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socrateaser
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Motion to Substitute Party Plaintiff pro se defense

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Motion to Substitute Party Plaintiff
I must defend pro se, a lawsuit to enforce a promissory note formerly secured by a second mortgage. The first mortgage company foreclosed and sold the house January 2010. The second mortgage company filed suit on the note December 2008. I answered pro se and sent out requests to admit. After receiving my requests, Plaintiff moved to Substitute Party Plaintiff claiming that the indebtedness had been assigned to the servicer and that the assignment was attached to the motion. Plaintiff also asserts that there is a registered foreign judgment of which the servicer is owner. I know case law in Illinois exists that says the servicer does not have standing to sue alone and must name the owner as a necessary co-party, how do I find that information? The alleged assignment is not, but is instead a power of attorney,how shall I respond? Are there standard defenses to motions? I will pay $12 bonus on this question.
Submitted: 4 years ago.
Category: Real Estate Law
Expert:  socrateaser replied 4 years ago.

You can demand/subpoena the movant to produce the actual power of attorney instrument, so as to prove that it has the power to assign the note to itself in the on behalf of its principal. Assuming that the plaintiff does have that document, then it would have the power to assign the note, and thus would have independent standing to sue, because a note can be enforced by any holder in due course.

 

If the plaintiff cannot produce the power of attorney instrument, then you can move to dismiss for lack of standing.

 

Hope this helps.

 

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Customer: replied 4 years ago.
I was not clear enough in my intitial question. The attorney for IUBT has moved to substitute Green Tree Servicing as the party Plaintiff. The motion (which I assume he was attempting to slip past me and the Judge would have approved out of hand had I not objected) states that exhibit "A" is an assignment from IUBT to Green Tree. In reality, exhibit "A" is the aforementioned limited poa. There is nothing in the poa that assigns the note to Green Tree, it merely makes Green Tree the attorney in fact. Green Tree is specifically called the servicer of the note in the poa and several classes of notes for which Green Tree will service are listed. IUBT retains discretion over who may suceed Green Tree. There is one part that may represent assignment, I don't fully understand it, that reads in full "This limited power of attorney is irrevocable and coupled with an interest". Is that an assignment? Nowhere in the document does it say that loans are assigned only that Green Tree will service them. In either case, the document does not refer to the specific note in question.

One tactic I intend to use is that Irwin Union Bank and Trust is not the holder of the note in due course and therefore, even if an assignment exists, they could not have assigned my note. This is what tipped my hand in the request for admissions. I was stating facts that would show that IUBT was the only plaintiff. If substitution is granted, Green Tree would be the only plaintiff which still plays to my argument because I do not believe them to be the holder of the note. This poa does provide fodder for my argument because it specifically names a class of loans that cannot be owned be the servicer because they are divided into pieces and sold as dirivitaves. The poa says as much. I intend to defend affirmatively for failure to name an indespensible party.

What I want know is, where can I get the case law to quote that says the servicer cannot sue independantly of the holder in due course?

I also want to know the basis I need to claim for attacking opposing counsels exhibit. I think if he had the assignment, he would have produced it rather than try to sneak this into the proceedings.

The last thing I want to know is this: are there standard reasons that are typically stated in writing an answer to a motion? I am asking for the legal basis' to state in my pleading. For example, Prematurity, Unproven, Irrelevancy, Baselessness or things like this. Since I am unfamilar with civil proceedure, I need some small guidance here.

P.S. I forgot to mention above that the motion states "Green Tree servicing LLC is the current owner of the indebtedness and proper party plaintiff in execution on the registered foreign judgment." I am aware of no judgment in this case foreign or otherwise. in either case judgment could not be registered since the rights to secure judgment to the underlying real estate were extinguished by the foreclosure of the first mortgage. Plaintiff is not pursuing this case as a post judgment proceeding. How do I properly answer this assertion?
Expert:  socrateaser replied 4 years ago.

A power of attorney (POA) would presumably grant GT with the right to assign the original note to itself. However, if the original note is not in evidence, then there is no proof that the note is actually assigned to the GT, because, for example, the note may have already been assigned to a third party by IUB, in which case, GT could not possibly assign it from IUB to BT via the POA.

 

The statement in a POA that it "is coupled with an interest" is, well, to put it delicately, the act of an incompetent lawyer, or perhaps a nonlawyer trying to be clever. A POA when granted to an agent who already has a right to the subject matter of the POA, is irrevocable, whereas an ordinary POA is revocable at the will of the grantor. However, no language on the POA itself can make it irrevocable -- there must be proof of an actual interest in the subject matter, or valuable consideration given the agent to the grantor in exchange for the POA.

 

As far as where to get case law, the least expensive database is www.versuslaw.com. For $13.95 per month (no long term contract), you can have all of the case law from every U.S. state appellate court jurisdiction -- and for $27.95 you can add all federal court jurisdictions.

 

However, I seriously doubt that there is case law in support of your suggested theory, because under the Uniform Commercial Code, a holder in due course can enforce a promissory note -- and what you are suggesting runs contrary to at least 50 years of well established commercial law.

 

The basis for attacking plaintiff's claim is that without the note, the POA is irrelevant -- it does not prove that GT has standing to sue, because there's no evidence that GT still has the original note.

 

Re standard lingo for this particular motion, it's not really germaine. This is actually a fairly unusual motion pleading. A person rarely starts a lawsuit and then claims that they need to add the real party in interest as plaintiff, because that is an admission that the plaintiff had no standing to sue in the first place, which is grounds to dismiss the complaint.

 

 

Customer: replied 4 years ago.
I have access to lexus because my wife is a criminal attorney (she is a Prosecuter). Even if she were familiar with this area of law, her relationship with the State prevents her from participating in my litigation. When I was asking "where do I find that law", I should have asked, how do I find it! I don't know what terms I would use to bring it to the surface. I have tried standing, mortgage, holder in due course, foreclosure and others but cannot find the case that I once saw.

I understand that the holder in due course may enforce their note at any time within the statute of limitations. Are you suggesting that the servicer is also the holder? My understanding is that the servicer need not be the lein holder and that it is common practice for lenders, holders and buyers of notes to hire 3rd party servicing. After all, the largest buyer of notes, Fannie Mae, does not service their own notes. BOA, Chase, Citi all have 3rd party servicers and oddly they also service loans for others. I am under the presumption that the servicer is paid a fee or commission on the collected revenue which is why the larger banks would only want to service the more lucrative contracts. The poa even says in specific language "Green Tree is appointed as IUBT's and IMC's agent for the limited purpose of servicing mortgage loans that are subject to servicing agreements". This is why I believe that the "servicer" is not the holder of the note in due course, and therefore; does not have the right to sue independently. This is specifically the area of the case law that I remember seeing. Obviously, I need to doublecheck but, I remember that in the case MERS was acting as servicer but judgment was overturned at the appellate level based on the fact that mers was the servicer and did not have standing to sue independently. In this case, the holder of the note in due course was not included in the lawsuit and the case was overturned for failure to name an indispensable party. As I understand it, this is because MERS was charged in their agreement with enforcing the note, but since they were not suing on their own behalf, but instead on behalf of the true holder of the note in due course, that proper Plaintiff needed to be named in the suit.

I am gaining the opinion that banks are suing now for foreclosure more out of tradition than of actual right. Once upon a time when a borrower went to the bank for a mortgage loan, they brought all their records and a 20% down payment. The bank then lent them the money out of the banks resources that they got from depositors. The bank would then service their own note and borrowers would go into that particular banking branch and pay their loans. The individual bank was the holder of the note in due course and kept the note in its portfolio. With the advent of the secondary market this is no longer necessarily the case. Banks are able to make loans at a particular interest rate and sell them in the secondary market at a profit, thus returning to them the resources they need to make new loans. This newer practice allows banks and financial institutions to make an unlimited amount of loans as long as there's money in the secondary market to buy them. This latter ability provides banks of the opportunity to make riskier and riskier loans as investors in the secondary market are also willing to take that risk. I believe that these secondary market buyers are the owners of the notes in due course. Because of the greed and the haste to get these loans made and out into the secondary market the banks have played fast and loose with the rules. They became evermore sloppy with their transitions, paperwork, assignments, tracking and execution of documents. They relied on lowly paid, disinterested third parties for closing and execution of notes and mortgages (title companies). These errors and omissions have left the banks wide open to attacks on grounds of TILA, RESPA, HOEPA, Unfair and Deceptive Trade Practices Act, FDIC regulations, the Fair Credit Reporting Act, Fair Debt Collection Practices Act and any number of other federal and state violations.

Determining the holder of the note in due course becomes even more mysterious and vague given the many times the note may be sold on the secondary market, the disbursement and securitization of the loans and, multi-transaction sales and servicing agreements. This means that loans maybe bundled together with hundreds of millions of dollars of similar quality notes and broken down in pieces to be sold to millions of investors nationwide. Who is the holder of this note in these circumstances? Is it the maker? Is it a servicer, secondary buyer, the tertiary buyer, the wholesaler, the trustee, the hedge fund or insurance company, the individual holder of the derivative? Is there another party at play that might hold the note in due course? I don't know the answer to this question, and it is on this basis that I'm attacking the mortgage note.

I am raising several affirmative defenses. Among them are, lack of standing; unclean hands; violation of RESPA; fraud; violation of Unfair and Deceptive Trade Practices Act; unconscionability; failure to join an indispensable party; lack of jurisdiction; duress; failure to state a claim for which relief may be granted; fraud in the inducement, I have grounds for each of these. I am currently gathering discovery and will amend my answer accordingly once I have the evidence. Interestingly enough, the limited power of attorney that was presented to me by opposing counsel opened the doors to explore all sorts of relationships that are named within the document.

You are correct that the basis for attacking the plaintiff's claim is that there is no evidence that the original note was transferred. There are a great many relationships that need to be explored to prove that there are no relationships, and I intend to make the plaintiff go through each of them in turn, as I attack each motion and compel him to defend his motion many times. I am hoping that, since I have no costs, and he is expensive the plaintiff will realize that the cost of litigating is beyond the value of the suit. The weakness of the argument made in his motion to substitute party plaintiff indicates that I may be able to run circles around him. The motion to substitute party plaintiff arises from his claim that the note was transferred subsequent to the filing of the lawsuit. My argument is that there is no evidence as you stated before, to indicate that the note has been transferred properly. There are at least 25 relationships that need to be explored before we can tell whether or not the note was transferred properly from the original maker. All of this is simply to prove up his motion without even getting to the case! Provided I am successful I will then move to involuntarily dismiss the case.

I hope I have been clear enough, but that this has not been too long a discourse to arrive at the answers to my questions.
Expert:  socrateaser replied 4 years ago.

I just searched using a "terms and connectors" search as follows:

 

foreclos! w/s standing

 

The search returned 23 documents. This was from Versuslaw. The Lexis database goes back further in time, so I would expect you will find additional cases. I browsed the first two returned, and the second, CSM Insurance v. Ansvar America, 649 N.E.2d 600, 272 Ill. App. 3d 319, 208 Ill. Dec. 544 (1995) states, "The rights of the parties are determined as of the date the lawsuit is filed." This suggests that if the plaintiff in your case didn't have standing to sue on day one of the lawsuit, then it can't add a plaintiff after the fact to create standing. It must refile the lawsuit.

 

Hope this helps.

Customer: replied 4 years ago.
I will review this search. Thank you! do you have any other comments on the items I explained?
Expert:  socrateaser replied 4 years ago.

I have maintained throughout the recent home mortgage recession that banks control the world -- not governments, and that this has been status quo since banks were invented. Bank related legislation is generally written by bank interests, lobbied for by banks and used by banks to avoid interference in banking behavior.

 

Where else in the law can a business produce usurious loans and unconsionable fees with impunity? What other business organization can reach into your money and seize it whenever it believes that it's in its interests to do so? What other organization can avoid a trust relationship while entrusted with your money? What other organizations could terrorize the entire U.S. Government to give it nearly unlimited funds at 0% interest?

 

However, let's be real here. The bank does have an interest in recovering its money from someone. Tactical maneuvers may be given life by the court, but ultimately,if you have not paid your mortgage, the person or persons who do have the legal right to collect will likely appear and they will manage to foreclose the lien.

 

Your entire case depends on your proving that the note is lost and that no one can prove standing to sue. Any diversion from that path may produce a temporary advantage, but not final victory. For me, life is too short to deal in minutia. I'd just cut to the chase and try to force your opponents to either produce the note or go away. If they do, then you lose -- otherwise, you win.

Customer: replied 4 years ago.
Unfortunatly, in Illinois, simple claims to produce the note have gotten no traction. The presumption, as you rightly pointed out above is that the banks do have the note and the copy they present is evidence enough. To get them to produce the note, I need to concentrate on the minutia to convince the judge there maybe something to my claim. I have lost 8 homes to foreclosure last year. None of my attorneys ever sent requests to admit. The most they ever did was to request all the relevent documents. My request for admissions seems to have alerted the attorney to the weakness in his case now has opened the door to doubt that they have ownership like no other opportunity I have had before. Generally speaking, in Chicago, lawyers take a flat fee for defense and figure they can stretch the 6 month time frame into 18 months unless they see a TILA violation. They feel that they are not paid enough to mount a true defense. I agree with them mostly and have now instructed my attorney in another case to defend me hourly. I need to defeat this case if possible but in the other case I only need an acceptable settlement. I am hoping that the trail I blaze here will help my attorney in my other case. thank you for your help, I will review the search you suggested and pay you or ask for clarification. If I get what I want from the search, will you stay on post acceptance to clarify things for me? I will be glad to accept additional fees.
Expert:  socrateaser replied 4 years ago.

If you accept this thread, and post afterwards, I will continue to answer. If you want to add a bonus after that (I get a greater percentage of the bonus than for the accept), then I won't look a gift horse in the mouth.

 

I don't charge for services. You decide what you will pay. This entire process is donative, not contractual. My only recourse is to stop answering if I think I'm being unfairly exploited. A strange process to be sure, but it works.

 

And, if you lose this thread, you can always ask a new question, prefaced with "To Socrateaser...," and I'll see the post on the question list.

socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 33539
Experience: Attorney and Real Estate broker -- Retired (mostly)
socrateaser and 8 other Real Estate Law Specialists are ready to help you
Customer: replied 4 years ago.
That search worked out great. I found one case in particular Maddenv University Club of Evanston 97 IL App. 3d 330 where the determination of the court is that the trustee may not sue independently if there are other trustees or beneficiaries.

I will ask you some questions about searching for information but that can wait until another time.

Thank you,
Mark
Expert:  socrateaser replied 4 years ago.

Glad I could help. Let me know if you need anything else.

Customer: replied 4 years ago.
I've been reading the power of attorney that I mentioned in our discussion earlier. That POA names one company. "Green Tree Servicing". That it joins five companies including "Green Tree Servicing", under the name "Green Tree". Then throughout the document refers to either "Green Tree" or "Green Tree Servicing" in different paragraphs. The two names are XXXXX XXXXX together in the same paragraph. Am I correct that "Green Tree servicing" means, one company and "Green Tree" means all the companiesregardless of where it appears in the document?
Expert:  socrateaser replied 4 years ago.
Since I'm not looking at the document, I can't be definitive, but by your description, what you're describing appears to be an accurate analysis.
Customer: replied 4 years ago.
I am still pulling my hair out trying to find some illinois case law that says a mortgage servicer does not have the right to sue. I know this is true and I know case law exists in illinois to this point. The servicer, for a fee, is empowered to collect on the note and do the things required to keep it current. The relevant portion of law is this:

Section 1050.190 Servicer

“Servicer” shall mean any entity licensed under the Act

who is responsible for the collection or remittance for,

or the right or obligation to collect or remit for, any

lender, noteowner, noteholder, or for a licensee’s own

account, of payments, interest, principal, and trust items

such as hazard insurance and taxes on a residential

mortgage loan in accordance with the terms of the

residential mortgage loan; and includes loan payment

follow-up, delinquency loan follow-up, loan analysis

and any notifications to the borrower that are necessary

to enable the borrower to keep the loan current and in

good standing.

(Source: Added at 25Ill. Reg. 6174, effective May 17, 2001

Will you please help me find case law that supports my argument? It must be from Illinois or from the northern district of illinois federal court.

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