Foreclosure Defense: Module 10

What do you do once a bank respond to your civil action?

Look, here’s where your support (by being members of our association) comes in. Most pro se litigants are all gung ho about filing suit but once a bank responds, they don’t know what to do.

It is worth revisiting this issue as this is where most of us  will likely be stopped.  Most of us will feel like we’ve been punched in the guts when we receive a 50 page response from a big name law firm quoting this case law and that case law showing the court why our motion should be dismissed.

Look, let’s get real.  It is scary as hell.  You will feel like vomiting.   This is why we went through the exercise to condition you so you know what to expect.  THEY DO NOT WANT YOUR CASE TO GO TO TRIAL.  They want your case to be dismissed so they can quickly and easily foreclose on your house.  Don’t take it personal.  It’s just business.  If the situation was reversed, frankly, you would do the same thing.

So now what?

Once you receive your Motion to Dismiss, you must file a Response and Objection to their Motion to Dismiss.  We’ve included a bunch of sample responses in the Documents download directory under “/Motion to Dismiss Responses“.

Read these. Craft your own responses from these samples.  See what case laws they are using and use them to fit your situation and response.

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At this point, some of you might feel this is getting beyond your ability to handle.  It’s OK.  There’s nothing to be ashamed of.  You put up a fight.  Take a deep breath.

Honestly, getting a good attorney who understands this stuff is a) tough to find b) EXPENSIVE AS HELL.  You can try to locate an attorney from our list.

Here’s another thing we can do to really nail them and shut them down.

As you recalled, we filed a Request for Admissions. It a series of questions that we ask the bank/defendant for whether they admit or deny our questions/allegations. This is part of the discovery phase. It allows for more efficient time in court because issues admitted, are admitted for all times and can not be brought up. Issues denied are subject to further discovery.
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What’s to stop them from denying everything? Good question. You see, you can not lie in court. If you are caught in a lie, you are subject to fines/sanctions or worst, fraud before the court. (if an attorney does this, he could lose his license)

For example, if he denies and says “we are the holder in due course”, and during discovery, we motion to compel production/proof…and he can not provide proof, then he is caught in a lie.

This should make it very difficult for opposing counsel to wiggle out of.

Next, we have a Motion to Compel Production of Documents . If you have submitted your Request for Production of Documents and it’s been 30 days, then you must ask the court to compel them to produce the evidence. Fill this document out and send it to the defendant and copy the court.

As you recall, for every motion we submit to court, we have to file an Order.  Everything we submit to the Court, we must submit to Opposing Counsel.

Finally, we have a nuclear bomb. It is 005d-motion to compel-Attorneys Nightmare.doc created by John Stuart. This thing is an absolute killer. It forces the attorney working for the bank to do your work for you. HE HAS TO VERIFY WHETHER HIS CLIENT IS TELLING THE TRUTH. He is taking his client on their word at this point, but with this motion, he has to verify his client’s information. Otherwise, he is bringing false evidence and committing fraud before the court. Fill this document out and send it to the defendant and copy the court.

Go and customize the following:

Look, with these documents sent over to the opposing counsel, they have a serious problem on their hands. They have a home owner who is educated and willing to fight. This means that the bank has to put up even more money if they want to go to court with this.

With your Motions to Compel, if the judge denies your motion, he has to give reasons why. If he does, you can file a motion to have the judge replaced as he is clearly prejudicing this case.

If I taught you anything at all in this course, it is the ability to think outside of the box. Learn to play jujitsu. No is never a no. We just have to keep thinking of creative ways to figure it out…and make it more difficult for the other side.

Before you rush off, wait.  Check with Prepaid Legal (or your Rules of Civil Procedure).  Before you can file a motion, the law requires that you confer with opposing counsel.  So, as much as you hate doing this, but before you can file a motion, you MUST attempt to call and confer with the other side’s attorney.  Tell them what you intend to file and listen to what they have to say.  You don’t have to agree, but you must confer.

Here’s a powerful argument from one of our members you might want to use when/if you go to a hearing/trial:

Mr Banker,

Will you stipulate to the court whether or not you have the ability to forgive this note? (We are not asking them to forgive but only if they have the power)

Well then banks will almost always say no we do not have the power to forgive the note. And then you just won with that admission as it is a longstanding to Doctrine of the Fair Debt and collection act that the party seeking to foreclose must be able to forgive the debt, or he is not the debtor.

This is an AWESOME way into the securitization argument. The securitization argument is very hard for Judges to wrap their brains around, however if a bank is unable to forgive the debt it is because other parties (A security) is involved and by saying they are not able to forgive the note they are admitting they have no ownership of the note.

When a bank says they are unable to forgive this instantly puts them on the defense as the next question is:

Q: well if you are not able to forgive the note why is that?
A: Well we have other investors in the note etc…

Q: So do you represent these “Other Investors” ?
A: Well Yes

Q: Great then as a representative of these other investors do you have the authority or ability to forgive the debt?
A: No

Q: So you dont represent them entirely then?
A: Not to authorize a settlement

Q: So then if you have other investors involved and you cannot forgive the note without their authorization then how can you foreclose without their authority?
A: We have their authorization

Q: In Writing?
A: Yes

Q: Great I would like to see this documentation please

You get where this is going? The minute they show someone else with interest in this note its over they are not the note holder in due course. And the named person they are acting on behalf of is now listed as a securitization firm and we have them caught redhanded.

1) Fill out and file the Motion to Compel Production of Documents. Send it to the Opposing Counsel.

2) Fill out and file the Motion to Compel – Attorney’s Disclosure. Send it to the Opposing Counsel.

3) Confer with Opposing Counsel

4) Submit the above documents to Court

5) What you submit to court, you must submit to Opposing Counsel….so, fax, email or mail your motions to Opposing Counsel.

Yes, I know.  It’s a lot of work.  It’s a pain in the ass.  It is very stressful.  But, cases are won or lost through technicalities.  What we’re doing is to bury them in paperwork hoping that they mess up.

Hang in there.  Don’t give up.

Remember, we’re fighting for your family.