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Foreclosure Defense Toolbox #1

lawsuit lawyer legal self help from the desk of Dr. Frederick David Graves, JD:

Here are a few foreclosure defense tools you can use to fight abusive lenders and their attorneys.

I'll send more as time permits.

These should be filed with memoranda of law citing controlling appellate court opinions that rule the trial judge where your case is pending. Merely stating the rule is no substitute for citing the controlling case law that controls the judge!

To learn more about memoranda and citations, use my affordable step-by-step Jurisdictionary course (if you don't already have it) to learn how to do it correctly!

#1 Failure of Condition Precedent

Mortgages and promissory notes are contracts.

Before a party may obtain judicial enforcement of any contract (including mortgages and notes) there may be certain acts it must perform before filing suit. These are called conditions precedent.

For example, some notes and mortgages contain what is called an "acceleration clause" that provides that the full amount will become due and payable in the event of the borrower's default (failure to pay on time, failure to keep insurance current, etc.). Some of these may require that the borrower be provided written notice of acceleration. Failure to provide that or other notices deprives the plaintiff of the right to proceed in court.

There may be other such provisions requiring the lender to perform other conditions precedent to bringing a lawsuit to enforce the contract (mortgage/note). Carefully read your copy of the mortgage and note. (You did insist on receiving a copy on the day you signed, didn't you?)

If the borrower is entitled to an opportunity to cure the default and was not given that opportunity, this too may be a condition precedent preventing a lender from getting its case before the court.

The court should grant a motion to dismiss, at least until the plaintiff performs all conditions precedent.

#2 Failure of Authority to Sue

Many states require out-of-state companies (including lenders) to register with the Secretary of State (or other state office) as a prerequisite to maintaining lawsuits in the state.

Failure to register is fatal to the plaintiff's cause.

This can be easily checked online in many states.

If a company has not registered, it is not authorized to litigate, and a motion to dismiss is in order.

#3 Failure to Attach Necessary Documents

Many states require plaintiffs to attach to complaints copies of documents (e.g., mortgages, promissory notes, and other contracts or instruments) that form the basis for the plaintiff's claim.

If your state has this requirement, you will find it set our in your state's Rules of Civil Procedure. (You have studied your state's Rules of Civil Procedure and Rules of Evidence, haven't you?)

Failure to attach necessary documents upon which the plaintiff's case is based, creates your opportunity to file a motion to dismiss.

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