Foreclosure Defence Causes of Action Support

7/27/2019 Foreclosure Defence Causes of Action Support

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Foreclosure defence Causes of Action and support

1. NO lawful consideration (FIND COA RELATED TO THIS UNJUST TERMS???)

a. Closer to home was the 1937 Australian Royal Commission into the

Monetary and Banking System. From its section 'Creation of Credit', section504, the report states; "Because of this power, the Commonwealth Bank isable to increase the cash of the trading banks in the way we have pointed outabove. Because of this power, too, the Commonwealth Bank can increase thecash reserves of the trading banks; for example, it can buy securities andother property, it can lend to the Governments and to others in a variety.Subsequently, the Royal Commission Chairman, Mr. Justice Napier, madethe following clarification of the foregoing statement.'This statement means that the Commonwealth Bank can make moneyavailable to Governments or to others on such terms as it chooses, even byway of a loan without interest, or even without requiring either interest orrepayment of principal."

"Of all the discoveries and inventions by which we live and die, this totallyimprobable helix of credit is the most cunning, the most liable, the leastcomprehended, and next to high explosives, the most dangerous. All thatbankers themselves really know about it is how it works from day to day.Beyond that, it is a gift from Pandora." REF: Pg47 L Hoins HTSYB/L

2. Trade Practices Act 1974 (NOW the AUSTRALAIN CONSUMER LAW sched 2 of thenew Competition and consumer protection act - can be used against your bank. Ref Pg 68Hoins L.

3. NOTE: Letter from RBA Governor: Your letter contains some fundamentalmisunderstandings as to the process of financial intermediation. Individual banks cannot

"create" credit. Any bank is "empowered" to make a loan - this is one of the functions ofa bank after all. But to make a loan, it must raise money - usually in the form of a bankdeposit - to fund the loan.Was the deposit raised, from the deposit of our PN? P69 HoinsL

4. I refer to R.S.Deane's 'The Credit Creation Process, Banks versus Non-Banks', ReserveBank of New Zealand Bulletin, June December, 1972 and subsequently 'The Creation ofFinancial Assets' in the same publication, June 1978. P71 Hoins.

5. At a practical level, it is true, as Mr Emanuel said in his previous letter, that a bank mustacquire funds to cover a loan - in other words, that its assets must always equal itsliabilities. P72 Hoins LAgain, was the PN the deposit/Asset.

6. The lending bank must somehow acquire the deposit (or other form of liability) to "fund"the loan. P73 Hoins L

7. Banks cannot lend depositors money. Banks cannot lend their own money. Banks canonly advancebank credit, which creates the money in the form of a deposit on the banksbooks from which the loan check is drawn? (If true, the accounting will show this.) Banksoften borrow 100% of their liquidity needs. RefEllen Browns book. Is it the deposit ofthe PN which creates the asset and deposit in customers account.

8. Usurydefinition in Ellens book. Cause of action: Usury? Exhorbitant interest rate.Because the bank did not actually lend any money yet demands money in return at

interest. The actual interest minus what the loan actually cost them is more like in thehundreds.


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9. Promissory FraudDefinition: Promissory fraud is a promise made by the

promisor, when s/he had no intention to perform the promise when it was

made. However, a promissory fraud liability will be inappropriate if the

promisor was unaware of what s/he was promising. Similarly, promissory

fraud is inappropriate when a promisor breaches a promise because of

changed circumstances. Promissory fraud is one of the ways to win punitivedamages for breach of contract. A promissory fraud is also termed as

common law fraud.

10.Defendant claims Accord and Satisfactionas Defendant alleges that the original creditoraccepted payment from a third party for the alleged debt, or a portion of the alleged debt,or that the original creditor received other compensation in the form of monies and/orcredits.

11.Failure of Consideration:No exchange of money or goods occurred between thePlaintiff and the Defendant. Failure of consideration will void contracts in some cases.

12.

Unclean Hands:If the Plaintiff is giving falsified evidence or producing false witnesses,definitely invoke this defense. Plaintiff has unclean hands due to its actions describedbelow and therefore is prohibited from obtaining equitable relief of foreclosure. As amatter of equity, this Court should refuse to foreclose this mortgage because accelerationof this note would be inequitable, unjust, and unconscionable. Plaintiff has waived theright to acceleration due to intentionally misleading and reckless conduct for which it isliable.

13.Defendant alleges that Plaintiff's complaint, and each cause of action therein is barred bythe Doctrine of Estoppel, specifically Estoppel in Pais.

14.

Defendant alleges that Plaintiff's actions are precluded, whereasPlaintiff's demands forinterest are usurious and violate state and federal laws.

15.Since a court will not grant a judgment or other legal relief to a party who has not actedfairly by having made false representations or concealing material facts from the otherparty, we maintain that equitable estoppel bars plaintiff's claim.

16.Defendant invokes the Doctrines of Scienti et volenti non fit injuria(a person whoknowledgeably consents to legal wrong has no legal right) and Damnum absque injuria(harm without injury).

17.Lack of Standing:Lack of standing is a powerful defense to use. It basically means that

a debt collector has no legal basis for filing a suit. No legal basis means that there is noclear ownership of the debt or legal assignment of a debt to a debt collector. This canoccur when there is no clear paper trail (a.k.a. chain of custody) in the sale or assignmentof a debt from the original creditor to the debt collector.

18.Failure to Join Indispensable Party. Plaintiff has failed to join an indispensable party.Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925), contends thatsince the note and mortgage involved in this litigation are payable to a business trust, anyaction on those instruments must be brought by all the members of the trust-not just thetrustees. ALSO: The complaint fails to join indispensable parties, specifically the loanoriginator and the loan servicer(s) and the complaint fails to adequately show the chain oftitle demonstrating that Plaintiff is in fact the real party in interest with standing to bring

this action.
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19.Violation of Unfair and Deceptive Trade Practices Act. Upon information and belief,in addition to the facts alleged in the preceding paragraphs, the Plaintiff and/orPlaintiff and/or its predecessor(s) in interest also violated the Unfair and DeceptiveTrade Practices Act, F.S. 501.201, et seq. by:

20.Lack of Jurisdiction. This court lacks jurisdiction over the subject matter. It appears onthe face of the complaint that a person other than the Plaintiff was the true owner of theclaim sued upon at the time this action was filed and that the Plaintiff is not the real partyin interest and is not shown to be authorized to bring this foreclosure action. DO I FILE ACONDITIONAL DEFENCE BASED ON JURISDICITON ALLEGATION!!!???

21.Fraud in The Inducement. i. Plaintiff alleges ownership of the note and mortgage inquestion. ii. Plaintiff is liable for actions of ABC Mortgage and/or its agents. iii. ABCMortgage and/or its agents made false statements and/or omissions regarding a materialfact; iv. ABC Mortgage and/or its agents knew or should have known the representationwas false; v. ABC Mortgage and/or its agents intended that the representation induceplaintiff to act on it; vi. Mr. Doe suffered damages in justifiable reliance on the

representation.

22.Quiet Title. Plaintiffs request this Honorable Court to enter its judgment againstDefendants declaring the Mortgage, null and void; canceling the Mortgage of record;quieting title to the property owned by Plaintiffs and against Defendants and all personsclaiming under Defendants; and granting costs of this action and such other relief as theCourt may deem proper.

23.Promissory Note Not Authentic. Defendant, pursuant to F.S 673.3081 challenges theauthenticity of each signature on the Note introduced by the Plaintiff.

24.Fraud in the inducement. Fraud in the inducementis anequitabledefense, and occurs

when A enters into an agreement, knowing that it is supposed to be a contract and (atleast having a rough idea) what the agreement is about, but the reason A signed/made theagreement was because of some false information that B gave to A.For example,supposeJohn tells his mother to sign a deed giving him her property, Mom refuses at first, butthen John falsely tells her that the bank will foreclose on the property unless she signs itover to him. If Mom signs the deed because of this statement from John, and John tries toenforce the deed, Mom can plead "fraud in the inducement." Plaintiff alleged they wouldlend money. Can they then lend credit? How can they lend credit?

25.Plaintiff altered defendantsloan application form without the express permission of thedefendants. Although we signed it we had no reason to suspect it would be different fromwhat we originally signed with Livingstone Financial. Why did they do that?

26.Intrinsic fraudis an intentionally false representation that goes to the heart of what agiven lawsuit is about, in other words, whether fraud was used to procure the transaction.

27.Fraud(Ref: Thom Schauf Vol2) The mechanism of the lending process. Did they lendcredit or money? We were given a cheque; we were told we were borrowing money fromthe lender; now we are told it was a credit contract. Which is it, Money, cheque or credit.What was the consideration they gave us IOT to settle the loan? If credit, what funded thecheque. Is credit able to be lent. Words in the agreement include borrower, lender, debtor,creditor

28.SecuritisationWe provided P with a signed loan agreement and two signed mortgage

documents.
http://en.wikipedia.org/wiki/Equity_(law)http://en.wikipedia.org/wiki/Equity_(law)http://en.wikipedia.org/wiki/Equity_(law)http://en.wikipedia.org/wiki/Equity_(law)


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a. Linton stated that our loan is sold to top up the credit card

b. Our loan agreement and mortgage by P admission are therefore something ofvalue.

c. Something of value is an asset.

d. Plainiff did not lend their own money but merely acted as an intermediarybetween the buyer of our asset and us, the maker of the asset.

e. Defendants were denied the proceeds of the sale of the asset.

f. Defendants debt obligation is given accord and satisfaction as Plaintiffreceived money equivalent to the face value of the loan agreement andmortgage.

g. How is our loan agreement not a promissory note? is it instead a negotiableinstrument?

h. Defendants cannot admit or deny Plaintiffs allegations whilst there ismisunderstanding and omissions of what the true mechanism of the loanreally was.

29.Misrepresentation

a. Loan agreement says loan of money.

b. Plaintiff provided cheque.

c. Plaintiff stated loan mechanism was similar to a credit card. Our loan chequewas drawn form the credit facilty, then our loan and mortgage is sold. Theproceeds go back to toping up the facility.

d. Corp act provides 26 ways for a corp to provide finance, only 1 is lendingmoney.

e. Plaintiff was requested to provide full disclosure of the mechanism of theloan.

f. Request was made to view the accounting of the loan to establish where thefunds were drawn from.

g.

Plaintiff refused to provide such information.

h. Defendants cannot admit or deny plaintiffs allegations whilst there ismisunderstanding of the true mechanism of the loan really.

i. Without adequate proof of claim, Plaintiffs allegations are hersay.

From Jurisdictionary - AFFIRMATIVE DEFENSES

1. Failure of Consideration: Plaintiff did not pay defendant $3000 as alleged. Defendant hasnot received any money whatever from Plaintiff.


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2. Estoppel: Plaintiff promised and agreed to provide insecticide to spray the strawberries butfailed and refused to do so in spite of repeated demands by Defendant.

3. Lack of Subject Matter Jurisdiction: Plaintiff is not entitled to recover consequentialdamages from breach of a contract that does not contemplate such damages but is limited tothe contract amount of $3,000, which is within the exclusive jurisdiction of the Small ClaimsDivision of this Court. This Circuit Court lacks jurisdiction to hear cases where the amount incontroversy is less than $15,000.

Jurisdictionary - Defenses to breach of contract -

Abandonment

If the plaintiff abandons his contract through some overt act (e.g., pursuing performancethrough a separate contract with another) the defendant may have an affirmative defense tobreach of contract. As with all affirmative defenses, he should plead abandonment with thefiling of his answer or by motion to dismiss. Another tutorial in this course covers affirmativedefenses in detail.

Act of God

If hurricane, lightning, flood, or other unforeseeable and unpreventablenatural circumstancemakes performance of a contract impossible, there arises a defense to breach, as defendant isunable to perform due to causes beyond his control.

Breach by Other Party

If plaintiff breaches first (e.g., refusal to pay sums when due) there arises a defense to hiscomplaint that should result in dismissal. Where there is only a partial breach, however,

defendant may be held liable for portions of the contract and damages to the plaintiff resultingtherefrom.

Duress

One compelled by force or threat of force to enter a contract is relieved of liability to performits obligations. Such a contract is voidable if the defendant can prove he entered it underduress.

Failure of Consideration

A plaintiff who does not pay the purchase price, for example, is not entitled to sue for

delivery (unless the contract contemplated delivery would be tendered before full payment).Moreover, if a contract is a unilateral promise without a countervailing promise in return, it isunenforceable ab initio. For example, the promise of a purely gratuitous gift cannot beenforced, since there is no consideration flowing from the other side.

Fraud i n the I nducement

Like contracts obtained by duress, contracts obtained by fraud cannot be enforced. Thisdefense is explained in detail in the tutorial on defenses. Like causes of action, such defenseshave essential elements that must be alleged and proven to prevail.

Hindrance of Performance

This defense is predicated on the common-sense doctrine that one who hinders or preventsanother from performing his contract should not be heard to complain about the breach. It's


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that simple!

Illegality

No contract that's illegal or contemplates an illegal result can be enforced at law. This defenseis an absolute bar to enforcement.

Impossibi li ty

A contract that cannot possibly be performed, like delivery of a particular living prize bullthat has died, is not enforceable at law. However, any consideration given for performancemust be repaid, i.e., the parties must be put in the same position they enjoyed before enteringtheir agreement, to the extent it is possible to do so.

Mistake

A party may avoid the consequence of a contract if, after exercising due care, he can prove hewas excusablymistaken in his understanding of its terms and obligations. The mistake mustgo to a material element of the contract and comprise a substantial part of the value bargainedfor. Therefore, if one promises to pay $6 million for the building on the corner of Maple andElm only to later discover the property being sold is at Main and Chestnut, the court mayexcuse performance if the mistake is not the result of an inexcusable lack of due care or theother party has so detrimentally relied on the contract that it would be inequitable to denyenforcement.

Additional Defences

Declaratory Judgment

A cause of action for declaratory judgment does not seek money damages. Instead, it seeks tohave the court declare something. Not too complicated so far? You might file an action fordeclaratory judgment to settle a dispute over what is or what is not covered by an insurancepolicy. Pepperwhat is or what is not expected to be loaned. Credit or money legal tender.The purpose of the cause of action is to provide parties with relief from insecurity anduncertainty with respect to rights, status, or other legal or equitable relationships.

In many jurisdictions the cause of action is created by statute so, before filing an action fordeclaratory judgment, consult your state or federal statutes (depending on the court you'll befiling in) along with local rules and applicable case law.

Elements

A party seeking declaratory relief must allege and ultimately prove that:

1. There is a bona fide, actual, present, practical need for the declaration sought.

2. The declaration deals with present, ascertainable facts or a present controversy as tosuch facts. Anticipated future controversies will not support the action.

3. Some right, power, privilege, or immunity of the complaining party is dependent onthe facts or law applicable to the facts.

4. Some person has or may have an actual, present, adverse, and antagonistic interest in

the subject matter in fact or law.

5. The adverse and antagonistic interest is before the court by proper process or class


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representation.

6. The relief sought is not merely legal advice from the court or an answer to questionsfounded merely in curiosity.

Fraud

In order forfraudto give rise to the right to sue (i.e., a cause of action) plaintiff mustdo more than merely state a falsehood.

It's true that making a false statement is fraud, however it is not "actionable fraud"without more than mere falsehood.

Merely lying doesn't by itself give rise to this right to sue.

In order for a plaintiff to have a live cause of action for fraud, it is necessary the lie becoupled with other elements. Only then can a court award plaintiff money damages

proximately resulting from the fraud.

Moreover, the underlying facts pled in a complaint for fraud must be very specific.Failure to set out the ultimate facts of the fraud withspecificity will result in losingthe case. General allegations of fraud routinely result in the court's granting thedefendant's motion to dismiss for failure to state the cause of action. Plaintiff must

precisely specify the ultimate facts that establish each of the essential elements of thiscause of action.

Elements

1. Defendant made a false statement (verbal or in writing).

2.

The false statement concerns a material fact (i.e., a fact that goes to the heartof the plaintiff's damages).

3. Defendant knew the statement was false at the time he made the statement.

4. Defendant intended plaintiff to act in reliance on the false statement or showeda reckless disregard for the consequences to plaintiff.

5.

Plaintiff reasonably relied on the statement in acting upon it. (Some authoritiessay the plaintiff's reliance on the false statement must be "justified".Reasonable or justified, it is the same. Plaintiff must act reasonably inrelying on the false statement.

6. Plaintiff suffered damages as a proximate result.

Promissory Note Defenses

Payment of a promissory note is, of course, an absolute defense.

To prevail, defendant need only produce admissible evidence to demonstrate all funds

payable under the terms of the note, including interest, have been fully paid.
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Another absolute defense arises where holder of the note negotiated someconsideration for the note other than payment, in which case the obligation created bythe note disappears and, along with it, the cause of action.

Finally, failure of the plaintiff to produce the original note is an absolute defense in allbut a few jurisdictions.

Rescission

While normally a disgruntled party cannot get out of a contract or other legalcommitment simply by tearing up a piece of paper, like this angry fellow here, it is

possible to obtain an order of rescission from the court declaring the obligation nulland void.

Rescission is an equitable remedy whereby a party obligated by some legal

commitment resulting from fraud, false representation, mutual mistake,impossibility of performance, or similar cause resulting from other than his ownwrongdoing may obtain an order relieving him of that commitment.

Rescission is a purely equitable remedy, and for relief to be granted theplaintiff must show the court he is clearly entitled to the court's assistance and thathe "comes to equity with clean hands".

Elements

A complaint for rescission must set out the following essential elements.

1.

The making of a contract or other legal commitment with evidence attached, if

available.

2.

Existence of fraud, mutual mistake, false representation, impossibility ofperformance, or other ground for rescission or cancellation.

3. Plaintiff rescinded and notified the other party that he rescinded.

4. If plaintiff received any benefit, he must offer to restore defendant to theextent of the benefits, if restoration is possible.

5. Plaintiff has no adequate remedy at law (i.e., an award of money damagesalone is not sufficient to restore plaintiff to hisstatus quo ante(i.e., status

before the fact).

If rescission is granted, the court will attempt to restore both parties, as nearly aspossible.

This is always the goal of rescission.

Contributory Negligence

If plaintiff negligently contributes to the event giving rise to his claim, defendantmay have this affirmative defense.

The defense erases defendant's liability for damages the plaintiff was partiallyresponsible for causing.


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1. Plaintiff was at least partially responsible for his damages.

2. But for plaintiffs own action, plaintiff would have suffered no damages.

3. Defendants should be held responsible for only that portion of plaintiffsdamages proximately resulting from defendants sole action.

Failure of Consideration

This affirmative defense is useful in breach of contract cases where plaintiffclaims defendant failed to uphold his end of a bargain.

Failure to Join Indispensable Party *

No lawsuit should be permitted to go forward if someone with a vested interest in

the outcome is not made a party and allowed to participate.

A case may involve title to real property. The interests of two or more ownersmay be affected by the outcome. Yet, perhaps only one owner has been joined tothe case. Since the outcome will affect the rights of all owners not yet joined tothe case, courts are unable to enter a truly final judgment without denying due

process to the absent owners. In such cases, this defense will prevent the casefrom proceeding or, at least, delay the proceedings until all possible efforts aremade to locate the missing parties.

Failure to state a cause of action

Every cause of action (or claim on which the court can grant relief) must bealleged by stating ultimate facts that establish all essential elements of the causeof action.

In an action for breach of contract, plaintiff must allege sufficient ultimate factsto establish at least three essential elements:

1. existence of an enforceable contract,

2. an act by defendant breaching the contract, and

3.

damages to the plaintiff that proximately result from the breach.

Sham

If plaintiff files a lawsuit alleging material facts plaintiff knew were false atthe time he filed, his complaint may be stricken as sham. A motion to strike shammust assert:

1. a material allegation of the paper submitted is false and

2. party submitting the paper knew the allegation was false at the time of filing.


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Truth

If an alleged slander is true, there can be no action.

If an alleged fraud is not false, this defense will win the day.

Plaintiff has the burden of proving falseness.

Defendant does not have a burden to prove truth.

If plaintiff alleges in his complaint, "Defendant robbed me," yet plaintiff cannot provedefendant stole anything, this defense will close the issue in defendant's favor.Defendant will use what's taught in this course to force plaintiff to prove hisallegations of theft.

If plaintiff alleges defendant committed fraud when he advertised a used car as havingbeen only driven by a little old lady once each week to go to church, but plaintiffcannot prove that the car was driven by anyone else for any other purpose, defendantwill stand on this defense and win. Defendant will use what's taught in this course to

force plaintiff to prove his allegations of fraud.

Unclean Hands

"He who comes to equity must come with clean hands."

This ancient maxim is as binding today as it was many centuries ago.

Those who seek the benefits of equity must not have contributed to the problems forwhich they need a remedy. Such persons are said to have unclean hands.

Every injunction is a remedy in equity. Therefore, one who's acted with bad faith in

some way to contribute to his own problems should be denied the remedy. He uncleanhands .

If a plaintiff wrongfully defrauded defendant yet seeks an injunction, the defendantshould file unclean hands as an affirmative defense with his answer, explaining howthe plaintiff is not without fault in the very thing for which he seeks the court'sequitable remedy.

When a party seeks equitable relief for damages caused even partially by his ownacts, the defendant should file this affirmative defense to preserve the issue and usediscovery to find admissible evidence to prove plaintiff has unclean hands.

Unconscionability

If a party becomes the unwitting victim of a contract, deed, mortgage, promissorynote, or other agreement procured by fraud, overreaching, or other unjust means, thisaffirmative defense should be pleaded with defendant's answer.

Courts should not enforce an unconscionable agreement.

This is true even when injury results from victim's own foolishness, lack of caution,and failure to act reasonably.

If the injury results from the wrongful act of another, the courts should cure the

injury.This affirmative defense is a first step toward obtaining that relief from the court,


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because it puts the court on notice of the issues to be tried.

Elements

1. The agreement was outrageously unfair.

2. Preceding events luring the victim were outrageously unfair.

This first element is called substantive unconscionability, i.e., the terms of agreementitself are unreasonably favorable to plaintiff bringing suit to enforce.

The second element is called procedural unconscionability, i.e., there was an absenceof any meaningful choice on the part of defendant. Perhaps he was too feeble. Perhapshe lacked all understanding of technical aspects of promises made to him. Either way,there was no meeting of the mindsessential to formation of an enforceableagreement, and therein lies the gist of this defense.

It has been said at common law an unconscionable contract is one that "no man in hisright mind not under delusion would make on the one hand, and no fair and honest

man would attempt to enforce on the other."Some authorities examine the respective bargaining powers of the parties, i.e., theability of one to understand the terms and conditions communicated by the other.

Synonyms for unconscionable include "shocking the conscience", "monstrouslyharsh", "grossly unfair", etc.

Unconscionability as an affirmative defense must be pled, or it may be waived.

Documents

Foreclosure Defence Causes of Action Support