Mortgage Servicing Fraud
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I am getting ready to respond to a Foreclosure Complaint.  The case has been filed with the courts and I am yet to be served.  What are the Pro/Cons of filing a Motion to Dismiss versus filing Answer to Forelcosure Complaint?  If I file a Motion to Dismiss and it is denied by the Judge, will I be given an opportunity to file an Answer with my Defenses X number of days after the denial by the Courts?

The other issue has to do with the approach of "not taking the Plaintiff to School" when filing an answer.  I have a hard time wrap my hands around this issue.  I have a number of valid defenses, but cannot figure out which ones to document in my initial answer.  One of the major defenses has to do with the incorrect legal description that appears on the Mortgage and which so happens to be carried over from a previous foreclosure action on the same property.  We purchase the property from a lender who foreclosed on the said property using the incorrect legal description.  See this case:

http://caselaw.findlaw.com/fl-district-court-of-appeal/1410954.html


Can someone point me to a good overview of "not taking the Plaintiff to School" and how to identify what defenses should be raised in the initial answer and those that should be rolled out in a timely manner?
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Lucky
Jennifer wrote:
I am getting ready to respond to a Foreclosure Complaint.  The case has been filed with the courts and I am yet to be served.  What are the Pro/Cons of filing a Motion to Dismiss versus filing Answer to Forelcosure Complaint?  If I file a Motion to Dismiss and it is denied by the Judge, will I be given an opportunity to file an Answer with my Defenses X number of days after the denial by the Courts?


Everything depends upon the statutes and rules in your state. You need to read both thoroughly and then read them again.

I am in Florida too. In Florida a defendant can reply to a complaint by either filing a Motion to Dismiss or an Answer within 20 days. A Motion to Dismiss allows you to respond without much specificity. You only need to raise one issue in a Motion to Dismiss. In Florida there is no requirement to schedule a hearing on the motion. I originally filed a MTD without scheduling a hearing. It was more than a year later, and after a change of attorneys, that the Plaintiffs finally proceeded with prosecuting my case. At the very least a MTD is a stalling tactic.

Look around the forum. There are threads here discussing how you don't necessarily want to win a MTD. Usually it is better to drag out the case and then have the court rule in your favor at Summary Judgment so you obtain res judicata rather than simply having the case dismissed without prejudice.

In Florida, once the MTD is denied the defendant has 20 days to file an answer to the complaint.

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The other issue has to do with the approach of "not taking the Plaintiff to School" when filing an answer.  I have a hard time wrap my hands around this issue.  I have a number of valid defenses, but cannot figure out which ones to document in my initial answer.  One of the major defenses has to do with the incorrect legal description that appears on the Mortgage and which so happens to be carried over from a previous foreclosure action on the same property.  We purchase the property from a lender who foreclosed on the said property using the incorrect legal description.  See this case: http://caselaw.findlaw.com/fl-district-court-of-appeal/1410954.html Can someone point me to a good overview of "not taking the Plaintiff to School" and how to identify what defenses should be raised in the initial answer and those that should be rolled out in a timely manner?


You begin by filing the MTD, if you choose, with only one or two minor issues. Once you've played that out and have to answer, you file an answer denying all allegations and raising your defenses in general terms. The Rules state that Conditions Precedent "shall be made specifically and with particularity.with specificity." The Rules do not say that such specificity must be plead in the original Answer. In Florida a defendant can amend an answer prior to summary judgment. So if you come up with another defense that you wish to include in your answer, perhaps something you found out in Discovery or a defense you do not wish to bring to their attention at first, you can do so. You can also correct for any vagueness in your original pleading as regards Conditions Precedent.

The idea here is not to rush into seeking a judgment. I know it isn't any fun but it is better for you to drag this out as long as possible. The Plaintiff's attorney is payed a flat fee, so the longer it takes the less he makes and the larger your file becomes. The longer it takes the longer you stay in your home. There are also limitations in play.

I don't quite understand the issue with the prior foreclosure. The Appellate Court reversed the Summary Judgment and sent it back to the lower court. Did the lower court not then handle the issue? The erroneous description is present on your mortgage too?


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texas
Incorrect you are Ted.
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Lucky
Jennifer,

I am not an attorney, perhaps you should consider consulting one.

The scrivener's error is a potent issue. They can't win the suit without a proper legal description. The complaint is invalid on its face.

If it is the same bank I wonder why they failed to seek reformation prior to filing suit. They at least should have included the issue in the complaint. I think it would be best to wait until defensive summary judgment to point this out if the Plaintiff fails to raise the issue. Your general denial of their complaint is sufficient until then.

I am not sure of the procedure the court will follow if the issue is raised earlier. It will either order the reformation itself and allow an amended complaint or dismiss the suit without prejudice. Either way it is not as good a result as winning at summary judgment in two or three years.




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unreg101
Jennifer "One of the major defenses has to do with the incorrect legal description that appears on the Mortgage and which so happens to be carried over from a previous foreclosure action on the same property.  We purchase the property from a lender who foreclosed on the said property using the incorrect legal description."


38 Fla. L. Weekly D1341a

 

Mortgage foreclosure -- Reformation of mortgage -- Error to reform mortgage to add legal description when granting plaintiff's motion for summary judgment of foreclosure where issue of reformation was not raised as issue to be addressed at summary judgment hearing

GREGORY J. WILLIS, Appellant, v. THE BANK OF NEW YORK MELLON AS SUCCESSOR BY MERGER TO THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT INC. ALTERNATIVE LOAN TRUST 2005-60TI MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-60TI, Appellee. 4th District. Case No. 4D12-894. June 19, 2013. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 09-34467 CACE. Counsel: Gregory J. Willis, Weston, pro se. Christopher Hixson of Law Office of Daniel C. Consuegra, P.L., Tampa, for appellee.

(Per Curiam.) In entering a final summary judgment of foreclosure, the trial court also granted a reformation of the mortgage to include a legal description of the property foreclosed, as apparently the mortgage failed to include the proper legal description. The appellee Bank's motion for summary judgment and accompanying notice, however, did not raise the issue of reformation as an issue to be addressed at the summary judgment hearing. Because of the lack of notice, the court erred in reforming the mortgage to add a legal description. See Gee v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211, 214-15 (Fla. 5th DCA 2011) (where motion for summary judgment makes no mention of request to reform legal description in mortgage, court errs in granting such relief in foreclosure judgment); Locke v. State Farm Fire & Cas. Co., 509 So. 2d 1375, 1377 (Fla. 1st DCA 1987) (“The appellee's motion stated only in general terms that no material issues of fact or law existed and that appellee was entitled to the relief requested. Such a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing.”).

Based on the record, the Bank's boilerplate motion for summary judgment was insufficient to apprise appellant of this specific topic that would be discussed at the motion hearing. We affirm as to the remaining issues raised.

Affirmed in part; reversed in part and remanded. (Warner, Damoorgian and Conner, JJ., concur.)

//jl

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