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It’s hands down one of the most frustrating moments in court. Counsel or Pro Se has submitted a very well pled opposition or motion to dismiss attacking standing but has missed some very important facts to point out to the court in both their pleadings and oral argument. Opposing Counsel says to the Judge “we hold the note Your Honor” and the judge says to you…they have the note your motion is denied! What did you miss?
Here are some things good attorneys pay attention to:
- Is the Plaintiff different from the named lender on the note and mortgage?
- Was there a copy of the note attached to the complaint or a lost note count pled?
- Did the Plaintiff allege to own and hold the note or was authorized by the party entitled to enforce it?
- Was there a Notice of Filing of the “original note and mortgage” after the Complaint was filed and did the note now contain endorsements with one now in blank?
These are some very simple things to overlook because they are extremely common in Foreclosure Mill pleadings so attorneys might overlook them as same old same old. But pay attention here.
Foreclosure Mills commonly walk into court on a Motion to Dismiss or Summary Judgment hearing saying “We hold the note Your Honor…that’s all that matters!” And BLAM! the Attorney’s motion is denied or final judgment is entered.
The motion was denied because the attorney failed to pay attention to the details and SLOWLY point the facts out to the judge in a painted picture.
Dialog: Your Honor hold on, At the time the complaint was filed, Plaintiff Bank of New York alleged it was the owner and holder of the note and mortgage and in support of that allegation, attached to the complaint, a copy of the alleged note. The note attached was in the name of Countrywide and did not contain ANY indorsements. Two months later, Plaintiff in its notice of filing of the alleged original note and mortgage, attached a copy of the note PLaintiff is now presenting to the court. This new note contains two (2) indorsements one now in blank prompting Plaintiff to now claim they are the holder.
The problem with this Your Honor is standing must exist at the time the complaint was filed and not after. It is the blank indorsement that allows them to claim they are the holder however, the note attached to the complaint had no indorsements and that is the note they relied upon. Clearly had they been in possession of this new note with two (2) new indorsements at the time the complaint was filed, they would have provided it to the court. The notice of filing of this new note with the indorsement in blank two months after the complaint was filed is in effect, an attempt to amend the complaint. The proper remedy to amend the complaint is via leave of the court which has not happened here. More importantly, a complaint cannot be amended to establish standing after the original complaint was filed thus, the proper remedy would be to dismiss the complaint and refile.
An attormey might even go so far as to suggest to the court nicely how dismissing and causing Plaintiff to refile is not only in the best interest of judicial integrity but is also in the best interest of judicial economy as the courts would receive new filing fees.
Just recently Jacqulyn Mack of the Mack Law Firm brought her bite and this argument right to the 2nd DCA’s doorstep in Feltus v. U.S. Bank and gained a favorable detailed decision that will certainly bring this attack and GREAT rebuttal on the “we hold the note that’s all that matters” position. It’s 2012 people…momentum is in the air…let’s bring the fight to their doorstep!