if Bank C moves for substitution.

As always, any insight or experience is highly appreciated and will not be construed in any to be legal advice.

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texas
Need to explain #3, who was substituted?
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JJ
Bank B was substituted as plaintiff, Bank A was dismissed.

Bank B moved for this substitution months after it had already transferred its interest to Bank C by way of assignment of mortgage.
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texas
Assume it was Servicer B for Bank B via Law Firm acting as agent for Bank B who asked for substitution of Bank B for Bank A so another question present who is the Servicer (C) for Bank C, no answer required, just thoughts to ponder!!! Another question to ponder without answer, Does Law Firm acting as agent for Bank B have a lawful right to appear before the court if Bank C has what???
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iknow
JJ wrote:
My answer to the complaint is not yet due.  I am currently weighing the pros and cons of filing a MTD for lack of standing and/or failure to join an indispensable party OR proceeding as is with my answer and discovery.



The real answer to your question is that you will not waive any defense by NOT filing a MTD.

RULE 1.140 DEFENSES

(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for a relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.



You can make out your defenses in your answer OR make certain defenses by motion PRIOR to your answer with out risk of waiver.

Keep in mind, MTD are rarely granted.  Usually a Plaintiff can amend/fix the problem.  The Courts favor decisions on the merits.

Why should anyone file a MTD if they are rarely granted?  The answer is simple.  Time.

Filing a MTD buys time.  The motion has to be set, a hearing conducted, a decision rendered, and THEN you will have 10 days to answer.

RULE 1.140 DEFENSES


(3) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (f), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings shall be served within 10 days after notice of the court's action or, if the court grants a motion for a more definite statement, the responsive pleadings shall be served within 10 days after service of the more definite statement unless a different time is fixed by the court in either case.


As soon as you answer, you face a very real risk that the Plaintiff will file a MSJ that you won't be prepaird for.  

 RULE 1.510 SUMMARY JUDGMENT

 

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party's favor upon all or any party thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.



While the rules allow a party to file for SJ any time after 20 days, the case law doesn't support SJ PRIOR to an answer.  The Plaintiff would have to show that there is NO POSSIBLE defense or question of fact a defendant could raise in his answer.  That is just a bridge too far.

But you can feel very confident, as soon as you answer, you will receive a MSJ in the next week or so.


It would seem to be a smart idea to file a motion to dismiss, start serving discovery, start working on a motion to compel and oppisition to SJ. 

Trying to serve discovery AFTER they file a MSJ rarely prohibits SJ.  You can't just sit on your hands.  If you already had it pending PRIOR to their motion, you have a more robust argument.

Even if a homeowner has some idea of what to do and has some defenses, they often lose because they don't have TIME to write their answer, oppisitions, ect.. and just submit poorly reserched/written papers to the court. 

Time is your friend.  Use it wisely.

"Between two evils, I always pick the one I never tried before."

-Mae West
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JJ
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Does Law Firm acting as agent for Bank B have a lawful right to appear before the court if Bank C has what???


Interesting...How does one verify/challenge whether attorney has authority to represent the real party in interest?  Just a simple motion alleging that the attorney does not have Bank C's permission?


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Why should anyone file a MTD if they are rarely granted? The answer is simple. Time.

Filing a MTD buys time. The motion has to be set, a hearing conducted, a decision rendered, and THEN you will have 10 days to answer.


For this reason, I was initially leaning toward a MTD.


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Trying to serve discovery AFTER they file a MSJ rarely prohibits SJ. You can't just sit on your hands. If you already had it pending PRIOR to their motion, you have a more robust argument. 


If I were to proceed with an answer rather than filing a MTD first, I would also serve discovery at the same time.  The reason why I am currently leaning toward proceeding with an answer and discovery at this time is two-fold:

1.  If, for some reason, a substitution for Bank C never occurs, production of the assignment in an opposing motion to SJ should qualify as genuine issue of material fact.
2.  If the plaintiff does eventually move for substitution, I should have an opportunity to amend my answer and include any additional defenses found during discovery??  (This is what I am most unsure of.  Will any answers I obtain from Bank B, if I obtain any, during discovery still be admissible?  I am also looking to afford the attorney an opportunity to engage in discovery abuse or perjury.)
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iknow
JJ wrote:
[QUOTEIf I were to proceed with an answer rather than filing a MTD first, I would also serve discovery at the same time.  The reason why I am currently leaning toward proceeding with an answer and discovery at this time is two-fold:

1.  If, for some reason, a substitution for Bank C never occurs, production of the assignment in an opposing motion to SJ should qualify as genuine issue of material fact.
2.  If the plaintiff does eventually move for substitution, I should have an opportunity to amend my answer and include any additional defenses found during discovery??  (This is what I am most unsure of.  Will any answers I obtain from Bank B, if I obtain any, during discovery still be admissible?  I am also looking to afford the attorney an opportunity to engage in discovery abuse or perjury.)


You are kind of missing my point. 

You can file discovery NOW without answering. 





RULE 1.340 INTERROGATORIES TO PARTIES

a) Procedure for Use. Without leave of court, any party may serve upon any other party written interrogatories to be answered (1) by the party to whom the interrogatories are directed, or (2) if that party is a public or private corporation or partnership or association or governmental agency, by any officer or agent, who shall furnish the information available to that party. Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading upon that party




RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

(b) Procedure. Without leave of court the request may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party




RULE 1.370 REQUESTS FOR ADMISSION

(a) Request for Admission. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the process and initial pleading upon that party.




Your failure to not read and use the rules to your advantage will NOT be an excuse when a SJ is granted and you still have discovery pending.  You can file discovery right now, the only thing stopping you is your failure to act.

As I posted before, you are not going to be able to sit on your hands and not serve discovery, then ask the Court to not enter a judgment because you didn't use the rules earlier. 

Also, as I posted before, as soon as you file an answer, you are subject to an immediate MSJ. 

It would be a good idea to have a good plan and course of action.
"Between two evils, I always pick the one I never tried before."

-Mae West
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JJ
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You are kind of missing my point.

You can file discovery NOW without answering.


On the contrary, I completely picked up what you were laying down.  The only point I was pressing was that I felt that I had enough ammo to combat a SJ, and that is exactly why I come to this forum... to hopefully get a different point of view.

After further consideration, I have come to conclusion of proceeding with a MTD and discovery.  Why should I be in a hurry to answer?  Why should I not avail myself of all available opportunities, as they present themselves, to extend this litigation?

If anyone has the time to preview it, I welcome any and all comments on the MTD I intend to submit in the coming days -->


DEFENDANT XXXX MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION (STANDING) OR ALTERNATIVELY FOR FAILURE TO JOIN AN INDESPENSABLE PARTY

 

COMES NOW, the defendant XXXX, and pursuant to rule 1.140(b)(1), or alternatively rule 1.140(b)(7), of the Fla.R.Civ.P. and precedent case law files this Motion to Dismiss Plaintiff’s Complaint, and in support thereof states the following:

 

FACTS

 

 

1.         XXXX  (hereinafter “XXXX”) filed its Foreclosure of Mortgage Complaint on or about XXXX. 

 

2.         On or about XXXX, XXXX apparently transferred all of its interest in the subject note and mortgage to XXXX (hereinafter “XXXX”).  See Assignment of Mortgage submitted as Exhibit “A” in Plaintiff’s Motion to Substitute Party Plaintiff filed on or about XXXX.

 

3.         On or about XXXX, XXXX apparently transferred all of its interest in the subject note and mortgage to XXXX. (hereinafter “XXX”).  See Assignment of Mortgage submitted as Exhibit “B” in Plaintiff’s Motion to Substitute Party Plaintiff filed on or about XXXX

 

4.         According to public record, on or about XXXX, XXXX transferred all of its interest in the subject note and mortgage to XXXX (hereinafter “XXXX”).  See Assignment of Mortgage attached hereto as Exhibit “A”.

 

5.         Inexplicably, on or about XXXX, a motion was made by Plaintiff to substitute XXXX as Plaintiff after XXXX had already transferred all of its interest in the subject note and mortgage to XXXX.  The motion was subsequently granted on or about XXXX.

 

6.         No additional motions for substitution have been filed nor has XXXX shown that it is authorized by XXXX to maintain this action.

 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

 

7.         Fla.R.Civ.P Rule 1.140(b) states in pertinent part “Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time.” Emphasis added.  Fla.R.Civ.P Rule 1.140(h)(2) states in pertinent part:  “The defense of lack of jurisdiction of the subject matter may be raised at any time.”

 

8.         Standing is an aspect of subject matter jurisdiction. The Florida Supreme Court stated that the “determination of standing to sue concerns a court's exercise of jurisdiction to hear and decide the cause pled by the parties.” Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla.1993).  “Standing has been equated with jurisdiction of the subject matter of litigation and has been held subject to the same rules…” Askew v. Hold the Bulkhead Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972).

 

9.         Standing includes not just the notion that the party has a “sufficient stake” in the outcome of the litigation but also that the party is in fact the “real party in interest.”  This is  “at least [an] equally-important requirement that the claim be brought by or on behalf of one…‘in whom rests, by substantive law, the claim sought to be enforced.’  The basic purpose of rules requiring that every action be prosecuted by or on behalf of the real party in interest is merely ‘to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata... .’”  Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985) (citing Author’s Comment to Fla. R. Civ. P. 1.210 and Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Management, Inc., 620 F.2d 1, 4 (1st Cir.1980)).

 

10.       If plaintiff is not the real party in interest, it may continue an action only if the requirements of Fla.R.Civ.P. Rule 1.210(a) are met.  Fla.R.Civ.P. Rule 1.210(a) states in pertinent part: “a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”  No Florida case holds that a separate entity may maintain suit unless the requirements of Fla.R.Civ.P. Rule 1.210(a) are met.  Corcoran v. Brody, 347 So.2d 689 (Fla. 4d DCA 1977).

 

11.       Standing in foreclosure actions. “The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”  Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4d DCA 2010).  See also Verizzo v. Bank of New York, 28 So. 3d 976, 978 (Fla. 2d DCA 2010) (providing that “there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage.”)  Emphasis added.

 

12.       Standing must be maintained throughout the life of the lawsuit: “To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation.” Ferreiro v. Philadelphia Indem. Ins. Co., 928 So. 2d 374 (Fla. 3d DCA 2006).  Emphasis added.

 

ARGUMENT

 

13.       XXXX, by virtue of apparently assigning all its interest in the subject note and mortgage to XXXX, can no longer claim ownership and holder status of the subject note and mortgage.

 

14.       Since XXXX seemingly no longer holds or owns the subject note and mortgage, XXXX neither has sufficient stake in the outcome of this litigation nor is it the real party in interest. Thus, XXXX lacks standing to continue this action.

 

15.       XXXX has not stated or shown any relationship between itself and XXXX that would allow it to continue this action under Fla.R.Civ.P. Rule 1.210(a).

 

MEMORANDUM OF LAW AND ARGUMENT IN SUPPORT OF DEFENDANT’S ALTERNATIVE MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO JOIN AN INDISPENSABLE PARTY

 

16.       Fla.R.Civ.P Rule 1.140(b) states in pertinent part: “Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: …(7) failure to join indispensable parties.A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” Emphasis added.

 

17.       “Florida law defines “indispensable parties” to a lawsuit as “’[p]ersons who have not only an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’” Glancy v. First Western Bank, 802 So. 2d 498 (Fla. 4d DCA 2001)(quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158, 160 (1854)).

 

19.       Allowing the lawsuit to continue, perhaps to a final judgment of foreclosure in favor of XXXX alone, would fit the very definition of “wholly inconsistent with equity and good conscience" in view of XXXX’s apparent interest in the mortgage.

 

20.       Additionally, “[t]here is perhaps good reason for joinder of all joint obligors or obligees where that is feasible. In either case completeness of judgment and avoidance of unnecessary litigation will be furthered, in the social interest. In the case of joint obligees, their joinder will also protect the defendant from undue harassment. He has incurred only a single obligation and should be sued only once for it.” Phillips v. Choate, 456 So. 2d 556 (Fla. 4d 1984)(quoting James, Necessary and Indispensable Parties, 18 U. of Miami, L.R. 68, 84). Emphasis added.

 

21.       As shown by Phillips, one premise of  assuring joinder of all indispensable parties is closely related to that of the same “purpose of [the] rules requiring that every action be prosecuted by or on behalf of the real party in interest…”, which is “merely ‘to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata... .’” Kumar, paragraph 9, supra.  Emphasis added.

 

22.       Clearly, XXXX has a significant interest in the outcome of this action and failure to join them as an indispensable party is would not be in the interest of justice.

 

 

 

WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction (standing), or alternatively, for failure to join  an indispensable party.

 

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texas
Who is the INDESPENSABLE PARTY?

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JJ
That would be the bank, who according to public records, currently owns the mortgage and note but has not been brought into the suit.
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texas
Admission to a fact that may or may not be true.

People, be aware of making admission without knowing...
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texas

This post may bring out many a ghost, goblin, ghoul and troll, even with the possibility.

Indispensable parties: Never admit, never stipulate to anything except that fraud is fraud.

As to the Note, any identifiable party on the face of the instrument, including any party identified by signatory appearing in a lawful chain of indorsement(s) would be an indispensable party. Applying UCC 3-115 or a States equivalence, an indorsement "Payable to "__________"" is payable to an unidentified party, this indorsement is a special indorsement but incomplete according to UCC 3-115and remains order paper. It is not by definition of UCC 3 a creation of bearer paper. The blank line without a name breaks the agency connection to a party named of public record.

 

Whereas most public land record offices record and index a chain of title by way of Grantor to Grantee, a title company i.e. maintains an abstract copy of public records that is searchable by property address. Of course a chain of title by Grantor Grantee can be researched in public records but requires manual reviewing the record to determine if a record containing the Grantor’s and Grantee’s name is applicable to a property address. Time consuming and a real pain in the butt, but it can be done.

 

Indispensable parties if identified in the record should match with the chain of indorsement(s) upon the negotiable instrument.

Where a name appears of public record and appears not in the chain of indorsement(s) an issue has arisen. Agency that public record depends upon to assure the “Assignment, i.e.” suggests that a truth has not been lawfully filed of public record.

In short, if a parties name appears not on the negotiable instrument or lawfully within public record, would such a party be indispensable?

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JJ
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Admission to a fact that may or may not be true.

People, be aware of making admission without knowing...


I was under the impression that an argument in the alternative is not an admission?
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iknow
texas wrote:
Admission to a fact that may or may not be true.

People, be aware of making admission without knowing...


Usually only the admissions in pleadings are judicial admissions.  A MTD is not a pleading. 
"Between two evils, I always pick the one I never tried before."

-Mae West
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Kohler
Instead of say "Bank C own loan" can say "Bank C claim it own loan"?  Do this work?

Is bank what claim own loan in despensible?
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