Foreclosure Defense …
Tip the Scale Know The essential elements:
If you’re a foreclosure victim (or defendant in any kind of case, criminal or civil) the first thing you must know is what “essential elements” must the plaintiff prove to win!
In a foreclosure case, there are usually two documents that give plaintiffs a right to sue:
1. Promissory Note
2. Mortgage
There are others (trust deeds, conditional deeds, etc.), but most foreclosure cases require a note and mortgage.
In some cases the note and mortgage are combined in one document, but there are always TWO PARTS.
You must understand both parts!
1. The note is your promise to pay the lender. It is not (as some internet nutcases claim) full value received by the lender satisfying your promise. If you believe this craziness you will lose! Promissory notes are worth only the good faith ability of the signer to pay. If someone gives you a promissory note in exchange for your putting up money so they can buy something, you have a right to sue them when they don’t make good. Ignore the nuts who tell you otherwise, or email us for details.
2. The mortgage, on the other hand, is your promise to surrender title to the property if you don’t pay the balance of the note, or if you fail to keep the property insured, fail to pay property taxes, etc.
LEARN OR LOSE … those are your only options!
To foreclose a mortgage, the plaintiff must allege and prove six (6) essential fact elements:
1. You presently hold title to the property.
2. Plaintiff has promissory note or other document giving plaintiff the right to sue on the note.
3. You signed the note.
4. Plaintiff has the mortgage or other document giving plaintiff the right to sue on the mortgage.
5. You signed the mortgage.
6. You are in default.
Plaintiff’s failure to (1) allege and (2) prove every one of these essential elements is fatal to the plaintiff’s case.
So, what do YOU do to WIN?
1. File a written response within the time set forth in the summons, or a default will be entered against you!
2. Do not file an “answer” immediately!
3. Try to avoid filing an answer to the complaint by filing a flurry of motions, such as motion to strike, motion to dismiss, ect.
4. If you are forced to file an answer, be certain to file all the affirmative defenses you have, so that you can give yourself a chance to build your case.
5. Use all five of your evidence discovery tools such as Request for Admissions, Interrogatories, Request for Production, Notice of Deposition and Subpoenas to prove that at least one of the plaintiff’s essential elements is missing – either not alleged or impossible to prove.
THIS IS THE SAME PROCESS FOR ANY LAWSUIT INCLUDING CREDIT CARDS.
If a credit card company sues on a credit card debt then make the plaintiff prove that they have the original binding and valid contract with your authenticated signature.
The only thing that makes foreclosure different from any other courthouse battle is a different set of elements.
