Are You Just Crying the Blues? What are you asking the Courts to Declare?

Now that more and more parties are coming forth with complaints for Declaratory Relief we need to have a more precise understanding as to what is that we are asking the courts to declare. First, one needs to understand, what is the end result the Plaintiff is looking to walk away with? This is not about Equity. This is about law.

What is the determination of the court that is being sought? Is the determination a viable solution as to the results that you are looking for? These results of the Declaratory Relief Complaint will determine the future actions of the plaintiff going forward. Let us take a look at what is being brought forth in this action. In many cases a determination is needed as to the validity of documentation that was filed onto public record, and that is being challenged, as well as the acquiring of any rights to any claim to title of real property. The courts are needed to make a legal determination as to the legal position of the litigants in the complaint being bought forth. Why, in this writer’s opinion, would you allow another party to exercise a right on your property without lawful authority to do so?

One needs to show facts demonstrating existence of actual controversy relating to legal rights and duties of respective parties as well as:

• Facts which, if proved, will demonstrate invasion or threatened invasion of plaintiff’s legal rights; or failure of defendant to discharge legal duty respecting plaintiff’s rights and will justify exercise of court’s discretion in granting declaratory judgment in favor of plaintiff.
• Citation of statute under which action is brought, when required.
It is putting the complete package together for the court in a proper format that will allow the courts to make a proper ruling. When the complaint is incomplete in stating the correct arguments, facts or statutes, bad rulings are made which turn into bad case law.

A proper analysis of the document or documents that you are disputing is essential along with the proper argument as the courts will not argue for you. If you are going to make a statement back it up with facts and show, with statutes, how it is relevant to the situation at hand. If you are challenging a document that purports to be an Assignment, one of the questions I would ask is: Was the document eligible to be recorded? The purpose of an Assignment is to memorialize the sale of the Tangible Promissory Note and the acquisition of rights. The assignment does not cause the sale.

Be careful as to making no admissions as they will come back and bite you.


Joseph Esquivel
Mortgage Compliance Investigators
Copyrighted© 2014

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