Wrongful Foreclosure Module 8

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).

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.

What we can do is one a Motion to Dismiss/Demurrer is filed, we can file our answer/objection.  Remember?  “I OBJECT!”

When you object, you need to state “on what grounds” ie. on what basis?

1).  While it is true that the State’s Civil Procedure regarding foreclosures are sufficient in most cases, where controversy exists between the parties and adjudication is required, a civil action is the only means of requiring the parties to “come to the table”.  So, this is what I would enter in answer/objection to their point.

2) and 3) I would ask Prepaid legal to research this UCC Code for my State…to find the State equivalent.

In other words, who actually has the right to enforce a negotiable instrument and how is the Holder in Due Course defined for your State.

§ 3-501. PRESENTMENT.

• “Presentment” means a demand made by or on behalf of a person entitled to enforce an instrument (i) to pay the instrument made to the drawee or a party obliged to pay the instrument or, in the case of a note or accepted draft payable at a bank, to the bank, or (ii) to accept a draft made to the drawee.
• The following rules are subject to Article 4, agreement of the parties, and clearing-house rules and the like:
  • (1) Presentment may be made at the place of payment of the instrument and must be made at the place of payment if the instrument is payable at a bank in the United States; may be made by any commercially reasonable means, including an oral, written, or electronic communication; is effective when the demand for payment or acceptance is received by the person to whom presentment is made; and is effective if made to any one of two or more makers,acceptors, drawees, or other payors.
  • (2) Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made.
  • (3) Without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of a necessary indorsement, or (ii) refuse payment or acceptance for failure of the presentment to comply with the terms of the instrument, an agreement of the parties, or other applicable law or rule.
  • (4) The party to whom presentment is made may treat presentment as occurring on the next business day after the day of presentment if the party to whom presentment is made has established a cut-off hour not earlier than 2 p.m. for the receipt

When it says “exhibit the instrument”, it means show me the original instrument.  Not a copy.

4) Well true.  We do not deny that we did sign the documents…but we have reason to believe that full disclosure was not given.  Lacking the full meeting of the mind, this contract is void ab initio.   See my pleading.

5) Actually, we did.  As you recall (bring it up), in our original QWR, we did say “your negotiable instrument is conditionally accepted for value upon proof of claim.” We did offer to accept the value of the debt upon proof of claim.  This is a good faith offer.

6) This is utter bullshit.  Of course they are bound.  You can not pick and choose which law you want to abide under.  There’s clearly a negotiable instrument involved…the Promissory Note.  A Promissory Note is a negotiable instrument and is a debt.  It must be governed under the Fair Debt Collections Act.  As a Debtor, you have the right to dispute the debt and the Creditor have to provide proof of claim.  It is black and white.

TITLE 15 > CHAPTER 41 > SUBCHAPTER V > § 1692g § 1692g.

Validation of debts

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection

(a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection

(a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

1) Knowing that the bank can respond with a Demurrer (their favourite strategy against pro se), I want you to review and tighten your case.  If you think you have passed the test, then submit it to someone else in this program for their review.  Double check each other’s work.  If you failed the Demurrer test, then amend it.  Submit it for review, and then refile it with the court (be sure to notify the other party).  You can only enter an amendment if the other party have not responded…so, you should do this quickly.

2) Put your contact info below and hook up with someone else in the program.  HELP EACH OTHER OUT!!  Do not rely on me.  I am your coach, not your mother.

3) Review this response made by another pro se litigant in response to the bank’s objection.  Read it.  Learn from it.  Use it for your case.  Check out /reference/001 Objection-Response.doc

As a Pro Se or Pro Per litigant, the court is required to give us leeway.  They can not just throw our case out because we don’t know what we’re doing (as long as we are not trying to manipulate or deceive the court).  Usually, we can file an Amendment to our case to fix our weaknesses and go at it again.

Like I keep saying.  I am only your coach.  I don’t know it all.  I had to research this stuff too.  I have access to the same things you have.  I have the same 24 hours you do.  My job as your coach is to push you, condition you, and inspire you to be better than me.  It is my hope that you be “the next rock star” and help more people.  I don’t want the glory.  I want to results…and that’s to end “Modern Slavery through debt”.

I am grateful for your support.  I hope you have benefited from this exercise.