How and Why to File Motion for Reconsideration or Rehearing

Once a trial has been conducted, there can never be another trial with the same parties disputing the same facts and issues. The only exception is a court order vacating the judgment AND ordering further proceedings to determine all or some of the facts.

The bottom line is that the rules permitting the filing of a motion for rehearing or motion for reconsideration — or even a motion to vacate — are not intended to allow a party to redo their closing argument. The fact that you disagree with the ruling is irrelevant. Case law strongly suggests a standard that is close to the rules used on appeal — clear error.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Hinrichsen wins on FDCPA Claim

The above link will take you to a Southern California case in Federal District Court. The issue was whether a party was a debt collector and thus subject to regulation or private suits as debt collector. In this case the trial court used the wrong standard thus entering summary judgment for the debt collector. On motion for reconsideration the same judge found he had made an error, probably created by poor presentation by the borrower. The Judge reversed himself and ordered the case to trial.

The fact that the borrower had not presented the issue well enough in the trial court at the hearing on Defendant ‘s Motion for Summary Judgment was insufficient for “finality” to bar further argument about it. Note that courts are much more likely to reverse themselves on motions for summary judgment than they are to reverse a final judgment after a trial on the merits.

Revisiting the Boyco Decision in 2007

Probably the most important comments from judge Boyco relate to the fact that (1) these cases are about money for the banks (or whoever is claiming to be the successor to an originator who may or may not have actually loaned money to the homeowner) and (2) these cases are about forfeiture as it relates to the homeowner. Forfeiture is an extreme remedy in which the courts should pay special attention to the requirements of standing and other jurisdictional issues, as well as rulings in discovery, motion practice and at trial. My comment is that nearly all the Judges have relied upon the former assumption: that the case for money automatically leads to forfeiture even if the requirements are not met.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see Ohio – Judge Boyko Decision 2007

Hat tip to Bill Paatalo

Sometimes it is a good idea to look at older decisions that occurred before millions of foreclosures were concluded against the homeowner in which the homeowner forfeited ownership and possession of their homestead under at best, questionable circumstances. The argument from the banks has been consistent: this is the way we have been doing things so now it is law. Federal Judge Boyco stops them at the gate.

Here are some of the relevant comments by Judge Boyco when he dismissed a series of cases. He clearly understood that there was something inherently wrong with the position of the “banks” and trusts and servicers and therefore something inherently wrong and defective about allowing foreclosures when the initiator of the foreclosure showed no real interest in the alleged transaction.

Probably the most important comments from judge Boyco relate to the fact that (1) these cases are about money for the banks (or whoever is claiming to be the successor to an originator who may or may not have actually loaned money to the homeowner) and (2) these cases are about forfeiture as it relates to the homeowner. Forfeiture is an extreme remedy in which the courts should pay special attention to the requirements fo standing and other jurisdictional issues, as well as rulings in discovery, motion practice and at trial. My comment is that nearly all the Judges have relied upon the former assumption: that the case for money automatically leads to forfeiture even if the requirements are not met.

To satisfy the requirements of Article III of the United States Constitution, the plaintiff must show he has personally suffered some actual injury as a result of the illegal conduct of the defendant. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.

In each of the above-captioned Complaints, the named Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promisee as the original lending institution — one other than the named Plaintiff.

none of the Assignments show the named Plaintiff to be the owner of the rights, title and interest under the Mortgage at issue as of the date of the Foreclosure Complaint. The Assignments, in every instance, express a present intent to convey all rights, title and interest in the Mortgage and the accompanying Note to the Plaintiff named in the caption of the Foreclosure Complaint upon receipt of sufficient consideration on the date the Assignment was signed and notarized. Further, the Assignment documents are all prepared by counsel for the named Plaintiffs. These proffered documents belie Plaintiffs’ assertion they own the Note and Mortgage by means of a purchase which pre-dated the Complaint by days, months or years.

“The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the

proper party to sue is difficult or when an understandable mistake has been made. … It is, in cases of this sort, intended to insure against forfeiture and injustice …” Plaintiff-Lenders do not allege mistake or that a party cannot be identified. Nor will Plaintiff-Lenders suffer forfeiture or injustice by the dismissal of these defective complaints otherwise than on the merits.

since the unique nature of real property requires contracts and transactions concerning real property to be in writing. R.C. § 1335.04. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400 (interpreting the former statute, G.C. § 8543). “Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property, their interest therein must have been recorded in accordance with Ohio law.” In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v. Merchants’ National Bank of Defiance, 71 Ohio St. 173, 177 (1904).1

the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.

The Court will illustrate in simple terms its decision: “Fluidity of the market” — “X” dollars, “contractual arrangements between institutions and counsel” — “X” dollars, “purchasing mortgages in bulk and securitizing” — “X” dollars, “rush to file, slow to record after judgment” — “X” dollars, “the jurisdictional integrity of United States District Court” — “Priceless.

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

Giunta Prevails on Wells Fargo Motion to Dismiss — Federal Court

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.

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Patrick Giunta, Esq. the lead litigator for the livinglies team has done it again. He filed a lawsuit against Wells Fargo while the trial on a foreclosure was underway. Wells Fargo now faces a loss in the foreclosure where their witness admitted to being unable to explain the chain of ownership, the balance and the reason why Wells Fargo refused to cooperate in the sale of the property that would have paid them in full.

This corroborates my strategy that presumes that the foreclosers don’t want the house or the money. What the banks want is a foreclosure judgment that forces the loan onto an investor who does not even know of the existence of the proceedings. besides it being illegal and unfair, it raises questions of jurisdiction and standing, because the actual source of funds — the investors who in reality own the debt directly — receive no notice of the proceeding — and they think they barred by the terms of the Prospectus and Pooling and Servicing Agreement from even inquiring about the status of the “pool” (which is most likely non-existent except where foreclosure judgments have been entered).

Here Judge Dimitroleas, Federal Judge in the Southern District of Florida, ruled that the Homeowner has rights of action for money damages against dubious claims from “holders”, “servicers” and even “trustees.” Along with other claims, Giunta survived a motion to dismiss the homeowner’s claim for fraudulent misrepresentation — as to the status of the loan, the ownership and the balance.

The fact pattern of this case clearly corroborates the fact that “servicers” are claiming ownership or rights to enforce debts that they don’t own and don’t have any authority to represent the creditor because they are making false claims of securitization. Thus the banks cannot say they actually represent the investors who THOUGHT they were buying mortgage backed securities from a funded trust that was originating and acquiring loans. If they admit the facts in reality they are admitting to committing fraud on the investors, the insurers, the guarantors, and of course the borrowers. The presumption regarding ownership or rights to enforce is directly contrary to the actual facts. And the threshold for rebutting those presumptions is fast falling in Federal and State courts.

Patrick Giunta is located in Broward County Florida.

see Grave – (DE28) – Order on Motion to Dismiss

Foreclosure Strategists: Phx. Meeting Forcible Entry & Detainers

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Editor’s Comment:

Contact: Darrell Blomberg  Darrell@ForeclosureStrategists.com  602-686-7355

Meeting: Tuesday, May 29th, 2012, 7pm to 9pm

TOPIC: Forcible Entry & Detainers

Forcible Entry & Detainers (FED) supplemented by an in depth review of Trustee’s Deeds Upon Sale.  We’ll also look at how the Appellate courts are telling us to side-step the “can’t argue title” issue, removing a FED action to Federal Court, disclosures under A.R.S. §33-812 and the relationship of 1099s to Bona Fide Purchasers.

We meet every week!

Every Tuesday: 7:00pm to 9:00pm. Come early for dinner and socialization. (Food service is also available during meeting.)
Macayo’s Restaurant, 602-264-6141, 4001 N Central Ave, Phoenix, AZ 85012. (east side of Central Ave just south of Indian School Rd.)
COST: $10… and whatever you want to spend on yourself for dinner, helpings are generous so bring an appetite.
 Please Bring a Guest! 
(NOTE: There is a $2.49 charge for the Happy Hour Buffet unless you at least order a soft drink.)

FACEBOOK PAGE FOR “FORECLOSURE STRATEGIST”

I have set up a Facebook page. (I can’t believe it but it is necessary.) The page can be viewed at www.Facebook.com, look for and “friend” “Foreclosure Strategist.”

I’ll do my best to keep it updated with all of our events.

Please get the word out and send your friends and other homeowners the link.

MEETUP PAGE FOR FORECLOSURE STRATEGISTS:

I have set up a MeetUp page. The page can be viewed at www.MeetUp.com/ForeclosureStrategists. Please get the word out and send your friends and other homeowners the link.

May your opportunities be bountiful and your possibilities unlimited.

“Emissary of Observation”

Darrell Blomberg

602-686-7355

Darrell@ForeclosureStrategists.com

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