Foreclosure Defense: Module 9
The Bank’s Response Part 2
Especially in these matters, I could be talking out my behind. These are just my private opinions and have no real validity in the real world. They are my interpretations. I make no legal determination or assurances on the validity of everything I say. You really must confirm these with your lawyer for your protection. Seriously.
I’m sorry about yesterday’s module. I know it was brutal. As I said, I freaked out too. But, it’s real life. I wanted to make it as real as possible so that if/when you receive this kind of response, you will at least be more prepared.
Let’s look at the meaning of a demurrer carefully and see how we can tear this apart.
1) It challenges our legal sufficiency in the pleading.
2) The Judge has to consider everything we put forth in our pleading as truths, even if it is proven later that it is not.
Legal sufficiency has to do with not building a sufficient cause of action or having the vital elements required in the cause of action. So, let’s look at the reference from Jurisdictionary about what is a Cause of Action. Causes of Action and Civil Defense #8
Take out your pleadings and review it. Does it have the elements of a cause of action? If not, then you will need to revise it. If you need to, you can submit to the court an Amended pleading. Ask Prepaid Legal how to make an Amended pleading (or contact our Document Preparation Specialists Partners).
Let’s See What They Are Saying
From what I can see, these are their main points.
1) They do not need to use Judicial means to deal with a foreclosure. The State’s civil procedure rules are sufficient to handle everything.
2) They do not need to produce the original note. There are many case laws that says this.
3) They do not need to be the holder in due course. There are many case laws that says this is OK.
4) The Plaintiff did not deny that they did sign the original promissory note.
5) The Plaintiff did not offer “equity for equity”. They did not offer to make payment in full.
6) They do not have to be bound by the Fair Debt Collections Act because it is bound by the Deed of Trust.
7) Failure to State a cognitive Claim.
8) Failure to have the Elements of a Cause of Action.
So, Let’s Pick it Apart
Disclaimer: This is purely for educational purpose. Nothing on this site can be construed as giving legal advice. You are using this information at your own risk. You are to seek legal counsel in these matters.