the mistake of alleging what you can't prove and don't need to
Kingsman Funding
I regularly see claims against mortgage holders for various forms of fraud. It is rare to see a defense or a suit that does not allege fraud. Everyone expecting to put together a defense against foreclosure needs to be aware every time you include some form of fraud to be alleged against another party you are probably setting a bar far too high to achieve or prove and even though you may can prove something was wrong with the mortgage or that they don’t own the loan, you will still be demurred or dismissed before your case ever gets to trial because your case does not support a claim for fraud.
You can google the standards to prove fraud in your state and very quickly see what I mean.
In California, fraud must be pled in the complaint specifically. General and conclusionary allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268)
Unlike most causes of action where the "the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)
In a case where misrepresentations are repeated often, the plaintiff must at least allege a representative selection of the misrepresentations sufficient enough for the trial court to ascertain if the statements were material and actionable. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783; Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 and 218.)
Less specificity and particularity is required when the allegations indicate that the defendant necessarily possesses full information concerning the facts of the controversy or “when the facts lie more in the knowledge of the opposite party ...." (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825; Turner v. Milstein (1951) 103 Cal.App.2d 651, 658; Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217.)
§1:21 Misrepresentation
The defendant must have made a misrepresentation consisting of either:
1. An affirmative misrepresentation — the suggestion, as a fact, of that which is not true by one who does not believe it to be true;
2. A concealment or half truth — the suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact; or
3. A false promise — a promise made without any intention of performing it.
§1:22 Material Fact
The misrepresentation must be of a material fact, essential to the analysis undertaken by the plaintiff and such that the plaintiff would not have acted as he did without it.
§1:23 Knowledge of Falsity
The misrepresentation must be made with a knowledge of its falsity or a knowledge of the effect of concealment of a material fact. This element distinguishes intentional deceit from the related tort of negligent misrepresentation.
§1:24 Intent to Induce Reliance
The defendant must intend to induce the plaintiff to alter his or her position to his or her injury or risk. The intent to defraud or deceive is not required; the plaintiff need only prove the defendant’s intent to cause another to alter his position. (fraud in the context of a contract requires the intent to deceive a party to a contract).
§1:25 Justifiable Reliance
The plaintiff must actually and justifiably or reasonably rely on the defendant’s misrepresentation.
§1:26 Causation and Damage
Reliance on the misrepresentation must cause plaintiff damage; misrepresentations without damage do not support a cause of action for deceit. The misrepresentation must be the proximate cause of the damage. The standard of proof requires that the party claiming fraud must prove the elements of the claim. The claim must be proven by a preponderance of the evidence.
In Texas
To prevail in a cause of action for fraud, one must provide sufficient evidence of the elements of fraud,
which are (1) a material misrepresentation was made; (2) it was false; (3) when the representation was
made, the speaker knew it was false or the statement was recklessly asserted without any knowledge of
its truth; (4) the speaker made the false representation with the intent that it be acted on by the other
party; (5) the other party acted in reliance on the misrepresentation; and (6) the party suffered injury as
a result. Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co., 167 S.W.3d 522, 526 (Tex. App.-Fort
Worth 2005, no pet.) (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990)); see
Grant Thornton LLP v. Prospect High Income Fund, 314 S.W..3d 913, 921 (Tex. 2010).
A promise to do an act in the future is actionable fraud when made with the intention, design and
purpose of deceiving, and with no intention of performing the act. Spoljaric v. Percival Tours, Inc., 708 S.
W.2d 432, 434 (Tex. 1986). While a party's intent is determined at the time the party made the
representation, it may be inferred from the party's subsequent acts after the representation is made. Id..
Failure to perform, standing alone, is no evidence of the promissor's intent not to perform when the
promise was made. Id. at 435. However, that fact is a circumstance to be considered with other facts to
establish intent. Id. Since intent to defraud is not susceptible to direct proof, it invariably must be proven
by circumstantial evidence. Id. "`Slight circumstantial evidence of fraud,' when considered with the
breach of promise to perform, is sufficient to support a finding of fraudulent intent." Id. (quoting Maulding
v. Niemeyer, 241 S.W.2d 733, 738 (Tex.. Civ. App.-El Paso 1951, orig. proceeding)).
There is more but I think we can get the point.
The problem is in law, if you allege something that has certain legal requirements to it you must meet those requirements or you loose. It doesn’t matter that you may actually prove enogh to accomplish your defense of the property….you still loose. I have found this out the hard way many times.
The good news is you don’t have to prove an intent to deceive or the who, why, when and where of what happened, in order to show something was done wrong that voids the contract or that the people claiming it don’t own the loan to have a right to enforce it. You just have to show those facts and you can do that without having to allege fraud that you probably can’t prove. If there are questions we will try to answer, Dr Weatherly
On another very important subject let me add something.
Most people don't understand this, but God was in Christ paying for all our sins on the cross and its over and done and finished and He's not angry with us about anything any more.
The Bible says, He is for us, not against us.
He died in our place to purchase us for Himself and if you'll give in to Him, there's nothing He won't be able to do in your life..
I know, I have been with Him for 41 years.
And when we finally leave this world, we'll live with Him forever,
if we belong to Him.
If you need to think about that or you have someone in mind that does, I'll be glad to talk with them. My number again was 662-489-6554. I just wanted you to know that.
Dr. Weatherly
