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PaulMJD..........Hello Paul, was wondering if you received my last question about our DTPA question about a case in the District Court regarding a Default Judgment filing against a defendant that had not answered the Plaintiff's Petition after having been served again as ordered by the Judge? Hope you will be available today, have some additional questions we would like to get answered.
Already Tried: submitted a question earlier today...........
No, I am sorry, it did not post in legal, it was posted in General...but here it is: PaulMJD..........Hello Paul........we had some issues with the service that are cleared up now.New Question: In our DTPA case against Chase we were Originally served Notice by their Robo foreclosure attorneys who were then replaced, they did not enter a Withdraw Notice to the court and the New Attorneys didn't even seem to know who they were. The Original Robo foreclosure attorneys were named in the DTPA Petition to the court but didn't answer at all, then the case was moved to District Court and the Judge ordered us to re-serve them and we did, again they did not answer so we entered a request for DEFAULT Judgment against them and the Clerk of the US District sent us the "CLERK'S ENTRY OF DEFAULT" and stated "Therefore, upon Plaintiff's request, DEFAULT is entered against the Defendant named above". Which is the Original robo firm named in the suite. This just happened today (actually on the 24th of Feb.) So our question is: what happens from here and when? Is the Default Judgment in effect now and do you think the Judge will just, as a matter of procedure, sign or is there another procedure that needs to take place.........thank you for your answer in advance............ Now, since the default was ordered, you can now file a motion to have the default judgment entered and file a motion to enforce judgment against that defendant with the court. Once you get a motion to enforce you would have to actually locate this firm (you may need a private investigator) to find them and any assets and ask the court for an order to seize assets to satisfy the judgment.
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Sorry Paul, my daughter is in the hospital and my wife Judy and I work together so we had to postpone our dialog, to this afternoon, Clarification question: The Judge did not rule on this issue as of yet so no Judgment: however the "Clerk's Entry of Default" is how this document is entitled and below that heading the Clerk stated "the record reflects that service of the complaint has been made upon the Defendant and further the Clerk states "It appears from the record that service of the complaint has been made, that the Defendant has failed to answer or otherwise defend as directed within the time allowed, and that the Plaintiff has shown that failure through affidavit or otherwise. Below that: the Clerk states: Therefore , upon Plaintiff's request, DEFAULT is entered against the Defendant named. and is Electronically signed by the ClerkWe are the Plaintiffs and the defendants did not respond in a time allowed so this is the answer to our Motion for Default Judgment: Question: does the Judge have to sign off on this, and is it just a matter of procedure or might he still allow the defendant to answer, there late answer was just receive a few days before this Clerk's Entry of Default so apparently they have seen the late answer, they said: "they forgot" and then began to argue the case: does this sound like they are finished at this point? Thanks and sorry for the length of this question:
sent a follow up question but want to accept your answer now, thanks again
The judge can sign and enter default 3 days after the entry by the clerk and you need to contact the clerk's office to see if the judge has entered the default order and if not you need to file the motion for the order of default with the court. There are always some excuses for a defendant to try to vacate a default, but they need to show "good cause" and not just any excuse.
PaulMJD.......Hello Paul, one of the defendants named in the DTPA case we have against Chase has just telephoned us ...yes telephoned us..........this is the defendant that did not answer either in the County Court when we were there or after the case was moved to the District Court and the Judge ordered us to re-notify them, and still they did not answer in the alloted time frame..........so we entered a Motion for Default that the Clerk verified and entered into the court...........now the defendant has called us and said that if he doesn't hear from us by tomorrow morning that they will enter an "Unopposed Motion to Dismiss the Default Judgement........note that they only called us late this afternoon............QUESTION: what is the correct procedure from here............fax email then mail an Opposition to his Motion........when........what time frame? Thanks think it is urgent.
we are waiting to hear what the procedure is to answer this phone call from the defendant but we aren't sure if this phone call from the defendant is proper even though we send a Certificate of Conference with our Motion...........the telephone call ???
You need to inform them that you will be opposing their motion and make it clear to them that it is NOT an unopposed motion to vacate the default. Call them and tell them. When they file their motion to vacate default, you file your opposition within 5 days. You should begin working on it now and you need to focus on the fact they had not good cause to not answer. You need to get to the law library and get some cases on vacating default judgments. Begin getting your motion prepared now and leave space to insert your counter arguments to the arguments they make for vacating default. One of your arguments is that they have had not 1, not 2, but 3 chances to answer and refused to do so.
What is the time frame for the defendant to enter a Motion to Set aside the Default which has been entered into the Court by The Clerk.............The Defendant has already filed a response to the Plaintiff's request for Clerk's entry of Default, and the Clerk had this response prior to entering the Default which has now been entered.after recieveing their response (all done on the same day) ..............they have not entered a Motion to Set Aside as of yet ........would you say that the defendant has lost his request and the Judge is in position to sign the "Default Judgment Order" which is now in front of Him..................
Sorry I am just making sure this follow up question has been sent it is now 1:12 and till now the defendant has not file a Motion to Set aside the Clerk's entry of or Motion for Default...........Judge has the prepared Default Judgment Document for him to sign and thereby Set the Order..........I think thats the Procedure...comment if you will Thanks Paul
If he did not do so by close of business once the judge signs the order then they can still try to get it vacated but it is much harder for them to do so.
Regarding the Default of the defendant, they did put an answer in but the Clerk entered the default anyway, QUESTION: are we supposed to answer them even thought the answer was late and the Clerk entered the Default and in what time frame do we need to answer?
Hello Paul, the defendant that we filed the Default against and it was entered into the Court by the Clerk has filed a "Motion to Vacate Clerk's Entry of Default" in one of your answes you say to enter our "Answer" within 5 Days..........is there a particular reason for that?Sorry to Double up but my questions but time is of the essence right:::: the Default was entered after, or the same day, as the Defendants answer to our 3rd and last Ammended Petition, along with the Request to not enter the Default,......... Question: do we still have to answer their Reply since the Default was entered after the Clerk Received their Answer, which was late and the reason for the Default?
not sure if you work over the week end but with only 5 days to answer we hope you might.
I am sorry for the delay in responding, I had some computer issues.No, if the clerk put through the default anyhow, you do not have to answer anything until the court rules on whether or not they want to vacate the default if the defendant can prove good cause. The only thing you need to do is file an objection to the defendant's motion to vacate default based on their continuous failure to respond in a timely manner. You have to answer their motion to vacate the default to state your objection to the court.
Sorry, the question about is there a defined reason why we should answer the defendant's Motion to Vacate Default within five (5) days.......we can do it just looking for the reason for the 5 days........is that Federal proceedure? Or just showing strength in pushing the Default that has been entered so the Judge signs it and settles this matter.?thanks sorry for my delay things happening fast theses days. thank you.
F.R.C.P. Rule 12 states the general time to answer a motion is 14 days (however as attorneys, especially on a motion to vacate default we try to get the answer in within the week we receive it to get the default upheld).
Hello Paul, the Defendant just filed their Motion to Vacate Clerk's Entry of Default on Friday and we were in the midst of answering tomorrow, less than 5 days, but we received a Order today regarding this issue and the Judge has granted the defendant's motion and directed the Clerk to withdraw it entry of default against the defendant.Can we submit a Motion to Reconsider this Order base on the facts that they did not answer on 3 different times, once in County, and twice in Federal court. and that this is the business they are in "Foreclosure Mill" What else can we do to get the Default re-entered.
This is why I told you to prepare to file your objection quickly, because the judges can rule on them fast. You would file a motion to reconsider the order and state your objections as we discuss.
We have a concern here and are confused as to how to proceed: the following is a quote from the Judges Order:"The court believes that, given the circumstances prompting the Defendant's expedited response to Plaintiffs' Motion for Default Judgment, form should not be exalted over substance." The Judge also wrote in his Order: "the Defendant were served on Dec 21, 2010 and filed Default Judgment on February 23, 2011," Defendant's Motion to Vacate Clerk's Entry of Default, filed March 4, 2011 and the Order March 8, 2011.One more piece of information to consider: the Judge then wrote: "The court actually dismissed the defendant from this case on Jan 3, 2011 for Plaintiff's failure to effect service but vacated its order on Jan 6, 2011 after Plaintiffs provided proof of their service on January 4, 2011.........QUESTION: we know it is ultimately up to the Judge but would we be rubbing him the wrong way by filing a Motion to reconsider or is it generally accepted Procedure?The Judge also stated "Default judgments are draconian "are generally disfavored in the law," and should not be granted on the claim, without more, that the defendant has failed to meet a procedural time requirement" Lacy v. Sitel Corp, 227 F,3d290,292 (5th Cir,2000) (citation omitted). Once again is it proper for us to file a "Motion to Reconsider and give the reasons?" Sorry for the length wanted you to get the Spirit of the Judges' order here.
No, the motion to reconsider is not going to upset the judge as it is the proper procedure to follow. Yes, the judge is right that default judgments are disfavored, but you claimed you gave the defendant more than just this one time to answer above (according to the order though this was the first time they did not answer and there was a service issue and if that was the case then the judge's order is proper and you should consider just proceeding ahead on the case with letting this defendant answer).
Paul, there was no service issue to speak of, the Defendant was serviced in a timely manner we had a Process Server serve them in person and to the guy that is now answering for the Defendant, saying is was an oversight on his part. however the Process Server did not send a copy to the Court, we should have I guess is the issue, but then we did show the Court that the Defendant was properly served.It was their 3rd time not to answer, they never answered the first two times and then the Judge ordered us to serve them again and still they didn't answer within the time as is proper, (21 days) we actually gave them 30 days to answer before filing the Default and then they answered the Default and the 3rd Amended Petition at the same time promptly.Do you think we should File a Motion to Reconsider
If the party did not answer 2 previous times, then you should file the motion to reconsider and you should counter the judge's citation that default is disfavored by stating that while it may be disfavored, this party is claiming oversight after not just being served one time, but 3 times and they still did not answer and ask that if the court does not reverse its vacating the default that the defendant should at least be taxed with all of your costs for the multiple services for their "oversight." Also, you would state that "mere oversight is not good cause" (by the way while it is not in the scope of this service, I did go a bit out of my way to give you the below because of the issues you are having, but remember case law research is not really something we do as part of this service).
According to the Fifth Circuit in CJC Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60 (5th Cir. 1992):
“Under either rule, we examine the same factors: whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented. United States v. One Parcel of Real Property, 763 F.2d 181, 183 (5th Cir.1985) (citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981)). These factors are not "talismanic," and we will consider others. Dierschke v. O'Cheskey (In re Dierschke), 975 F.2d 181, 184 (5th Cir.1992). The ultimate inquiry remains whether the defendant shows "good cause" to set aside the default. Id. The district court need not consider all of these factors. Id.
Here, the district court based its decision upon W & L's willful failure to answer the complaint. Because willfulness is a finding of fact, we review that finding under a clearly erroneous standard. Id.
Our prior cases use the term 'willful' when considering the culpability of the defendant's actions. See, e.g., One Parcel of Real Property, 763 F.2d at 183. Other cases, echoing the "excusable neglect" language of rule 60(b), speak of neglect or culpable conduct on the part of the defaulting party. E.g., Kroenke, 858 F.2d at 1069-70 ("justifiable neglect" and "culpability of the defendant's conduct"); United States v. One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316, 318 (5th Cir.1984) ("justifiable neglect" and "excusable neglect"). We conclude that the latter view is more consistent with rule 60(b) and our recent opinion in Dierschke. Here, the district court held that W & L's default was willful, a finding which, if upheld, would certainly not constitute excusable neglect. We therefore review the district court's determination of willfulness, but we suggest that district courts should use the less subjective excusable neglect standard in the future.”
TO MOTION FOR RECONSIDER, DON'T WE NEED TO HAVE SOME KIND OF "NEW" EVIDENCE OR CIRCUMSTANCE?
SORRY NOT SURE THIS WENT THROUGH OR NOT.
No, you do not need new evidence for him to reconsider his order vacating the default, besides you are presenting all of the evidence above about constant neglect to answer.
WILL IT BE OK IF I SUBMIT THIS TOMORROW...OR WHAT IS MY TIME FRAME/ I WANT TO INCLUDE COPIES OF ALL THE CONFIRMATIONS OF RECEIPT. DO I NEED AN AFFIDAVIT AGAIN?
You should send it tomorrow if possible. You do not need another affidavit, you can attach all of your proofs of service as evidence, then you just put a certificate of service at the end of the motion specifying who you sent copies to, their address and date mailed and sign it.
Do we need to send it to all the other defendants in the case? because we have not regarding thesse motions because they get it through the electronic filing right?
Yes, on e filing, you just send it through there to all of the defendants who are registered and note that in your certificate of service and then note who you had to mail a copy to.
are attachments the same as appendixes? I have been attaching items w/out referring to them as an appendix
Yes, you can refer to them as attachments, appendixes or exhibits to your motion.
Does the Motion to Reconsider need to have a Memorandum submitted with it?
Yes, or you can do it all in the motion by citing your grounds and case law in the motion itself (your choice).
That's it for tonight Paul, however we will be writing this up tomorrow are you going to be available for questions...........thank you will accept graciously all of your answers now.
Thank you.
Hello again Paul, hope you are there the timing on this battle seems to be extremely fast and furious............The Defendants have answered our "Motion to Reconsider" based on 4 different & documented occasions when they did not, stemming from the County Court to the District Court, we had just filed the Motion last evening about 8 pm and they have ansered it by 4pm today,our question is: Is it proper and appropriate to anwerer there Response to our to Our Motion to Reconsider and refute their line items in the Response Motion, what is the proceedure? Thank you in advance for being there!
You can file a reply to their objection to the motion to reconsider, but it must be narrowly directed at the contents of their objection.
Hello again Paul: The Defendants entered a "Response to Plaintiff's Motion for Reconsideration" Question: one of the allagations is "Non-Compliance with Local Rules in that we did not enter a Certificate of conference, what do you say about this? They did not either with their Motion to Set Aside the Default..just earlier when they asked if we would oppose a Motion for the Clerk to no enter the Default.......is this a large mistake what to do ?
Hello again, thought I would do these one at a time to make our questions clear.What would we call our next entry into the court? Our Reply to their Response to Our Motion to Reconsider.......getting a little crazy in the Titles of these Motions!
And you would enter a "Reply to Response to Motion..." No, it is not a major issue and your response to that is that their history of refusing to cooperate or answer in this case made conference useless. To be honest here, and you need to go through the process, the court which really disfavors default (as you read above) is going to most likely still vacate the default, but you need to go through this to preserve it for possible appeal.
So in your experience the Judge will most likely still vacate the default?? Secondly, when you mention Appeal are you refering to an Appeal on just this one Defendant failing to answer? The others have answered so it would have no relevance concerning them, but this is a DTPA Deceptive Trade Practices Act suit so what do you think?
Sorry not sure if this went through or not............So in your experience the Judge will most likely still vacate the default?? Secondly, when you mention Appeal are you refering to an Appeal on just this one Defendant failing to answer? The others have answered so it would have no relevance concerning them, but this is a DTPA Deceptive Trade Practices Act suit so what do you think?
Yes, most times the court will vacate default, BUT the appeal I am referring to is later down the line if you lose the whole case. You just have to preserve all of your rights and you never know, their attorney may make the judge mad when you point out their continued refusal to answer until the default was entered and that they have no good cause justification for doing so and it was merely "thumbing their nose at the court (use that phrase in your argument in the court)."
Hello Paul,The Judge, just as you had predicted did find on behalf of the Robo signers and let them answer our pleadings and dismissed the Default entered by the Clerk and the Default Judgement we asked for as a result, the information is in the case as you suggested for future reference on a possible appeal,................New Quetion: Since the Judge has already ruled on this issue we find it un-neccessary to follow up by mailing a copy of our reply to theirs since it is looked at as a courtesy, they have been informed Electronically thru Pacer and our question is: Is this OK to not send a hard copy to them on this already ruled on Motion of Default but to just answer their request for admissions regarding the Petition?
Correct. You do not have to send a hard copy of your reply if the judge ruled on the issue already. You just answer their requests, which do not get filed with the court, but just sent to them.
Hello Paul: have several questions hope that's acceptable will push accept every time if need be thanks:I1. Is it wrong for us to request that a Texas Rule fo Procedure govern discovery in our case which is in the Federal District Court, however it is DTPA Deceptive Trade Practices Act........Texas Law right?
No, if you are in Federal Court, then you need to apply the Federal Rules of Procedure and the Texas rules would not apply. The general rule is that even if state substantive law is being heard in federal court, the federal rules of procedure apply.
Thank you Paul, next:Where can we find or can you tell us the LAW that governs Banks and states that they are not permitted to LOAN THEIR OWN CREDIT.
These laws are spread out all over the place and I am not quite sure I know specifically what you are getting at regarding loaning their own credit, you have to be a bit more specific and detailed so I could try to help with that.
Sorry; In a Mortgage Loan the funds that are supplied can not come from the Bank or the Bank depositors..........this is Banking Law, I am to understand and that the Banks actually perform a different process, a Bill of Exchange with the Federal Reserve or Securitize the Loan through Freddy Mac Fannie Mae but actually do not use funds from either their own Corporated Charter or their Depositors .........think I got that right, does this help?
This is part of the truth in lending act.
“A bank can lend its money, but not its credit.” First Nat ‘I Bank of Tallapoosa v. Monroe, 135 Ga 614, 69 SE 1124, 32 LRA (NS) 550.
“. . . the bank is allowed to lend money upon personal security; but it must be money that it loans, not its credit.” Seligman v. Charlottesville Nat. Bank, 3 Hughes 647, Fed Case No.12, 642, 1039.
PaulMJD Hello Paul another question on our Mortgage issue:We need to know what the following information means. It is located on the bottom of our Assignment of Deed of Trust from Fleet Mortgage Corp to MERS as nominee for Chase Mortgage Company. This is exactly as it appears...........R. Robert Willmann, Jr., TSB # XXXXX C/O P.O. BOX 1710 Campbell, CA1st LN#: 0032443772 2nd LN#:0908902903 Investor #; 0718478580FINAL SA. inv fleet 746 90746 11041901 FHL 41011 42-113 TX Dallas 16953 Sort 561 MIN# 10002770908902903-0 MERS Tel# 1-XXX-XXX-XXXX
That is merely the information on your first and second loan and the nominee. It just shows the account numbers and address and phone number of the nominee.
What does the " LN " mean after the 1st and then the 2nd (Loan?) and ..........does investor with their # XXXXX that the loan was Securitized?What is so odd is that we never had a second Loan on the property!
LN is abbreviation for LOAN. The investor number shows they were a registered investor. If you never had a second loan on the property, then I do not know why a second loan with a different loan number is XXXXX
How can we find out who this purported 2nd Loan is supposedly from? where can we look to find out information on this Registered Investor?
It should be recorded with the recorder of deeds. As far as the investor number, you would need to check that with the loan company, since they have given you the address and name on the investor company as well.
If by "recorder of deeds', you mean the county records......then there is no information on a second loan.What does "FINAL SA." mean?
Good Morning Paul, hope this is not too early for you but the question we had was:If by "recorder of deeds', you mean the county records......then there is no information on a second loan.What does "FINAL SA." mean?
I did mean the county records, any mortgage to be enforceable against any third party would have to be filed there. However, if it is not filed it could still be enforced against you and as such you have the right to demand proof of the second loan in writing and if they fail to provide it you would inform them that is a violation of the Fair Debt Collection Practices Act. Final SA is the service agent for the loans.
Hello again Paul, well our DTPA case went against us, but we are appealing, in the case one of the Robo Legal Firms did not answer so the case is still going agains them FDCPA is the part that they had been charged with.........any way the Judge dismissed the other Defendants but just one remains......that's the background now here is my question...This is a foreclosure case in which we are the Plaintiffs........since there is still one defendant left in the case........does that mean that the clock is ticking on our timeing to Appeal? or since there is still one Defendant left in the case, that the case is still considered on going as a whole and the clock to Appeal has not yet started.......
If the judge made the decision as to the other parties a final order, then the appeals clock is ticking as to those defendants and you need to file that appeal even if there is still a part of the case open for the other defendant who you should file a motion for default judgment against.
Thank you we will file the motion for default judgment now, next question, the remaining defendant that did not answer is who I am talking about now...........since they did not answer we should win our case against them right, or can the judge give them a chance to answer in some way, for in his judgement he stated, "I am not sure why they did not answer because I would have dismissed them too", this is the same defendant that the Judge allowed extra time to file against our original DTPA but now they have gone past the time to file for diamissal as the Judge granted the other Defendants...........and he said he in his Judgement that he will not allow them to file that now.......what else can they file........I agree they have defaulted but is there any other way for them to get some Pleading into the case? sorry this is so long!
Remember, default judgment is considered by the courts to be a "drastic measure" so many times the courts will vacate one if the defendant tries to object within a reasonable time as the courts prefer a trial on the merits. The other problem with a default judgment, which you still should pursue, is that if they don't answer the chances of tracking them down to execute the judgment will be tough. If he said he will not allow them more time, then this is good news for you and if you can locate them to execute the judgment and get a seizure or garnishment order against their accounts this would be good.
Hello again Paul, not sure if you got my last transmission, and additional question.In the question about "Final Judgement" and then the Appeal clock starts ticking, the Title to the Answer from the Judge is: "Memorandum Opinion and Order" I am assuming that is considered his "Final Order" or does the next communication constitute the "Final Order" ??? All so the Judge said "in light of the court;s ruling and sua sponte motion, the court believes that dismissing the last Defendant from this action is appropriate." then goes on to state "Plaintiffs are DIRECTED to file a response to this matter and stat why their claims should not be dismissed against the last Defendant for the same reason such claims were dimissed against the other Defendants". Does mean unless we have something different, and we do, then he will just dismiss the Last Defendant as a matter of form???
An order dismissing a party is final to that party and as such you would have to appeal as to that party. Yes, that ruling means that if you do not do some homework and come up with some legal research and case law to support you, they intend to dismiss the remaining party and dismiss your case altogether and based on that order, you need to not worry about the other defendants and fight this battle first as the order is not completely final and you will have grounds to appeal later based on fighting the dismissal of the remaining party first.
so, do we have a "stay" as to the acts of the other defendants that were dismissed? Are they free to foreclose on us while we battle the collection agency(last defendant)? Or, should I file an appeal based on the order of dismissal.
You would need to file a motion for stay of execution pending the final ruling on the last defendant from which you can appeal the case because if you do not do so they can proceed to foreclose.
Hello again Paul, we are still in Federal Court as the Plaintiff against Chase & MERS using the DTPA as our cause. The Question:
I hope this last question about the Title Search we had conducted has gotten through to you just following up on it.........the question was submitted today................
If they are not mentioned on the title, then they could still have the right to foreclose, but they would be required to prove they had been given those rights in writing by the party who is listed on the title as the mortgage holder and this would have to be presented in court to prove they have the rights to the action of foreclosure because they hold the note or right to collect on the note.
Hey Paul, if there is no such documentation other than an unofficial transfer to Chase by MERS who also was not found in the Title search and the County Records indicate that we own the House should we file Quiet Title.........
It is not unofficial merely because it was not filed, it is up to chase to prove that it was a legitimate assignment of rights under the mortgage and if you file the quiet title, they have to produce that proof.
Sorry, I meant that while in Court we found a Transfer from MERS to Chase with Unofficial across the face, but MERS can't assign even as nominee....right?
Correct, they would have had to have sold them the rights.
So, filing for quiet title at this point is an apropriate action? In re: the pending case, we made a motion for judicial notice and reconsideration while waiting to hear the judge's ruling on our prevuios answer as to why the last defendant, (the collection agency), should not be dismissed with the rest of the defendants. So, is the case still pending as to all defendants? or specifically to the collection agency? Or, do we need to file the stay while waiting on his decision about the collection agency?
You can file the motion to do so and force them to provide the proof, but it could also backfire on you and they may very well have the proof. The court will generally hold off on ruling until they decide whether or not to leave the collection agency in the suit.
Hello Paul,
You can wait to have the ruling on the motion first so you know who is still in the suit, but since this is just involving a party still in the suit, you could file it now, the choice is yours. You can also enter the title search and clear title results also as evidence in your case that Chase had no legal rights in this case.
a clear title result is different from the Limited Title Search we just received?Are you saying that we can enter the Limited Title search into the current case still?
A limited title search was not a full title search, but it is part of your evidence they do not have right to sue because they do not hold the note.
Can we enter anything into the current case at this point....while we are waiting for the judge's response to our motion for judicial notice and reconsiderationand:
How do we file for quiet title?
No there really is nothing to do until the judge rules on the motion. Continuous filings is something that really angers judges about pro per litigants, so you want to keep your filing to a minimum. A quiet title action is done by filing this as part of your complaint filed and it should have been another cause of action in your complaint and will have to be something you ask the court for during this proceeding by motion as it progresses.
Can we file a new cause of action against Chase under FDCPA when the judge rules to dismiss without prejudice on our DTPA, Texas Deceptive Trade, claims? Can we file while the present case is being reconsidered?
No, you need to continue with this case, you cannot just keep filing new cases, since they have all arisen out of the same facts and circumstances.
Let me understand you clearly, should we lose this DTPA case for whatever reason are you saying that we are not going to be permitted to enter a different plea under FDCPAReason I ask is the Judge has ruled in favor of Chase saying we are not considered to be consumers so we will appeal ...........but the two causes are different and we can't seem to get to the discovery phase causing Chase to have to prove Standing which by all public records they do not have ......... including the Limited Title Search!
What I think I said, and I think I said it above, is you need to deal with this first and the quiet title should have been a cause of action in this case as it arises out of the same general facts and circumstances. However at this point you need to wait to see what happens here before you file anything else to know even if you will have cause to file the quiet title later.
OK Paul, I know you are the one with the knowledge and we are in a leaning mode so don't take this question in the wrong light. having said that:Texas Deceptive Trade Parctices Act is a State cause and FDCPA obviously is Federal right? Even though we are in a Federal Court because Chase Attorney moved it there when we had a Trial Date Set in County Court ..... and at that time we didn't know to remand it back and were waiting to see if the Judge would hear it and as it turns out his court could ....still this is a State issue right?Two different causes two different cases even though the they both draw from the same pool of evidence.......just trying to get discovery and proof that Chase does not have standing making our case solid.......Your direction...simply put ....one at a time if I understand you, and if we do win the DTPA.......isn't the FDCPA an additional infraction and cause for a new and different suit? That's all I have my friend thanks for helping you have been a great source of comfort and support!
Yes, they are separate causes of action but a Federal court can assume concurrent or supplemental jurisdiction over a state law claim when they are part of the same set of facts and circumstances, which is why I said you need to amend your cause of action to include this cause and then if the federal court refuses to assume jurisdiction, you could file it in state court.
The judge we have has specific rules and one is that he will not allow supplmental petitions. So, I don't see a way to include anything further. Could I maybe use the title info in a motion to reconsider if he rules against us?Also, the problem we are having with the current cause is that the judge refuses to acknowlege us as "consumers" under the DTPA, which pretty much makes our cause frivolous where he's concerned. I don't think he will allow anything further since we are not "consumers" under the DTPA.
The rules of civil procedure allow that a person be allowed to liberally modify their complaints upon motion to the court. You need to file a motion to amend the complaint and attach an amended complaint adding that cause of action and exercise of supplemental jurisdiction (not a supplemental petition, that is different), then you can file it in the state court.If he is not recognizing you as consumers, let him rule and then proceed to the 5th Circuit Court of Appeals and appeal his final ruling and use that as your argument of error and that is all you can do on that.
File it in the state court? as opposed to the Fed court we are in?
File it in federal court to amend first and if the judge denies to exercise jurisdiction over the state law claim then you can turn around and file in state court. Because you are already in federal court, you have to give that court the chance to deny the jurisdiction over the state claim first before you can file it in the state court.
Hello Paul, .......Question: In our DTPA case If the Judge rules against us after consideration of the Judicial Notice and we find new material facts - evidence can we then file a New action with the same cause................and/or how can we get the new material facts into the suite before we apeal the ruling!We can not bring any new material facts into the appelete court right? We can only use the information already in the case file..........
You would have to prove the material evidence could not have been reasonably discovered during your first case. It is very difficult to get beyond this unless you prove it was because of some fraud on part of the defendant. So do not count on being able to refile if you lose. In an appeal no new evidence can be presented, only the evidence and argument from the case below.
Can we get new material facts entered in the State Supreme Court if we lose in the appelate court!
It all depends on your proof they could not be located during the first trial because of some concealment or fraud.
How many times if there is a limit, can you file a Motion to Reconsider due to new material facts recently discovered?
After your first time if you keep it up the court will tell you that you should have found it before and will dismiss your case and tell you that if you do it again they will hold you in contempt and make you pay the other party's attorney's fees unless you have some pretty strong evidence that the information was intentionally hidden by the defendant.
When you say keep it up...........this will onlybe the the 3rd time we have done it. #1. was 6 months ago when the judge dismissed one of the defendants#2. was filed with the Judicial Notice about 20 days ago.#3. this is the one we are considering now with the New Material facts of the Limited Title Search coulped with the Ferensic Investigation/Examination we are ordering.Is this too many times even though the reason is well founded, we have not heard back from the Judicial Notice Motion to reconsider as of yet.
If you have not heard back on the judicial notice motion, you need to file the judicial notice motion again as an amended motion and add in the title search, but if they deny that then you would have to take it up on the appeal.
Our appellate court here, the 5th Court of Appeals, doesn't have the best reputation of turning anything over!!! According to reports, they are sooo overloaded......some 250 cases a day, it is almost impossible to get them to actually put any real thought into the case, once its been aproved to reconsider. That said, we were thinking of waiting the current case out and then file the quiet title action back in state court. After learning more about quiet title actions, it appears that a considerable amount of preliminary research needs to be done, such as all of our mortgage payments, a loan investigation, and a letter from the title company decling to issue a new title policy. Isn't a qiet title action a different cause from DTPA and state debt collection practices? When we go in for quiet title, we would be able to drop the "consumer standing" issue that has our judge ruling against us. True?
You are correct the US Fifth Circuit is a very overworked court and move very slow. The quiet title action is not necessarily a completely different action, but it can be depending on the facts and circumstances surrounding your DTPA and Collection Practices claims. It is a separate action if the quiet title has nothing to do with your claims under the DTPA and Collection claims, but if it is intertwined with those claims or arising out of those claims, then it is part of the same claim. I know that is about as clear as mud, but without actually sitting reading your whole case file I cannot determine if it is a part of your claim or can be separate.You should be able to drop the consumer standing depending on the grounds you are arguing to quiet the title.
PAINTIFFS’ 3RD AMENDED COMPLAINT
NOW COMES PLAINTIFFS, Steven and Judy Darocy and files this their Amended Complaint against Defendant CTX Mortgage, (CTX), Chase Home Finance LLC, JPMorgan Chase Bank, N.A.,Chase Manhattan Mortgage Corporation, (CHASE), Mortgage Electronic Registration Systems, INC., (MERS), and Codilis & Stawiarski, P.C., (C&S), the Defendants.
BACKGROUND FACTS
10. On or about June 22, 1999, Plaintiffs, as consumer defined in the DTPA, entered
into a Deed of Trust agreement in good faith with GRAND LENDING, (Defendant), of real
property, being lot 9, Block C of Villages at Cottonwood Creek Section V, an addition to the
City of Coppell, Dallas County, Texas, Plaintiffs’ residence.
11.Defendant(s), Grand Lending, CTX, MERS, and Chase, use misleading” legalese” in the
Deed of Trust ,Promissory Note, and Assignment(s) of Lien documents as a means of converting Real Property from its true owner to Defendant(s) without the Plaintiff’s comprehension and therefore without Plaintiffs’ understanding. Tex. Bus. & Com. Code § 17.44.
12. Plaintiffs sought to purchase a home, “the good”. They were consumers in relation to all
parties who wished to benefit from that transaction, including Defendant(s), Grand Lending Group,
CTX, and Chase, allegedly provided financing for homebuilder in exchange for builder’s lien. (Ref.
O’Connor’s Texas Causes of Action 2010, pg.204, item #89).
13. On or about January 10, 2010, well within the statute of limitations for DTPA, Plaintiffs
began to question the extent of the American financial intuitions fraudulent activities, which have
been the demise of our economy. Plaintiffs at that time began to research the Promissory Note and
Deed of Trust affiliated with real property herein and discovered the following;
(a), banking law states a bank cannot loan their own “credit”,
(b), bank had no financial interest at risk in the note,
©, bank monetized the signatures of the Plaintiffs,
(d), the bank securitized the Plaintiffs’ Promissory Note
(e), the Defendants, Grand Lending, CTX, MERS, Chase, do or did not
lawfully own a security interest in Plaintiffs’ real property,
(f),the Original/Genuine Promissory Note and Original/Genuine
Deed of Trust is to be maintained “together” in good and valid
condition. Independently they are null and void of value because
the Promissory Note evidences the underlying debt secured by the
Deed of Trust.
14. Plaintiffs researched the Dallas County records for the Original Promissory Note
Instrument number, (275000381), and found assignments from Grand Lending Group,
(Defendants) to CTX, (Defendants) and lastly to Fleet Mortgage Corporation with no record
of any further assignments containing original note number to Chase Home Finance LLC.
15.Using the Original Instrument Number, Plaintiffs placed a phone call to Chase
Home Finance research department to inquire about the chain of Title using the Original
Promissory note instrument number, (275000381). Chase, Defendant(s), had no record of
such number and could only use their own loan number for reference. The Plaintiffs were
asked whom they had paid off the first lien to and that Chase, (Defendants) only had record
of a second lien of which the Plaintiffs had no knowledge it existed.
16, Upon information and belief, Defendant, Chase, are unlawfully and deceptively
proceeding to foreclose and sell Plaintiff’s real property without providing Proof of Claim
that they are the true creditor and/or holder in due course with standing to foreclose on Plaintiffs’
real property.
17. The Defendants, Chase and C& S, have provided to the Plaintiffs the following documentation that further shows intent to misrepresent and deceive using conflicting dates of events, recordings, and correspondence;
(a), March 5, 2010, a correspondence from C&S (Defendants)
stated that Chase Manhattan Mortgage Corp (Defendants) is acting as the Mortgage Servicer
for Chase Home Finance, LLC (Defendants) whom they state is the Mortgagee.
(b)March 5, 2010 Defendants’, C&S, sent correspondence to
Plaintiffs, stating Notice of Foreclosure on behalf Chase Home Finance, L.L.C.,
(c), March 11, 2010 unofficial Assignment of Note and Deed of
Trust to Chase Home Finance, LLC from MERS, notarized April 2, 2010, and filed into the
Dallas county Records on May 10, 2010,
(d) March 11, 2010 Notice of Posting and Foreclosure
(e), April 6, 2010 the first Substitute Trustee and Sale was scheduled.
MOTION FOR JUDICIAL NOTICE
Plaintiffs hereby submit this motion to request that the Court take judicial notice, pursuant to Federal Rules of Evidence JUDICIAL NOTICE: RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS.[1]
These documents consist of excerpts of the record before this the State of Texas Supreme Court in Flenniken v. Longview, in this United States District Court for the Northern District of Texas in Biggers v. BAC Home Loans, and Maine Judicial Supreme Court in HSBC v Murphy. Consumer status is discussed and verifies the Darocys’ status as consumers as to their DTPA claims.
In Flenniken, Justice McGee discusses in ¶7 that a plaintiff establishes standing as a consumer in terms of his relationship to a transaction, not by a contractual relationship with the defendant. As in this case, the object of the transaction was the purchase of a home. Also stated is that privity between the plaintiff and defendant is not a consideration in deciding the plaintiff’s status as a consumer under the DTPA contrary to this Court’s opinion. In ¶8, Flenniken also points to the fact that the bank’s unconscionable course of action occurred after the Flennikens entered into the contract for sale does not exempt the bank from liability under the DTPA. The unconscionable act of foreclosure as to Darocys is recent, within a two year time frame. The Order of this Court, Judge Lindsay of May 18, 2011, states that “because Plaintiffs were attempting only to borrow money to pay for their home***, they cannot meet the classification of ‘consumers’. This is contrary to the Flenniken Opinion in¶12. Although this Court suggests that Defendants CHF, JPMC, and MERS were not parties to the original transaction, the Defendants, if indeed true assignees/ors, are bound by Plaintiffs’ Deed of Trust,¶12, which states, “The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender” indicating one transaction.
As to “how the conduct of JPMC, CHF, and MERS constitutes deceptive trade practices”, Plaintiffs request that Judicial Notice be taken of Biggers v. BAC. Chief Judge, Fitzwater, explains that wrongful acceleration of a real estate note, as occurred here, violates the TDCPA and the DTPA as a matter of law. Defendants’ threatened to enforce the deed of trust lien without having the capacity to do so. Plaintiffs’ commonality with the Biggers is clearly stated in ¶39 of Judge Fitzwater’s Opinion whereas an assignment of the deed of trust was made, but it was executed and recorded inappropriately and its purported substitute trustees threatened to foreclose at a time when they did not have a legal right to demand foreclosure.
The Maine Supreme Court discusses the trustworthiness of documents provided by defendants to support their right to transfer/assign and/or foreclose on plaintiffs’ real property. As in this similar case, there was no endorsement on the face of the Assignment of Note and Deed of Trust as to MERS and Chase Home Finance LLC, no affidavits accompany the referenced record of material facts and the referenced record, and the irregularities of dates make them inherently untrustworthy. The confirmatory assignment from MERS, as nominee for JPMC was supposedly signed by Dana Heisel in his capacity as Vice President of MERS. However, Heisel is simultaneously listed as Vice President of JPMC in an Incumbency Certificate. Also, the signature and jurat appear on a page separate from the body of the assignment, urge us to infer that the texts of the affidavits submitted by HSBC were attached to the signature and jurat pages after those pages were executed. [2]
Under the principles expressed in Exhibits A, B, and C, it is proper that Darocys are consumers under their DTPA claims. Accordingly, Exhibits H, I, & J reflect that the Darocys were within the two year statute of limitations as to when they could have discovered the act.
Below is a description of the documents for which Plaintiffs request that the Court take judicial notice.
1. Excerpts of Justice McGee’s Opinion, Flenniken v. Longview, a true and correct copy of which is attached hereto as Exhibit A.
2. Excerpts of Justice Fitzwater’s Opinion, Biggers v. BAC, a true and correct copy of which is attached as Exhibit B.
3. Excerpts of Justice J. Levy, HSBC v. Murphy, a true and correct copy of which is attached hereto as Exhibit C.
4. Exhibits D, E, &F show discrepancy in the signatures and questionable positions of Dana Heisel.
5. Exhibit G is a letter from Ohio Secretary of State addressing violations of Chase Home Finance, LLC.
6. Exhibit H is a letter from Chase Home Finance LLC, dated January 08, 2010, informing the Darocys of its attempt to collect a debt, actionable under the Texas Debt Collection Practices Act.
7. Exhibit I is an “unofficial” Assignment of Note and Deed of Trust allegedly effective as of March 11, 2010.
8. Exhibit J is a letter from Codilis & Stawiarski, P.C., attempting to collect a debt dated March 5, 2010, also prior to any assignment from MERS to Chase Home Finance.
Plaintiffs accordingly respectfully XXXXX XXXXX the Court take judicial notice of the attached materials and reconsider its decision of its Opinion and Order filed May 18, 2011.
[1] (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
[2] Public records not admissible…..The exhibit constitutes inadmissible hearsay because it is an out-of-court statement offered to prove the truth of the matter asserted. See Fed. R. Evid. 801 and 802. Even if it is subject to the public records exception embodied in Fed. R. Evid. 803(8), the exhibit would be inadmissible if there is no evidence of authentication. Under Fed. R. Evid. 901(a), authentication or identification is a condition precedent to admissibility. While Rule 901 does not require conclusive proof of authenticity, it requires at least some evidence sufficient to support a finding that the evidence in question is what the proponent claims it to be. See United States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993). For public records, evidence that a writing is from the public office where items of such nature are kept is sufficient to find authentication. Fed. R. Evid. 901(b)(7). A public record is also admissible if it is self-authenticating, for example, when it constitutes a public document under seal or is certified by its custodian or other qualified person. See Fed. R. Evid. 902.
PLAINTIFFS, DAROCY & DAROCY, MOTION TO RECONSIDER ORDER
GRANTING DEFENDANTS CHASE HOME FINANCE LLC, JPMORGAN CHASE BANK N.A., AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC’S
MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT
On 05/18/2011, this court granted Defendants Chase Home Finance LLC, JP Morgan Chase Bank N.A., and Mortgage Electronic Registration Systems, Inc.’s Motions to Dismiss Plaintiffs’ Third Amended Complaint with prejudice. Plaintiffs have filed a Motion for Judicial Notice and hereby incorporate said motion, and do respectfully XXXXX XXXXX court to reconsider said Memorandum Opinion and Order;
1. It is asserted in ¶ 2, 3, page 6, of the Memorandum/Order that “CHF, JPMC, and MERS offered no goods or services that Plaintiffs sought to acquire within the context of the original mortgage loan because they were not parties to the transaction.” However this is contrary to decisions made by Justice McGee, State of Texas Supreme Court in Flenniken v. Longview. See page 2 of Motion for Judicial Notice. See also, Plaintiffs’ Memorandum in Opposition to Defendant CTX, pgs.5-8.
2. The Deed of Trust binds the successors and assigns of Lender to the transaction. See Deed of Trust, ¶12 in Defendants’ Original Answer.
3. Although Plaintiffs asserted that the media reports encouraged investigation in January 2010, the court cannot ignore the initial communications to Plaintiffs from Defendants as early as January 8, 2010. See Exhibit H of Motion for Judicial Notice. Plaintiffs’ statement was intended to reinforce their already established suspicions of Defendants in as they were not alone.
4. Defendants’ attempts to wrongfully and unconscionabley collect a debt was initiated in January 2010. Plaintiffs timely discovered the deceptive acts and sought relief in May of 2010, well within the two year statute of limitations.
5. Plaintiffs have been clear as to Defendants’ lack of standing to foreclose, have presented untrustworthy documentation to support their acts, have wrongfully collected monies from Plaintiffs, and have not responded to requests for proof of claim, inter alia, fraudulent or deceptive transfer or assigns of Deed of Trust without proper jurat or authorized officials. See Plaintiffs’ Memorandum in Opposition to Defendant CTX, pgs. 9-12. Such actions are in violation of the TDCPA and therein the DTPA as a matter of law.
Wherefore, premises considered, and incorporated Plaintiffs’ Motion for Judicial Notice, Plaintiffs’ respectfully XXXXX XXXXX court to reconsider its Memorandum Opinion and Order granting Defendants Chase Home Finance LLC, JP Morgan Chase Bank N.A., and Mortgage Electronic Registration Systems Inc.’s, Motion to Dismiss Plaintiffs’ Third Amended Complaint.
You have set this up for your appeal with the court ruling you are not a consumer at the very least. It does not sound like this judge wants to deal with your case, but it is likely something the 5th Circuit will deal with, but it is going to take them time and there is nothing you can do about that part.
Since we have to get more preliminary evidence ......should we wait to file the Quiet Title Action now or wait till the final judgment? Secondly, what specifically do you mean when you say "At the very least"?
I would wait, as I said before, to file the quiet title after this case is over if it is necessary. I said, at the very least, because you may have other issues besides just the consumer issue for your appeal.
OK should we ask, in your opinion, what the other issues you see now, so we can prepare or should we just lay it down for now.secondly, what are your thoughts on our pleading? sufficient enough for now or in need of change.............
Honestly, I cannot give an opinion on your other issues, there is no way I could sufficiently review your case under this forum to even begin to form a reasonable opinion regarding all of the issues you may have on appeal and that is well beyond the scope of this service.The pleadings were well written and presuming your research was accurate and your evidence shows what you say it shows, then they are very well done pleadings.
Paul.......we are now waiting for the Judge to make is opinion on our Motion to Reconsider after his dismissal of defendants other than the Collection law firm, the last remaining defendant that has not been dismissed. Question: We want to know can we Motion for Quiet Title now because it would give us a form of discovery, because the Bank would have to show their standing, one of our main purpose in filing the Quiet Titile at this time. Hope you are there we will be working on this all week end.............Happy Holiday
Hello Paul, we have some questions we would like to ask if you are available, please let us know..............thank you.
You really need to wait on the ruling on the motion to reconsider before you file that motion to quiet title.
I the Judge stays with his dismissal......when can we get to the Quiet Title issue........file a new Petition?
Yes, you file a new petition to quiet title if he refuses to reconsider.
Paul we are trying to reinforce our current posiotion by getting Chase to prove they have standing to foreclose and we have a transfer to MERS as nominee and transfer by MERS to Chase........does that not break the chain of Title?
Right now though you want to get a reversal on the dismissal, so until you do, you hold off on the quiet title.
Got it. On another point...if Chase has collected insurance money from our PMI policy or FDIC, can they still collect money from us? We have received letters of collection from PMI now.
Until this matter is over unless you get a stay/restraining order against them, they can continue to enforce their contract with you.
If they have been paid by one of the insurance policies....they can "double dip"?
are you still there?
No, you would owe it back to the insurance company under the insurance company's right to subrogation.
I recently searched the Financial Disclosure Report on our Judge, and found that he has an IRA with Wells Fargo, listed as formerly Wachovia, and as formerly WAMU(in 2009 report).....who was involved in our Note and purchased by our main defendant, Chase. Is this cause for recusal?
Just because someone has an account at any bank is not grounds for recusal. If you look at the attorney for the other party, they likely have accounts there as well and if you have a jury they too likely have some on the jury that have accounts there, this is not a sufficient connection to show enough bias for recusal..
IT HAS BEEN ALMOST 4 MONTHS NOW SINCE WE SUBMITTED OUR MOTION FOR RECONSIDERATION AND JUDICIAL NOTICE....AND HAVE HEARD NOTHING. IS THAT NORMAL?
Not usually, no, but it depends on the court calendar as well. By this time you should have heard something and you need to contact the judge's clerk and to find out the status on the pleadings.
K, thanks, XXXXX XXXXX its 5 months!
Thanks, XXXXX XXXXX top of this.
Hello, Paul! On 5/18/11 the judge dismissed all but one defendant and instructed us to file a response to the court's sua sponte motion of dismissal regarding our claims against said defendant no later than 5/31/11. Also, the court ordered that said defendant shall not file a reply to our response unless directed to do so by the court. We complied and also submitted a motion of reconsideration along with a motion for judicial notice. There has been no further activitity in the case until yesterday when the remaining defendant submitted a motion for summary judgement. Is their motion appropriate? Will it be considered? If so, what are our options?
I answered this already in you other thread.
This question has to do with a filing yesterday that we just received ........we have not heard anything else from the Judge to date: Even after the Judge told this defendant not file a reply to our response they did..........yesterday. ....and so Is their motion appropriate? Will it be considered? If so; what are our options?
I answered this in your other post answering this exact question for you. http://www.justanswer.com/law/5rwkc-hello-paul-5-18-11-judge-dismissed-one-defendant.html