It did not matter. Had my hearing last Friday. The judge granted their MODs on the ground of claim preclusion, essentially saying my claims was litigated in the foreclosure case and was denied (my 2nd motion for new trial and the decision being appealed). Nobody disputed nor refuted my evidence of fake note and false testimony (banks' lies)
I begin to think that the main reason is "we cannot let a pro se win, especially against the other 4 attys), or "we must let the banks/debt collectors to go thru with their collections regardless of what the laws say).
Anyway I am still here, my 2nd motion for new trial was denied on the ground of untimeliness but when the judge asked the law firm's atty what was the reason for denial was, he replied "for claim preclusion", another lie will show up on the transcript of my appeal of the MODs decision. I will file another motion to set aside judgment because it was obtained by fraud. In the end, I may have 3 appeals pending. I also working on another complaint ready for the Federal court if they file another writ. The war still going.
I also posted my complaint in response in Facbook group "American Against Foreclosure" (3000 members) helping one other fellow in the same boat giving him suggestions of what to look for.
Wow, I'm sorry about this. It appears banks avoid getting rulings against them on their losing claims in one way or another that is totally unrelated to merits. I wish I had had known that I could have motioned to dismiss earlier but I was told (falsely) that doing such would convert the motion to MSJ. I'm reading and found that a good defense involves not only compelling counter argument but denying evidence... and a motion to dismiss does in fact deny evidence...
Ironically, each and every MSJ by the bank in my FC, I have argued judicial estoppel (now referenced as claim preclusion.) They really don't care what I write in response, they just resupply the MSJ. Must've been 6 or 7 times with only calling one or two an amendment. This has allowed them to accumulate thousands in fees because they assume its all against the property as a matter of right because of note language inclusion of "reasonable".fees. I'm looking for some law on to support discharge and deny amounts incurred after breach of contract. Maybe inflated charges incurred by the lenders actions elongating litigation should not be presumed to be secured and recoverable? The multitude of amending of motions should not have occurred if it had an actual legitimate basis for default.
No matter where I look, it appears the courts are ruling in such a manner that negates any prevailing laws or procedural mechanisms when it comes to foreclosure related claims. I have found the strongest protection is in NY so I'm hoping to find federal rulings in that district but alas, foreclosures are a state cause of action. Its the only district I've found that ties amending to "could have presented earlier" versus "amendment shall be given freely" in a smack down.
I'm not re-litigating state court. I am using bankruptcy court to seek recoupment where claim preclusion does not apply.
Basically, there is no fresh start where potentially dischargeable items remain and the inflated principal balance is devoid of accounting. I have rights on it related to bankruptcy as they submitted to jurisdiction. At least that's my basis for pursuit.
State court simply ignores or misinterprets counterclaims (ruling is rubberstamp of bank attorney submission). There is no ruling on these claims and they have not been adjucated.
I'm feeling some good energy on it!
www.consumerfinance.gov
