Drafting Causes of Action

Posted on March 3, 2017 by Neil Garfield

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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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This is for reference only. You should check with a licensed attorney in your jurisdiction to make sure the elements of each cause of action are understood, that they apply, and that you have the facts or sufficient reason to plead that cause of action.

There usually specific state or local forms like a “Civil Cover Sheet” and potentially other forms, including a summons to be issued for service of process. Consultation with an attorney is strongly advised.

The Florida Rules of Civil procedure contain sample pleadings for certain types of actions but not all causes of action. Most states have the same thing. The structure of any cause of action is as follows:

1. Why the court has jurisdiction over the parties
2. Why the court has jurisdiction over the matter in controversy
3. What is the name of the cause of action (e.g. negligence)
4. What is the duty that Plaintiff alleges that defendant had.
5. Defendant breached that duty by ….
6. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of minimum jurisdictional amount in controversy for court to hear it]
7. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in an amount in excess of [jurisdictional amount] and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action and
8. Plaintiff demands trial by jury on all issues triable as of right by jury. [It is typical to place in all capital letters on the first page of the pleading “JURY TRIAL DEMANDED”]

If the action is to get the court to enter an order to do or stop doing something, that is called equitable relief.
1. Why the court has jurisdiction over the parties
2. Why the court has jurisdiction over the matter in controversy
3. What is the name of the cause of action (e.g. injunction)
4. What is the duty that Plaintiff alleges that defendant had.
5. Defendant breached that duty by ….
6. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of [minimum jurisdictional amount in controversy for court to hear it], which are continuing [and possibly escalating]
7. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in which the Defendant is enjoined from [describe the activity] and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action
8. No jury trial is typical for equitable claims although you can ask for it.

If the action is for an intentional tort (e.g. fraud)
1. Why the court has jurisdiction over the parties
2. Why the court has jurisdiction over the matter in controversy
3. What is the name of the cause of action (e.g. fraudulent misrepresentation, negligent misrepresentation must be stated separately as a different cause fo action)
4. What is the duty that Plaintiff alleges that defendant had.
5. Defendant breached that duty by ….
6. Defendant’s breach was intentional and/or grossly negligent in that Defendant knew or must have known that its actions would damage the Plaintiff
7. [OPTIONAL] Defendant’s action were motivated by its intention to conceal its activities under the umbrella of a larger fraud, to wit: [describe the umbrella]
8. Defendant’s actions were undertaken with actual malice or with reckless indifference to the consequences to its illegal and wrongful actions
9. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of [minimum jurisdictional amount in controversy for court to hear it]
10. Defendants actions were reprehensible as well as illegal and ongoing in nature such that Defendant should be required to pay punitive, exemplary or treble damages [if there is a statute providing for treble damages]
11. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in an amount in excess of [jurisdictional amount], plus punitive or exemplary damages and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action and
12. Plaintiff demands trial by jury on all issues triable as of right by jury. [It is typical to place in all capital letters on the first page of the pleading “JURY TRIAL DEMANDED”]

Filed under: foreclosure | Tagged: , , | 5 Comments »

Az Federal Judge Strikes at Heart of Nonjudicial Foreclosure, Denies OneWest Motion to Dismiss

Posted on November 13, 2014 by Neil Garfield

For further information or assistance, please call 954-495-9867 or 520-405-1688

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See OWB CASE Buffington v USBank_MTD Denied incl FDCPA 28USDC AZ

CAUTION: NOT ALL JURISDICTIONS ALLOW THE SAME CAUSES OF ACTION. CHECK WITH ATTORNEY WHO IS LICENSED IN THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED.

A Federal Judge upheld a Complaint against OneWest on all counts except fraud. Actually the Judge was doing the homeowner a favor because the burden of proof on fraud is clear and convincing evidence whereas the burden of proof for the rest of the causes of action is only a preponderance (50% + 1) of the evidence. If it is more likely than not that the homeowner is right on the multi-count complaint that has now survived dismissal, the homeowner wins and the damages goes to the jury to jury to decide how much that should be. TRESPASS might also require a higher burden of proof. During the litigation, the homeowner will be able to inquire and potentially receive the necessary facts to support a fraud claim as well.

This is a dramatic reversal — lawsuits just like this one were previously dismissed in Az Federal Court. One of them was dismissed after 14 months of non-action by the court.

COUNT 1 UPHELD FOR NEGLIGENCE PER SE

COUNT 2 UPHELD FOR NEGLIGENT PERFORMANCE OF AN UNDERTAKING

COUNT 3 UPHELD FOR FALSE DOCUMENTS — Plaintiffs suffered false foreclosure recordings on their real property title record, additional damage to their credit reputation, and false late fees and penalties, as well as attorney fees and costs.

COUNT 4 UPHELD FOR PAYMENT/DISCHARGE/ SATISFACTION — based upon receipt of FDIC loss share payments that were intentionally withheld and therefore causing a misrepresentation to borrower as to the the existence of a default or the actual amount of the balance due to the actual creditor.

COUNT 5 UPHELD FOR BREACH OF CONTRACT

COUNT 6 UPHELD FOR BREACH OF CONTRACT

COUNT 7 DISMISSED — FRAUD

COUNT 8 UPHELD FOR TRESPASS TO REAL PROPERTY

COUNT 9 UPHELD FOR FAIR DEBT COLLECTION PRACTICES ACT

Filed under: foreclosure | Tagged: , , , , , , , , , | 9 Comments »

Unconscionable and Negligent Conduct in Loan Modification Practices

Posted on January 31, 2014 by Neil Garfield

JOIN US EVERY THURSDAY AT 6PM Eastern time on The Neil Garfield Show. We will discuss the Stenberger decision and other important developments affecting consumers, borrowers and banks. We had 561 listeners so far who were on the air with us or who downloaded the show. Thank you — that is a good start for our first show. And thank you Patrick Giunta, Esq. (Broward County Attorney) as our first guest. For more information call 954-495-9867.

In the case of Wane v. Loan Corp. the 11th Circuit struck down the borrower’s attempt to rescind. The reasoning in that case had to do with whether the originator was the real lender. I think, based upon my review of that and other cases, that the facts were not totally known and perhaps could have been and then included in the pleading. It is one thing to say that you don’t think the originator actually paid for the loan. It is quite another to say that a third party did actually pay for the loan and failed to get the note and mortgage or deed of trust executed properly to protect the real source of funds. In order to do that you might need the copy of the wire transfer receipt and wire transfer instructions and potentially a forensic report showing the path of “securitization” which probably never happened.

The importance of the Steinberger decision (see prior post) is that it reverts back to simple doctrines of law rather the complexity and resistance in the courts to apply the clear wording in the Truth in Lending Act. The act says that any statement indicating the desire to rescind within the time limits set forth in the statute is sufficient to nullify the mortgage or deed of trust by operation of law unless the alleged creditor/lender files an action within the prescribed time limits. It is a good law and it covers a lot of the abuses that we see in the legal battleground. But Judges are refusing to apply it. And that includes Appellate courts including the 9th Circuit that wrote into the statute the requirement that the money be tendered “back to the creditor” in order for the rescission to have any legal effect.

The 9th Circuit obviously is saying the they refuse to abide by the statute. The tender back to the creditor need only be a statement that the homeowner is prepared to execute a note and mortgage in favor of the real lender. To tender the money “back” to the originator is to assume they made the loan, which ordinarily was not the case. The courts are getting educated but they are not at the point where they “get it.”

But with the Steinberger decision we can get similar results without battling the rescission issue that so far is encountering nothing but resistance. That case manifestly agrees that a borrower can challenge the authority of those who are claiming money from him or her and that if there are problems with the mortgage, the foreclosure or the modification program in which the borrower was lured into actions that caused the borrower harm, there are damages for the “lender” to pay. The recent Wells Fargo decision posted a few days ago said the same thing. The logic behind that applies to the closing as well.

So lawyers should start thinking about more basic common law doctrines and use the statutes as corroboration for the common law cause of action rather than the other way around. Predatory practices under TILA can be alleged under doctrines of unconscionability and negligence. Title issues, “real lender” issues can be attacked using common law negligence.

Remember that the common allegation of the “lenders” is that they are “holders” — not that they are holders in due course which would require them to show that they paid value for the note and that they have the right to enforce it and collect because the money is actually owed to them. The “holders” are subject to claims detailed in the Steinberger decision without reference to TILA, RESPA or any of the other claims that the courts are resisting. As holders they are subject to all claims and defenses of the borrower. And remember as well that it is a mistake to assume that the mortgage or deed of trust is governed by Article 3 of the UCC. Security instruments are only governed by Article 9 and they must be purchased for value for a party to be able to enforce them.

All of this is predicated on real facts that you can prove. So you need forensic research and analysis. The more specific you are in your allegations, the more difficult it will be for the trial court to throw your claims and defenses out of court because they are hypothetical or too speculative.

Question: who do we sue? Answer: I think the usual suspects — originator, servicers, broker dealer, etc. but also the closing agent.

Filed under: CASES, CORRUPTION, escrow agent, Eviction, evidence, expert witness, Fannie MAe, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, GTC | Honor, investment banking, Investor, MBS TRUSTEE, MODIFICATION, Mortgage, Motions, Neil Garfield Show, Occupy Movement, originator, Pleading, securities fraud, Servicer, STATUTES, TRUST BENEFICIARIES, trustee | Tagged: , , , , , , , , , , , , | 78 Comments »

Modification: Banks (US Bank and Wells’ ASC) Meet Their Match in Tennesee Judge Jeffrey Atherton

Posted on October 5, 2011 by Neil Garfield

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SEE BarnesOrder VS US BANK, GMAC, ASC

This might well be the smoking gun that proves, with the actions of the banks and servicers, that they have no actual interest in the debt when they foreclose and that they are acting against the interest of both the creditor and the debtor by intermediating themselves into a process in which they should be considered a disinterested party who is not a stakeholder. Judges and policy makers are looking at the numbers. In virtually every other kind of litigation, the matter is settled during litigation”

It has been obvious that the banks and servicers have been using the obligation “to consider” as a license not to consider and therefore not approve a modification, short-sale or other mediation or settlement. They are, as their own employee reported being told by a superior, in the foreclosure business, not the modification business.

The reason they are in the foreclosure business is that in foreclosure they reap large rewards, whereas in modification, short-sale or other settlement or mediation, they receive only normal fees, which they deem to be far too small for the immense opportunity they see laid out before them.

The investors having abandoned the claim, the banks and servicers are having a feeding frenzy on the $7 trillion already lost in homeowner equity and the additional loss of another like amount. It is hard to resist, I know. But after all, if you are stealing, you should resist temptation. If you can’t do the time then don’t do the crime.

Judge Barnes here fences very well with the banks. They sought to dismiss a claim from a borrower that they had failed to consider the modification. They probably did what many borrowers are now doing — performing calculations that show clearly the benefit to the creditor in accepting the modification proposal as being far more valuable to the creditor over waiting for the proceeds of foreclosure.

The borrower filed a claim alleging negligence in that the proposal for HAMP modification was never considered and that therefore the bank and servicer had failed to meet the standard of care required in implementing HAMP, a Federal program in which banks received the consideration of money from TARP in exchange for their promise to consider modifications of loans.

It was of course assumed that once forced to the bargaining table the banks and servicers would immediately set out to bargain for something that had a value in excess of foreclosure, right? But that is not what happened and Judges all over the country are starting to take notice of this, as borrowers bring more and more proof into court that clearly shows a large difference in the the lower value of foreclosure compared tot he much higher value of modification, short-sale, settlement etc.

This might well be the smoking gun that proves, with the actions of the banks and servicers, that they have no actual interest in the debt when they foreclose and that they are acting against the interest of both the creditor and the debtor by intermediating themselves into a process in which they should be considered a disinterested party who is not a stakeholder. Judges and policy makers are looking at the numbers. In virtually every other kind of litigation, the matter is settled during litigation and the case does not go to court for trial. Here there have been no trials because the banks, up till now, had convinced judges that the issue was simple: the borrower didn’t pay. Summary Judgment was usually granted. When it wasn’t granted, the bank or servicer quickly reversed its position and settled on very favorable, but confidential terms, with the borrower.

I have personally heard several Judges express comments about the “haphazardness” of the granting of modifications and expressing their doubt as to what went into the process of “considering” a loan for modification. Those of us on the front line know this: the banks and servicers don’t consider loans for modifications, they only pretend to do so, just like the original loan was a pretender sitting at the closing table not actually making the loan, the actual creditor is not in court  making claims against the homeowner, and banks and servicers are dubbed pretender lenders or non-creditors because that is what they are. The whole thing is made of of sham parties and representations or fabricated documents establishing an elaborate ruse.

In denying the motion to dismiss Judge Barnes essentially said that in a court of equity, the Judge is required to fashion a remedy if the pecuniary gain of one side is procured with unclean hands. He parses words as well as they do — saying that the borrower might not have an actual private cause of action under HAMP, but that given the duties imposed on banks and servicers by HAMP, they could be negligent in their processing of applications for modifications — especially if it turns out that they are not considering them at all and just moving papers around to create a show for the Court.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , , , , | 6 Comments »

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