Tuesday, February 18, 2014

Mortgage Exam, Cause of action, foreclosure scammers, mounting a case

Note:  this post will seem long-winded and technical.  I write to help people in foreclosure so they have a chance of keeping the house or getting financial compensation, and of not getting bilked by a crook in the process.

If you get tired of reading, stash the email for future reference.  If you want to talk with me, Bob Hurt, call 727 669 5511.  I charge no money.


I'm not an attorney and I don't give legal advice, so consult a "qualified, competent" attorney in all questions of law.  Consider everything in this message as academic information and non legal strategic guidance only, and not as advice for handling your legal situation.


I have to make the idiotic statement above so the attorneys I criticize won't have valid complaints against me with the bar.  YOU, their victims, should file complaints against THEM with the bar, AND SUE THEM for losing your winnable cases through negligence and incompetence.

But FIRST, you have to prove you had a winnable case.  Do you have that proof? 

Let's get honest here.  If you lend somebody money with a house mortgage as collateral, and they don't pay, should you have to spend years and tens of thousands of dollars fighting to get your money back or to get the collateral sold to discharge the debt?

Honestly?  NO.  So, if you got a fair and honest loan, and you signed the note and mortgage, and you got the money and used it, you should either pay it back according to the terms on the note, or forfeit the house through foreclosure, or just give it back in a keys for cash or deed in lieu of foreclosure deal.  Shouldn't you?  Honestly?  We both know the answer to that.

But WHAT IF the lender, appraiser, mortgage broker, realtor, seller, title company officer, or servicer cheated or injured you in the process of arranging and servicing the loan?  If you have proof of such injury and related damages, you have a valid reason to attack the lender or lender's agents, as appropriate.  And if you attack and win, you could end up with the house free and clear, or a financial offset from what you owe, or a loan balance reduction and refinance, or compensatory and punitive damages.  I'm talking millions of dollars here, for you, possibly.  IF you can prove the injuries.

I believe NOBODY should hire a traditional Foreclosure Defense Attorney to help in a foreclosure battle.  I believe that because a foreclosure victim who breached a VALID note cannot win against a lender/holder.  Virtually all such cases result in loss of the house. The courts MUST grant the foreclosure of a valid note the borrower breached.  That means attorneys who fight those battles against foreclosures of valid mortgage (while bilking their clients) KNOW the client will lose the house in the end.  That makes thse lawyers charlatans, ESPECIALLY if they didn't prodigiously look for valid causes of action against the lender. 

A law professional friend of mine spent 3 hours on the phone with me yesterday looking up foreclosure cases by Tampa Bay area attorneys Matthew Weidner (Matt Weidner), Thomas Ice (Tom Ice), and Mark Stopa, three notable foreclosure defense attorneys.  WE DID NOT FIND ANY WINS AT ALL at the appellate level. 

I do not imagine any of these attorneys battled foreclosure for their clients free.  They and many others like them all FAILED to win any financial COMPENSATION or the house free and clear for their clients. At best, the court ordered temporary dismissals, and from what we could find, the foreclosure plaintiffs ended up winning the foreclosure, taking the house.  A temporary dismissal DOES NOT CONSTITUTE A "WIN" !!!

Foreclosure "pretender defender" attorneys bilk clients $500 or more a month "to keep you in the house as long as possible."  They cookie-cut other lawyers' pleadings and file those in court, doing little original work if any.  They don't examine the mortgages comprehensively, and even if they did, they wouldn't know what to look for. They often don't show up at hearings, especially summary judgment hearings.  They end up making YOU lose YOUR house through THEIR negligence, even when, if they had done what you hired them for, they would have won some worthy concessions in 80% to 90% of their foreclosure defendant clients.  Most are scammers, con artists, and crooks, and the bar and State attorney do nothing about them because YOU don't complain loudly and often enough.  And you don't SUE them.

Many foreclosure victims have complained to me over the past 6 years that they paid the lawyers a fortune, they bought loan audits and securitization audits for outrageous sums from people like Paladin and Richard Kahn, and they got absolutely ZERO benefit from any of it.   And most of them have become frantic, frenetic, nervous wrecks, and might even suffer from PTSD from their ordeals.

One victim told me she paid a couple thousand dollars to the bozos at the Right to Cancel group and spent a year learning their method and filing their useless, abusive paperwork in an "administrative process", and even filed a commercial lien against someone in order to save her property from foreclosure.  NONE OF IT DID ANY GOOD.

Another told me she gave a prominent Tampa Bay Area foreclosure pretender defender attorney her pile of documents, and the attorney did nothing with them, but in just 10 days a mortgage examiner found numerous causes of action against the lender and agents in those same documents.

NO GOOD CAN COME OF HIRING A FORECLOSURE PRETENDER DEFENDER lawyer to save you from foreclosure.  Those lawyers might as well be total idiots for all the good they do.  And they waste a lot of your precious money... for the privilege of losing your home.

I tell people who call me that they have to attack the mortgage, and if they cannot do it, to hire an attorney to do it for them, but NOT TO HIRE A FORECLOSURE DEFENSE LAWYER because they have HORRIBLE litigation RECORDS.  They NEVER WIN money or houses for their foreclosure victim clients.  They just bilk the clients to delay the inevitable loss of the house.  I make it plain that the victim MUST get the mortgage examined by a professional to find the causes of action underlying the mortgage, and then get the lawyer to ATTACK THE Lender or plaintiff on that basis.

What causes of action?  Well, the examination report (call me at 727 669 5511 for info on how to get one) details those causes of action, reasons to sue, and shows proof from the documents themselves.  Any decent trial lawyer should be able to use the report and the causes of action to mount an effective lawsuit and win considerable concessions from the lender-gangsters.  But foreclosure defenders have drunk so much of their own kool-aid that they want to charge clients thousands just to read the exam report, and then drag their feet with the lawsuit because apparently they don't have a clue what to do or how to do it.

So, I write this to all the foreclosure victims.  DON'T hire a foreclosure pretender defender lawyer to delay the inevitable.  Before hiring any lawyer, demand to see the litigation record of winning compensation or houses free and clear for clients.  If they cannot show you that, send ME an email with their contact info, and I'll add them to my foreclosure pretender defender WALL OF SHAME as a warning to others about the uselessness of their service.  Also, ask them how many of their foreclosure victim clients they have had and how many ended up losing the house.  If they hem and haw, RUN from them as fast as you can.

Okay, to simplify, here's your MORTGAGE ATTACK plan of action:
  1. First get your mortgage comprehensively examined by a competent professional (call me for info)
  2. Then inform the servicer of the causes of action through a notice of grievance
  3. Then inform the Consumer Financial Protection Bureau if the servicer does not correct the grievances within 30 days.
  4. Then hire a PERSONAL INJURY or TORT lawyer, someone used to negotiating settlements, someone willing, able, and available to do the necessary work and to sue, HARD CORE.
  5. If you cannot find a lawyer, then file the lawsuit (complaint, counter complaint, and cross complaint as necessary) yourself, stating your CAUSES OF ACTION and asking for damages, equitable relief, and a jury trial.  See some of the references below.

If you can, find a lawyer with a record of beating banks and insurance companies.  It's a dirty job digging for a decent lawyer because the lawyer good old boys network intentionally occludes information about litigation records, the bar gives you no help at all, and the state courts make it nearly impossible to search cases by lawyer or law firm name.  But you can do an appellate court search.  For example, search http://2dca.org, Florida's second district court of appeals in Lakeland, FL.  Look for  attorney Thomas Ice, and see how many appeals he has lost, for example.  You might find a pile of them.

Also, if you paid a foreclosure pretender defender money to save your house and the lawyer did not even bother looking at the mortgage documents to find causes of action, that lawyer might have committed legal malpractice against you.  See the cause of action below.   If you hired the lawyer, and he neglected a reasonable duty that caused you to lose your house, which you would otherwise not have lost, then you have a cause of action against that attorney for legal malpractice.  At the very least, DEMAND your money back. And once you have dumped the worthless bastard, DON'T EVER GO BACK TO HIM FOR ANY OTHER LEGAL SERVICES because clearly, YOU CANNOT TRUST HIM.  Or HER.

By the way, I'm not an attorney and I don't give legal advice, so consult a "qualified, competent" attorney in all questions of law.  Consider everything in this message as academic information and non legal strategic guidance only, and not as advice for handling your legal situation. 

I have compiled a bunch of information below to help you with litigation, should you decide to do it yourself.  In my signature, I suggest investing in the
Jurisdictionary product, a civil litigation training course on DVD with sample documents.  That will give yo a litigation orientation, but in my opinion, you will need more, including the references below, because the course does not focus on mortgage attack.

If you consider the below information too scant or disorganized, I ask your forgiveness and forbearance.  After all.  I'm not a lawyer.  Please write to me or call me if you need help, especially if you or a friend/family member needs a mortgage examination.  And please write if you find other MUST-HAVE links for attacking mortgages, or if you know any lawyers competent to do it.

Bob Hurt (full contact info below)
727 669 5511







MEMORIZE this definition of a Cause of Action (reason to sue):

"A legal duty breach that caused injury and damage, to the authenticated evidence of which at least one competent fact witness subject to cross-examination will testify under oath."

Buy the book at Amazon for 99 bucks Florida Causes of Action


See this site on Causes of action


Consider this book, Florida Elements of an Action


Trawick's Florida Practice and Procedure
would be nice for those who can afford it


One attorney summarized some of the major causes of action and their elements as follows:

 

NEGLIGENCE

Elements

·     Defendant owed a duty to plaintiff to protect the plaintiff from a particular injury or damage;

·     Defendant breached this duty;

·     Defendant's breach was the proximate cause of injury or damage to plaintiff; and

·     Plaintiff suffered damages caused by the breach.


Defenses:

·     Standard pleading affirmative defenses (Florida Rules of Civil Procedure 1.110(d);

·     Statute of Limitations (four years);

·     Statute of Repose (products liability);

·     Contributory Negligence;

·     Intervening, Superseding Cause;

·   Assumption of Risk & Product Misuse (diminish recovery through comparative negligence);

·     Good Samaritan Defense;

·     Open and Obvious Doctrine (Premises Liability: Comparative Negligence);

·     Alcohol or Drug Defense (Florida Statute §768.36);

·     Consent;

·     Economic Loss Rule



BREACH OF CONTRACT

Elements:

·     Plaintiff and defendant entered into a valid contract;

·     Defendant breached the contract;

·     Plaintiff suffered damages caused by Defendant's breach.


Defenses:

·     Standard pleading affirmative defenses (Florida Rules of Civil Procedure 1.110(d);

·     Commercial Frustration;

·     Duress;

·     Statute of Frauds;

·     Implied covenant of good faith and fair dealing;

·     Impossibility of performance;

·     Unconscionable;

·     Mistake;

·     Repudiation;


INDEMNITY

Elements:

·     Plaintiff discharges a duty owed to another party as a result of some vicarious, constructive;

·     Derivative or technical liability;

·     Defendant should have discharged the duty satisfied by the Plaintiff;

·     Plaintiff is without fault; and

·     Plaintiff suffered damages that should be paid by the Defendant.


Defenses:

·     Standard defenses and under Florida Rules of Civil Procedure;

·     Statute of Limitations (four years);

·     Party seeking indemnification must be without any fault.


LEGAL MALPRACTICE

Elements:

·     The Defendant attorney was employed by Plaintiff;

·     The Defendant neglected a reasonable duty owed to Plaintiff;

·     The Defendant's negligence was the proximate cause of Plaintiff's damage, which is the amount Plaintiff would have recovered but for the Defendant's negligence; and

·     Plaintiff suffered damage.


Defenses:

·     Pleading affirmative defenses and other standard defenses;

·     Statute of Limitations (two years);

·     Client's abandonment of the pursuit of the underlying action;

·     Collateral Estoppel (criminal);

·     Lack of Privity.

 -----------------------


On Sunday, January 15, 2012 11:48:03 PM UTC-5, Bob Hurt wrote:

What Does “Cause of Action” Mean?

Essentially, “cause of action” means “reason to sue.”  However, just because you think you have a reason to sue does not mean you have a valid cause of action.  IF you sue, you must state the cause of action succinctly and simply in your complaint, and back it up with some form of evidence that the court will admit under the rules of evidence. 

 

Ultimately, you must memorize and enforce the following definition of a cause of action, or become its victim.

 

cause of action:  

 

"A legal duty breach that caused injury and damage, to the authenticated evidence of which at least one competent fact witness subject to cross-examination will testify under oath."

If any element above does not exist, then the plaintiff cannot rightly prevail in the cause of action.  I learned the above definition from Richard Cornforth in his law seminars. 

 

Rules and Codes You Must Learn

 

To get to the point of determining whether evidence has an admissible nature, one must navigate the legal minefield of the rules of civil procedure.  For reference, see

 

·         Federal Rules of Civil Procedure - http://www.law.cornell.edu/rules/frcp/

o   Florida Rules of Civil Procedure

o   These rules codify the mandatory steps of civil litigation, exceptions to them, and timing of them.  If you violate them, your adversary will move the court to rule against you or punish you.  If you obey the timing and steps, and move the court to force your adversary to obey them, then you might prevail on the merits of your case.  Otherwise the judge will rule against you and you will lose for procedural reasons alone, regardless of the merits of your cause of action.

·         Federal Rules of Evidence - http://www.law.cornell.edu/rules/fre/

o   Florida Evidence Statutes

o   Note that these imply you know how to object in limine (before trial) and during the trial to abuses of the Evidence rules by your opponent so as to preserve the issue for appeal.  If you don’t do this ON THE RECORD (court reporter present and typing), you will lose your right to appeal a trial court judge’s decision against you.  Learn to say “I object” and state the rule in support of your objection, and the behavior of your adversary that volated that rule.

·         Case Law supporting your position and your use of the above rules– rulings by judges in your court’s line of authority to the US Supreme Court regarding similar issues in similar lawsuits.  If the case law shows the court would not support your position, you ought to adjust your position or look for other points of law or litigation strategies that will support your position.  Otherwise, the judge will probably rule against you because a senior court ruled against another litigant with a position similar to yours.  Conversely if case law supports your position, you could obtain a win, so long as you employ all the elements of the above definition.

 

You should ultimately master the above references in your state, for all states have rules similar to Federal rules.  So you need to learn the differences between federal and state rules by studying your state rules for state court issues, and you need to read other sources like

 

·         Rules of Judicial Administration for your state – these explain important matters like how to disqualify judges and obtain court records.

·         Local court rules (Florida 6th Circuit) and Administrative Orders (Florida 6th Circuit) of the specific court (see the Clerk of Courts for these)

·         Rules regulating the bar in your state (Florida) – Lawyers often if not always violate these rules, and your knowledge of them can serve you when you ask the court or bar to discipline the attorney

·         Code of Judicial Conduct (Federal) (Florida pdf)– Judges often violate one or more canons of the code, and you must know them to point out the violation and seek disqualification.

Further Definitions of Cause of Action

 

I have provided below some additional definitions from several sources related to the term “Cause” and “Cause of Action.”  Learn them so you do not make a simple or stupid mistake if you become involved in a lawsuit.

 

WordWeb.info

Noun: cause of action (law)

1.       a claim sufficient to demand judicial attention; the facts that give rise to right of action

2.      a fact or facts that enable a person to bring an action against another.

Wikipedia

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment). The legal document which carries a claim is often called a Statement of Claim in English law, or a Complaint in U.S. federal practice and in many U.S. states. It can be any communication notifying the party to whom it is addressed of an alleged fault which resulted in damages from which it originates, often expressed in amount of money the receiving party should pay/reimburse.

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action. Although it is fairly straightforward to file a Statement of Claim in most jurisdictions, if it is not done properly, then the filing party may lose his case due to simple technicalities.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

The defendant to a cause of action must file an "Answer" to the complaint in which the claims can be admitted or denied (including denial on the basis of insufficient information in the complaint to form a response). The answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court's lack of subject matter jurisdiction, need not be plead and may be raised at any time.

Black’s Law Dictionary (8th Edition, 2004), page 660 et seq

CAUSE OF ACTION 1

cause of action.

 

1. A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; CLAIM(4) <after the crash, Aronson had a cause of action>. [Cases: Action 1, 2. C.J.S. Actions §§ 2–9, 11, 17, 21, 26, 31–33, 36.]

 

“What is a cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be — (a) a primary right of the plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in case of actions or suits for injunction; or (c) it may be that there are doubts as to some duty or right, or the right beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 170 (2d ed. 1899).

 

2. A legal theory of a lawsuit <a malpractice cause of action>. Cf. RIGHT OF ACTION. —

Also termed (in senses 1 & 2) ground of action.

 

new cause of action.A claim not arising out of or relating to the conduct, occurrence, or transaction contained in the original pleading. • An amended pleading often relates back to the date when the original pleading was filed. Thus, a plaintiff may add claims to a suit without facing a statute-of-limitations bar, as long as the original pleading was filed in time to satisfy the statute. But if the amended pleading adds a claim that arises out of a different transaction or occurrence, or out of different alleged conduct, the amendment does not relate back to the date when the original pleading was filed. Fed. R. Civ. P. 15(c).

 

3. Loosely, a lawsuit <there are four defendants in the pending cause of action>.

 

 

CAUSATION

causation (kaw-zay-sh<<schwa>>n).

1. The causing or producing of an effect <the plaintiff must prove causa-tion>.

2.CAUSALITY.

“Here is the key to the juridical treatment of the problems of causation. We pick out the cause which in our judgment ought to be treated as the dominant one with reference, not merely to the event itself, but to the jural consequences that ought to attach to the event.” Benjamin Cardozo, The Paradoxes of Legal Science 83 (1928).

negative causation.Securities. The defense that part of the plaintiff's damages were caused by factors other than the depreciation in value of the securities resulting from registration-statement defects. • If negative causation is proved, the plaintiff's damages should be reduced. 15 USCA § 77k(e). [Cases: Securities Regulation 25.21(5). C.J.S. Securities Regulation § 89.]

transaction causation.Securities. The fact that an investor would not have engaged in a given transaction if the other party had made truthful statements at the required time. [Cases: Securities Regulation 60.47. C.J.S. Securities Regulation §§ 208–210, 215.]

 

 

 

CAUSE

cause,n.

 

1. Something that produces an effect or result <the cause of the accident>.

 

“It has been said that an act which in no way contributed to the result in question cannot be a cause of it; but this, of course, does not mean that an event which might have happened in the same way though the defendant's act or omission had not occurred, is not a result of it. The question is not what would have happened, but what did happen.” Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 638 (1920).

 

but-for cause.The cause without which the event could not have occurred. — Also termed actual cause; cause in fact; factual cause.

concurrent cause.One of two or more causes that simultaneously produce a result.

contributing cause.A factor that — though not the primary cause — plays a part in producing a result.

cooperative cause.Archaic. A person who is contributorily or comparatively negligent.

direct and proximate cause.See proximate cause.

direct cause.See proximate cause.

efficient adequate cause.See proximate cause.

efficient cause.See proximate cause.

efficient intervening cause.See intervening cause.

efficient proximate cause.See proximate cause.

factual cause.See but-for cause.

first cause.See proximate cause.

immediate cause.The last event in a chain of events, though not necessarily the proximate cause of what follows. — Also termed effective cause.

initial cause.See proximate cause.

intervening cause.An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury. • If the intervening cause is strong enough to relieve the wrongdoer of any liability, it becomes a superseding cause. A dependent intervening cause is one that is not an act and is never a superseding cause. An independent intervening cause is one that operates on a condition produced by an antecedent cause but in no way resulted from that cause. — Also termed intervening act; intervening agency; intervening force; independent intervening cause; efficient intervening cause; supervening cause; novus actus interveniens; nova causa interveniens. See superseding cause. [Cases: Negligence 430. C.J.S. Negligence §§ 202–205.]

jural cause.See proximate cause.

legal cause.See proximate cause.

primary cause.See proximate cause.

procuring cause. 1. See proximate cause (2).2.Real estate. The efforts of the agent or broker who effects the sale of realty and who is therefore entitled to a commission. [Cases: Brokers 53. C.J.S. Brokers §§ 166–169.]

proximate cause. 1. A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. [Cases: Negligence 375.]

 

2. A cause that directly produces an event and without which the event would not have occurred. [Cases: Negligence 379, 385. C.J.S. Negligence § 197.] — Also termed (in both senses) direct cause; direct and proximate cause; efficient proximate cause; efficient cause; efficient adequate cause; initial cause; first cause; legal cause; pro-curing cause; producing cause; primary cause; jural cause. Cf. (in sense 2) remote cause.

 

“The four ‘tests' or ‘clues' of proximate cause in a criminal case are (1) expediency, (2) isolation, (3) foreseeability and (4) intention.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 823 (3d ed. 1982).

 

“ ‘Proximate cause’ — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘set society on edge and fill the courts with endless litigation.’ [North v. Johnson, 58 Minn. 242, 59 N.W. 1012 (1894).] As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 264 (5th ed. 1984).

 

remote cause.A cause that does not necessarily or immediately produce an event or injury. Cf. proximate cause (2). [Cases: Negligence 383.]

sole cause.The only cause that, from a legal viewpoint, produces an event or injury. • If it comes between a defendant's action and the event or injury at issue, it is treated as a superseding cause. [Cases: Negligence 431. C.J.S. Negligence §§ 202, 315.]

 

“When this one dominant cause is found it is treated as the ‘sole cause’ for the purposes of the particular case, even if it might not be so treated in a different kind of cause of action. A ‘sole cause’ which intervenes between de-fendant's act and the result in question is spoken of as a ‘superseding cause.’ ... The phrase ‘sole cause,’ meaning the only cause which will receive juridical recognition for the purposes of the particular case, is convenient to give emphasis to three points: (1) If defendant's act was the sole cause of the death or other socially-harmful occurrence, it is by definition a proximate cause thereof; (2) if something other than his act was the sole cause of the harm there need be no further inquiry so far as he is concerned; (3) it is not necessary that defendant's act should have been the sole cause of the harm, — which is merely another form of stating that a contributory cause is sufficient.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 781–82 (3d ed. 1982).

 

superseding cause.An intervening act or force that the law considers sufficient to override the cause for which the original tortfeasor was responsible, thereby exonerating that tortfeasor from liability. — Also termed sole cause. Cf. intervening cause. [Cases: Negligence 431. C.J.S. Negligence §§ 202, 315.]

supervening cause.See intervening cause.

unavoidable cause.A cause that a reasonably prudent person would not anticipate or be expected to avoid.

 

2. A ground for legal action <the plaintiff does not have cause to file suit>.

 

good cause.A legally sufficient reason. • Good cause is often the burden placed on a litigant (usu. by court rule or order) to show why a request should be granted or an action excused. The term is often used in employ-ment-termination cases. — Also termed good cause shown; just cause; lawful cause; sufficient cause.

 

“Issues of ‘just cause,’ or ‘good cause,’ or simply ‘cause’ arise when an employee claims breach of the terms of an employment contract providing that discharge will be only for just cause. Thus, just cause is a creature of contract. By operation of law, an employment contract for a definite term may not be terminated without cause before the expiration of the term, unless the contract provides otherwise.” Mark A. Rothstein et al., Employment Law § 9.7, at 539 (1994).

 

probable cause.See PROBABLE CAUSE.

 

3. A lawsuit; a case <the court has 50 causes on the motion docket>.

 

preferred cause.A case that a court may for good reason accelerate and try ahead of other cases. — Also termed preference case; preference cause.

short cause.A case that requires little time to try, usu. half a day or less. — Also termed short-cause trial.

 

 

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Note that even though I do not trust Foreclosure defense attorneys, that does not mean I consider them totally ignorant.  Many have devised clever ways to postpone foreclosure, and you can do much of that yourself without an attorney if you follow the rules.  For example, look at the resources at the below web site by a Florida Foreclosure Defense Attorney.

http://www.nazarethlegal.com/foreclosure_description.php?id=6

Note the sample answer to foreclosure.  It makes some good points.  But, if you get your mortgage fully examined by a competent professional, TIMELY, then you can load your answer with more than admissions, denials, and affirmative defenses.  You can also craft it as a counter claim and/or cross claim against the servicer, plaintiff, and loan originator.


Foreclosure Defense Forms



Other considerations:

Excerpt from Lexis Nexis document.

Mortgage foreclosures are equitable proceedings and the parties are required to come into court with clean hands. See Carroll & Associates, P.A. v. Galindo, 864 So. 2d 24, 30 (Fla. 3d DCA 2003). Judges feel a special obligation to “do equity” in these actions.  While negligence, or trespass on the case, is technically a cause of action ex delicto, it frequently comes into play in contracts for service, especially building contracts. For various, valid, tactical and/or strategic reasons, the practitioner may want to include a claim of negligent performance of contractually assumed or imposed duties, in addition to or instead of just a claim for breach of contract. For negligence actions, there is a four year limitations period which is prescribed by Fla. Stat. § 95.11(3)(a). A negligently performed contractual obligation may run afoul of the economic loss rule. See Juan Ramirez, Jr., 1 Florida Civil Procedure § 7-6(a). Many cases become bogged down at the motion stage when a plaintiff has filed a multi-count complaint that includes “the kitchen sink.” This strategy may frighten a defendant into settling, but it will not move the case expeditiously to trial. In general, tort actions are governed by three statutes of limitations. The four year limitations period is prescribed by Fla. Stat. § 95.11(3)(a) for negligence actions, Fla. Stat § 95.11(3)(o) governs for “any other intentional tort,” and Fla. Stat. § 95.11(3)(p) governs for “any action not specifically provided for in these statutes.” Actions for fraud must be commenced within four years (Fla. Stat. § 95.11(3)(j). Fraud carries a four year statute of limitations from the time the cause of action is discovered. Yet, even if the statute of limitations has not expired, laches may be a viable defense. Therefore, once fraud is discovered, suit should be filed as soon as practicable. Donovan v. Armour & Co., 33 So. 2d 601 (Fla. 1948). Puchner v. Bache Halsey Stuart, Inc., 553 So. 2d 216 (Fla. 3d DCA 1989) (whether the plaintiff should have known that he had a cause of action for fraud is ordinarily a jury question). ...a mortgagee brought an action for deficiency and to foreclose. The mortgagor’s counterclaim for fraud was barred by the statute of limitations. However, the mortgagor was entitled as an affirmative defense to reduce the aggregate unpaid balance of the mortgages after the fraud was rectified by reduction of the unpaid balance. See Hilsenroth v. Kessler, 446 So. 2d 147 (Fla. 3d DCA 1983).

A foreclosure complaint should contain all these elements (see sample below).  People who sue foreclosure should allege they have standing, and I can deny that they have standing because of not owning or holding the actual note, or for violating the UCC requirements for enforcing a lost note.  See this for negotiable instruments (like the note).  I would Memorize these provisions.

673.3011  Person entitled to enforce instrument.The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

History.s. 2, ch. 92-82.


673.3091  Enforcement of lost, destroyed, or stolen instrument.
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
History.s. 2, ch. 92-82; s. 1, ch. 2004-3.

90.953 Admissibility of duplicates.A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.
History.s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29, ch. 99-2.



Bob Hurt, At Your Service = 727 669 5511I might allege that the plaintiff did not meet the elements of breach of contract claim that justifies foreclosure, deny that the plaintiff possessed the note when it got lost, etc.  I could do a variety of things to stall the proceedings while I got my mortgage examined to find causes of action for suing the lender.


Excerpts from 2010 Florida Causes of Action book by Wites and Kaplan:

§4:100
FORECLOSURE, MORTGAGE
§4:100.1 Fla.R.Civ.P. Form 1.944

COMPLAINT

Plaintiff, A.B., sues defendant, C.D., and alleges:
1. This is an action to foreclose a mortgage on real property in _________ County, Florida.
2. On _____(date)_____, defendant executed and delivered a promissory note and a mortgage
securing payment of the note to plaintiff. The mortgage was recorded on _____(date)_____, in
Official Records Book _______ at page _______ of the public records of __________ County,
Florida, and mortgaged the property described in the mortgage then owned by and in possession
of the mortgagor, a copy of the mortgage containing a copy of the note being attached.
3. Plaintiff owns and holds the note and mortgage.
4. The property is now owned by defendant who holds possession.
5. Defendant has defaulted under the note and mortgage by failing to pay the payment due
_____(date)_____, and all subsequent payments.
6. Plaintiff declares the full amount payable under the note and mortgage to be due.
7. Defendant owes plaintiff $__________ that is due on principal on the note and mortgage, interest
from _____(date)_____, and title search expense for ascertaining necessary parties to this action.
8. Plaintiff is obligated to pay plaintiff’s attorneys a reasonable fee for their services.
WHEREFORE plaintiff demands judgment foreclosing the mortgage and, if the proceeds of the sale
are insufficient to pay plaintiff’s claim, a deficiency judgment.

NOTE: This form is for installment payments with acceleration. It omits allegations about junior
encumbrances, unpaid taxes, and unpaid insurance premiums, and for a receiver. They must be added
when proper. Copies of the note and mortgage must be attached.
See Amendments to the Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla. 2000).

§4:100.2 Statute of Limitations
Five years, if final maturity of obligation is ascertainable; twenty year, if final maturity of obligation is not ascertainable; Fla. Stat. §95.281; Monte v. Tipton, 612 So.2d 714, 716 (Fla. 2nd DCA 1993).

§4:100.3 References
1. 37 Fla. Jur. 2d Mortgages and Deeds of Trust §§245–274 (2004).
2. 10A Fla. Jur. 2d Consumer & Borrower Protection §§114–121 (2003).
3. 55 Am. Jur. 2d Mortgages §§512–942 (1996).
4. 59, 59A C.J.S. Mortgages §§490–990 (1998).
5. Florida Statutes §45.031 (2005) (Judicial Sales Procedure).
6. Florida Statutes §45.0315 (2005) (Right of Redemption).
7. Florida Statutes §494.0078 (2005) (Florida Fair Lending Act).
8. Florida Statutes §687.01 (2005) (Rate of Interest in Absence of Contract).
9. Florida Statutes §695.01 (2005) (Conveyances to be Recorded).
10. Florida Statutes §697.01 (2005) (Instruments Deemed Mortgages).
11. Florida Statutes §701.01 (2005) (Assignment).
12. Florida Statutes §702.01 (2005) (Equity).
13. David H. Simmons, Agreement for Deed as a Creative Financing Technique, 55 Fla. Bar J. 395 (1981).
14. Mortgage Foreclosures and Alternatives (4th ed. 2005), ISBN 0-8205-7982-4.
15. Kendall Coffee, Florida Foreclosures, D&S Florida Practice Series, ISBN 0-327-01367-2.




§3:10 BREACH OF CONTRACT
§3:10.1 Elements of Cause of Action - Florida Supreme Court
[No citation for this edition.]
SEE ALSO
1. Hazen v. Cobb, 117 So. 853, 859 (Fla. 1928) (“[w]e have held that a cause of action for an entire breach of the
contract immediately arises upon the wrongful discharge of an employee under a contract for a definite time,
and it is not necessary to await the termination of that period before asking the courts for redress.”).
2. Fontainebleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla. 1971).


Elements of Cause of Action - 2nd DCA
The elements of an action for breach of contract are:
1. the existence of a contract;
2. a breach of the contract; and
3. damages resulting from the breach.
SOURCE
Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006) (“In addition, in order to maintain an
action for breach of contract, a claimant must also prove performance of its obligations under the contract or a
legal excuse for its nonperformance.”).
SEE ALSO
1. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994) (stating that the plaintiff properly
pled a breach of contract by alleging an offer, acceptance, consideration, a contract, breach of the contract and
damages).
2. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985) (“The complaint alleged the execution of an oral
contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as
true, would state a cause of action for breach of contract.”).
3. Cerniglia v. Davison Chemical Co., 145 So.2d 254, 255 (Fla. 2d DCA 1962).


§3:10.2
Statute of Limitations
Fla. Stat. §95.11(2)(b)(five years for written contract); §95.11(3)(k)(four years for oral contract).

References
11 Fla. Jur. 2d Contracts §§262–273 (2003).
17A Am. Jur. 2d Contracts §§699–712 (2004).
17B C.J.S. Contracts §§640–649 (1999).
Florida Standard Jury Instruction (Civ.) MI 12.1.

§3:10.4
Defenses
1. Abandonment of Contract: Abandonment of contract is an affirmative defense that the defendant must raise in
its answer or otherwise is waived. American Enviro-Port, Inc. v. Williams, 489 So.2d 839 (Fla. 1st DCA
1986).
2. Act of God: If the losses or injuries are caused by an act of God that could not have been foreseen and from
which the carrier could not by the exercise of due care protect the goods, the carrier is not liable. Seaboard Air
Line Ry. Co. v. Mullin, 70 So. 467, 469 (Fla. 1915).
3. Breach by Other Party: When one party to a contract unjustifiably refuses to perform his agreement in
whole, or in any substantial part, the other party has the option to rescind the entire contract, provided he
offers to do so within a reasonable time, and will restore what he has received, and provided that the situation
of the parties remains so far unchanged that they can be restored to their original position. Savage v. Horne, 31
So.2d 477, 482 (Fla. 1947). See also Bryan and Sons Corp. v. Klefstad, 237 So.2d 236, 238 (Fla. 4th DCA
1970), appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).
4. Contractors: Generally, the liability of a contractor is cut off after the owner has accepted the work
performed if the alleged defect is a patent defect which the owner could have discovered and remedied.
However, the test for patency is not whether or not the condition was obvious to the owner, but whether or not
the dangerousness of the condition was obvious had the owner exercised reasonable care. Florida Dept. of
Transportation v. Capeletti Bros., Inc., 743 So.2d 150, 152 (Fla. 3d DCA 1999), rev. denied, 760 So.2d 945
(Fla. 2000).
5. Damages Required: Not all breaches of contract result in damages and the law furnishes a remedy only for
such wrongful acts as result in injury or damage. Scott-Steven Development Corp. v. Gables by the Sea, Inc.,
167 So.2d 763, 764 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla. 1965).
6. Discharge: A material breach by one party may be considered a discharge of the other party’s obligations
thereunder. Nacoochee Corp. v. Pickett, 948 So.2d 26, 30 (Fla. 1st DCA 2006).
7. Duress: Assuming duress was present in the execution of the instrument, which position we do not favor, the
agreement would not have been void, but only voidable. Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla.
1943).
8. Failure of Consideration: A failure of consideration is a defense to a contract. Vichaikul v. S.C.A.C.
Enterprises, Inc., 616 So.2d 100 (Fla. 2d DCA 1993). The slightest detriment to the promisee is sufficient
consideration to bind the promisor. Maryland Casualty Company v. Krasnek, 174 So.2d 541, 543 (Fla.
1965).9. Fraud, Contract Induced by: It is a fundamental proposition that a contract induced by fraud is voidable.
Lance Holding Co. v. Ashe, 533 So.2d 929, 930 (Fla. 5th DCA 1988).
10. Frustration of Purpose: Frustration of purpose refers to that condition surrounding the contracting parties
where one of the parties finds that the purposes for which it bargained, and which purposes were know to the
other party, have been frustrated because of the failure of consideration, or impossibility of performance by
the other party. Even under theories which permit a broader application of the doctrine of commercial
frustration, the defense is not available concerning difficulties which could reasonably have been foreseen by
the promisor at the creation of the contract. Home Design Center–Joint Venture v. County Appliances of
Naples, 563 So.2d 767, 770 (Fla. 2d DCA 1990).
11. Hindering the Performance of the Other: One who prevents or makes impossible the performance or
happening of a condition precedent upon which his liability by the terms of a contract is made to depend
cannot avail himself of its nonperformance. Hanover Realty Corp. v. Codomo, 95 So.2d 420, 423 (Fla. 1957).
12. Illegality: An agreement that is violative of a provision of a constitution or a valid statute, or an agreement
which cannot be performed without violating such a constitutional or statutory provision, is illegal and void.
When a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right
founded upon the contract or agreement can be enforced in a court of justice. Where the parties to such an
agreement are in pari delicto the law will leave them where it finds them, relief will be refused in the courts
because of the public interest. Local No. 234 of United Association of Journeymen and Apprentices of
Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So.2d 818, 821
(Fla. 1953). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d
833 (Fla. 1983).
13. Impossibility of Performance: Impossibility of performance refers to those factual situations, too numerous
to catalog, where the purposes, for which the contract was made, have, on one side, become impossible to
perform. As a general rule, a contract is not invalid, nor is the obligor discharged from its binding effect,
because the contract turns out to be difficult or burdensome to perform. Home Design Center—Joint Venture
v. County Appliances of Naples, 563 So.2d 767, 769 (Fla. 2d DCA 1990). See also McIntyre v. Norman, 429
So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983). The doctrine of “impossibility”
must be applied with caution and is not available concerning intervening difficulties which could reasonably
have been foreseen and could have been controlled by an express provision of the agreement. See Am.
Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809 (Fla. 4th DCA 1998); Home Design Ctr.—Joint
Venture v. County Appliances of Naples, Inc., 563 So.2d 767 (Fla. 2d DCA 1990); Walter T. Embry, Inc. v.
LaSalle Nat. Bank, 792 So.2d 567, 570 (Fla. 4th DCA 2001), subsequent appeal, 868 So.2d 661 (Fla. 4th
DCA 2004).
14. Mistake: Florida law permits a party to rescind a contact based on unilateral mistake unless the mistake
results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contact
that it would be inequitable to order rescission. Florida Insurance Guaranty Association, Inc. v. Love, 732
So.2d 456, 457 (Fla. 2d DCA 1999). A mistake, whether unilateral or mutual, must go to a material,
substantial element of a contract in order to justify rescission. Williams, Salomon, Kanner, Damian, Weissler
& Brooks v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233, 235 (Fla. 3d DCA 1983).
15. Rescission: While we have found no Florida cases expressly stating that rescission is an affirmative defense, it
appears that rescission falls within the general definition of that which is included within the nature of an
affirmative defense. Joseph Buckeck Construction Corp. v. Music, 420 So.2d 410, 414 (Fla. 1st DCA 1982).
Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an
inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would
be inequitable to order rescission. Florida Insurance Guaranty Assoc., Inc. v. Love, 732 So.2d 456, 457 (Fla.
2d DCA 1999).
16. Sovereign Immunity: In County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla. 1997), the
court ruled that under section 768.28, the legislature authorized state entities to enter into contracts and waived
sovereign immunity as to express contracts. It concluded that if disputed work is not expressly part of the
original contract or a change order, and it is not an implied part of the contract, sovereign immunity bars
recovery for the disputed work because it is “outside” the contract. W&J Construction Corp. v.
Fanning/Howey Associates, 741 So.2d 582, 584 (Fla. 5th DCA 1999).
17. Unconscionability: Unconscionability is an affirmative defense which must be raised by proper pleading.
Barakat v. Broward County Housing Authority, 771 So.2d 1193, 1194 (Fla. 4th DCA 2000).§3:10.5

Related Matters
1. Anticipatory Repudiation: Anticipatory repudiation relieves the non-breaching party of its duty to further
perform and creates in it an immediate cause of action for breach of contract. Twenty-Four Collection, Inc. v.
M. Weinbaum Construction, Inc., 427 So.2d 1110, 1111 (Fla. 3d DCA 1983).
2. Lost Chance or Opportunity: It is now an accepted principle of contract law, nonetheless, that recovery will
be allowed where a plaintiff has been deprived of an opportunity or chance to gain an award or profit even
where damages are uncertain. Miller v. Allstate Insurance Co., 573 So.2d 24, 29 (Fla. 3d DCA 1990), rev.
denied, 581 So.2d 1307 (Fla. 1991).
3. Lost Profits: To recover damages for lost profits in a breach of contract action, a party must prove a breach of
contract, that the party actually sustained a loss as a proximate result of that breach, that the loss was or should
have been within the reasonable contemplation of the parties, and that the loss alleged was not remote,
contingent, or conjectural and the damages were reasonably certain. Frenz Enterprises, Inc. v. Port
Everglades, 746 So.2d 498, 504 (Fla. 4th DCA 1999).
4. Oral Contract: To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts
that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and
left no essential terms open. Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313
(Fla. 1st DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994); W.R. Townsend Contracting, Inc. v. Jensen Civil
Const., Inc. 728 So.2d 297, 300 (Fla. 1st DCA 1999). See Complaint Library, Form 3:10-2 (oral contract) on
the CD-ROM.
5. Prejudgment Interest: Prejudgment interest is an element of damages for a breach of contract. Pelaez v.
Persons, 664 So.2d 1022, 1023 (Fla. 2d DCA 1995).
6. Rescission: A mere breaching of a contract is not necessarily a rescinding of the contract. When a contract is
rescinded it is done away with and ceases to be a contract. When a contract is breached the contract continues
to live and the parties have their rights to damages for the breach instead of on the theory of the contract being
rescinded. If one party to a contract renders performance impossible, the opposite party may at his election
rescind it. Givens v. Vaughn-Griffin Packing Co., 1 So.2d 714, 719 (Fla. 1941).
7. Settlement Agreements: Settlements are construed in accordance with the rules for interpretation of
contracts. Treasure Coast, Inc. v. Ludlum Construction, Inc., 760 So.2d 232, 234 (Fla. 4th DCA 2000).

AMERICA'S #1 LEGAL REFERENCE CHART--12 PAGES

LEGAL WRITING

HOW TO WRITE A LEGAL MEMORANDUM

LEGAL MEMO:

FOUNDATION OF ALL LEGAL ANALYSIS

SINGLE MOST IMPORTANT SKILL FOR LAW STUDENTS TO LEARN

1.Lawyer's basic work product — it gives a legal opinion

2.Combines organization, issue framing, and legal analysis in a professional format

EXAMPLES IN THIS CHART

1.Items in (italics) usually are signposts to identify what immediately follows them

a. For teaching purposes

b. Not what you actually write in a memo

2.Items in [brackets] are things that you would have to supply, i.e. proper citations to legal authority

 

ELEMENTS OF A LEGAL MEMORANDUM

HEADING

1. Standard form  

2. Identifies case, date, main legal issue, writer

ISSUE

1. States the legal question which the memo answers

2. Usually one sentence that also mentions the key facts that underlie the legal problem

CONCLUSION

1. Gives the brief answer to the question stated in the Issue

2. 1-4 sentences that note the key facts and legal points that support the answer

FACTS

1. Sets forth the facts which the legal analysis will use, plus enough background facts to give context

2. Not a detailed restatement of all of the facts of the case

DISCUSSION

1. Organizes and explains the analysis of the facts and law that leads to the Conclusion

TIP: Try writing the memo in this order:

(1) Write the Heading

(2) Write the first draft of the Facts section

(3) Research the legal theories that apply

(4) Write the Issue section

(5) Write the Discussion section (legal analysis)

(6) Write the Conclusion section

(7) Revise and trim the Facts  section to include only the relevant facts and necessary background

 

 

SAMPLE HEADING

This sample Heading follows a typical format. The "TO" and "FROM" items identify who wrote the memo for whom. The "DATE" items gives the effective date of the legal research and analysis — a key fact on which future readers will rely. The "RE" item specifies the case name, the internal file number, and the memo's general purpose.

Memorandum of Law

TO:       Thomas Jefferson

FROM:   Patrick Henry

DATE:    September 1, 1997

RE:        State v. Kellogg: file no. 5797;

Defendant's potential criminal

liability for  larceny  under

Virginia law.

 

 

EXPLAINING THE FACTS

ELEMENTS

1. The Facts section should contain the facts important  to   the   legal   analysis,   plus background information for context

2.1n most memos, explain the facts in chrono­logical order

3. Use all relevant facts, whether favorable or unfavorable to the client

4. Do not argue or draw conclusions; just tell the story in this section

SAMPLE FACTS SECTION [LARCENY PROBLEM]

"Witnesses saw the following events at about 5:30 p.m. on July 1, 1997: Mrs. Harris's purse was on the sidewalk outside the grocery store. Defendant stood near the purse, looked around in all directions, then picked up the purse. He carried the purse to his car, put it in the back seat, and drove away."

"At about 6:15 p.m. the same day, a policeman stopped Defendant on a tip from one witness. When the policeman came up to Defendant's car window, Defendant did not say anything about the purse until he was specifically asked. Defendant then told the policeman that "I was going to take the purse to the police station tomorrow to turn it in. I never even opened it." The policeman reported that the purse was sitting on the back seat in plain view, and was closed."

 "Once the purse was in custody, Mrs. Harris inspected it but found nothing missing from its contents. Mrs. Harris requested, however, the district attorney to charge Defendant with larceny."

 

 

DEFINING THE ISSUE

SPOTTING AND DEFINING "ISSUES” IS CRUCIAL

1. An "issue" is a question about how law applies to a set of facts

2. In the legal memo, the Issue section presents the legal question using the key facts

3. To draft the Issue for the memo, follow these three steps:

Step 1: From your initial research, identity the elements of the legal principle.

           (Example)    Larceny is (1) the taking (2) and carrying away of (3)  another

                              person's  property.  with (4) intent to permanently  deprive that

                              person of it

Step 2: Locate the key facts that might either prove or disprove the elements of the crime or legal theory. Before starting to write the memo, make an outline that connects the facts with the elements of the legal theory

          (Example outline of elements and facts)

          (element 1)   Def. picked up purse

          (element 2)   Def. carried away purse

          (element 3)   Mrs. Harris owned purse

                              Def. said he was going tc it in

          (element 4)   Def. still had it 45 minutes later

                              Def. did not tell police until asked

                              Def. explained his plan to turn it in

                                      Purse was unopened plainly visible in the car

Step 3: Write the question that the memo will answer,  in  one  concise  sentence possible). Use the key facts that appty to the elements. Refer to the jurisdiction.

SAMPLE ISSUE SECTION

1.   (Good example)  Did  defendant  commit larceny under Virginia law when he picked up the shopper's purse, put it into his car and drove  away,  but explained that he was planning to turn the purse into the police the following day?

2.   (Poor example)   Did   defendant commit larceny under Virginia law?  (Missing are the key facts — issue is too broad)

3.   (Poor example) Did defendant commit a crime by taking a purse that did not belong to him? (Missing are the jurisdiction, the actual legal theory, and key facts for each element)

4.   (Poor example)   Can a defendant be convicted of larceny under Virginia  law?  (This is a different issue — the correct issue involves the particular facts of this case, not all defendants generally)

 

Page - 1

WRITING THE DISCUSSION SECTION

LEGAL ANALYSIS OF THE ISSUE

1. Discussion follows from the research that produced the Issue Section

2. Writing the Discussion requires two phases: a Develop the organization plan

b. Execute the legal analysis for each element of the plan

3. Usually, the Discussion Section should provide a complete analysis

4. When developing the organization plan, be sure to account for both sides of a case  (particularly where the facts and law suggest counter arguments)

DEVELOP THE ORGANIZATION PLAN FOR THE LEGAL ANALYSIS

1. The larceny example above is a fairly simple problem, with a single main event and a single legal theory

2. Legal memos can present much more complicated situations

3. ln general, follow these four steps to organize and execute the analysis:

Step 1: Divide the situation into discrete events or transactions

Step 2: For each event or transaction, identify the  main  legal theory, statute  or cause of action involved

Step 3: Break the  applicable  statute,  legal theory  or cause  of action into  its elements; number them

Sample format:

I. (Event 1)  Defendant insults and throws a punch at Plaintiff, but misses; Plaintiff screams and faints.

A. (Legal theory) Civil Assault

1. (element) Intentional act

2. (element) Without privilege

3. (element) Causing reasonable fear of imminent physical harm

B. (Legal theory) Intentional  Infliction of Emotional Distress

1. (element)  Intent to inflict emotional distress

2. (element)  Outrageous and intolerable conduct

3. (element)  Causing severe emotional distress

II. (Event 2) Defendant pours drink on Plaintiffs unconscious body; stains expensive clothing

A. (Legal Theory) Civil Battery

1. (elements)

B. (Legal Theoiy) Trespass to Chattel

1. (elements)

Step 4: For each element, execute an IRAC-style legal analysis.

TIP: Use a descriptive subheading for each item in the organization plan. Subheadings help you break down the argument into segments, and they help the reader follow along.

 

 

EXECUTE EACH ANALYSIS USING IRAC

1. Every  analysis  explaining  how the  law applies to facts must contain four elements: Issue, Rule, Analysis, andConclusion

a. Legal analysis technique that directly employs these elements is abbreviated IRAC

2. Terms defined:

Issue — Presents a question of how a legal principle applies to specific facts

Rule — States the legal principle or definition that applies

Analysis — Explains how the facts do/don't support the Rule

Conclusion — Answers the question asked by the Issue, using a complete sentence which gives the result of the Analysis

SAMPLE IRAC

[The example below shows the elements of IRAC, as applied to the second element of larceny. A sample subheading is also included. Every explanation of a legal point in a legal memo should contain the elements of IRAC.]

(Subheading:)

2. Second  Element of Larceny:"Taking Away"

(Issue:)          When Defendant moved the purse away from the store and put it in his car, did he "carry it away" under the definition of larceny?

(Rule:)            To "carry away" property means to move it away from the possession of the owner. [Cite law] Moving property out of the sight of the owner without permis­sion or off the owner's premises, consti­tutes a "carrying away." [Cite law]

(Analysis:)      Here, Defendant not only moved the purse from the area of the store, but he put it into his car and drove away. He took the purse far from the view of the owner, had the owner been nearby.

(Conclusion:) Accordingly, Defendant's conduct satisfies larceny's "taking away" element.

 

SIMPLE LARCENY EXAMPLE

[This example illustrates how to organize and execute the larceny analysis in a brief Discussion Section. ]

DISCUSSION

Whether Defendant is guilty of larceny depends on whether the facts support the four elements of larceny: (1) taking, (2) carrying away, (3) the property of another, (4) with intent to permanently deprive the owner of possession. [Cite law for this definition]. The evidence satisfies the first three elements.

(Subheading):

1. Defendant Did "Take" the Purse

The first issue is whether Defendant did "take" the purse. Under the definition of larceny, a person "takes" property when he or she "lays hold or grasps it." [Cite law]. There is no dispute that Defendant grasped the purse in his hands, and thus satisfied the "taking" element.

(Subheading):

2. Defendant Did "Carry Away" the Purse.

Second, when Defendant moved the purse away from the store and put it in his car, did he "carry it away" under the definition of larceny? To "carry away" property means to move it away from the possession of the owner. [Cite law] Moving property out of the sight of the owner without permission or off the owner's premises, constitutes a "carrying away." [Cite law] Here, Defendant not only moved the purse from the area of the store, but he put it into his car and drove away. He took the purse far from the view of the owner, had the owner been nearby. Accordingly, Defendant's conduct satisfies larceny's "taking away" element.

(Subheading):

3. The Purse Was "Property of Another."

Third, there is no dispute that the purse was the "property of another." Mrs. Harris will testify that she owned the purse. Defendant in effect admitted he did not own it when he told the officer he planned to turn it into the police.

(Subheading):

4. Evidence of "Intent to Deprive Permanently.”

The evidence is mixed on the fourth element of larceny, "intent to deprive permanently." Intent is a subjective mental state. [Cite law]. Evidence that proves intent, however, can be both the direct testimony of the defendant and circumstantial evidence. [Cite law].     

(Argue prosecution’s case:) Circumstantial evidence supports finding that the Defendant had the intent to deprive. Before picking up the purse, he looked around, perhaps to avoid being seen. He did not report the lost purse to the store manager. He put it into his car and drove away. When stopped by a policeman, Defendant did not volunteer that he had the purse. These facts show that Defendant intended to keep the purse, at least until he had a chance to check its contents.

(Argue the defense case:) On the other hand, Defendant will testify that he planned to turn the purse into the police. If a jury believes his testimony, then that evidence alone would be enough to acquit him, because it would show he lacked the intent to deprive. [Cite law on reasonable doubt raised by defendant's testimony]. Also, according to the policeman, Defendant left the purse in plain view and did not deny having the purse when asked. This evidence shows that Defendant was not hiding the purse, and thus is evidence showing lack of intent to commit the crime. [Cite law on general intent to commit crime].

(Subheading):

5. Sufficiency of Evidence of Larceny

(Summarize and conclude:) There is suffi­cient evidence  to  charge  Defendant  with larceny because there is evidence of each of the crime's four elements.  [Cite law on sufficiency of evidence for charge]. There is little factual dispute on the first three elements, but on the intent element there is evidence on both sides. The defense evidence, if believed, could raise reasonable doubt about whether Defendant intended to keep the purse or its contents. [Cite law on burden of proof of larceny]. Defendant did not hide the purse, did not open the purse, and did not deny having the purse. His conduct is consistent with his stated plan to turn the purse into the police the following day. There appears a good chance, on the facts currently known, that a jury would acquit Defendant of larceny.

 

 

WRITING THE CONCLUSION

Follow the basic form of the Issue section, but use the key facts and law to draw the conclusions.

SAMPLE CONCLUSION

Defendant likely will not be found guilty of larceny because he lacked the "intent to deprive" element. His picking up Mrs. Harris's purse from the sidewalk and putting it into his car is enough evidence to support the first three elements of larceny under Virginia law. However, Defendant did not hide the purse or deny having it when asked by the police officer, and he will testify that he planned to turn in the purse to the police. A reasonable jury who believed these facts would likely conclude that Defendant did not intend to permanently deprive Mrs. Harris of her purse.

 

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EXAMPLES OF MORE

 COMPLEX ORGANIZATION PLANS

Organizing the legal memo is usually the hardest step in writing it.  Use the four steps to organize all kinds of legal analysis problems. See "Writing the Discussion Section"

Steps 1 and 2: Divide situation into discrete events or transactions; identify legal theories

1. Criminal law example: Without permis­sion. Defendant came onto property, opened the front door and entered a private home, and took away a television set. What is the Defendant's potential criminal liability?

a. Break into three events:

i.  Defendant came onto property. (Analyze criminal trespass)

ii. Defendant entered dwelling without permission. (Analyze burglary)

iii.Defendant took away television without permission. (Analyze larceny)

2. Contract law example:  Jason calls a plumber to repair a problem with his bathtub; the two never discuss a price for the work.  Plumber arrives a day earlier than scheduled, and works on the kitchen sink, not the tub. Who will owe whom how much?

a. Break into four events:

i.  Initial telephone call.  (Analyze: Was a contract formed?  What were material terms of the contract?)

ii. Plumber arrived a day early. (Analyze: Was this a breach of a material contract term? Did Jason suffer damage? How much?)

iii.Plumber did not fix the bathtub. (Analyze: Was this a breach of a material contract    term?   Did Jason  suffer damage? How much?)

iv Plumber fixed kitchen sink.  (Analyze: Did the work fall within the initial contract  (if any)? If not, is plumber entitled to any compensation? Did Jason suffer damage? How much?)

3. Tort law  example, with  IRAC  analysis employing analogy: Knowing that Matt had one previous conviction for drunk driving, Jerry let Matt use his car only to pick up groceries. Matt picked up the groceries, but then started drinking beer in the car and went on a joyride across town, during which he injured the Plaintiff. Can Jerry be liable to Plaintiff for the tort of "negligent entrustment of a dangerous instrumentality?"

a. Break into three events:

i.   Jerry  allowed  Matt to  drive the  car. (Analyze Jerry's negligent entrustment)

ii.  Matt drove outside the scope of Jerry's permission. (Analyze  effect of Matt's

     conduct on Jerry s potential liability for negligent entrustment)

iii. Matt’s driving injured Plaintiff. (Analyze whether Jerrys negligent act actually and

  proximately caused the injuries, or whether Matt s conduct beyond the scope of

      permis­sion was the actual and proximate cause)

Step 3 (Break theory into elements, number them) and Step 4 (Execute IRAC-style    analysis) on first event

(Descriptive Subheading)

Jerry's Potential Liability for

Negligent Entrustment

(First Event = First Issue)

The first issue is whether Jerry committed the tort of negligent entrustment when he allowed Matt to drive his car, knowing that Matt had a previous conviction for drunken driving.

(Elements of cause of action; numbered)

Under [this state's] law, a car owner is liable for "negligent entrustment of a dangerous instrumen­tality" if the owner entrusts his car to a driver, when the owner (1) knows or has reason to know, either (2) that the driver is intoxicated or (3) that the driver is incompetent to drive. [Cite law]

(Quickly dispense with element 2)

Element (2) of the negligent entrustment theory does not apply here because there is no evidence that Matt was intoxicated when Jerry entrusted the car to him.

(Elements I & 3 - knowledge of incompetence)

Elements (1) and (3) of negligent entrust­ment might apply because Jerry did know that Matt had previously been convicted of drunk driving.

(The general rule on element 3 — incompetence)

Courts have held that just because a person has a prior drunk driving conviction does not render him an "incompetent driver" in this context. [Cite cases]

(Set up the case analogy)

In P. v. S, the parents of the driver knew of the driver's three previous accidents in the previous two years, yet allowed the driver to use their car again. [Cite] That Court held the driver's record did not rise to the level of "habitual reckless conduct," so the parents did not have knowledge that the driver was "incompetent." [Cite] Similarly, the Court in L. v. H, held that a single prior traffic violation is insufficient evidence of driver incompetence as a matter of law.

(Compare the analogous cases to the present facts)

Here, Jerry had less knowledge, and less reason to believe the driver to be incompetent, than did the owners in P. v. S. Jerry knew of only a single prior conviction, which is insuffi­cient proof of incompetence under L. v. H.

(Conclusion)

Therefore, at the time he let Matt use the car, Jerry likely did not commit negligent entrustment.

 

 

TYPES OF LEGAL LOGIC

Logical   Deduction   and   Reasoning   by Analogy   are   the   two   most   persuasive techniques in legal analysis.

LOGICAL DEDUCTION

1. Occurs in a legal analysis whenever you identify or classify something, and thereby show whether it falls inside or outside a given category

2. Example of logical deduction:

Statute 2.2 forbids bringing "pets" aboard an airplane. [Cite] Bob's cats and canaries are all pets under the law, because companion Statute 2.3 defines pets to include "common household animals including dogs, cats, and all birds (except poultry)." [Cite] As Bob's animals fall within Statute 2.3's list, Statute 2.2 forbids bringing Bob's animals aboard.

REASONING BY ANALOGY

1. Explains how the legal result in a different case should apply to the facts of the present case

2. An analogous case involves things that are similar to the present case, such as similar (1) physical facts or events, (2) relationships among the parties, (3) legal principles, or (4) notions of fairness

3. Analogous cases can show upper and lower limits, such as (1) how bad conduct has to be to amount to "extreme and outrageous," or (2)  how much performance of a contract constitutes "substantial performance," or (3) how much and what type of circumstantial evidence is necessary to prove a person's "intent"

4. Example of reasoning by analogy to a case: Statute 2.2 forbids bringing "pets" aboard an airplane.[Cite] In Rex v. State, the Court held that a frog was not a "pet" under Statute 2.2. The Rex Court reasoned that the term "pet" referred to any animal, warm or cold blooded that was commonly kept for companionship, but frogs are not "companionable." [Cite] Bob's piranha is a cold-blooded animal, and like a frog is not "companionable." Applying Rexhere. Bob's piranha is not a "pet" under Statute 2.2. Therefore, Statute 2.2 does not prohibit Bob from bringing his piranha on an airplane.

TIP: Do these examples seem simple and obvious to you? They are obvious to you now, because you have seen the logic explained clearly here. You must do the same for your readers (lawyers, professors, judges):  show every step of the logic. Do not skip any logical step just because you think it is too simple and obvious.  Make your reasoning obvious by showing every step.

 

 

FINAL TIPS

EVERY LEGAL MEMO MUST:

1. Address question asked in Issue section.

2. Discuss both sides of points in dispute.

3. Take a neutral tone.

4. Cite law for every legal point.

TEN  STEPS TO  BETTER  LEGAL MEMOS

1. Verify spelling, grammar, punctuation.

2. Use active voice throughout.

3. Every sentence should advance the reader's understanding.

4. Delete legalese; define legal terms.

5. Avoid nouns or adjectives that were created from verbs; change to verb forms: (reach an agreement => agree; make an objection => object; is probative of => proves).

6. Never leave pronouns such as "this," "that," "those,"  or "them"  standing  alone  in  a sentence;  always  state the referent:   "this holding," "that car," "those plaintiffs."

7. Use concrete words, not abstract ones: "car" (not "vehicle") " left" (not "exited").

8. Minimize the number of negative words in each sentence (e.g., absence, fail, deny, lack, omit, not, no, non-, never).

9. Never say "clearly," "obviously," "without question,"  etc. (unless quoting a legal authority).

10. Eliminate all first person pronouns: I, me, my, we, us, our.

RED FLAGS

These indicate possible problems with a sentence's clarity, logic, length, or legal or factual support

1. Vague connectors: "as to," "in terms of," "in relation to," "relating to"

2. Sentences that start with "While," "Inasmuch as," "Although"

3. The phrase "in other words"

4. Terms of personal conviction: "clear," "clearly," "obvious," "obviously," "undoubt­edly," "presumably," "certainly," "without question"

5. Sentences that contain more than two of any of these connectors: "which," "but," "but only,"  "nevertheless,"  "though,"  "while," "although,"  "except,"  "unless,"  "notwith­standing"

 

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PLAIN ENGLISH TABLE

Word/Phrase ……………….. Replace With

accordingly....................................... so

adequate number.............................. enough

advise............................................... tell, recommend

afford an opportunity........................ let

anticipate.......................................... expect

approximately................................... about

acquire............................................. get

adjudicate......................................... decide

along the lines of.............................. like

ascertain........................................... find out, learn

assist................................................ help

as to................................................. about, on, of

at that / this point in time................. then / now

at the present time............................ now

at the time........................................ when

be benefited by................................. benefit from

be determinative of........................... determine

be dispositive of................................ dispose of, finish

benefit.............................................. help

by and between................................ between

by means of...................................... by

by reason of...................................... because of

by virtue of....................................... by, under

close proximity.................................. near

commence........................................ begin

communicate.................................... write, tell, talk

compensate...................................... pay

complete........................................... fill out

consequence..................................... result

contiguous to.................................... next to

covenants (noun & verb)................... promises

demonstrate..................................... show, prove

despite the fact that.......................... although

due to the fact that........................... since, as, because

during the time that.......................... during, while

effect (verb)..................................... make, cause

elect................................................. choose

endeavor (verb)................................ try

ensue............................................... follow

excessive number............................. too many

exhibit.............................................. show, display

file a motion...................................... move

for the period of................................ for

for the purpose of............................. to

for the reason that ........................... because

forward (verb)................................... send, mail

from the point of view....................... from, for

furnish.............................................. send, give

give consideration to......................... consider

hence............................................... so, thus

has the capability.............................. can

however............................................ but

identical............................................ same

implement......................................... carry out, do

in the event that............................... if

in the nature of................................. like

in the near future.............................. soon

in view of the fact that...................... as, since

in accordance with............................ by, under

in addition........................................ also

in an effort to.................................... to

in cases which................................... when, where, if

in connection with............................. with, about, concerning

in favor of......................................... for, favoring

in lieu of........................................... instead of

in order to......................................... to

in relation to..................................... about, concerning

in so much as.................................... as, since, because

in terms of........................................ in, by, with [or rephrase entirely]

in the case of.................................... when

inasmuch as...................................... as, since

inception........................................... start, beginning

incumbent upon................................ must

indicate............................................. show, explain, say, testify

insufficient........................................ not enough

is able to........................................... can

is applicable...................................... applies

is binding upon................................. binds

is entitled to...................................... may

is required to.................................... must

locate................................................ find

location............................................. place

made and entered............................. made (or entered)

make contact with............................. see, meet, talk to

make reference to............................. refer to

nevertheless..................................... but, however, even so

notwithstanding the fact that............ although

numerous......................................... many, most, several, [est. count]

observe............................................. see, watch, look at

on the basis of.................................. by, from, because of

on the part of.................................... by

personnel.......................................... people, persons, staff, employees

presently........................................... soon, now

prior to.............................................. before

provided that.................................... if, unless

pursuant to....................................... under

relating to......................................... about, on, [or a specific connector]

said (as an adjective)........................ the, this, that, it [or actual name]

state (verb)....................................... say

subsequent(ly)................................. later, next

subsequent to................................... after

sufficient.......................................... enough

terminate (non-legal usage).............. stop, end

The reason...is because..................... The reason...is that (or rephrase)

this is a topic that............................. this topic

time period........................................ time

to be sure......................................... of course

transpire........................................... happen

transport........................................... bring, send

under the provisions of..................... under

until such time as.............................. until

utilize/utilization............................... use

viable................................................ workable, possible

whereas............................................ as, since

with a view to.................................... to

with reference to............................... on, about, concerning

with regard to................................... on, about, concerning

with respect to.................................. on, about, concerning

witnessed......................................... saw

 

Delete these entirely

 

Aforementioned................................ Therein

Herein............................................... Whereas

Hereinbefore..................................... Wherefore

Hereinafter........................................ Whereof

Hereunto........................................... Witnesseth

insofar as...is concerned

Know all men by these presents

Now therefore

 

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Bob Hurt            Blog 1 2 3   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
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2 comments:

HAR said...

Your comments make a lot of sense . perhaps we could talk in person.i have dealt with 2 of the cookie cutters and i am disappointing to say the least.

Bob Hurt said...

contact me through http://bobhurt.com