Foreclosure Defense: Module 11

If you have survive this long then you’ve gone further than 99% of homeowners out there.  Congratulations. What you will likely find is that you will likely need to go to a hearing to hear and argue your points for your Motion to Dismiss.  What always happens is, the other side will send a Motion to Dismiss requesting Oral Arguments.  Their basic arguments will be pretty standard: 1) The Debtor signed a promissory note 2) The Debtor is in default 3) Under State Civil Code, the Lender is able to foreclose and does not need to prove anything. 4) The Debtor is trying to get out of the debt “get a free lunch”.

The point here is that when you go to a hearing, make sure you can provide as much evidence that you are in fact an injured party. Further, you can not be held to the same standard as a BAR attorney.  Justice must be fairly dispense to everyone.  The case must be judge by the merits of the dispute rather than the form. Take a look at the following to support your case as a Pro Se litigant: Caldwell v Miller, 790 F. 2d 589, 595 (7th Cir. 1986) “Pro Se litigants are not held to the stringent standards applied to formally trained members of the legal profession, and their pleadings are to be liberally construed.” The United States Supreme Court, in Haines v Kerner 404 U.S. 519 (1972), said that all litigants defending themselves must be afforded the opportunity to present their evidence and that the Court should look to the substance of the complaint rather than the form. In Platsky v CIA, 953 F.2d 26 (2^nd Cir. 1991), the Circuit Court of Appeals allowed that the District Court should have explained to the litigant proceeding without a lawyer, the correct form to the plaintiff so that he could have amended his pleadings accordingly.  Plaintiff respectfully reserves the right to amend this complaint.

These should have been entered into your pleading for Judicial Notice already.  But when you come to court, be sure to say something like:

“I motion this court to take judicial notice for the record of the following: Caldwell v Miller, Platsky v CIA, Platsky v CIA as per my pleading.  I am a pro se litigant and can not be held to the same standards as a BAR attorney.  I am bound to make mistakes, and I motion your honor to take judicial notice and interpret the case as liberally construed to respect the substance and not the form as to afford justice to all.”

We need as much an edge as we can, so hopefully this will give us some lea way.  It is important to say “for the record” so that it is recorded for future reference.  This way, if you make a mistake, you can always refer back to this point.

Every case is different.  Your best bet is to connect with a few people in your State in our Member’s Meet up directory.  Run a number of mock trials.  Take it seriously.  It will benefit them as much as it will benefit you.  This will give you practical experience of going to court so you don’t freeze up. You should have already prepared your arguments in the last couple of modules for the dismissal so I will not need to cover this again. Most important is that you don’t do this alone.  You can not do this alone.  That’s what our association is for.  It’s there so we can all help each other.  Of course, it goes both ways.  You can not expect to receive help if you are not willing to give help to others.  It is very rewarding once you learn to extend yourself and help others.  Also, by helping others, you get experience and learn from their mistakes (and successes).  No one is an “expert” here, so don’t worry.  Be the shoulder that your fellow members can cry on…and they will be there when you need a shoulder too. Finally, you have Prepaid Legal.  Use them.  Call them and ask questions about your case, and about court procedures whenever you are unsure.  That’s what they are there for. (and if you don’t have Prepaid Legal by now, then SHAME ON YOU).

I Object! Relevance. I Object! Hearsay.  Counsel does not have first hand knowledge.

If you do not object, then it is admitted and accepted.  So, if what they are spouting is bullshit, then object.

You have the power to move the court.  You actually have more power than the Judge will let on.  You can Move the Court to do stuff…like ordering a computer or a robot to do stuff for you.

For example, you can force the other side to admit their fraud.

“I Move This Court to have Opposing Counsel Stipulate For the Record….”

You can make Opposing Counsel squirm.  If it is relevant, the judge must grant you the motion.  For example, here are some questions you will want to ask:

Use your imagination.  You’ve read the book.  You’ve watched the videos.  You should now understand the arguments. You can even Move the Court to have Opposing Counsel Sanctioned. If Opposing Counsel has brought fraud before the court, you can Motion the Court to order Opposing Counsel Sanctioned.

YOU HAVE THE POWER!

I hear time and time again, people saying “but what if I have a corrupt judge?”  To answer this question, let me give you a few examples.  For those of you old enough to remember the Rodney King case in LA where a judge freed a couple of Officers even after the beat the crap out of the poor guy…on video.  Remember the Riots?  Judges are bound by rules.  You just need to know what these rules are.  They are not about to tell you. Imagine if you had a photo of a guy pointing a gun at a teller with a bag full of money.  In fact, this guy is the Judge’s son.  The Judge loves his son and does not want him convicted.  Do you think there is any way for the judge to rule any thing else but a Guilty verdict?  He can’t. So, what i am saying is, you can not go into a court assuming the judge is corrupt.  On the same hand, you should not go into a court assuming the judge is friendly and understanding.  You need to go into court armed to the teeth with confidence and knowledge of your rights.

Courts are bound by The Law and Evidence.  That’s it.

So, it is your job to bring the appropriate laws to enable the judge to rule in your favor.  It is your job to find so much evidence to cast doubt into the Judge’s eyes that he is forced to rule in your favor. You should be able to come into court and say very little and say “I stand on my evidence” and sit down. That said, if you find an impossible judge, you have one automatic ability to have the Judge recused.  It is called a Preemptory Challenge.  We have included this in the kit, under: 022-Preemptory Challenge.doc

As a litigant, you have the right to subpoena key evidence that is material to your case.  Look at your Rules of Civil Procedure.  To Subpoena for documents, you simply Motion the Court for Production of documents as per our template. You can also sequester accounting records to prove the transaction of your case.  This is done the same way.  Again, please consult Prepaid Legal for confirmation.  Every State is different. You can also subpoena key witnesses as well as get depositions from people material to the case.  Ask Prepaid Legal how to do this.  For example, you might get the person who signed your Notice of Substitution of Trustee to a deposition so you can ask him/her key questions. Be warned.  When you subpoena a witness, you are responsible for the expense…sometimes, you can get the judge to grant you leave to split the cost between opposing counsel.  Again, consult with Prepaid Legal. Subpoenas and Depositions are part of the discovery process.  If you are far along enough into the process to get into discovery, then we suggest you work with an attorney at this stage.  It starts to get very technical. One final note, Depositions should be the last part of your discovery.  Try to resolve everything on paper first.  You can only have one shot at a Deposition.  If you are going to depose someone, you better have all your questions pre-planned and laid out.  Never ever “wing it”.