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Foreclosure Defense - Motion To Dismiss (Failure To Substitute Plaintiff) (Washington Mutual) (All States)
MOTION: MOTION TO DISMISS FOR FAILURE TO SUBSTITUTE PLAINTIFF WASHINGTON MUTUAL (WAMU)
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About the Product:
USE THIS MOTION WHEN THE PLAINITFF BANK HAS FAILED TO SUBSTITUTE THE REAL OWNER OF THE NOTE AND OR MORTGAGE (Specifically tailored to cases involving Washington Mutual)
This Motion is specifically tailored to situation herein the borrower’s loan was originated by Washington Mutual (WAMU). Wamu was bought or transferred to JP Morgan Chase during the period of bank bailouts in 2008. Prior to the purchase or transfer to JP Morgan Chase a large number of Wamu loans were transferred or sold to different third parties. If you find your self in a situation wherein Wamu was the original lender and now JPMorgan Chase is attempting to foreclose upon your home use this motion to argue that JP Morgan Chase does not actually own your note or mortgage. You note and or mortgage may have been transferred or sold to a third party that is not JPMorgan Chase.
The entire crux of the argument is that in many of the foreclosure involving securitized mortgage the plaintiff bank does not own nor hold the note and mortgage. That does not stop the plaintiff bank from attempting to take your home from you. As stated elsewhere in this book the lender has made errors of omissions in the transfer of the note and mortgage thereby rendering the plaintiff bank as the incorrect party to act upon a foreclosure. This Motion to Dismiss deals with the issue of who, in fact, is the real party in interest. Who is the real owner of the note and mortgage? Once again, if you borrow money from bank A you do not owe that money to bank B unless bank B can prove that it obtained the right to collect the money in a proper fashion, such as through a properly executed and legally sufficient assignment or other acceptable means.
Additionally, and with increasing frequency, banks are being taken over either by other banks or by the federal government. If that is the case then does the failed or defunct bank continue to own the note and mortgage? What if the failed or defunct institution has filed for bankruptcy? These factors are all very important in determining who actually owns the note and mortgage and who has the right to foreclosure and take your home. “Trust but verify” is the famous quote from Ronald Reagan. Do not believe what you are told without checking for the truth. There are a number of Motions in this category that can be used with confidence.
Often times, when faced with this situation the plaintiff bank will attempt to substitute the proper plaintiff. A vigorous argument should be made against and substitution. It must be argues that the only party that is authorized to substitute the proper plaintiff is the actual proper plaintiff. If the plaintiff bank is not the real party in interest or the proper party then they should not be allowed to substitute another plaintiff. An improper plaintiff cannot pick and chose whomever they think is the proper plaintiff. The correct procedure is that the matter should be dismissed if the plaintiff does not have standing. The proper plaintiff may then refile the case in the correct fashion.
A motion to dismiss or make more definite and certain can be used when the plaintiff bank has failed to supply enough information in the compliant for the defendant to make a responsive answer. For example, if the plaintiff bank claims that it owns the note and mortgage and that the note and mortgage is attached then those factors must be pled with such particularity that the defendant can reasonably be required to answer such charges. If the actual note and mortgage contain a mortgagee or payee that is not the plaintiff bank then how can the defendant be expected to respond to an allegation when the plaintiff bank does not own the note and mortgage that it has attached to the complaint?
The motion comes in download form.
The motion documents are in DOC and PDF Formats.
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A Motion is defined as a generally written, formal request made to a judge for an order or judgment. Motions are made to the court during a lawsuit to resolve procedural or other issues that come up during litigation. Motions are made to continue or postpone a trial to a later date, to abate the action, for dismissal of the opposing party's case, to compel a response to discovery from the opposing party, to get a modification of an order, for a judgment, for a rehearing, for sanctions (payment of the moving party's costs or attorney's fees), for relief from an order, to vacate a judgment for fraud or other cause, or for dozens of other purposes. Most motions require a written document, some require a written brief of legal reasons for granting the motion, all require written notice to the attorney for the opposing party and, often, but not always, there is a hearing before a judge. Most motions cannot be appealed until the case is over.
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