Judges are required to consider anything in front of them, decide on its admissibility, and then give it the weight that the judge thinks it deserves. Pro se litigants have no way of knowing much about arguments concerning jurisdiction.
They flail about and basically submit motions to vacate that say to the judge “You made the wrong decision.” That argument is potentially the subject for appeal which fails most of the time.
In general, the motion to vacate can be based on one of two grounds: (1) fraud, which everyone like to use and nobody proves and (2) jurisdiction which everyone cites but never argues. Hence most, but not all, motions to vacate are denied.
[Practice Note: Not all scrivener errors can be corrected by a foreclosure or final judgment. If you see one that has a facial effect on recorded title, unless the Final Judgment or Final order specifically corrects the problem, it may still exist and be grounds for either vacating or amending the final judgment. If the Judgment is amended it could mean that the entire process allowing for motion for rehearing and appeal is re-started.]
So here is the response I sent to one client regarding her pro se motion to vacate.
This is not as strong as I would like it to be on the issue of jurisdiction. Your points are well taken but they are not strongly made in the context of an argument that shows that the court never had authority over the claim, debt, note or mortgage. Your argument sounds more like the court was wrong rather than the court had no jurisdiction.
*I also think that you need to ask for an evidentiary hearing on whether the trust exists and whether the trust ever had any right, title or interest in the debt, note or mortgage.*[Practice Note: In active litigation cases this should be the subject of discovery and a motion for summary judgment by the borrower.]*I would suggest filing a memorandum of law that makes the following points:*
- The named plaintiff does not exist and never existed.
- While Deutsche Bank National Trust Company exists as a legal entity, the named plaintiff is misleading.
- The subject debt has never been entrusted to Deutsche Bank National Trust Company nor has it ever been alleged to have been entrusted to that entity.
- Long Beach Mortgage Loan Trust 2006-WL3 does not exist as a legal entity anywhere.
- Further, the alleged trust has never been named as party to any transaction in which value was paid for the subject debt.
- Lastly, even if the trust existed, the documentation submitted to the Securities and Exchange Commission shows that neither the trust nor the trustee possessed any power to administer any aspect of the subject debt, note or mortgage.
- While opposing attorneys struggled to imply ownership or authority on the part of the trustee, the trust or the servicer, no document exists, nor was any document or testimony ever submitted or proffered to that effect. And any presumption by the court that ownership and authority existed lack any foundation in the court record.
- This court lacks authority to grant any remedy to a non-existent claimant.
- This court lacks authority to grant any remedy claimant with a non-existent claim.
- This court was misled by misleading argument and misrepresentations proffered by opposing counsel on behalf of a client that did not exist and with whom there was no attorney-client relationship.
So you could also file a motion to set an evidentiary hearing on your motion to vacate. The content, including the above, would serve to supplement your existing motion. The wherefore clause would simply ask the court to set a 30-minute hearing to hear evidence on whether the plaintiff existed and whether the plaintiff ever had a claim and perhaps whether opposing counsel misrepresented the existence of a client and the attorney-client relationship.
Although it is unlikely, I have seen several situations in which a motion with this particularity has provoked settlement offers from the other side.
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Filed under: foreclosure |
This is a good post Neil.
Like many here, I have spent well over a decade fighting for justice and what is right. It financially destroyed me. But each time I was shot down, I got back up again. I will not quit. Hang in everyone. We need to get through this virus. We then need to take this, together, nationally, as a group. It is disturbing that no one helped us over these many years – simply because it did not affect them. Today, we have no choice — we are all affected – and we must work together.
Let’s hope when we come through this – our world will be a better place.
.
Been there, done it.
The Judge committed fraud upon the Court and criminally concealed the key evidence based on which he ruled for a non-existing plaintiff – Trust GSAMP 2006FM1. (Goldman Sachs who stole my property)
Appeal Court never saw the evidence and ruled in favor of non-existing Trust GSAMP 2006FM1 because Justice saw Notation where MERS passed my loan to Fremont Home Loan Trust 2006-1.
Absurd? Nope, its the law now.
When I brought a Motion to Vacate back to the lower Court, the same Judge who concealed the key evidence invited a fake “criminal prosecutor” to hold me in contempt,.
This corrupt clown who works in Real Estate bureau just lost his judicial election and spent about 40 minutes of his taxpayers-funded time in the Courtroom to scare and intimidate me to court the vote from the judge who concealed my Note from the case records.
My scriveners error puts the loan in 27 February 2000. It corrects the actual date: 27 February 2007? Seven years earlier…if I put the amount of mistakes, errors in my debt file here, if would take up 30 pages…like summer, my loan was not in default on my end. It was put in default, payments made, were not applied, that’s how Ocwen, the end home for bum loans got it.