Foreclosure Defense

If the bank has the proper paperwork i.e. Mortgage, Promissory Note, Acceleration letter, and the Fair Debt letter, and they can prove they own the Mortgage and Note and or sent out the other paperwork then it is pretty hard to avoid the foreclosure, and the best thing is to try to stall it as long as it takes to modify your mortgage.

1. The Plaintiff has failed to state a cause of action because the Mortgage attached to the complaint does not show that the Plaintiff is the owner and holder of the Mortgage, there is no attachment that shows that Deutsche Bank National Trust Company is trustee for Long Beach Mortgage Loan Trust 2006-7. There is no attachment that shows that the Lender on the Mortgage, who is: Long Beach Mortgage Company, ever assigned or transferred its rights to Deutsche Bank National Trust Company or to Long Beach Mortgage Loan Trust 2006-7.  The case should dismissed for failing to state a cause of action and for failing to attach necessary documents.  (SEE Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic registration Systems, Inc., v. Dean Thomas Miesmer, Deceased, Et Al., 12 FLW Supp. 845 (Fla. Cir. Ct. 4th Jud. Cir. 2005).

2. The Complaint should be dismissed because the Plaintiff has failed to plead that the mortgage being foreclosed upon was assigned and or transferred to the Plaintiff. (SEE Mortgage Electronic Registration Systems, Inc. as nominee for Wells Fargo Bank, N.A. v. Marvin Johnson, 13 FLW Supp. 42(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, As Trustee for Morgan Stanley ABS Capital 1 Inc., Trust 2005-HE2 Mortgage Pass-Through Certificates, Series, 2005-HE2, v. Yolanda Ray, 13 FLW Supp. 136(Fla. Circ. Ct. 4th Jud. Cir. 2005); Mortgage Electronic Registration Systems, Inc. as nominee for Countrywide Home Loans, Inc. v. Angela Foster, 12 FLW Supp. 648(Fla. 4th Jud. Cir. 2005).

3. The Plaintiff has failed to state a cause of action because none of its attachments establish that it has standing to bring this lawsuit. (SEE Mortgage Electronic Registration Systems, Inc. v. Carol G. Dewinter, 12 FLW Supp. 554(Fla. Cir. Ct. 4th Jud. Cir. 2005)

4. The Plaintiff has failed to state a cause of action by not attaching a promissory note to the complaint. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).

5. The Complaint should be dismissed for failing to join an indispensable party, and that party is the true lender listed on the Mortgage. (SEE Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).

6. The Complaint should be dismissed because the Plaintiff never alleged nor did it comply with the Fair Debt Collection Practice Act by providing mortgagor with appropriate notice of her delinquency. Failure to provide proper statutory notice before filing suit prevents plaintiff from proceeding with foreclosure action unless and until condition precedent is satisfied. The complaint should be dismissed for violating the Federal Fair Debt Collection Practices Act. 15 U.S.C. 1692(g) requires that Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

The Defendant never received such notification. Before a Foreclosure action can be made against the Defendant the Plaintiff must prove that the aforementioned notice was sent and received by the Defendant.  (SEE Nationsbank, N.S., Successor by Merger with Nations Bank, N.A. (South) Successor by Merger with NationsBank of Florida, N.A. v. Patricia L. Phillips-Jack, 5 FLW Supp. 542(Fla. Cir. Ct. 17th Jud. Cir. 1998).

7. The case should be dismissed because without a Note the property cannot be foreclosed. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).

8. The complaint should be dismissed because the Plaintiff has not performed all the aforementioned conditions precedent before bringing this suit, to wit: complying with Fair Debt Collection Act, attaching necessary documents.