What Happens on A Motion to Dismiss?

Legal procedure is difficult to master in one sweep. But in all events you should know that everything before trial is strictly procedure and that your notions about right and wrong are almost besides the point. The purpose of procedural rules is to enable the parties to narrow the issues that must be decided and that usually means testing the sufficiency of what was said. And that simply means a test to see whether what was said actually means something legally.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Case example:
The Court must accept all well-pled allegations of fact for purposes of a motion to dismiss. That doesn’t mean that they actually accept it as true, but for purposes of testing the sufficiency of a complaint, the allegations are taken as true and relevant IF the allegations state a cause of action. That means that the facts pled in the complaint support the lawsuit you filed. If they filed the lawsuit then you have filed a motion to dismiss and then they reply to it.
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In all events, you might want to file a reply, usually it is advisable, when the opposition files a motion to dismiss. The contents of such motions are fairly predictable. You should check  with local counsel before doing anything.
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In your reply, you should first point out that they continue to advance a notion that they somehow are a real party in interest. Here they have styled the case as US Bank as “Trustee for GSR Mortgage Loan Trust 2006-3F, Mortgage Pass through Certificates, series 2006-3F.” This is your opportunity to drill home the fact that they did not, in their complaint, identify the Plaintiff. While US Bank is a legal entity, it is not appearing on its own behalf. This leaves the question of “on whose behalf” do the attorneys attempt to state that US Bank is appearing?”
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The Defendant and the Court are left guessing whether US Bank is appearing “for” certificates or a trust. If it is for certificates, they have not identified or described what that means. If it is for a trust they have not identified the trust, whether it was ever organized in any jurisdiction or whether a trust is currently operating under that name — “GSR Mortgage Loan Trust 2006-3F, Mortgage Pass through Certificates, series 2006-3F.” It is not the province of the court to fill in blanks left out by the pleader.
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Without such facts being alleged, the Defendant has no way of knowing the identity of the Plaintiff or who would answer to an order granting sanctions, costs or other relief against “the Plaintiff.” Further, the Defendant cannot know who would actually receive the proceeds of a forced liquidation of Defendant’s property. To be clear, Defendant’s challenge is based on the facts, as known by Defendant, that out of the group of possible Plaintiffs, neither US Bank nor any “certificates” nor any “certificate holder” nor any trust will receive any proceeds of liquidation from the forced sale of the subject property.
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Your reply to their motion should state the following: Defendant does not allege improper securitization, as stated by the attorneys for the alleged “Plaintiff.” Rather, Defendant is challenging whether any “securitization” occurred and more specifically whether the allegations of the complaint are sufficient to state facts that would support the notion that the subject loan was “securitized.” Further Defendant is challenging the authority of the court to “fill in gaps” left out by the lawyers for this alleged “Plaintiff” by making assumptions or presumptions of fact not supported by either the allegations nor the evidence in the record.
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This is no idle challenge. Experts retained by the Defendant are prepared to testify and show the court that neither the holders of the “certificates” nor any trust have ever entered into any transaction in which the subject loan was purchased. Further, those experts are prepared to testify and will show the court that while the same name has been given as Plaintiff in other foreclosure cases, neither US Bank nor the certificate holders received one cent from the proceeds of liquidation of the property — thus indicating that a third party is using the court system for their own purposes without presenting themselves to the court.
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While this court has ruled, over objection of the Defendant, that this Defendant lacks standing to challenge the validity of assignments of mortgage because she is not a party to the agreements that resulted in the fabrication and execution of the assignments, this court has not ruled that such assignments were the actual result of a real transaction in the real world. There are no agreements yet produced or alleged by the attorneys for the “Plaintiff” in which a real world transaction took place  where either US Bank or the “certificates” or the certificate holders, or any trust acquired the subject debt. Any assignment of mortgage that does not transfer the debt is a nullity.
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The reasons for the gaps in pleading and gaps in evidence are irrelevant. The fact is that neither allegations nor the evidence are present in which a real party in interest can be identified as Plaintiff. The attorneys for the “Plaintiff” merely insist that the court take their word for it.
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Hence the argument is not simply legal standing as the Attorneys for “Plaintiff” are arguing. The issue is whether there is any legal entity clearly named as Plaintiff, let alone whether they have  standing. The court’s prior ruling was based upon the premise that there must have been some transaction in which the subject debt was purchased and thence to the conclusion that in the chaos of what opposing lawyers describe as “Securitization” this Defendant does not have standing to raise objections to how the spoils are divided. Defendant respectfully disagrees with such sweeping assumptions that somehow, without foundation, rose to either legal presumptions or treatment as though there were legal presumptions of fact to be applied.
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In the absence of a real plaintiff at bar or lack of standing of such Plaintiff, the court’s authority is limited to a dismissal of the action.
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Or, as pointed out in this Defendant’s Motion, the court can conclude that there are no issues of material fact because there is no legal entity named as Plaintiff and because no allegation of an actual real world transaction has occurred in which the subject debt was purchased this transferred to an “assignee” and because lawyers for the Plaintiff continue to refuse to produce any assertion or document or evidence of any kind that that a legal entity exists and owns the subject debt and is named “US Bank as Trustee for GSR Mortgage Loan Trust 2006-3F, Mortgage Pass through Certificates, series 2006-3F.”
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Conclusion: In the absence of a legal entity as Plaintiff, there can be no relief, even if the complaint was otherwise sufficient to grant relief. The fact that there might be some third party who might benefit from the outcome of this litigation should not be a basis for assuming that said third party has a right to that relief, especially without identification of the third party. For this court to piggyback on such an assumption is to condemn this Defendant to fighting with a ghost in order to preserve her interest in homestead property.
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The converse is simple: if the attorneys for the “Plaintiff” can show that the named Plaintiff is a bona fide legal entity that owns the subject debt through payment of value, then the outcome should be in favor of the said “Plaintiff” and this Defendant’s objections become moot. If they can’t show that then why would or should this court assume that they can?

5 Responses

  1. Have the case dismiss with prejudice and then file a separate action to quiet title asap.

  2. Reblogged this on AXJ USA NEWS.

  3. So, in Florida, if you win via a Motion to Dismiss, then attorney fees can now be awarded. However, damages cannot be awarded due to the Impact Rule law, which requires physical harm. How can we get around this and get damages for the pain, suffering, and emotional distress caused by purposeful, fraudulent, wrongful foreclosure?

  4. Reblogged this on Deadly Clear and commented:
    “This is your opportunity to drill home the fact that they did not, in their complaint, identify the Plaintiff. While US Bank is a legal entity, it is not appearing on its own behalf. This leaves the question of “on whose behalf” do the attorneys attempt to state that US Bank is appearing?”

  5. WOW — almost missed this one, wrongly just focusing on Neil’s posts that have comments.

    This is excellent!!!!! Absolutely right on target. If anyone is contemplating contacting Neil — let this post be your first guide. Neil is correct. And, this is happening all across the country. It cannot last.

    Representation — who the heck represents who? Trustee and trust are NOT one legal entity — they are separate. And, there can be only one legal holder. If that entity is not represented — SEPARATELY — there is no representation. And then there are issues.

    Money flow? Learned the hard way – not as stated. Impossible. .

    Why no comments to this Neil post?? Right on target.

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