“Jurisdiction” is a term used to define whether or not the court has any authority to hear the case. Filing a bogus claim DOES invoke the jurisdiction of the court as long as it complies with the basic rules of court.
- The challenge must arise from the face of what is written in the complaint or in the exhibits. Or, it must arise from the presumptions in nonjudicial states based upon the recorded documentation.
- The usual XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 on behalf of the holders of the certificate series ABCDE Trust Series 2006-BC6 presents exactly that opportunity. XYZ Bank is not submitting itself to the jurisdiction of the court and neither is the putative trust even if it exists. (Both are named as acting on behalf of unidentified certificate holders).
- We know that because regardless of how many entities are framed in the style of the case, it is all on behalf of unidentified holders of certificates who have not been named. So you have no named Plaintiff submitting themselves to the jurisdiction of the court and therefore no case in controversy.
- A free-style test of this is easy: in the event that the homeowner wins and fees and costs are leveled against the claimant, who is responsible for paying those fees and costs.? It isn’t XYZ Bank. It might be the trust if it is properly identified and it certainly is not the certificate holders who have never been named.
- But how do you levy the judgment against anyone? Such judgments are routinely paid by or through the company named as the “servicer” — but the claimed servicer is not even a party to the litigation. But what if it isn’t paid? That actually happens sometimes.
- If the Style of the case is XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 AND there is an allegation that the Plaintiff is a National Association, that is technically not true.
- The plaintiff is the putative trust. This is an important distinction.
- The trust is not a National Association (i.e. a nationally chartered bank) and the allegations in the complaint are missing the required components of a statement of how and where the trust was organized — which might be subject to a motion to dismiss or a motion to dismiss for lack of jurisdiction.
- We know that because regardless of how many entities are framed in the style of the case, it is all on behalf of unidentified holders of certificates who have not been named. So you have no named Plaintiff submitting themselves to the jurisdiction of the court and therefore no case in controversy.
- The usual XYZ Bank NA as trustee for the ABCDE Trust Series 2006-BC6 on behalf of the holders of the certificate series ABCDE Trust Series 2006-BC6 presents exactly that opportunity. XYZ Bank is not submitting itself to the jurisdiction of the court and neither is the putative trust even if it exists. (Both are named as acting on behalf of unidentified certificate holders).
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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