Foreclosure defence Causes of Action and support

1. NO lawful consideration (FIND COA RELATED TO THIS UNJUST TERMS???)

a. Closer to home was the 1937 Australian Royal Commission into the
Monetary and Banking System. From its section 'Creation of Credit', section
504, the report states; "Because of this power, the Commonwealth Bank is
able to increase the cash of the trading banks in the way we have pointed out
above. Because of this power, too, the Commonwealth Bank can increase the
cash reserves of the trading banks; for example, it can buy securities and
other property, it can lend to the Governments and to others in a variety.
Subsequently, the Royal Commission Chairman, Mr. Justice Napier, made
the following clarification of the foregoing statement.
'This statement means that the Commonwealth Bank can make money
available to Governments or to others on such terms as it chooses, even by
way of a loan without interest, or even without requiring either interest or
repayment of principal."
"Of all the discoveries and inventions by which we live and die, this totally
improbable helix of credit is the most cunning, the most liable, the least
comprehended, and next to high explosives, the most dangerous. All that
bankers themselves really know about it is how it works from day to day.
Beyond that, it is a gift from Pandora." REF: Pg47 L Hoins HTSYB/L
2. Trade Practices Act 1974 (NOW the AUSTRALAIN CONSUMER LAW sched 2 of the
new Competition and consumer protection act - can be used against your bank. Ref Pg 68
Hoins L.
3. NOTE: Letter from RBA Governor: Your letter contains some fundamental
misunderstandings as to the process of financial intermediation. Individual banks cannot
"create" credit. Any bank is "empowered" to make a loan - this is one of the functions of
a bank after all. But to make a loan, it must raise money - usually in the form of a bank
deposit - to fund the loan.
Was the deposit raised, from the deposit of our PN? P69 HoinsL
4. I refer to R.S.Deane's 'The Credit Creation Process, Banks versus Non-Banks', Reserve
Bank of New Zealand Bulletin, June December, 1972 and subsequently 'The Creation of
Financial Assets' in the same publication, June 1978. P71 Hoins.
5. At a practical level, it is true, as Mr Emanuel said in his previous letter, that a bank must
acquire funds to cover a loan - in other words, that its assets must always equal its
liabilities. P72 Hoins L Again, was the PN the deposit/Asset.
6. The lending bank must somehow acquire the deposit (or other form of liability) to "fund"
the loan. P73 Hoins L
7. Banks cannot lend depositors money. Banks cannot lend their own money. Banks can
only advance bank credit, which creates the money in the form of a deposit on the banks
books from which the loan check is drawn? (If true, the accounting will show this.) Banks
often borrow 100% of their liquidity needs. Ref Ellen Browns book. Is it the deposit of
the PN which creates the asset and deposit in customers account.
8. Usury definition in Ellens book. Cause of action: Usury? Exhorbitant interest rate.
Because the bank did not actually lend any money yet demands money in return at
interest. The actual interest minus what the loan actually cost them is more like in the
hundreds.
9. Promissory Fraud Definition: Promissory fraud is a promise made by the
promisor, when s/he had no intention to perform the promise when it was
made. However, a promissory fraud liability will be inappropriate if the
promisor was unaware of what s/he was promising. Similarly, promissory
fraud is inappropriate when a promisor breaches a promise because of
changed circumstances. Promissory fraud is one of the ways to win punitive
damages for breach of contract. A promissory fraud is also termed as
common law fraud.
10. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor
accepted payment from a third party for the alleged debt, or a portion of the alleged debt,
or that the original creditor received other compensation in the form of monies and/or
credits.
11. Failure of Consideration: No exchange of money or goods occurred between the
Plaintiff and the Defendant. Failure of consideration will void contracts in some cases.
12. Unclean Hands: If the Plaintiff is giving falsified evidence or producing false witnesses,
definitely invoke this defense. Plaintiff has unclean hands due to its actions described
below and therefore is prohibited from obtaining equitable relief of foreclosure. As a
matter of equity, this Court should refuse to foreclose this mortgage because acceleration
of this note would be inequitable, unjust, and unconscionable. Plaintiff has waived the
right to acceleration due to intentionally misleading and reckless conduct for which it is
liable.
13. Defendant alleges that Plaintiff's complaint, and each cause of action therein is barred by
the Doctrine of Estoppel, specifically Estoppel in Pais.
14. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for
interest are usurious and violate state and federal laws.
15. Since a court will not grant a judgment or other legal relief to a party who has not acted
fairly by having made false representations or concealing material facts from the other
party, we maintain that equitable estoppel bars plaintiff's claim.
16. Defendant invokes the Doctrines of Scienti et volenti non fit injuria (a person who
knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria
(harm without injury).
17. Lack of Standing: Lack of standing is a powerful defense to use. It basically means that
a debt collector has no legal basis for filing a suit. No legal basis means that there is no
clear ownership of the debt or legal assignment of a debt to a debt collector. This can
occur when there is no clear paper trail (a.k.a. chain of custody) in the sale or assignment
of a debt from the original creditor to the debt collector.
18. Failure to Join Indispensable Party. Plaintiff has failed to join an indispensable party.
Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. 408 (1925), contends that
since the note and mortgage involved in this litigation are payable to a business trust, any
action on those instruments must be brought by all the members of the trust-not just the
trustees. ALSO: The complaint fails to join indispensable parties, specifically the loan
originator and the loan servicer(s) and the complaint fails to adequately show the chain of
title demonstrating that Plaintiff is in fact the real party in interest with standing to bring
this action.
19. Violation of Unfair and Deceptive Trade Practices Act. Upon information and belief,
in addition to the facts alleged in the preceding paragraphs, the Plaintiff and/or
Plaintiff and/or its predecessor(s) in interest also violated the Unfair and Deceptive
Trade Practices Act, F.S. 501.201, et seq. by:
20. Lack of Jurisdiction. This court lacks jurisdiction over the subject matter. It appears on
the face of the complaint that a person other than the Plaintiff was the true owner of the
claim sued upon at the time this action was filed and that the Plaintiff is not the real party
in interest and is not shown to be authorized to bring this foreclosure action. DO I FILE A
CONDITIONAL DEFENCE BASED ON JURISDICITON ALLEGATION!!!???
21. Fraud in The Inducement. i. Plaintiff alleges ownership of the note and mortgage in
question. ii. Plaintiff is liable for actions of ABC Mortgage and/or its agents. iii. ABC
Mortgage and/or its agents made false statements and/or omissions regarding a material
fact; iv. ABC Mortgage and/or its agents knew or should have known the representation
was false; v. ABC Mortgage and/or its agents intended that the representation induce
plaintiff to act on it; vi. Mr. Doe suffered damages in justifiable reliance on the
representation.
22. Quiet Title. Plaintiffs request this Honorable Court to enter its judgment against
Defendants declaring the Mortgage, null and void; canceling the Mortgage of record;
quieting title to the property owned by Plaintiffs and against Defendants and all persons
claiming under Defendants; and granting costs of this action and such other relief as the
Court may deem proper.
23. Promissory Note Not Authentic. Defendant, pursuant to F.S 673.3081 challenges the
authenticity of each signature on the Note introduced by the Plaintiff.
24. Fraud in the inducement. Fraud in the inducement is an equitable defense, and occurs
when A enters into an agreement, knowing that it is supposed to be a contract and (at
least having a rough idea) what the agreement is about, but the reason A signed/made the
agreement was because of some false information that B gave to A. For example, suppose
John tells his mother to sign a deed giving him her property, Mom refuses at first, but
then John falsely tells her that the bank will foreclose on the property unless she signs it
over to him. If Mom signs the deed because of this statement from John, and John tries to
enforce the deed, Mom can plead "fraud in the inducement." Plaintiff alleged they would
lend money. Can they then lend credit? How can they lend credit?
25. Plaintiff altered defendants loan application form without the express permission of the
defendants. Although we signed it we had no reason to suspect it would be different from
what we originally signed with Livingstone Financial. Why did they do that?
26. Intrinsic fraud is an intentionally false representation that goes to the heart of what a
given lawsuit is about, in other words, whether fraud was used to procure the transaction.
27. Fraud (Ref: Thom Schauf Vol2) The mechanism of the lending process. Did they lend
credit or money? We were given a cheque; we were told we were borrowing money from
the lender; now we are told it was a credit contract. Which is it, Money, cheque or credit.
What was the consideration they gave us IOT to settle the loan? If credit, what funded the
cheque. Is credit able to be lent. Words in the agreement include borrower, lender, debtor,
creditor
28. Securitisation We provided P with a signed loan agreement and two signed mortgage
documents.
a. Linton stated that our loan is sold to top up the credit card
b. Our loan agreement and mortgage by P admission are therefore something of
value.
c. Something of value is an asset.
d. Plainiff did not lend their own money but merely acted as an intermediary
between the buyer of our asset and us, the maker of the asset.
e. Defendants were denied the proceeds of the sale of the asset.
f. Defendants debt obligation is given accord and satisfaction as Plaintiff
received money equivalent to the face value of the loan agreement and
mortgage.
g. How is our loan agreement not a promissory note? is it instead a negotiable
instrument?
h. Defendants cannot admit or deny Plaintiffs allegations whilst there is
misunderstanding and omissions of what the true mechanism of the loan
really was.
29. Misrepresentation
a. Loan agreement says loan of money.
b. Plaintiff provided cheque.
c. Plaintiff stated loan mechanism was similar to a credit card. Our loan cheque
was drawn form the credit facilty, then our loan and mortgage is sold. The
proceeds go back to toping up the facility.
d. Corp act provides 26 ways for a corp to provide finance, only 1 is lending
money.
e. Plaintiff was requested to provide full disclosure of the mechanism of the
loan.
f. Request was made to view the accounting of the loan to establish where the
funds were drawn from.
g. Plaintiff refused to provide such information.
h. Defendants cannot admit or deny plaintiffs allegations whilst there is
misunderstanding of the true mechanism of the loan really.
i. Without adequate proof of claim, Plaintiffs allegations are hersay.

From Jurisdictionary - AFFIRMATIVE DEFENSES
1. Failure of Consideration: Plaintiff did not pay defendant $3000 as alleged. Defendant has
not received any money whatever from Plaintiff.
2. Estoppel: Plaintiff promised and agreed to provide insecticide to spray the strawberries but
failed and refused to do so in spite of repeated demands by Defendant.
3. Lack of Subject Matter Jurisdiction: Plaintiff is not entitled to recover consequential
damages from breach of a contract that does not contemplate such damages but is limited to
the contract amount of $3,000, which is within the exclusive jurisdiction of the Small Claims
Division of this Court. This Circuit Court lacks jurisdiction to hear cases where the amount in
controversy is less than $15,000.
Jurisdictionary - Defenses to breach of contract -
Abandonment
If the plaintiff abandons his contract through some overt act (e.g., pursuing performance
through a separate contract with another) the defendant may have an affirmative defense to
breach of contract. As with all affirmative defenses, he should plead abandonment with the
filing of his answer or by motion to dismiss. Another tutorial in this course covers affirmative
defenses in detail.
Act of God
If hurricane, lightning, flood, or other unforeseeable and unpreventable natural circumstance
makes performance of a contract impossible, there arises a defense to breach, as defendant is
unable to perform due to causes beyond his control.
Breach by Other Party
If plaintiff breaches first (e.g., refusal to pay sums when due) there arises a defense to his
complaint that should result in dismissal. Where there is only a partial breach, however,
defendant may be held liable for portions of the contract and damages to the plaintiff resulting
therefrom.
Duress
One compelled by force or threat of force to enter a contract is relieved of liability to perform
its obligations. Such a contract is voidable if the defendant can prove he entered it under
duress.
Failure of Consideration
A plaintiff who does not pay the purchase price, for example, is not entitled to sue for
delivery (unless the contract contemplated delivery would be tendered before full payment).
Moreover, if a contract is a unilateral promise without a countervailing promise in return, it is
unenforceable ab initio. For example, the promise of a purely gratuitous gift cannot be
enforced, since there is no consideration flowing from the other side.
Fraud in the Inducement
Like contracts obtained by duress, contracts obtained by fraud cannot be enforced. This
defense is explained in detail in the tutorial on defenses. Like causes of action, such defenses
have essential elements that must be alleged and proven to prevail.
Hindrance of Performance
This defense is predicated on the common-sense doctrine that one who hinders or prevents
another from performing his contract should not be heard to complain about the breach. It's
that simple!
I llegality
No contract that's illegal or contemplates an illegal result can be enforced at law. This defense
is an absolute bar to enforcement.
Impossibility
A contract that cannot possibly be performed, like delivery of a particular living prize bull
that has died, is not enforceable at law. However, any consideration given for performance
must be repaid, i.e., the parties must be put in the same position they enjoyed before entering
their agreement, to the extent it is possible to do so.
Mistake
A party may avoid the consequence of a contract if, after exercising due care, he can prove he
was excusably mistaken in his understanding of its terms and obligations. The mistake must
go to a material element of the contract and comprise a substantial part of the value bargained
for. Therefore, if one promises to pay $6 million for the building on the corner of Maple and
Elm only to later discover the property being sold is at Main and Chestnut, the court may
excuse performance if the mistake is not the result of an inexcusable lack of due care or the
other party has so detrimentally relied on the contract that it would be inequitable to deny
enforcement.
Additional Defences
Declaratory Judgment
A cause of action for declaratory judgment does not seek money damages. Instead, it seeks to
have the court declare something. Not too complicated so far? You might file an action for
declaratory judgment to settle a dispute over what is or what is not covered by an insurance
policy. Pepper what is or what is not expected to be loaned. Credit or money legal tender.
The purpose of the cause of action is to provide parties with relief from insecurity and
uncertainty with respect to rights, status, or other legal or equitable relationships.
In many jurisdictions the cause of action is created by statute so, before filing an action for
declaratory judgment, consult your state or federal statutes (depending on the court you'll be
filing in) along with local rules and applicable case law.
Elements
A party seeking declaratory relief must allege and ultimately prove that:
1. There is a bona fide, actual, present, practical need for the declaration sought.
2. The declaration deals with present, ascertainable facts or a present controversy as to
such facts. Anticipated future controversies will not support the action.
3. Some right, power, privilege, or immunity of the complaining party is dependent on
the facts or law applicable to the facts.
4. Some person has or may have an actual, present, adverse, and antagonistic interest in
the subject matter in fact or law.
5. The adverse and antagonistic interest is before the court by proper process or class
representation.
6. The relief sought is not merely legal advice from the court or an answer to questions
founded merely in curiosity.

Fraud
In order for fraud to give rise to the right to sue (i.e., a cause of action) plaintiff must
do more than merely state a falsehood.
It's true that making a false statement is fraud, however it is not "actionable fraud"
without more than mere falsehood.
Merely lying doesn't by itself give rise to this right to sue.
In order for a plaintiff to have a live cause of action for fraud, it is necessary the lie be
coupled with other elements. Only then can a court award plaintiff money damages
proximately resulting from the fraud.
Moreover, the underlying facts pled in a complaint for fraud must be very specific.
Failure to set out the ultimate facts of the fraud with specificity will result in losing
the case. General allegations of fraud routinely result in the court's granting the
defendant's motion to dismiss for failure to state the cause of action. Plaintiff must
precisely specify the ultimate facts that establish each of the essential elements of this
cause of action.
Elements
1. Defendant made a false statement (verbal or in writing).
2. The false statement concerns a material fact (i.e., a fact that goes to the heart
of the plaintiff's damages).
3. Defendant knew the statement was false at the time he made the statement.
4. Defendant intended plaintiff to act in reliance on the false statement or showed
a reckless disregard for the consequences to plaintiff.
5. Plaintiff reasonably relied on the statement in acting upon it. (Some authorities
say the plaintiff's reliance on the false statement must be "justified".
Reasonable or justified, it is the same. Plaintiff must act reasonably in
relying on the false statement.
6. Plaintiff suffered damages as a proximate result.

Promissory Note Defenses
Payment of a promissory note is, of course, an absolute defense.
To prevail, defendant need only produce admissible evidence to demonstrate all funds
payable under the terms of the note, including interest, have been fully paid.
Another absolute defense arises where holder of the note negotiated some
consideration for the note other than payment, in which case the obligation created by
the note disappears and, along with it, the cause of action.
Finally, failure of the plaintiff to produce the original note is an absolute defense in all
but a few jurisdictions.


Rescission
While normally a disgruntled party cannot get out of a contract or other legal
commitment simply by tearing up a piece of paper, like this angry fellow here, it is
possible to obtain an order of rescission from the court declaring the obligation null
and void.
Rescission is an equitable remedy whereby a party obligated by some legal
commitment resulting from fraud, false representation, mutual mistake,
impossibility of performance, or similar cause resulting from other than his own
wrongdoing may obtain an order relieving him of that commitment.
Rescission is a purely equitable remedy, and for relief to be granted the
plaintiff must show the court he is clearly entitled to the court's assistance and that
he "comes to equity with clean hands".
Elements
A complaint for rescission must set out the following essential elements.
1. The making of a contract or other legal commitment with evidence attached, if
available.
2. Existence of fraud, mutual mistake, false representation, impossibility of
performance, or other ground for rescission or cancellation.
3. Plaintiff rescinded and notified the other party that he rescinded.
4. If plaintiff received any benefit, he must offer to restore defendant to the
extent of the benefits, if restoration is possible.
5. Plaintiff has no adequate remedy at law (i.e., an award of money damages
alone is not sufficient to restore plaintiff to his status quo ante (i.e., status
before the fact).
If rescission is granted, the court will attempt to restore both parties, as nearly as
possible.
This is always the goal of rescission.

Contributory Negligence
If plaintiff negligently contributes to the event giving rise to his claim, defendant
may have this affirmative defense.
The defense erases defendant's liability for damages the plaintiff was partially
responsible for causing.
1. Plaintiff was at least partially responsible for his damages.
2. But for plaintiffs own action, plaintiff would have suffered no damages.
3. Defendants should be held responsible for only that portion of plaintiffs
damages proximately resulting from defendants sole action.

Failure of Consideration
This affirmative defense is useful in breach of contract cases where plaintiff
claims defendant failed to uphold his end of a bargain.

Failure to Join Indispensable Party *
No lawsuit should be permitted to go forward if someone with a vested interest in
the outcome is not made a party and allowed to participate.
A case may involve title to real property. The interests of two or more owners
may be affected by the outcome. Yet, perhaps only one owner has been joined to
the case. Since the outcome will affect the rights of all owners not yet joined to
the case, courts are unable to enter a truly final judgment without denying due
process to the absent owners. In such cases, this defense will prevent the case
from proceeding or, at least, delay the proceedings until all possible efforts are
made to locate the missing parties.

Failure to state a cause of action
Every cause of action (or claim on which the court can grant relief) must be
alleged by stating ultimate facts that establish all essential elements of the cause
of action.
In an action for breach of contract, plaintiff must allege sufficient ultimate facts
to establish at least three essential elements:
1. existence of an enforceable contract,
2. an act by defendant breaching the contract, and
3. damages to the plaintiff that proximately result from the breach.

Sham
If plaintiff files a lawsuit alleging material facts plaintiff knew were false at
the time he filed, his complaint may be stricken as sham. A motion to strike sham
must assert:
1. a material allegation of the paper submitted is false and
2. party submitting the paper knew the allegation was false at the time of filing.

Truth
If an alleged slander is true, there can be no action.
If an alleged fraud is not false, this defense will win the day.
Plaintiff has the burden of proving falseness.
Defendant does not have a burden to prove truth.
If plaintiff alleges in his complaint, "Defendant robbed me," yet plaintiff cannot prove
defendant stole anything, this defense will close the issue in defendant's favor.
Defendant will use what's taught in this course to force plaintiff to prove his
allegations of theft.
If plaintiff alleges defendant committed fraud when he advertised a used car as having
been only driven by a little old lady once each week to go to church, but plaintiff
cannot prove that the car was driven by anyone else for any other purpose, defendant
will stand on this defense and win. Defendant will use what's taught in this course to
force plaintiff to prove his allegations of fraud.

Unclean Hands
"He who comes to equity must come with clean hands."
This ancient maxim is as binding today as it was many centuries ago.
Those who seek the benefits of equity must not have contributed to the problems for
which they need a remedy. Such persons are said to have unclean hands.
Every injunction is a remedy in equity. Therefore, one who's acted with bad faith in
some way to contribute to his own problems should be denied the remedy. He unclean
hands .
If a plaintiff wrongfully defrauded defendant yet seeks an injunction, the defendant
should file unclean hands as an affirmative defense with his answer, explaining how
the plaintiff is not without fault in the very thing for which he seeks the court's
equitable remedy.
When a party seeks equitable relief for damages caused even partially by his own
acts, the defendant should file this affirmative defense to preserve the issue and use
discovery to find admissible evidence to prove plaintiff has unclean hands.

Unconscionability
If a party becomes the unwitting victim of a contract, deed, mortgage, promissory
note, or other agreement procured by fraud, overreaching, or other unjust means, this
affirmative defense should be pleaded with defendant's answer.
Courts should not enforce an unconscionable agreement.
This is true even when injury results from victim's own foolishness, lack of caution,
and failure to act reasonably.
If the injury results from the wrongful act of another, the courts should cure the
injury.
This affirmative defense is a first step toward obtaining that relief from the court,
because it puts the court on notice of the issues to be tried.
Elements
1. The agreement was outrageously unfair.
2. Preceding events luring the victim were outrageously unfair.
This first element is called substantive unconscionability, i.e., the terms of agreement
itself are unreasonably favorable to plaintiff bringing suit to enforce.
The second element is called procedural unconscionability, i.e., there was an absence
of any meaningful choice on the part of defendant. Perhaps he was too feeble. Perhaps
he lacked all understanding of technical aspects of promises made to him. Either way,
there was no meeting of the minds essential to formation of an enforceable
agreement, and therein lies the gist of this defense.
It has been said at common law an unconscionable contract is one that "no man in his
right mind not under delusion would make on the one hand, and no fair and honest
man would attempt to enforce on the other."
Some authorities examine the respective bargaining powers of the parties, i.e., the
ability of one to understand the terms and conditions communicated by the other.
Synonyms for unconscionable include "shocking the conscience", "monstrously
harsh", "grossly unfair", etc.
Unconscionability as an affirmative defense must be pled, or it may be waived.