Aside from the jurisdiction of the non judicial foreclosure (there are ways to include these concepts in a power of sale counter complaint) it should be noted that a lenders failure to state a claim is prevalent for reasons the note was destroyed. This is common place in a lenders response to a foreclosure counter-claim. It is held as a affirmative-defense.By this it is meant the Defendant has every right to argue his case in a civil suit.
In most jurisdictions, it is not necessary to allege failure to state a claim as an affirmative defense. Some courts say it is a unwaivable” defense, others say it may be raised for the first time on appeal. Most lawyers include it anyway because they want to be accused of having waived something that is unwaivable.
There are a variety of things to remember in a motion that cites failure to state a claim . Herein the general rule in sufficiency for arguments and filing a competent complaint is the failure to state a claim. It is held with merit the cause for the complaint not sustaining movants motion .
What is appropriate to subject matter cannot be dismissed where it appears meritable or not beyond doubt that the Plaintiff can prove it set of facts in support of his claim. hence he otherwise would be granted as entitled relief”. The failure to state a clam can arise with a failure to state a specific law or civil procedure. The pleading may also fall victim to the failure for satisfying the courts interpretation for sufficiency meaning the evidence to prove the case.
In these mortgage controversy are the following factors:
Some jurisdiction hold there must be evidence of an outstanding debt. Upon demonstrating no demand as alleged in the complaint, the prayer will fail for lack of support to adequately state a claim for which relief may be provided.
In so much as relief cannot legally be afforded under the circumstances, the complaint fails in stating its claim. Herein is where a plaintiff sued a creditors under the filing that fails to properly state a claim as the FDCPA does not apply to original creditors, only collection agencies
Where plaintiff claims stated the defendant entered into a contract with them and therefore constitutes a breach , the suit is attacked citing where the defendant broke that contract. In so much as the lost note is a statutory requirement for instance of fraud held under dual consideration , no copy of the contract can be provided, least to say enforceable upon a lost note affidavit.
Furthermore, no was proof included will demonstrate a defendant entered into this contract. The arguments satisfy the counter claims for “failure to state a claim” criteria
It’s advisable your answer include the complaint fails to allege the terms of any contract as no contract is attached. Therefore , it does not properly allege that you assented to its terms.
Not attorneys and provided as informational and for research purposes only. ** NOT BINDING OR HELD RESPONSIBLE FOR CONTENT MATTER ** Do not rely on information concerning property rights before you consult an attorney. Call your local Bar for attorneys in your area.