Monday, February 08, 2016

See Jury Instructions for Causes of Action and Elements

Students of law might appreciate the lesson from the dialogue below.

The other day while studying post-Jesinoski opinions regarding TILA rescission, I kept seeing borrowers making what seemed like scatter-brained allegations and legal conclusions in order to stave off foreclosure.  Yes, it SEEMS scatter-brained in retrospect.  I felt like a Monday Morning quarterback like analyzing all the things the losing team did wrong (HOW ABOUT THAT BRONCOS DEFENSE in Superbowl 50!?).  The losing players thought they did the best they could, but clearly they had not adequately trained or planned for the contest they lost.

As with the football game analysis, I wondered how the losers in the court case could have prepared better to win.  At least they shouldn't have written such garbage pleadings, shouldn't they?

This question brought me face to face with the difficulty many litigants have of properly defining the causes of action in their lawsuit, along with the elements and associated facts in support.  And even more importantly, how can they determine in advance that the court will have jurisdiction over the issues?

I wrote to law mentor and litigation consultant Storm Bradford of Mortgage Fraud Examiners.  He responded with the terse explanation you see below my comments on the Cox opinion.  Then he called me to clarify, and guided me to a state court web site for examples, which I shall share below.

Cox had declared bankruptcy, then sued for rescission and a variety of other related things.  The court dismissed his causes of action one after the other with an explanation.  Cox had not understood that the bankruptcy trustee had standing to bring some of the causes, but Cox did not.  But Cox failed to partner with the trustee in the lawsuit.  For the remaining issues, Cox just messed up by failing to state facts in support of elements of the causes. 

-------- Original Message --------
Subject: Comment on Cox opinion
From: Bob Hurt <>
Date: Sun, February 07, 2016 11:59 am
To: Storm Bradford


Plaintiff's eighth count aims to cancel each of the notes allegedly recorded regarding Plaintiff's purported debt. To state a cancellation claim, a plaintiff must allege that: (1) there is a reasonable apprehension that the instrument left standing might cause serious injury; (2) the instrument is invalid on its face; (3) the instrument is void or voidable; (4) the instrument was in existence or under the defendant's possession and control when the action was filed; and (5) if the interest is voidable rather than void, that plaintiff acted promptly to rescind. Civ. Code §§ 3412, 3413; Hironymous v. Hiatt,52 Cal. App. 727, 731 (1921). Plaintiff's final count seeks to quiet title to the Property.
Defendants argue that Plaintiff has failed to state either claim because she has not alleged that she has tendered the full amount owed. MERS Mot. at 16-17, Old Republic Mot. at 11. "In obtaining rescission or cancellation, the rule is that the complainant is required to do equity, as a condition to his obtaining relief, by restoring to the defendant everything of value which the plaintiff has received in the transaction."Fleming v. Kagan, 189 Cal. App. 2d 791, 796 (1961); see also Karlsen v. Am. Sav. & Loan Ass'n, 15 Cal. App. 3d 112, 117 (1971). Similarly, "a mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee." Miller v. Provost,26 Cal. App. 4th 1703, 1707 (1994); see also Kelley v. Mortg. Elec. Registration Sys., Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009) While, as discussed above, TILA has extended the timing of this common law practice for TILA rescission claims, it continues to govern common law claims.
Plaintiff responds that the tender requirement for both claims does not apply here because the purported loan is already void pursuant to the rescission. While Plaintiff is correct that California courts have held that the tender rule does not apply when the plaintiff alleges the title documents are void, see Cheung, 987 F. Supp. 2d at 980 (citing Fleming v. Kagan, 189 Cal. App. 2d 791 (1961)), this argument belongs to the estate. Accordingly, the Court GRANTS the Motions to Dismiss Plaintiff's eighth and ninth counts with leave to amend.[11]

This last comment dangles like a remaining shoe after the first one dropped.  The judge leaves us to wonder how the bk trustee could possibly succeed with this argument.  To me it seems that the borrower claimed a TILA violation, a timely notice of rescission, and a consequent voiding of the loan documents without tender, and claimed no tender is required when documents are void.  I never read in the law that TILA operates to void documents.

Regarding this opinion, it makes me acutely aware of the importance of READING CAREFULLY the elements to any cause of action, and specifically stating in the complaint each element and a succinct statement of fact showing fulfillment of that element, and in so doing, particularly identifying the actor, the action, the injury, and the resulting damage.

I recall my confusion about how to plead this when writing my first sample complaint about fraud.  I didn't know where to go to find the precise legal definition along with a succinct statement of the elements and an example.  It just did not seem right that I could only find that information by digging through court opinions.  But in common law issues, one has no choice.  Even the definitions in Black's Law Dictionary come from court opinions.

If I ran things, I would insist that the legislature keep a running list of all the causes of action along with the plain definition, the elements, the recent opinions in support, the typical defenses, and supporting citations from relevant court opinions.  In this modern age, I see no reason to endorse judge-made law.  People should be able to look up the law in statute, and not have to scour court opinions for it.  For that reason, the Uniform Law Commission should undertake a project of bringing together a proposed uniform law stating all the statutory and common law causes of action.  People could use it just like they now use the UCC.

-------- End of Message --------

-------- Start of Answer --------
Subject: RE: Comment on Cox opinion
Date: Sun, 07 Feb 2016 16:02:13 -0700
From: Storm Bradford
To: Bob Hurt

The information you're looking for is in the jury instructions, which we discuss in our exam.

- - - - - - - End of Answer  - - - - - -

What?  Jury Instructions?  How would I ever have known that without intimate involvement in trials?

In fact, the criminal laws and many civil laws such as for torts (e.g., see Florida Statutes Chapter 45) describe what elements constitutes an offense or a cause of action.  But for contracts,  the law specifies a statute of limitation (see Florida Statutes chapter 95) and statute of frauds (Florida Statutes chapter 41) and generally not much else.

Florida attorney Marc A Wites wrote a book entitled Florida Causes of Action.  It delineates the causes, the elements, court opinions supporting the elements, and affirmative defenses.  You might enjoy his  chapter on contracts. He has also provided an online subscription for a reasonable annual fee at

You can also purchase Florida Elements of an Action.  Author Patrick McGinley explains its use in this excerpt from the preface:

Likewise, in the courtroom, a successful claim or defense must have all the right elements if it is to succeed. There is a right way and a wrong way to do any task. A lawsuit is no exception. This book is intended to spell out for you the elements necessary to develop your claims and defenses into winners. To that end, I provide the elements of each cause of action with an explanation of those elements as appropriate. I provide an enumeration of possible defenses to each cause of action. Footnotes provide citations to primary sources that support my contentions. Depending upon the assumed needs of each action, I provide a sample complaint, a sample jury instruction, or a list of secondary sources for further research. I hope that this book helps even the busiest lawyers in creating the perfect claim or defense in the least time possible.

Where else could you get the causes of action and elements, aside from court opinions and searching through statutes?

You can find them by studying standard jury instructions. 

Standard jury instructions guide courts and attorneys in writing jury instructions more specific to their case.  Those instructions guide the jurors in determining whether or not the defendant committed the offense or injury.  Therefore they also guide the litigant in preparing the complaint and the defenses to a complaint.  Moreover, many litigants have lost their cases for failure to submit jury instruction proposals that ensure the jury focuses on the right issues or to keep the jury from focusing on the wrong issues.

I provide for you below some links for standard jury instructions in Florida.

Florida standard jury instructions for contract and business cases:

The remaining Florida civil standard jury instructions

Florida civil case standard jury instructions in rtf (word processor) form.

Florida Standard Jury Instructions for Criminal cases

Pattern Jury Instructions for the US 11th Circuit

Orange County Florida Bar Practice Tips for Jury Instructions

You will find similar online references for other states and judicial circuits. 

I give BIG thanks to Storm Bradford for his mentoring. He has helped attorneys in hundreds if not thousands of cases. If you need help with a litigation issue, visit his web site:

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Bob Hurt
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