Why Fraud Charges Keep Getting Kicked Out by the Courts

This is tricky. I have often had complaints dismissed because I didn’t make it over the threshold requirements for surviving a motion that attacks the elements of fraud.

So in answer to many questions posed to me, the main reasons why fraud allegations are ignored or dismissed are as follows:

  1. Some people think that mentioning fraud in oral arguments in court actually does something. It doesn’t. You might just as well have not said anything at all. The judge is prohibited from taking your argument seriously because it is not part of the case as asserted in either a complaint or defense.
  2. Many people (including occasionally myself) fail to see that the misrepresentations are not obvious misstatements of fact. You must be very specific if you are alleging fraud. Your allegations must build into a logical framework. If you do not specify the elements the judge is required to kick you out of court on that allegation. That is their job.
  3. Most litigants fail to properly identify the source of the misrepresentation. This causes them to assert a claim or defense against a party who had no part in making the false statement. The use of a false statement previously uttered by a third party is probably not fraud because it lacks the legal requirements for fraud. It might constitute negligence or other causes of action but it is not fraud.
  4. In alleging an intentional tort — which is what fraud is — you need to be very specific in identifying the date, place, and maker of the false statement, how it was material to a transaction or event, how you believed it and why, why your belief was reasonable, how you acted in reliance on the false statement, how you were damaged and see next paragraph
  5. You must also identify something called scienter. That is “knowledge of the nature of one’s act or omission or of the nature of something in one’s possession that is often a necessary element of an offense,” and “a mental state in fraud (as securities fraud) that is characterized by an intent to deceive, manipulate, or defraud.” This is where almost all pro se litigants and many trial lawyers, including myself, have been tripped up. Pleading rules require a short plain statement upon which the trier of fact could conclude that relief can be granted to the party alleging fraud. But to get there you need to prove scire — that the party making the false statement knew it was false and was intentionally making it for the express purpose of deceiving you and getting you to act in a way that was against your own interests, in order to (a) achieve some favorable result for the maker of the false statement and (b) to cause damage to the party receiving the false statement.

So the moral of the story is that nobody outside the orbit of the investment bank actually has sufficient knowledge to allege fraud. Therefore they can’t plead ultimate facts supporting the very restricted cause of action for fraud, which by the way, requires clear and convincing evidence, which is a far greater burden than more likely than not, as required in nonintentional torts or other civil actions.

All of that has forced me to conclude that pleading fraud is an invitation to a motion to strike or a motion to dismiss.

In the context of foreclosure litigation, I think it better to get over the short-term finish line in order to get into discovery and then, if you get the right facts, file a motion to amend prior claims or defenses.

Here is an example of good pleading in a case I am told was settled favorably for the pleader. Amended_Consolidated_Class_Action_Complaint(1)

The Defendants named herein acted, as set forth above, with either the intent to deceive or recklessness in the sense of an extreme departure from the standards of ordinary care in that these Defendants (a) knew that these statements or omissions were untrue or misleading; (b) had access to information suggesting that these public statements were untrue or misleading; or (c) failed to investigate or check information they had a duty to monitor or ignored obvious signs of fraud, at the time these public statements were made. This includes, but is not limited to, statements giving investors false assurances or explanations for corporate events.

DID YOU LIKE THIS ARTICLE?

Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

6 Responses

  1. Java gold, nothing has “improved” for homeowners because they continue to listen to stall attorneys, securitization/chain-of-title auditors, and their useful idiots who parrot their garbage. Conversely, those that attack the contract keep their homes on their terms. http://www.releasewire.com/press-releases/homeowners-receiving-multimillion-dollar-awards-attacking-banks-using-the-loan-contract-678710.htm

  2. Susan Batista, I don’t believe you have posted here before, but great! Can you explain a bit more as to what you were up against in NJ and what was done and what the end result was? Thanks-

  3. I uncovered the masses illegal foreclosures in NJ and all Foreclosures were frozen for 2 years. A Special Master was appointed. After looking at the massive, the Courts bent over backwards to look the other and came up with a new process. Lol nothing legal. I refused to look the other and stood by all 100,000 homeowners in NJ. I said there will be mire events, that this was a trickle up action. Everyone is going to lose land ownership if nothing is done.

  4. If Judges are so willing to follow law which states that fraud upon the Court invalidates any orders at any time, when we will see an avalanche of reversed and dismissed foreclosures in favor of defrauded homeowners?

    And that will happen to foreclosures buyers? Kick them on the streets since they have no rights to their purchases, merely an unsecured lines of credits called “mortgages” from investment banks?

  5. Ten years ago, I advocated for joint effort to move forward. That never occurred. We are in the same position as ten years ago. While a few may be saved, the bulk are not. With all the alleged fraud, this is disheartening It should not be about just “ME.” It is about all affected. We should all now learn this from the pandemic. Real or not – there are consequences to ALL. Ultimately, we are ALL affected. It should not be – “every man for himself.” But that is what it became. And that is not helpful in the large picture. It never is.

  6. Just read a lot of the posts in the last thread from 2010. Unbelievable. But basically nothing has improved or better for the homeowners in over 11 years here. Does that make an ounce of sense to anyone here ??? Neils blog has been l an utter failure for the People , no matter how you look at it , unless you look at just individual income he made from the homeowners he has reeled in.

Leave a Reply

%d bloggers like this: