FORECLOSURE PROCEEDINGS: ******* HELP *******

On the following URL, http://www.suijuris.net/debt, there are 9 “facts” that support the claim that the “Bank is stealing your money.” These “facts” are lacking support by listing a code or law that substantiates the “facts”. Could someone please list the laws from either the Constitution, USC, or UCC? These would be very helpful in my current foreclosure proceedings,



I have a construction loan for just over $1 million. The contractor and I had a dispute over the amount of money he had spent without my approval, and then telling me it would cost more than his original bid.



I basically fired him and called the bank to ask if I could resume management of the project without the contractor. Long story short, I received a call from their attorney who told me I was in default on the loan for firing the contractor without their approval, and allowing an IRS tax lien to be filed against me.



They filed a complaint against me on June 29, asking the Judge to allow them to foreclose on the property for $622,000+ (the amount they have loaned to date for the project). There is a hearing scheduled September 29, But I have 16 more days to answer the complaint.



It’s the most absurd thing anyone has ever heard of, since I have never defaulted on payment (always on time), and have always been willing, in fact zealously trying to work with the bank to resolve the issues with the contractor. Once they handed it over to the attorney, they have not wanted to talk to me. I sent them this month’s payment and they sent it back to me, telling me they will only accept full payment.



I’ve been studying the threads in as many relevant topics on your site as possible, as well as soak up as much information from audios and other material that I can get my hands on. I think I have a pretty good idea of the general issues, but need a little help putting it all together.



Because the substance of my Answer to the Complaint is vital, I need to get it right the first time. The issues I bring up in my Answer are going to be the issues considered by the judge in his decision to allow the bank to foreclose, or not.



First, I am in the process of getting a land patent. I’m only wondering if this process can be completed before September 29. I’m sure it can’t be complete before I file my Answer to the complaint, but I don’t know how important that would be. I would assume that as long as I had a land patent by September 29, I would secure the land and prevent them from “evicting” me off the land.



My questions are as follows...



<blockquote>(1) I need to Answer the Complaint and am wondering which issues are most relevant</blockquote>



<blockquote>(2) If I Answer the Complaint, I have acknowledged myself as the trustee of the corporate “person” they identified in all caps as the defendant. How should I approach this? </blockquote>



<blockquote>(3) I can ask them (through the Discovery process, I assume), to produce the original note, as a copy is not sufficient evidence to prove that a genuine note exists (they included a copy of the PN as exibit attached to the Complaint. Am I on the right track? If so, what law or code do I use to support the validity of my challenge that a genuine note, unaltered must exist? Or is this something that would need to be challenged now, and then require the bank to produce in the pre-trial on September 29? </blockquote>



<blockquote>(4) If I Answer the Complaint as a trustee of the corporate “person” (my name in all caps), don’t I subject myself to their jurisdiction, Admiralty laws, procedures, etc.?</blockquote>



Any and all help with your excellent perspectives and knowledge on how to best go about discharging my mortgage, and dealing with the immenent foreclosure proceedings would be greatly appreciated.



What I am hoping to get is codes that support the specific actions that I would need to take, as well as the particular procedures (Motions, Discovery, Judicial Notice, Complaints, etc) necessary to file and serve for each of the actions necessary. Thanks a million! (literally)

[suijuris]

I assume you are in federal court? If so, you can find both the FRCP and FRE annotated on this site under the links sections. You should be able to dig up the cites you need their to support your request for the original note, as well as other procedural issues. Here are some other threads with helpful cites and other info:



link 1



link 2



link 3



link 4



link 5



If you can not bring the patent up to date in time to use it in court, that is an issue that could be raised on appeal.

[redpilltaker]

Of course, time is always an issue...



But, if you have the time, read through SJ's links...and then I think that the quickest ways to see actual filings in a civil court case may be found at www.wumarkus.com...hit the forums link....(note, this seems to be a pretty "edgey" crowd)...this site is concerning the DirecTV litigation that has been in the media...but these folks' filings will give you some ideas as to the tone/language of discovery demands, and motions to compell both answers to interagotories, motions to compell production of evidence....



Like I said your time needs to be prioritized by you...this site is where I was spending most of my time prior to finding this website...



You will probably not see the same angles/issues in that other forum though....the sovereign vs. dead entity issues were not well received "over there"...but their downloads sections is extensive....



Just a thought....



RPT-

[Jerseee]

Networth2,



First let me ask some basic questions to you--to get you thinking.



how did the law firm get involved? Did the bank hire them or did they sell the debt to them?



If they are representing the bank--ask for certified verification of the debt. If they know this debt to be valid, they should have no problem writing a letter and signing it attesting this fact or alleged fact. source USC 15 chapter 41



Next thought, have you verified that there is an IRS lien? Did someone tell you or did you see it filed against your person? Do a UCC 3 search and find out if this is true. If it is not true, you can use that certified search results in your favor of course. Most of the time it is not filed with the county or state. Do both and even that demands verification (believe it or not).



Now back to the law firm....did you know that purchasing evidence is a felony? How did the law firm become party to this situation?



Ask to see the original application that the bank should have. this is evidence of the debt.



Did you know that banks cannot loan their assets?



Did you know that banks cannot create money?



Was the bank at risk of losing something?



These are all valid questions--and I don't think this situation is warranted for demanding jursidicational issues. This looks to be commerce only.



RPT is correct in that the land patent may take time but to declare it I think is another story. I'm not sure about this but file your declaration with the county--as this is public notice as well.



Do everything in writing and do not discuss such matters over the phone. Don't forget your remedy, involve the use of a notary and never argue.



Hope I helped some.

SJ, thanks for the links. They've been very helpful. Did you get my post to you in another forum? I haven't received a response to it yet.



RPT, I appreciate the link you gave me. I researched many of the files to get an idea on Answers to Complaints. Exactly what I was looking for, even though it's on a different topic.



Jerseee,



Thanks for the response...

how did the law firm get involved? Did the bank hire them or did they sell the debt to them?

The bank hired them

If they are representing the bank--ask for certified verification of the debt. If they know this debt to be valid, they should have no problem writing a letter and signing it attesting this fact or alleged fact. source USC 15 chapter 41

In my studies of local and federal rules of procedure, If I am going to acknowledge myself as the trustee of the commercial "person" they list as Defendant (I'm still in question as to whether or not this is the best thing to do), I have to submit an "Answer to Complaint", which would "admit", "deny", or state that "Defendant is without sufficient information and leaves Plaintiff to his proof."



Because both the Local and Federal Rules of Evidence require that an original be produced, I am going to assert that "Defendant is without sufficient information as to whether or not any obligation exists until an original promissory note is produced (and then list the local statute that requires an original be produced to prove their position that there is even a debt).



This being said, if I answer this one claim of theirs on this basis, I'm wondering if I need to ask them for certified verification of the debt. Or is this something entirely different than asking for the original promissory note as proof that they are in possession of it?

Next thought, have you verified that there is an IRS lien? Did someone tell you or did you see it filed against your person? Do a UCC 3 search and find out if this is true. If it is not true, you can use that certified search results in your favor of course. Most of the time it is not filed with the county or state. Do both and even that demands verification (believe it or not).

It was filed May 4 at the county recorder and can be viewed online. The attorney also submitted this with their Summons as an exibit. Are you saying that I should ask them for certified verification? There are other local rules of evidence that allows copies of documents if they have been recorded and stamped with the county. I'm thinking that this is sufficient for the court, and asking for more proof may be considered a "frivolous" request by the judge.

Now back to the law firm....did you know that purchasing evidence is a felony? How did the law firm become party to this situation?

Not sure where you would be going with this. I can only assume that the bank called them up when they ran a title search and found the IRS lien on the property, as well as the title transferred from my (and my wife's) name, into the name of an asset protection trust. With my dispute with the contractor and the IRS lien and the transfer of title, they handed it over to their attorney.

Ask to see the original application that the bank should have. this is evidence of the debt.

By "original application" are you talking about the original "promissory note" or just the application I filled out and submitted to the mortgage broker. I don't think the application has any weight does it? I'm also a mortgage broker. We hold onto the original applications of our clients and they would be easy to obtain if the lender needed to produce them. They would simply call us and ask for them. It's the promissory note and trust deed that are the negotiable and debt instruments right?

Was the bank at risk of losing something?

This is what is so completely absurd. They held a first position lien on the title. They had no risk at all. I have made timely payments and have always been on top of the progress of the project (construction). This is one of the issues I plan to bring up in a counter-claim.

These are all valid questions--and I don't think this situation is warranted for demanding jursidicational issues. This looks to be commerce only.

I assume you are saying that I should not question jurisdiction.

RPT is correct in that the land patent may take time but to declare it I think is another story. I'm not sure about this but file your declaration with the county--as this is public notice as well.

When you say, "file your declaration," I assume you are talking about a notice during pretrial conferences or the discovery process. I can't really declare anything in my Answer to the Complaint, since I have 15 more days to file my Answer, and I won't have the land patent completed by that time.

Do everything in writing and do not discuss such matters over the phone. Don't forget your remedy, involve the use of a notary and never argue.

I have read many threads on the issue of arguing vs questioning. However, the way the administrative and prodedural process of these cases are set up, it is adversarial by nature, and when claims are made, I must admit, deny, or question the validity of the claims. Although I can question validity by requesting verification and originals, there are many issues that I must either admit or deny. Rules of procedure dictate the process and even the words I must use in responding to certain claims.



I appreciate all of your considerations

[Ice]

ahem...



They MUST provide the Original contract / PN to demonstrate proof of claim. If they produce a copy... you cannot claim that it is your "signature"... but you will state that it seems to be a very good "forgery".



Stick to the production of the Original PN with your signature. If they actually do produce it -- it will have been "altered" after you signed it -- and that makes the contract "null and void". And THAT is why they WON'T EVER PRODUCE THE ORIGINAL.



The problem that you are going to have is with the Judge... he is actually on the wrong team. You have to work really hard to get him on your team... and in the case of mortgages it is near impossible to do.



One thing that you could do is let the attorney know that if you are damaged by this suit you will seek remedy against him in his personal capacity because he knew or should have known what the real deal is (the fraud). This kind of suit may be "settled" because the attorney would not want to appear and commit perjury (which is what he would have to do in order to refute your claims)... the attorney could lose his "bar" card from a suit like this... therefore he will settle out of court. A fast few grand in your pocket.



There is a lot to learn in regards to mortgage contracts before attempting to do away with them. And beware of those companies that claim they can do away with your mortgage for a fee of a couple grand... some have not done away with any mortgages and left their clients holding the bag. Be careful who you deal with.

[Jerseee]

Networth2,



Take heed to Ice's post. I will answer your questions to me.





<font color=red>In my studies of local and federal rules of procedure, If I am going to acknowledge myself as the trustee of the commercial "person" they list as Defendant (I'm still in question as to whether or not this is the best thing to do), I have to submit an "Answer to Complaint", which would "admit", "deny", or state that "Defendant is without sufficient information and leaves Plaintiff to his proof."



Because both the Local and Federal Rules of Evidence require that an original be produced, I am going to assert that "Defendant is without sufficient information as to whether or not any obligation exists until an original promissory note is produced (and then list the local statute that requires an original be produced to prove their position that there is even a debt).



This being said, if I answer this one claim of theirs on this basis, I'm wondering if I need to ask them for certified verification of the debt. Or is this something entirely different than asking for the original promissory note as proof that they are in possession of it?[/color]



Usually an application can be used as a negotiable instrument as well. I asked this because I was not sure if this was a mortgage or another type of loan.



<font color=red>It was filed May 4 at the county recorder and can be viewed online. The attorney also submitted this with their Summons as an exibit. Are you saying that I should ask them for certified verification? There are other local rules of evidence that allows copies of documents if they have been recorded and stamped with the county. I'm thinking that this is sufficient for the court, and asking for more proof may be considered a "frivolous" request by the judge.[/color]



If you do a UCC search with the state and not the county and there is not one filed with the state--then you may have something that is not frivilous. However, does the county have its own tax? If so, you can use your remedy to satisfy this fraud too.



If the bank hired the attorney--I would demand that they verify the debt. In the meantime, you should write all three CRAs and demand that they verify the debt as well. THis is listed on the credit report. Demand that they verify the debt--when they can't verify the debt--it does not exist. They have 30 days to do this--give them 60. In any event, you want to see the original note and a contract is not validation of a debt as the contract is not the consideration but only outlines the terms of the deal.



There are a host of things that can be debt instruments as long as they have the elements of a negotiable instrument. Which even a napkin can be used as one.



If the bank can prove it was at risk--they have a claim. And making payments is not the issue. You must first learn to stop defending yourself when accused and stop offering testimony that can be used against you. If you admit to making payments (no matter how honest it may seem) you admit to the debt. If there was no valid debt--then why are you making payments? Do you see that?



Why would you bring up jurisdiction? Answer that and you should be able to see if you can use it or not.



When I said file a declaration--I was talking about the land patent declaration. File it with the recorder--that too is public notice. Now if anyone wants to rebut that they can--wouldn't you like to see if the bank is going to try to get a land patent--they can't.





<font color=red>I have read many threads on the issue of arguing vs questioning. However, the way the administrative and prodedural process of these cases are set up, it is adversarial by nature, and when claims are made, I must admit, deny, or question the validity of the claims. Although I can question validity by requesting verification and originals, there are many issues that I must either admit or deny. Rules of procedure dictate the process and even the words I must use in responding to certain claims.[/color]



I understand procedure but how can you admit or deny something that may or may not be valid? You cannot perjure yourself and you cannot be forced to admit to something you have no first hand knowledge of. If you can prove that the debt is valid--then there would be no need to ask for verification. You now know they need to establish a controversy through procedure--find a way to stay in line with procedure but not with what they want you to do. Admit to a debt. It may be proceudre but it can be duress too.

Jersee,



The reason I'm questioning jurisdiction is NOT whether or not the court has jurisdiction over the pretrial hearing and the subject matter of whether or not the bank should be allowed to foreclose. This is the way the Complaint was structured. I have not yet been foreclosed on. The bank is asking the court for permission to foreclose on the loan BECAUSE of the above listed defaults they are claiming.



My question on jurisdiction would be on the matter of the IRS lien. Because the United States Government has no jurisdiction in the court the plaintiff filed his complaint, the IRS lien (which isn't valid anyway) a moot point and is void. If it is void, the use of it as evidence to support a default is baseless.



So my thought on jurisdiction is simply to question or challenge their claim of a default because of an IRS lien "on the grounds of subject matter jurisdiction." The state court has no jurisdiction to rule over federal matters that involve the United States. Am I on the right path here?



In my Answer to the Complaint, I have to respond to each of the individual issues in the Plaintif's complaint. I can't just respond to one of them. However, because the basis of the Complaint hinges on the allegation that there is or was a promissory note, all other issues are subordinate to this one point. If the bank cannot prove that there is a debt by certified verification of the debt, then all other issues are moot, correct?



So, here's where I'm headed...



The Complaint has 9 paragraphs that I must answer. I list them below, with my proposed "answer" to each. I'm polishing my gun before I load it with ammo! ;-)



Par 1

The caption of the Complaint lists my and my wife's corporate persons "Husband and Wife" as the Defendant, along with the contractor, the Trustee for my Trust (under which I transferred title), The US of A, "through its Internal Revenue Service", and the Contractor.



First, my corporate person is listed as a Defendant. But then my individual name is used in the body of the Complaint (using both upper & lower case letters). I could challenge misidentification by telling them they served me as an individual, but listing a fictitious entity as the Defendant. I'm wondering if anyone has challenged a Summons/Complaint, based on misidentification, and caused the opposing side to restructure the Complaint with the correct "spelling". I'm not sure how this would be done.



Secondly, because it lists 4 Defendants (1) me and my wife, (2) the trustee of my trust, (3) the USA, and (4) the contractor, I would like to request that I be tried separately as one defendant.



Par 2

Claims that I executed and delivered to plaintiff a Promissory Note, and states that it is attached as Exhibit 1.



If I am going QUESTION everything, as opposed to DEFENDING or ARGUING everything, then my stance should probably be as follows:



Defendant is without sufficient information about a promissory note and leaves plaintiff to prove that a debt exists by following local and federal rules of evidence, requiring the original document to be produced in order to substantiate this claim.



I'm wondering if I should specifically use the words 'Promissory Note", asking for them to produce it, rather than just asking them to prove that a debt exists. Is this one in the same?



Par 3

Claims that "...as part of the loan agreement, [i] executed a deed of trust on certain real property described therein... attached as Exhibit 2"



My answer would basically be the same as above, with the exception of replacing the "debt" or "promissory note" used above with "deed of trust". I'm just wondering if this is the original would be produced without a hitch by the bank.



Par 4

Claims that I am "in breach under the terms of the Note and Trust Deed by reason of (1) [my] unauthorized transfer of the real property to [my trust], (2) allowing an IRS lien to be placed on the real property, and (3) by terminating the contractor."



My answer to this could be:



Defendant is without sufficient information and leaves plaintiff to prove that there is a debt, or any agreement by Defendant not to transfer property into a trust. Furthermore, plaintiff is left to prove that there is a lien by the United States Government and its Internal Revenue Service against the real property, since recording a notice of a lien is neither sufficient evidence of an actual lien, nor does this court have subject matter jurisdiction over federal issues. Defendant is also without sufficient information that any agreement exists wherby defendant agreed to obtaining plaintiff's consent on certain matters.



Par 5

Claims that I owe them the full amount of the loan, together with interest...



My answer would be the same as Par 1 above



Par 6

Claims that the "Defendant United States of America", claims an interest in the real property... by reason of a tax lien, filed on _____"



Because it is a "Notice of tax lien", it is NOT a tax lien as stated in the Complaint. It is also NOT a lien against the real property since the United States of America has no jurisdiction in matters of the State.



So, I'm wondering if I should out right deny that a lien exists, or if I should again state that...



Defendant is without sufficient information to conclude that a lien exists on the above-entitled real property and leaves the plaintiff to prove that the United States of America has jurisdiction over real property that is within a State, whose purpose is to protect its citizens.



Par 7

Claims that the trustee of my Trust claims and interest in the real property "which is subject to and inferior to plaintiff's interest."



If I stay on the same line of "questioning" or asking for proof, rather than "denying" or "arguing", it would seem logical to answer...



Defendant is without sufficient information to conclude that the Plaintiff has a superior interest in the real property by means of a promissory note that indebted Defendant to Plaintiff, and leaves Plaintiff to prove that a debt exists.



Par 8

Claims that the contractor claims an interest in the real property by reason of a construction lien, filed without proper notice to plaintiff, and therefore inferior to plaintiff's superior position...



Defendant is without sufficient information to accept the validity of construction lien, or that contractor holds an inferior position to any superior position, and leaves Plaintiff to prove that any debt exists by the Defendant which would give plaintiff any position in the above-entitled real property.



Par 9

Claims the "the Note and Trust Deed provides for an award of attorney fees in any action brought to enforce the terms of the Note and Trust Deed."



Again, if the rules of evidence requires them to produce the original note in order to prove there is a legitimate debt, and if they can't or won't produce it, then everything else is moot, then basing my Anwer to each of the complaints will basically be the same, ie



Defendant is without sufficient information about any agreement to an award of attorneys fees to the prevailing party, but would accept an award of court costs from the Plaintiff to Defendant, and leaves the Plaintiff to prove a debt exists by producing the original document.



I am also considering a Counter-claim in my answer, but don't have this fully baked yet. Still studying furiously!



The biggest concern I have is HOW I structure my answer. A "pre-trial conference" is scheduled for Sept 29. Because this is NOT the actual trial itself, the pre-trial hearing is scheduled for the purposes of "setting the stage" by laying out the framework of the trial itself. If I don't bring up certain issues now, I won't be able to bring them up later (generally speaking).



During the pre-trial conference, the judge, the opposing side, and me will discuss how long we think the trial will take, how many witnesses (if any), what type of discovery, motions, etc. we believe will need to be made before the trial, all for the purposes of efficient case management (expeditious trials so they can move as many through the system as possible).



With this said (in in conclusion.... No, really, I promise), if I structure my answers ALL in such a way that they question the validity of the Plaintiff's actual claim itself, then virtually all of the paragraphs in the complaint will be questioning the validity of any debt. For if no debt exists, then the very issue itself is meaningless.



Lastly (no, really, I mean it this time...), there are several other issues I can bring up, such as "was the bank at risk?", but wouldn't this indirectly acknowledge that there was some agreement? If I bring these issues up, it would seem that I would be dangerously close to admitting that there was some agreement between me and the bank.



So whatta ya think?

[Ice]

You keep referring to the "debt"... who cares about the alleged debt!?!?



You had an "agreement" with them and they breached it from the get go. YOU funded the loan... they did not (note Par 3 states "loan agreement"... yeah, right, prove they loaned you something!! ) They didn't risk anything. They changed the original agreement and that makes it a "forgery". Your signature isn't on it (look up "signature").



I've said this before and I'll say it again -- attack the FRAUD.



Why not answer by simply stating that upon production of the original promissory note you will PAY the debt?? They won't produce it -- and if they do, it has been altered making it null and void... a "forgery" and a "fraud". And now they are attempting a fraud upon the court. Bogus claim - bogus suit.



And it would be okay to acknowledge that you sent the PN... that is just more "proof" that you were within the Law.

[redpilltaker]

First things first....



Decide if jurisdiction and venue are applicable....(I know that COULD be difficult with all the talk about status of being and such....)



And just get your answer back in time....



Your answer should deny each allegation...and then at the end you list your affirmative defenses(plaintiff's unclean hands, fraudulent contract(man, would sure like to get that in there without tipping them off too much about your understanding of the real world...)and a counterclaim...



I am thinking that it is during the discovery phase that you will level both barrels and tear them apart....



So, you're right, address each paragraph of the complaint, and remember "I don't know" is a valid answer...or even, "I have no way to determine that, so allegation is denied..." THEY are the moving party in this right?...



DO NOT show them any of the tools in your tool box until the discovery phase. That is when it will be fun...interogatories, admissions, production of documents, production of all parties with names, addresses and phone numbers who EVER touched your original promissary notes...WOW...yes, that is when the fun will start....



The amount of information/data that they HAVE to produce for you during discovery is mind boggling....sit down, get your aswer to the complaint ready, and get ready for at least a year's worth of involvement....with this website and wumarkus...man, they don't have a chance!!



You know...Tom Schauf's secret banker's manual has always had my interest...any folks out there ever get a chance to read through it?



What for $275...I have been leaning towards buying it myself...just to see if it has ANYTHING in it that I hadn't seen before....



Another idea...does anyone have an actual and official copy of the Credit River Decision?



That is another thing that I was contemplating ordering from the court system in MN. If the actual case had all of the transcripts from the court proceedings when Daley(spelling) had his banker on the stand...it would be great stuff in both potential questions during a trial...AND interrogatories and admissions....



Dude, I will be watching you closely since I am still trying to draft my plan from begining to end....I already know that I live in a strict foreclosure state...so this will be interesting...



Blessings,



RPT





I am editing this because I just reread the prior posts....VERY good points, and all will be useful...at the appropriate time....get an answer in....the scheduling conference is a none issue...the plaintiff's attorney will probably speak to you on the phone, send you a draft, then one to sign to send into the judge....these guys can be(and should be) surprisingly courteous....then as I said above, then the fun part starts as you start building the small box that they will try to squirm out of....if you keep your wits about you, I expect that they will hang themselves....



PEACE....