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Foreclosure and a visit from someone

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  • boriquita99
    I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don t want them to call me etc.
    Message 1 of 21 , Jan 18, 2010
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      I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure. Can someone guess at what is happening?
    • Bret Graham
      Your default and subsequent foreclosure should have been been recorded with the County Recorder. Your visitor was most probably a real estate investor either
      Message 2 of 21 , Jan 18, 2010
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        Your default and subsequent foreclosure should have been been recorded with the County Recorder. Your visitor was most probably a real estate "investor" either looking for you to pay him or her to: a) assist/prepare a mortgage mod; 2) do a short sale; or 3) become your partner (50% owner) if your numbers are right.

        On Jan 18, 2010, at 16:15, boriquita99 wrote:

         

        I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure. Can someone guess at what is happening?


      • Eric Harrison
        Probably an investor who saw the house come up on some list (90 day late payment list is common). If it is really late in the game you may have already
        Message 3 of 21 , Jan 18, 2010
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          Probably an investor who saw the house come up on some list (90 day late payment list is common).  If it is really late in the game you may have already received a Notice Of Default (on your door, in the mail?) and then it is very public knowledge and even potential buyers (non investor types) could be looking.

          Eric

          On Mon, Jan 18, 2010 at 5:15 PM, boriquita99 <boriquita99@...> wrote:
           

          I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure. Can someone guess at what is happening?


        • Patrick M
          Requested your ORIGINAL SIGNED NOTE MAY of some use in slowing down your foreclosure. New foreclosure defense: Prove I owe you Homeowners demand lenders
          Message 4 of 21 , Jan 19, 2010
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            Requested your ORIGINAL SIGNED NOTE MAY of some use in slowing down your foreclosure.

            New foreclosure defense: Prove I owe you

            Homeowners demand lenders produce original documents — some can’t

             

            Kathy Lovelace lost her job and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork.

             

            And just like that, the foreclosure proceedings came to a standstill.

             

            Lovelace and other homeowners around the country are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

             

            During the real estate frenzy of the past decade, mortgages were sold and resold, bundled into securities and peddled to investors. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed.

             

            Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, buying the homeowner some time and turning up the pressure on the lender to renegotiate the mortgage.

             

            "I'm going to hang on for dear life until they can prove to me it belongs to them," said Lovelace, a 50-year-old divorced mother who owns a $200,000 home in Zephyrhills, near Tampa . "I'll try everything I can because it's all I have left."

             

            In interviews with The Associated Press, lawyers, homeowners and advocates outlined the produce-the-note strategy. Exactly how many homeowners have employed it is unknown. Nor is it clear how successful it has been; some judges are more sympathetic than others.

             

            More than 2.3 million homeowners faced foreclosure proceedings last year and millions more are in danger of losing their homes. On Wednesday, President Obama will unveil a plan to spend at least $50 billion to help homeowners fend off foreclosure.

             

            Chris Hoyer, a Tampa lawyer whose Consumer Warning Network Web site offers the free court documents Lovelace used to file her request, has played a major role in promoting the produce-the-note strategy.

             

            "We knew early on that the only relief that would ever come to people would be to the people who were in their houses," Hoyer said. "Nobody was going to fashion any relief for people who have already lost their houses. So your only hope was to hang on any way you could."

             

            Tom Deutsch, deputy executive director of the American Securitization Forum, a group that represents banks, law firms and investors, dismissed the strategy as merely a stalling tactic, saying homeowners are "making lawyers jump through procedural hoops to delay what's likely to be inevitable."

             

            Deutsch said the original note is almost always electronically retained and can eventually be found.

             

            Judges are often willing to accept electronic documentation. And lenders are sometimes allowed to produce other paperwork to establish they are the holder of a loan. Still, assembling such documents to a judge's satisfaction takes time, which to homeowners is the point.

             

            Lovelace filed her produce-the-note demand last fall after the bank acknowledged that her original mortgage document had been lost or destroyed. Since then, there has been no activity on the foreclosure — no letters from the lender, no court filings.

             

            The law firm handling the foreclosure for the lender refused to comment.

             

            A University of Iowa study last year suggested that companies servicing mortgages are often negligent when it comes to producing the documentation to support foreclosure. In the study of more than 1,700 bankruptcy cases stemming from home foreclosures, the original note was missing more than 40 percent of the time, and other pieces of required documentation also were routinely left out.

             

            The first big success of the produce-the-note movement came in 2007 when a federal judge in Cleveland threw out 14 foreclosures by Deutsche Bank National Trust Co. because the bank failed to produce the original notes.

             

            Michael Silver, a lawyer for two of the families in that case, said at least one eventually lost their home. Still, he considers that a success.

             

            "From the perspective of the person who's in the home, you may have kept them in the house another 10 or 12 months," he said. "If I can get a result with economic benefits to a client, then I think I won."

             

            Democratic Rep. Marcy Kaptur of Ohio endorsed the strategy in a fiery speech on the House floor during debate on the federal bank bailout last month.

             

            "Don't leave your home," she said. "Because you know what? When those companies say they have your mortgage, unless you have a lawyer that can put his or her finger on that mortgage, you don't have that mortgage, and you are going to find they can't find the paper up there on Wall Street."

             

            April Charney, head of foreclosure defense for Jacksonville Area Legal Aid in Florida , said the strategy has been so successful for her that she now travels around the country to train other lawyers in how to use it. She said she has gotten cases delayed for years by demanding that lenders produce paperwork they cannot find.

             

            "This is an army of lawyers getting out there to stop foreclosures so we can get to the serious business of creating solutions," Charney said. "Nothing good is going to happen as long as we continue to bleed homeowners."

             

            http://www.msnbc.msn.com/id/29242063/

             

            As I see it, the PLAINTIFF’S SILENCE on these ISSUES when CHALLENGED can be FRAUD & in some cases that MAY act as an ESTOPPEL & can be used to show that the PLAINTIFF has UNCLEAN HANDS.

             

            FRAUD - 1 a  : any act, expression, omission, or concealment calculated to deceive another to his or her disadvantage, specif : a misrepresentation or concealment with reference to some fact material to a transaction that is made with knowledge of its falsity or in reckless disregard of its truth or falsity and with the intent to deceive another and that is reasonably relied on by the other who is injured thereby, b  : the affirmative defense of having acted in response to a fraud, 2  : the crime or tort of committing fraud <convicted of securities ~> see also misrepresentation. A tort action based on fraud is also referred to as an action of deceit.

            http://research.lawyers.com/glossary/fraud.html

             

            ESTOPPEL - an estoppel preventing a person from making an assertion to another's disadvantage when the person previously had the opportunity and duty to speak but failed to do so

            http://research.lawyers.com/glossary/estoppel-by-silence.html

             

            UNCLEAN HANDS - a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.
            http://dictionary.law.com/definition.asp?selected=2182

             

             

            Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading..." U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d 1021, 1032.

             

             

            "Silence is a species of conduct, and constitutes an implied representation of the existence of the state of facts in question, and the estoppel is accordingly a species of estoppel by misrepresentation. [cite omitted] When silence is of such a character and under such circumstances that it would become a fraud upon the other party to permit the party who has kept silent to deny what his silence has induced the other to believe and act upon, it will operate as an estoppel." Carmine v. Bowen, 64 A. 932 (1906)

             

             

            "Full and conclusive proof is not required where a party has the burden of proving a negative, but it is necessary that the proof be at least sufficient to render the existence of the negative probable, or to create a fair and reasonable presumption of the negative until the contrary is shown. (Footnotes omitted.) 30 Am. Jur. 2d EVIDENCE 1163, at 338 (1967). ACCORD, 31A C.J.S. EVIDENCE 112, at 190 (1964); E. Cleary, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 337, at 786 (2d ed. 1972).  Although the procedures here employed are not to be commended, measured by the test just stated, the plaintiffs' proof of lack of implementing city legislation was sufficient. In so holding, we note particularly that the City was given an adequate opportunity, both at trial and in post-trial proceedings, to produce any implementing city ordinances, charter provisions or regulations, but did not do so."  HIGGINS v. SALEWSKY, 17 Wn. App. 207, 210, 211, 212, 213, 562 P.2d 655 (March 28, 1977).

            http://www.mrsc.org/mc/courts/appellate/017wnapp/017wnapp0207.htm

             

            This tactic MAY be of temporary benefit, depending on the laws in your state.

             

            Patrick in California

             

            "All that is necessary for the triumph of evil is that good men do nothing."--Edmund Burke

             

            --- In tips_and_tricks@yahoogroups.com, "boriquita99" <boriquita99@...> wrote:

            >  

            > I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure.  Can someone guess at what is happening?

            >  

          • Patrick M
            People might also want to check the FANNIE MAE website for information on mortgages refinance, loan modification, properties for sale, becoming a supplier or
            Message 5 of 21 , Jan 19, 2010
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              People might also want to check the FANNIE MAE website for information on mortgages refinance, loan modification, properties for sale, becoming a supplier or service provider.

               

              http://www.fanniemae.com/kb/index?page=home

               

              They even have a Foreclosure Prevention FAQ.

               

              http://www.fanniemae.com/kb/index?page=home&c=homeowners_foreclosurepreventionfaqs

               

              Patrick in California

               

              "In the magical universe there are no coincidences and there are no accidents. Nothing happens unless someone wills it to happen."--William S. Burroughs

               

              --- In tips_and_tricks@yahoogroups.com , "boriquita99" <boriquita99@...> wrote:

              >  

              > I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure.  Can someone guess at what is happening?

              >  

            • Michael Noonan
              Wednesday  20 January 2010   For a point of clarity, the argument is not just a demand to produce the note, rather it is more important to object to what
              Message 6 of 21 , Jan 20, 2010
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                Wednesday  20 January 2010
                 
                For a point of clarity, the "argument" is not just a demand
                to "produce the note,' rather it is more important to object
                to what the plaintiff produces in the form of the note, a
                hearsay COPY...["Objection! The note is a hearsay copy."]
                followed by the crux of the situation, [I deny that is my
                signature on the copy provided."]
                 
                The denial of signature puts the onus of proving the
                signature back to the complaining party, and the ONLY
                way that can be done is by production of the original
                note.
                 
                Also, be aware that the complaining party may not, and
                often is not, the proper party in interest...i.e, the holder
                in due course.
                 
                 
                Cheers,
                 
                mn

              • boriquita99
                Thank you for your responses...what it was was the attorney from the bank dropping off the complaint. This is the funny thing...They gave it to my significant
                Message 7 of 21 , Jan 21, 2010
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                  Thank you for your responses...what it was was the attorney from the bank dropping off the complaint.

                  This is the funny thing...They gave it to my significant other. There were two complaints, one for me and one for my significant other.

                  I bought the house in 2006, and paid the mortgage properly until inflation did not permit me to pay the house anymore.

                  Basically, the payment which is for a predatory loan, interest only has literally become too much, I cannot afford that anymore.

                  I purchase the house with a mortgage loan in my name as a single person. In the complaint they wrote something similar to this, and it says that there is a Mr. Monclova, which we do not know his name, and they are also going after him.

                  I am single and not married, and there is no Mr. Monclova, which there would be if my significant other was married to me, but he is not, we just live together.

                  I am researching as to how to answer the complaint and do what I can myself before I seek representation, my only concern is how do I answer to the Mr. Monclova part, do I ignore that, since my significant other is not a Monclova, and is not married to me.

                  I was planning on requesting for the original note as well as state that I believe that the loan was a fraud which I really do believe this because after I signed the paperwork, I was told that after 10 years it become an ARM. I was also told that I could refinance in a couple of years, which I tried, but I was too much of a risk according to the bank, and I was told one thing by the mortgage brokers and the numbers changed once I got to the table....I didn't know about TILA laws, and TILA does not apply because this is a money purchase loan. I wonder what applies to me, all I keep seeing is TILA defenses, but there has to be other remedies for my type of loan.

                  If anyone can direct me anywhere I would appreciate.

                  The other funny thing, the bank listed on the complain, I never saw the name of that bank in my life, only the services and the original broker. This is insane.
                • Hong Ma
                  Hello, more info is found on this site:http://www.thetrustee911.com/foreclosurefraud.htm Peace ... From: boriquita99 Subject:
                  Message 8 of 21 , Jan 21, 2010
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                    Hello, more info is found on this site:

                    Peace

                    --- On Mon, 1/18/10, boriquita99 <boriquita99@...> wrote:

                    From: boriquita99 <boriquita99@...>
                    Subject: [tips_and_tricks] Foreclosure and a visit from someone
                    To: tips_and_tricks@yahoogroups.com
                    Date: Monday, January 18, 2010, 6:15 PM

                     

                    I have stopped paying my mortgage, and I got the phone calls to stop by sending the mortgage company a letter stating that I don't want them to call me etc. However, I received a visit from someone while I was not home. The tenant on the first floor said that they were asking her who lived here, and that they wanted to talk to her about the house. I have never received any notice or heard of anyone visiting the house when it is in foreclosure. Can someone guess at what is happening?


                  • tomjeff88
                    ... Tom replied: When asking for assistance or opinions it would be nice if you let the group know what state this occurred in. Check your state Rules of Court
                    Message 9 of 21 , Jan 21, 2010
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                      "boriquita99" <boriquita99@...> wrote:
                      >
                      > Thank you for your responses...what it was was the attorney from the bank dropping off the complaint.

                      Tom replied:
                      When asking for assistance or opinions it would be nice if you let the group know what state this occurred in. Check your state Rules of Court or Civil Procedures. If you're going to play in their sandbox, know the "Rules of Engagement." In my state I always file Preliminary Objections to the complaint. From what you have described there is justification in theories of law for you to do something similar because of the wrong parties being named. Then the bank - or whoever the plaintiff is - would probably be forced to amend the complaint if the additional named defendant is not an obligor to the mortgage. I can't give you specifics only generalities not knowing what state the battle is in.

                      Personally, I have never answered a civil complaint until forced to by the court on a motion from my adversary. As for your other issues, I would need more information to formulate an opinion.

                      Hope this helps.
                    • Michael
                      ... You need to get a copy of your states compiled statutes that contain the foreclosure laws. In Cook County, as an example, only the sheriff or the coroner
                      Message 10 of 21 , Jan 25, 2010
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                        > --- On Thu, 1/21/10, boriquita99 <boriquita99@...> wrote:

                        > >what it was was the attorney from the bank dropping off the complaint.

                        You need to get a copy of your states compiled statutes that
                        contain the foreclosure laws. In Cook County, as an example,
                        only the sheriff or the coroner can serve process, [the
                        complaint]. I never heard of a lawyer serving process.
                        [Actually, there is another way for someone else to serve
                        process, for the record, but a lawyer ain't one of them.]

                        For that part, you would answer the complaint in the form of
                        a special appearance to challenge personam jurisdiction.
                        [Get some help to understand the terms and procedures.] The
                        special appearance is ONLY to challenge the court's jurisdiction.

                        >This is the funny thing...They gave it to my significant other.
                        > There were two complaints, one for me and one for my
                        >significant other.


                        Yet another simple challenge...a non-party for whom the
                        complainant would have to provide proof.


                        > I am single and not married, and there is no Mr. Monclova,

                        When you get to that part of responding to the complaint,
                        the note will bear that out.


                        > I am researching as to how to answer the complaint and do what
                        > I can myself before I seek representation.

                        Start with the special appearance.

                        You will need to learn how to put a response together. If you
                        have a law library near you, there may be some examples you can
                        look at.

                        Your primary challenge is to the hearsay "evidence" in the form
                        of a copy of the note. You deny that is your signature on a copy
                        and demand proof of signatrure by having the bank produce the
                        original note.



                        > state that I believe that the loan was a fraud which I really
                        > do believe this because after I signed the paperwork, I was
                        > told that after 10 years it become an ARM. ..etc, etc...

                        You will not be prepared to argue fraud, which requires a lot of
                        hoops you may not be able to negotiate. For that and any TILA
                        argument,you will need help.



                        > The other funny thing, the bank listed on the complain, I never
                        > saw the name of that bank in my life, only the services and the
                        > original broker. This is insane.


                        The bank could very well be a servicer, filing on behalf of the
                        actual owner. Another great challenge...holder in due course, proper party in intrerest, and proper owner. Very often, the
                        one suing cannot sue, but if not challenged, the court will let
                        the complaint continue, so the burden is on you to put the
                        burden back on the plaintiff.

                        You are in a very powerful position, without realizing it,
                        but you need to do your homework to keep the complaint from
                        being used against you. How is it that the bank filing the
                        complaint came into that position? [Chain of title issue].
                        These are the issues you have to deal with. Simpler when one
                        knows where to look and how to mount a challenge.

                        Challenging for the first timer, buy, it's your house, and
                        you may be able to stay in it for years until the right owner
                        files the complaint. It is up to you to make them prove status.

                        This is a start.
                      • boriquita99
                        Hello: I don t know exactly who served the complaint because I did not receive it myself. You are correct, I don t think the attorney himself would have
                        Message 11 of 21 , Jan 25, 2010
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                          Hello:

                          I don't know exactly who served the complaint because I did not receive it myself. You are correct, I don't think the attorney himself would have delivered the complaint. It was hand-delivered not by mail.

                          I will need to look up Personam Jurisdiction. Thank you.

                          I am looking at examples of complaints in our Legal Services of New Jersey website, www.lsnj.org, they have a Foreclosure team (for lack of a better description) that works with people in their foreclosure. I would have to call someone and find out if I'm eligible for their services.

                          Finding the ways to make the brief look presentable I can do, what I am most afraid of is not including all the proper information. These type of statements bother me.

                          > You will not be prepared to argue fraud, which requires a lot of
                          > hoops you may not be able to negotiate. For that and any TILA
                          > argument, you will need help.

                          This is confidence booster.

                          > You are in a very powerful position, without realizing it,
                          > but you need to do your homework to keep the complaint from
                          > being used against you. How is it that the bank filing the
                          > complaint came into that position? [Chain of title issue].
                          > These are the issues you have to deal with. Simpler when one
                          > knows where to look and how to mount a challenge.

                          Thank you.

                          Marieliz
                        • putermail@email.com
                          If you want to fight foreclosure, do not do it from the defensive posture. You can go after those lying thieving scoundrels. Go to my website at
                          Message 12 of 21 , Jan 25, 2010
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                            If you want to fight foreclosure, do not do it from the defensive posture. You can go after those lying thieving scoundrels. Go to my website at remediesinrealestate.com, fill out the data input page and I will send you a qualified written request. The qualified written request if free. I do the Rule of Law Radio Show and am primarily concerned with due process. A few months ago, this mortgage issue began to raise its ugly head, so I took a look at it. Holy crap, the lenders are do everything wrong. They have been generating loans they knew the borrower statistically could not pay, but the did not care. The defraud the borrower and get him/her to sign the promissory note, then sell the note to an unsuspecting investor. Then the lender stands in the middle and steals from both sides.

                            You have more fraud to throw at them than they can ever overcome. Look at regulation z and x, the Truth in Lending Act, and Home Equeity Protection Act, then compare that to what these scoundrels are doing. It is a mess out there.

                            OK, I admit, I have put together a product for people who know nothing, but the people here probably won't need it. The data input page collects enough information to, usually, find more fraud than the amount of the note. I am not interested in your money. Go to the site, and let me send you the letter, then kick their butts.


                            Randy
                          • putermail@email.com
                            Some suggestions on how to argue fraud. Look at the principal and interest on the Truth in Lending Statement, then compare that to the principal and interest
                            Message 13 of 21 , Jan 25, 2010
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                              Some suggestions on how to argue fraud.

                              Look at the principal and interest on the Truth in Lending Statement, then compare that to the principal and interest on the promissory note.

                              Usually you will find that the note had a little higher principal and lower interest. The Truth in Lending will have a lower principal and higher interest.

                              Usually people get both at closing and, when you look at them both, the discrepancies seem as though they will cancel out. NOT. If you do an amortization on the figures from the Truth in Lending Statement then one from the note, compare the payment amounts from each. Usually the Truth in Lending payment will be higher. If it is, do an amortization on the note values but subtract the note amount from the Truth in Lending amount and take the difference and subtract it from the note figures as an over payment. The difference will surprise you.

                              I have an amortization analyzer on remediesinrealestate.com. Open it and put the tila principal and interest in schedule a, then put the note amounts in schedule b, then look at value k17. That will tell you how much you would overpay over the life of the note, then sue them for triple that.

                              Randy
                            • Patrick M
                              It appears to be that there MAY be many issues that could be involved, the FIRST of which would be the JURISDICTION of the court. JURISDICTION - 1 : the
                              Message 14 of 21 , Jan 26, 2010
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                                It appears to be that there MAY be many issues that could be involved, the FIRST of which would be the JURISDICTION of the court.

                                 

                                JURISDICTION -  1  : the power, right, or authority to interpret, apply, and declare the law (as by rendering a decision) <to be removed to the State having ~ of the crime ­U.S. Constitution art. IV> <a court of competent ~>, see also situs International Shoe Co. v. Washington in the Important Cases section, compare venue - Jurisdiction determines which court system should properly adjudicate a case. Questions of jurisdiction also arise regarding quasi-judicial bodies (as administrative agencies) in their decision-making capacities.

                                http://research.lawyers.com/glossary/jurisdiction.html

                                 

                                First of all, have you looked up what the RULES of service are in your state for the ALLEGED “complaint” to see IF it was PROPERLY served?

                                 

                                PERSONAL JURISDICTION: the jurisdiction granted a court over the parties before it that allows it to issue a binding judgment.

                                see also doing business statute fair play and substantial justice long-arm statute minimum contacts compare subject matter jurisdiction in this entry

                                The U.S. Supreme Court has held in a series of decisions that the exercise of personal jurisdiction must meet the requirements of due process and must not violate notions of fair play and substantial justice. The constitutional standard to determine whether a party is subject to the personal jurisdiction of a court is whether that party has had minimum contacts within the territory (as a state) of that court.

                                http://research.lawyers.com/glossary/personal-jurisdiction.html

                                 

                                IF it was NOT, you may want to DOCUMENT that FACT that you have NOT been PROPERLY served because it could be useful EVIDENCE in dealing with this matter.

                                 

                                MAXIM OF LAW

                                 

                                Where truth is, fiction of law does not exist.

                                 

                                Ignorance of facts excuses, ignorance of law does not excuse.

                                Remove the foundation, the structure or work fall.

                                Ignorance of the Law does not excuse misconduct in anyone, least of all a sworn officer of the law.

                                Ignorance of facts excuses, ignorance of law does not excuse.

                                The multitude of those who err is no excuse for error.

                                An error not resisted is approved.

                                Suppression of fact, which should be disclosed, is the same in effect as willful misrepresentation.

                                Time runs against the slothful and those who neglect their rights.

                                Remove the foundation, the structure or work fall.

                                Ignorance of the Law does not excuse misconduct in anyone, least of all a sworn officer of the law.

                                Remove the cause and the effect will cease.

                                A presumption will stand good until the contrary is proved.

                                The presumption is always in favor of the one who denies.

                                All things are presumed to be lawfully done and duly performed until the contrary is proved.

                                It is in the nature of things, that he who denies a fact is not bound to prove it.

                                What is not proved and what does not exist are the same; it is not a defect of the law, but of proof.

                                Patrick in California

                                 

                                "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

                                 

                                ALLIANCE for our PEACE & PROSPERITY

                                http://groups.yahoo.com/group/alliancepeaceprosperity/  

                                 

                                --- In tips_and_tricks@yahoogroups.com , "boriquita99" <boriquita99@...> wrote:

                                >  

                                > Hello:

                                >

                                > I don't know exactly who served the complaint because I did not receive it myself.  You are correct, I don't think the attorney himself would have delivered the complaint. It was hand-delivered not by mail.

                                >

                                > I will need to  look up Personam Jurisdiction. Thank you.

                                >

                                > I am looking at examples of complaints in our Legal Services of New Jersey website, www.lsnj.org, they have a Foreclosure team (for lack of a better description) that works with people in their foreclosure.  I would have to call someone and find out if I'm eligible for their services.

                                >

                                > Finding the ways to make the brief look presentable I can do, what I am most afraid of is not including all the proper information. These type of statements bother me.

                                > >  You will not be prepared to argue fraud, which requires a lot of

                                > >  hoops you may not be able to negotiate.   For that and any TILA

                                > >  argument, you will need help.

                                >

                                > This is confidence booster.

                                >

                                > >  You are in a very powerful position, without realizing it,

                                > >  but you need to do your homework to keep the complaint from

                                > >  being used against you.  How is it that the bank filing the

                                > >  complaint came into that position? [Chain of title issue].

                                > >  These are the issues you have to deal with.  Simpler when one

                                > > knows where to look and how to mount a challenge.

                                >

                                > Thank you.

                                >

                                > Marieliz

                                >  

                              • Michael
                                Some useful info... http://www.nrgnair.com/MPT/zdi_tech/ucc/09L09.wrongforeclose.pdf
                                Message 15 of 21 , Jan 28, 2010
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                                • Michael
                                  ... You will not need their services for the kind of fight you are going to fight, for you will eventually know more then they will for how you will defend
                                  Message 16 of 21 , Jan 29, 2010
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                                    --- In tips_and_tricks@yahoogroups.com, "boriquita99" <boriquita99@...> wrote:

                                    > I am looking at examples of complaints in our Legal
                                    > Services of New Jersey website, www.lsnj.org, they have
                                    > a Foreclosure team (for lack of a better description)
                                    > that works with people in their foreclosure. I would
                                    > have to call someone and find out if I'm eligible for
                                    > their services.

                                    You will not need their services for the kind of fight
                                    you are going to fight, for you will eventually know
                                    more then they will for how you will defend yourself.

                                    You must answer the complaint within 30 days. What you
                                    need to learn right now is that you will be challenging
                                    EVERYTHING!.

                                    If the complaint says you are in default, how are you in
                                    default, and to whom?

                                    Any time you see the words, "An amount due..." Ask, an
                                    amount of what? and TO WHOM IS IT OWED?

                                    Everything in the complaint is subject to challenge,
                                    or, if unchallenged, the judge will accept statements
                                    made as true.

                                    Example, attorney represents XYZ Lender. Challenge who
                                    the attorney represents. Is there a chain of documents
                                    that shows how attorney was retained? Demand one!

                                    Let the judge know you want an evidentiary hearing so you
                                    can cross-examine the attorney, under oath, making him/her
                                    a material witness. Have the attorney testify that the
                                    alleged lender he/she represents is the actual creditor,
                                    the one who actually made the loan. Can atty swear as to
                                    who is the true lender?

                                    Is the "lender" the atty claims to repsresent the true
                                    lender, servicer, holder of the note, or what status,
                                    specifically?

                                    Raise the issue of FACT that the creditor is not in court.

                                    Demand accounting to determine WHY "an amount" is due...
                                    [an amount of what?!] Make the other side specify. Lender
                                    must be able to show they actually loaned the money. Make
                                    them show it by demanding proof of ALL records relating to
                                    the alleged loan. Do not accept a "summary" statement.
                                    You want ALL accounting records...shwoing where your note
                                    was deposited. How did the funds come into "your account."
                                    When did YOU ever open an account for them to make a deposit
                                    or issue any check(s)? etc...

                                    A few starters for you to consider...
                                  • Gary
                                    Michael, Can you or anyone on the list cite a case where the lender was actually made to produce ALL of the accounting records for any kind of loan? Maybe
                                    Message 17 of 21 , Jan 29, 2010
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                                      Michael,

                                      Can you or anyone on the list cite a case where the "lender" was actually made to produce ALL of the accounting records for any kind of loan? Maybe some cases have slipped by me in the last few years, but I don't remember hearing about any of them, if there are any.

                                      This certainly doesn't mean you shouldn't try to get them, you might get a very cooperative judge who will order the "lender" to produce the records. A few years ago I was helping an elderly couple with a credit card case and as part of the discovery I had them request those accounting records. The bank ignored the discovery request and sent a letter (not filed with the court) that said those records were irrelevant and they would not be producing them. When the time to produce the records had expired we asked the court to order the production of the documents and the judge gave the bank 30 days to produce them.

                                      The elderly couple was convinced by the bank's lawyers to reach a settlement, they would admit they owed the money and the bank agreed not to try to collect it. I was extremely disappointed, but the couple was in their eighties, not well, very tired and they just gave up. That was the only time I have ever had a judge order a bank to produce all the accounting records for a credit card.

                                      Gary
                                      ----- Original Message -----
                                      From: Michael
                                      To: tips_and_tricks@yahoogroups.com
                                      Sent: Friday, January 29, 2010 10:16 AM
                                      Subject: [tips_and_tricks] Re: Foreclosure and a visit from someone





                                      Lender
                                      must be able to show they actually loaned the money. Make
                                      them show it by demanding proof of ALL records relating to
                                      the alleged loan. Do not accept a "summary" statement.
                                      You want ALL accounting records...shwoing where your note
                                      was deposited. How did the funds come into "your account."
                                      When did YOU ever open an account for them to make a deposit
                                      or issue any check(s)? etc...

                                      A few starters for you to consider...
                                    • Michael
                                      ... Excellent question! This is what the process of discovery is all about, and do not expect lenders/plaintiffs to roll over and disappear when asked to
                                      Message 18 of 21 , Jan 30, 2010
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                                        --- In tips_and_tricks@yahoogroups.com, "Gary" <gary2666@...> wrote:

                                        > Can you or anyone on the list cite a case where the
                                        > "lender" was actually made to produce ALL of the accounting
                                        > records for any kind of loan? Maybe some cases have slipped
                                        > by me in the last few years, but I don't remember hearing
                                        > about any of them, if there are any.

                                        Excellent question!

                                        This is what the process of discovery is all about, and do
                                        not expect lenders/plaintiffs to roll over and disappear when
                                        asked to produce the demanded information, and do not necessarily
                                        expect the "judge" to help a defender making same demands.

                                        How one chooses to defend their case is up to them. It is not
                                        easy, but it gets easier with new information coming out and
                                        being shared in places like this.

                                        If you cannot find any case, it is not a hindrance to
                                        successful discovery. It requires persistence, knowing the
                                        rules and procedures for discovery, and then being relentless
                                        in thier application.

                                        There is existing case law that specifically states that a
                                        summary statement, which most ALL plaintiffs provide in a
                                        foreclosure case, is NOT sufficient. [I have cited one but
                                        do not have time to look for it at present.]

                                        It takes time to do the research and learn how to make
                                        discovery, i.e. requests for admissions, requests for the
                                        production of documents, etc, and how to make the opposition
                                        comply...and there are rules that must be followed.

                                        Any time a "judge" steps outside of the rules calls for an
                                        immediate objection, on the record, which forms the basis
                                        of appeal. The opposition will force defendant to go all
                                        the way, not just 9/10ths of the way which may lead to a
                                        defendant's loss.

                                        > The elderly couple was convinced by the bank's lawyers to
                                        > reach a settlement, they would admit they owed the money
                                        > and the bank agreed not to try to collect it.

                                        Can that be any more revealing?!!! The bank could not win;
                                        they knew it, but the elderly couple did not know how to
                                        finish and strike the fatal blow. The bank settles, and no
                                        case law is made about a defeat.

                                        Happens all the time. It is up to the individual to make
                                        the plaintiff produce and make sure the court enforces all
                                        the demands by knowing how to enforce them.

                                        Cheers!
                                      • Michael
                                        ... More reason why you have to be the captain of your own destiny is because those whose services you seek do not fight the same fight, or even know how. One
                                        Message 19 of 21 , Jan 30, 2010
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                                          > --- In tips_and_tricks@yahoogroups.com, "boriquita99" <boriquita99@> wrote:
                                          >
                                          > > I am looking at examples of complaints in our Legal
                                          > > Services of New Jersey website, www.lsnj.org, they have
                                          > > a Foreclosure team (for lack of a better description)
                                          > > that works with people in their foreclosure. I would
                                          > > have to call someone and find out if I'm eligible for
                                          > > their services.


                                          More reason why you have to be the captain of your own
                                          destiny is because those whose services you seek do
                                          not fight the same fight, or even know how.

                                          One thing you should do is challenge subject matter
                                          jurisdiction via a motion to dismiss.

                                          If you never heard of the "lender" filing a complaint
                                          to foreclose against you, it is highly likely that said
                                          "lender" lacks the proper standing. Check with your
                                          county recorder's office to see the chain of title.

                                          Every foreclosure must be brought in the name of the
                                          party who has legal rights to foreclose, the element
                                          of "standing" to initiate the suit. Without it, the
                                          suit cannot survive. Check to see if your "lender"
                                          has been properly assigned all rights and interests,
                                          via an assignment.

                                          If not, file a motion to dismiss the complaint for
                                          lack of subject matter jurisdiciton, and for the
                                          plaintiff's failure to state a claim for which relief
                                          can be granted. [No rights, or standing, means the
                                          party foreclosing cannot be entitled to any relief,
                                          therefore cannot state a claim for any.]

                                          Keep pressing, and show who is in charge, regardless
                                          of how uncertain or unsure you may be. Confidence
                                          will come in the doing and learning as you proceed
                                          against them.

                                          Cheers!
                                        • Michael
                                          Saturday 30 January 2010 Cases actually abound, once one is determined to seek them out. Here are two examples of how to challenge standing. The first is a
                                          Message 20 of 21 , Jan 30, 2010
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                                            Saturday 30 January 2010

                                            Cases actually abound, once one is determined to seek
                                            them out. Here are two examples of how to challenge
                                            standing. The first is a supreme court case, the
                                            second references the now popular decisions coming
                                            out of Ohio.

                                            Do a Google search for each:

                                            "454 US 464" You need to learn to read relevant
                                            case law]

                                            "521 f supp 2d 650" this will give you a slew of
                                            responses.
                                          • Michael
                                            ... No, it would not apply to the IRS, a totally different circumstance.
                                            Message 21 of 21 , Feb 1, 2010
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                                              --- In tips_and_tricks@yahoogroups.com, "Michael" <mn_chicago@...> wrote:

                                              > RE: Every foreclosure must be brought in the name
                                              > of the party who has legal rights to foreclose, the
                                              > element of "standing" to initiate the suit. Without
                                              > it, the suit cannot survive. Check to see if your
                                              > "lender" has been properly assigned all rights and
                                              > interests, via an assignment.

                                              To which someone asked via a private e-mail:

                                              > Would this apply to IRS 'liens' - 'foreclosures', etc.?
                                              > They seem to have the LEGAL right to take a hike, but
                                              > intimidation rights to anything they want.....

                                              No, it would not apply to the IRS, a totally different
                                              circumstance.
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