Quick Reconveyance: Module 5

In this module, we discuss what happens when the bank responds.  Most likely, you will not hear from them…but, what if you do?  This is why we prepare ourselves in advance.

Firstly, take a deep breath.  Remember, this is a “quick jab” maneuver.  It is one of many battles in the war.  If we lose this, it’s no big deal.  However, if we win…it is a pivotal victory.  My motto is, we plan for the worst…and hope for the best.  In this module, we will prepare ourselves for what happens if the bank responds

Secondly, I want you to understand something very important.  Please pay attention.  DO NOT TAKE THIS PERSONALLY.  It is only business.  If the bank decides to respond, they will do one of two things (or both).  They will likely file a motion to dismiss followed by a removal notice to go to Federal Court.

Look, this is standard textbook behaviour.  If I was to hire an attorney, and they don’t file a motion to dismiss, I would fire him and sue him for malpractice.  So, expect it.  It’s what you would do too if it was you in that position.  Just deal with it.  For them, it is easier to have your case dismissed before it goes to trial.  Remember, since it is a jury trial, they don’t want to go there.  It is your job to make sure it gets there.

That said, if you receive a response, it will feel like you’ve been punched in the guts by Mike Tyson.  You’ll likely feel depressed.  Look, it’s OK.  That’s why I ask you to hook up with a study partner.  You NEED a support network.  Call your study buddy up.  It is alright to cry (even if you are a man).  This is gut wrenching stuff.  Do what you have to, but understand that at the end of the day, it is just a chess match.  The other side have invested zero emotional energy into this…it is just pure tactical maneuvering on their part.  Your emotions work against you.  Do what you have to, to set the emotions aside so you can get on with business.

As I said, they will likely file a motion to dismiss.  The thing you’ve got to understand about a motion to dismiss is that ALL ALLEGATIONS IN THE ORIGINAL COMPLAINT ARE ASSUMED TO BE TRUE.  You’ve made some very specific allegations in the complaint…specifically, they have been paid in full…and their “assignment” was in fact a pay off because there was no matching assignment of the Deed of Trust.    This is very hard to deny.  You can not dispute evidence.  Do you see now why I asked you to build your case with evidence earlier?

Secondly, you should respond to the motion to dismiss with an Objection.  Simply write your response, answering their motion, point for point.  Use the Caption header as provided in the template.  Title your response “Objection to Defendant’s Motion to Dismiss”.  Get your study partner to help you work out a response.   Brainstorm.

Once you’ve formulated a response, then file a copy with the court and send/fax/email a copy to the opposing counsel.

If this thing goes further…you will likely need deeper help.  At this point, I would refer you to Prepaid Legal.  Ask them for their advice.

Opposing Counsel will likely ask for oral arguments.  This means you will need to go to court to argue your points and let the judge decide whether this case should be dismissed.  DO NOT BE AFRAID TO GO TO COURT.  Just stick to your arguments.  This is strictly contract law interpretation.  Stick to your guns.  The only thing you need to worry about is to bring before the judge that there is enough evidence and controversy for this action to go to trial.  It is not your point to “win the case” here.  Your objective is to get the jury to decide the outcome of the case….and survive the motion to dismiss.

If you need to go to court…then get together with a number of your study buddies.  Hold a mock court.  Argue your points.  Remember to learn to Object.  You can object on two points.

1) Objection – Relevance.  If opposing counsel brings up a subject that has no relevance to the topic…you can object.

2) Objection – Hearsay.  If opposing counsel spouts shit that he has no first hand knowledge of, it is your job to object.  Say “Objection Hearsay – counsel have no first hand knowledge of the facts.”.

Practice your pitch repeatedly.  This will give you practice and confidence should the real event arise.  Again, we prepare for the worse…and hope for the best.  They will likely not respond.

That said, I don’t want you to live in fear.  Just know this might be coming…but just put it out of your mind.  We’ll see what happens.

However, I do want you to find out how many days the other side have to respond.  Typically, it is around 30 days.  Check with your State’s Rules of Civil Procedure.  On the 31st day, you are to then enter a Motion for Default Judgment.

What if the action is removed to Federal Court.  I don’t know why they do this, but often times, they remove the action to Federal Court.  In this case, it is my (non professional) opinion that you are better off staying in State court.

Here’s why:

That said, if you have to stay in Federal Court, it is not too bad.  Federal judges are often times more professional.  In my personal experience, you get a fairer shake with a Federal judge than a State judge.

You have a right to object the removal.  Once an action is removed to Federal Court by either party…it is AUTOMATIC!  Federal Court automatically has jurisdiction.  It is then up to the Federal judge to “remand” the action back to State court.  If you object to the removal..then you should file a “Motion to Remand”.  Courts only have power when they are given jurisdiction.  In this case, if the property is in your State…then property law is most applicable at a State court.  Read up on your Rules of Civil Procedure…under Jurisdiction.  Read up on the part about real estate/property.  In your motion to remand, you will typically say something like:

“The Plaintiff objects to the removal of the action into Federal Court.  Under Oregon(ie. customize your own state) Rules of Civil Procedure rule 4F, State Court have priority jurisdiction in this controversy.  The Plaintiff motions this court to have the action remanded back to Circuit Court.”

You will file this objection to the Federal Court…not to your State Circuit Court.