Foreclosure Offense and Defense: Introduction to most pleadings

Until the past few months few lawyers, judges or legislatures ever considered the foreclosure process to be anything other than a ministerial process. What has now emerged in hundreds of cases across the country is the dismissal, many times with prejudice, of foreclosure actions because of fraudulent documents from the lender, payment in full on the note, lack of standing and failure to prove the note or mortgage by production of the original or anyone with personal knowledge to prove a lost note.

The trial courts and some appellate courts have started recognizing that because of the securitization process initiated around 2001, the foreclosing party is not the real party in interest because they have sold or transferred, the note, the mortgage or both and that there were multiple transfers after that ending up with the holder of an asset backed security, secured by a pool of mortgages and loans. Along the way, the notes were paid off and the security was attempted to be transferred despite the satisfaction of the note. In addition co-obligors were added and substituted.

The subject mortgage and note is within that class of loans that has either been transferred or pledged or otherwise pooled with hundreds, perhaps thousands of other mortgages. In order to defend the action properly, and prosecute the claims of the Defendants in their affirmative defenses and counterclaim, Defendants must be allowed to trace the journey of the original loan documents, and the rights and obligations continued therein as they were effected by events both before and after the loan closing.

All proceedings conducted thus far are, upon information and belief, conducted under the allegation that the PLaintiff is the actual holder of the note and mortgage and that the note has not been paid. Upon infomration and belief, based upon many other cases invovling the same Plaintiff, the subject note and mortgage and note are not enfroceable by this Plaintiff and the continued allowance of the enforcement subjects the Defnedant to a Judgdement from this Plaintiff AND a claim and judgment from multiple third parties who will claim an interest in the subject note and mortgage.

One Response

  1. So what would you ask the courts to have the plaintiff due in order to trace the history of the loan transaction as it it where sold to a third party. And stripping the plaintiff of their right to foreclose because they are not proper parties to the suit nor ever where.

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