Comment: Dismissing the Foreclosure

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Dismissing the Foreclosure

I'm glad you were at least able to file an answer and avoid default, but the best response I've found is a motion to dismiss and then not asking for a hearing. That way it's on the attorney to ask for a hearing on your motion and the case stops until the motion is denied. With an answer, the case proceeds through discovery so you have to be proactive.

You should still have a motion to dismiss in the record, challenging the jurisdiction of the court to hear the plaintiff's complaint (or its right to be their in the first place) without them having the legal standing, genuine note and mortgage security agreement.

And file a counter claim for recoupment, that is really your only defense and the only way to have your defense heard. You can also amend your answer to include an affirmative defense for the same, "recoupment".

This means that they need to set off their mortgage default claim against your original deposit, the note, that they DO NOT have I guarantee you. And that suspiciously they did not record along with the mortgage.

Then, find your best copy of the note and have it notarized and recorded at your county recorder's office. Ask for a certified copy and take that home with you and then you'll get the one you recorded in about 10 days. This makes you now the holder in due course of the original note and you can now use it in the court as a payment of the entire mortgage default claim contingent upon them proving jurisdiction.

It also provides the evidence that unless you hand them that paper, they can never be the holder in due course, hence, cannot sue you. Always keep that original they sent back from the recorder's office, it's your money, a registered security, but use a certified copy as the payment into the court registry with those terms.

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