This court lacks jurisdiction over the subject matter. Extortionate Extension of Credit. Other affirmative defenses include: Unfair lending practices, failure to state a cause of action, unconscionable terms, foreclosing on an active service member, failure to properly invoke the court's subject matter jurisdiction, verification of complaint, statutes of limitations, contributory negligence, assumption of risk, and failure to mitigate damages. Based on this, lenders, or the holder of the note and mortgage, should be sure to review the loan documents and provide borrowers with the required notice of default before filing a foreclosure lawsuit, or risk having the foreclosure lawsuit dismissed. We cannot and do not represent or guarantee a specific result in any given case. Violations of HOEPA. Rule 4:5 - General Rules of Pleading. Of course, a town does not live on spas alone, as much as it would like to do so. . We help people file for bankruptcy relief under the Bankruptcy Code. 6. Failure to Join Indispensable Party. Include a numbered paragraph response for each of the numbered paragraphs of the complaint. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest violated various provision of the Real Estate Settlement Procedure Act (RESPA), which is codified at 12 U.S.C. A 2008 foreclosure action was discontinued by a stipulation dated January 23, 2013, which was so-ordered by the Supreme Court, wherein the parties agreed, inter alia, that: (1) the defendant was served with a copy of the summons and complaint; (2) the defendant would withdraw his motion; (3) the action would be discontinued without prejudice and Luckily, lenders only have to show that they substantially complied with the requirements. Predicate Notices/Conditions Precedent Notice of Default: Plaintiff failed to comply with the requirements for the notice of default in my mortgage loan agreement, a condition precedent to this foreclosure action. If your lender deceived you, acted unfairly, or failed to disclose required information, you may be able to challenge foreclosure because of it. the bank to notify you within a certain amount of time of your delinquency and in a specific manner prior to filing a foreclosure action. 14. With a judicial foreclosure, the foreclosure goes through the state court system, and a judge is required to sign off on the process. For example, in a foreclosure complaint the plaintiff will charge that you haven't been paying your mortgage and they're entitled to foreclose because of that. Defendants are entitled to a full accounting through the master transaction histories and general ledgers for the account since a dump or summary of said information cannot be relied upon to determine the rightful amounts owed. Thus, the Plaintiff was incorrect in stating that all parties to this action are properly before this Court. On April 9, 2008, Barak filed an answer to the complaint. ([T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a separate and distinct default.). Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. An affirmative defense in a civil lawsuit is a fact that defeats or mitigates the consequences of a charge. Roberts v. Roberts, 84 So. Answer and Affirmative Defenses in response to Plaintiff's Complaint for Foreclosure of Mortgage (the "Complaint") and states: ANSWER 1. . Nava basically says yes he can sue on my behalf. The Trustee's Foreclosure Action is Involuntarily Dismissed Following a Non-Jury Trial. It is a long read but fairly self explanatory. This is where your affirmative defense comes in. So how does Kumar Corp. V Nopal Lines help our case? The answer must also be filed at the courthouse. The most complete list of affirmative defenses available in one place: currently 230 separate affirmative defenses. The Plaintiff does not prove that it owns, holds, or has the right to enforce the mortgage. You may schedule a free consultation at any time. In general, you shouldn't admit to any of the allegations or statements unless you know they're 100% correct. Imagine then some random person you dont know walks up to you demanding the $20.00 that you owe your friend. hbspt.cta.load(161513, 'ae6b7cd7-c502-4ee5-a643-cd8deff48953', {}); Our goal is to provide valuable information to help homeowners who are trying to obtain a loan modification or to stop foreclosure. Fraud. Additionally, Plaintiff placed Forced Insurance on the property and is attempting to collect on property taxes, insurance and fees not owed. How to Use the Right Words to Win a Foreclosure Case or Mortgage Fraud Lawsuit, Protecting Personal Health Information from Theft and Fraud, 15 USC1635 triggers and event, not a claim, Failure to Challenge the Identity and Citizenship of the trust can be a fatal defect in foreclosure defense narratives, How to Hire the Right Foreclosure Defense Attorney, Standing to Foreclose and Holder in Due Course with Rights to Enforce, VT Supreme Court Rules Value Must be Given in Mortgage Loan Contracts, PA Supreme Court Opines that Aiding and Abetting a Fraud is a Separate Recognizable Tort Claim, Now You Can Sue New York Mellon For Mortgage Fraud. In Florida, foreclosures are judicial. Created by the Western Allies in 1947, it was run by the U.S . . See Fla. Stat. A plaintiffs' lack of standing at the Usually, mortgage lenders are required by the loan documents to give borrowers notice of default as a condition precedent to bring a foreclosure lawsuit. 3d 1176, 1179 (Fla. 2d DCA 2010) (Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.). You need many more to continue bolstering your argument. Kumar Corp. v Nopal Lines, Ltd was a court case that was ruled in back in 1985. While a defendant may also raise affirmative defenses or file a counterclaim, a defendant cannot use this response as a means to attack the sheriff's . The hiring of a lawyer is an important decision that should not be based solely upon advertisements. foreclosure action, which defense also supports the separately pleaded counterclaim for damages under NY Real Property Law 280-b. In addition to responding to each of the lender's claims, a defendant can assert defenses or affirmative defenses as part of the answer. To fight a nonjudicial foreclosure in court, you'll need to file your own lawsuit. Once the foreclosure complaint is served on the borrower, the borrower will have 20 days to file an answer and assert affirmative defenses (if any). Also, if an HOA improperly records a lien against a property, you might be able to bring a wrongful lien claim against the HOA. Please refresh the page and try again, By clicking "Find a Lawyer", you agree to the Martindale-Nolo. The statute of limitations is an affirmative defense to foreclosure, which means the borrower must bring up the issue in the foreclosure. Pro. Contesting a judicial foreclosure lawsuit by answering the complaint with affirmative defenses can buy you time to pursue a solution like a loan modification. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. If you write that 50% of all homes in Florida are in foreclosure, readers would want to know where you got that number from. The Plaintiff is not registered to do business in the State of Florida and therefore unable to maintain this action and the court does not have jurisdiction. To succeed on this defense, the borrower must show that it relied on the plaintiffs misconduct, and suffered an injury. An affirmative defense wouldn't deny that (though the answer probably would), but it would basically say that it doesn't matter for some reason, like the plaintiff doesn't have the right to foreclose. For instance, the borrowers will be named defendants, along with any lienholders, like second mortgage holders and creditors with judgment liens, that are of record when the suit is filed. To initiate the suit, the lender (the plaintiff) files a document called a "complaint for foreclosure" or "petition for foreclosure" in court. 3d 149, 152 (Fla. 4th DCA 2016) (dismissing foreclosure lawsuit for lack of standing because assignment of the mortgage took place after the foreclosure lawsuit was filed). An example of unclean hands could be if your loan servicer doesn't properly apply your mortgage payments to your loan, and you fall into foreclosure because of it. Lack of Standing These three documents constitute notification of the foreclosure lawsuit. Corp. v. TSE Plantation, LLC, 301 So. A "defense" is a reason why the foreclosure lawsuit should not have been filed in the first place. To the extent that state law would prevent a RESPA Plaintiff is required to suspend litigation until verification of the debt at issue. Again, it would be best to have an experienced attorney help you respond to a foreclosure complaint so you use the right affirmative defenses. 408 (1925), contends that since the note and mortgage involved in this litigation are payable to a business trust, any action on those instruments must be brought by all the members of the trust-not just the trustees.12. Standing is important because it is what the lender should have in order to foreclose. FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) Defendants allege that the Complaint, and each and every purported cause of action contained therein, fails to state facts. You may be able to put the foreclosure action on hold pending court review if you can successfully challenge it with one or more of the following defenses: Mortgage ownership . . Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest are guilty of an extortionate extension of credit pursuant to 687.071(1)(e), Florida Statutes, which defines it as any extension of credit whereby it is the understanding of the creditor and the debtor at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. In this case, Plaintiff and/or its predecessor(s) in interest are guilty of such an extension of credit because at the time of the loan, it was understood that Defendants failure to repay the loan could result in the use of criminal means by the Plaintiff to cause harm to Defendants or others persons, reputation or property, including trespass on Defendants property, perjury, mail and wire fraud, and Racketeer Influenced and Corrupt Organization (RICO) violations, as long as Plaintiff and/or its predecessor(s) in interest thought they would not be caught. An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that partys interest or the interests of another party in the action. An affirmative defense in a civil lawsuit is a fact that defeats or mitigates the consequences of a charge. 21st Mortg. The answer should include responses to each of the claims the lender makes it its complaint. You can further use this situation to your advantage by further arguing it in your affirmative defenses. Defendant hereby disputes the debt and demands that Plaintiff verify the debt in accordance with the Fair Debt Collection Practice Act. Borrowers asserted several affirmative defenses, including, among . Here we reference a previously ruled case to enforce our claim: Kumar Corp. v Nopal Lines, Ltd, et. The plaintiff must also demonstrate that it holds the note and mortgage at the time of the trial. Shahar, 125 So. When a mortgage loan is made, there is a promissory note that is the borrower's responsibility to pay back, and the security interest that the lender has in the property in the form of a mortgage or deed of trust. A foreclosure is either nonjudicial or judicial depending on state law and, in some cases, the particular circumstances. foreclosure, Once you serve and file your summons and complaint, the other side and all those who filed liens may join . Where did this person get a standing claim for the $20.00 you owe your friend? 130, 139 (1855)), where it defined an indispensable party as one whose interest in the controversy is of :such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Although MERS, as original mortgagee, is an indispensable party, Plaintiff did not join MERS in this action. Upon information and belief, Plaintiff and/or its predecessor(s) in interest violated various provisions of the Home Ownership Equity Protection Act(HOEPA) pursuant to 15 USC 1639 et seq. Professional Quiet Title Litigation Package and Foreclosure Defense, BANK CAN NOT LEND CREDIT. al.. The Plaintiff is not registered to do business in the State of Florida and therefore unable to maintain this action and the court does not have jurisdiction. However, if the foreclosing party is not the original lender, it must prove that it is the holder of the note and mortgage at the time of filing the foreclosure lawsuit and throughout the lawsuit, by submitting a note with a black or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note. What to Do With the Answer Summonses are issued for each defendant who's named in the foreclosure lawsuit. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. This time should be used to work out a plan with your lender if you are planning on keeping your home. A good foreclosure attorney will find problems with the lenders foreclosure lawsuit and exploit them to your advantage. Drafting an affirmative defense is a bit more complicated because you need to be very specific as to why they are wrong to try and foreclose on you. The original lender will usually have no problem proving standing. The order and judgment of foreclosure and sale, upon an order of the same court entered December 5, 2017, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, striking the answer and affirmative defenses of that defendant, and for an order of 673.1041.d) The note at issue is not a negotiable instrument as defined under 673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument.e) Therefore Fla. Stat. Mr. Doe suffered damages in justifiable reliance on the representation. Id. Plaintiff does not have standing to bring this action. If you have received a Notice of Default (NOD) or a Foreclosure Notice (Foreclosure Complaint) and you want to know how to respond to the Notice of Default (NOD) or a Foreclosure Notice (Foreclosure Complaint) join FRAUD STOPPERS PMA today because FRAUD STOPPERS has a proven system to help you fight to save your home from foreclosure and sue for mortgage fraud. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING. Lack of Jurisdiction. v. Jacobowitz, the Plaintiff Bank commenced a foreclosure action in June 2013 with respect to a mortgage which had been given to the Defendants. Upon information and belief, Defendants have made all payments required by law under the circumstances; however Plaintiff and/or its predecessor(s) in interest improperly applied such payments resulting in the fiction that Defendants were in default. What Fees Are You Charged in Foreclosure? However, a recent court case makes clear that this defense can be waived if the objection is not made in a timely and proper manner. An "affirmative defense" is a reason why a judgment shouldn't be granted in favor of the lender. This is a reminder that a client's state court foreclosure action must be tended carefully to avoid collision with the doctrines of res judicata, claim preclusion and . Lets say your friend signs a note that says this other guy can take the $20.00 payment on his behalf. There were a total of 12 affirmative defenses made against the plaintiffs claim. 18. R. Civ. Another common defense in foreclosure lawsuits in Florida is the lender failed to provide the required notice of default. Rule 4:5-1. [fa icon="user"] Maxwell Swinney ( Waiver and Estoppel. Upon information and belief, in addition to the facts alleged in the preceding paragraphs, the Plaintiff and/or Plaintiff and/or its predecessor(s) in interest also violated the Unfair and Deceptive Trade Practices Act, F.S. erroneous. These violations provide an extended three year right to rescission and enhanced monetary damages for the Defendants. For example, the complaint will describe the mortgage (or deed of trust), the promissory note, the property to be foreclosed, the default, the amount due, as well as list the defendants and describe their interest in the property. [fa icon="folder-open'] Co., 159 So. This is some of the paperwork they are referring to. Hertz Corp.v. This is especially helpful when trying to get leftover debt waived. There are many different affirmative defenses that can be used when responding to a foreclosure complaint. 3d 294, 295 (Fla. 5th DCA 2017) (Unclean hands may be asserted as an affirmative defense to a mortgage foreclosure action.). defenses may not. The Mortgage clearly states that, MERS is the mortgagee. With mortgagee being synonymous with lender, this statement acts to establish MERS as the original lender, rendering them a necessary and indispensable party to this action. If you want to fight the foreclosure, you have to file an answer to the complaint. 1. Before filing a foreclosure lawsuit, lenders should assess the loan file and history to spot any possible defenses, and take them into consideration when deciding how to proceed in collecting the loan. If you think the plaintiff has not written any part of their cause or causes of action, you can use this defense. As a result, Defendant is entitled to rescind the transaction and elect to do so. We do not pass upon the merits of the affirmative defenses, as that is a matter to be addressed in further proceedings. 718.116(b), 720.3085(2)(c). PNC Bank, Natl Assn v. Smith, 225 So. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. We've helped 75 clients find attorneys today. by failing to make proper disclosures andcommitting intentional predatory lending by including prohibited terms. In order to make sure that you understand all of your rights and responsibilities in a foreclosure action, you should seek legal advice. If you are interested in speaking to a Jimerson Birr lawyer or want general information about the firm, our practice areas, lawyers, publications, or events, please contact us via email or telephone for assistance at (904) 389-0050. with a court trial on equitable issues. Join FRAUD STOPPERS PMA today and get mortgage fraud analysis and the facts and evidence you need to get the legal remedy you deserve at, Address:Birch Tree MO 65438Phone: 800-459-1215Email:, DISCLOSURE: NOTICE OF Copyright 2019 FRAUD STOPPERS, FRAUD STOPPERS PMA. Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. Adding Affirmative Defenses When Responding to a Foreclosure Summons. They used a transport company (Nopal) to transport the TV sets and parts to Venezuela. This means that a lender must file a foreclosure complaint with the court, and the borrower will be given an opportunity to file defenses to stop the foreclosure. 21. Look on the summons to find the court's address. 3d 351, 352 (Fla. 1st DCA 2014) (A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.). Remember, with an answer you are simply admitting, denying, or stating you dont have enough information to admit or deny the allegations. General Requirements for Pleadings (a) Pleadings Allowed. Violation of RESPA. Kumar sued Nopal (the carrier) to recover the monetary loss of the stolen items. If the ownership of your mortgage isn't clear, you may be able delay foreclosure. New Jersey is a judicial foreclosure state, which means that your foreclosure action must be brought before a court. Do Not Sell or Share My Personal Information. This is just a single argument for this affirmative defense. An affirmative defense is a legal defense to the foreclosure action which must be included in the answer. In each of the numbered paragraphs in the answer, the defendant must generally admit, deny, or state that there is insufficient knowledge to admit or deny the allegations for the corresponding numbered paragraph in the complaint. (e) Effect of Failure to Deny. 5. FIRST AFFIRMATIVE DEFENSE: No Standing 11. Each cause of action has certain parts that must be written in the complaint and proved at trial. - All Rights Reserved, Community Advocacy & Social Responsibility, Hiring for Florida Banks and Credit Unions: A Summary of Background Checks and Other Information Required to Comply With Various Regulatory Schemes, Overview of a Trust Beneficiarys Remedies Under the Florida Trust Code for Breach of Trust. All foreclosures in Florida must be brought within five years from the date of default. Plaintiff has failed to join an indispensable party. The first, second and third affirmative defenses pleading lack of standing and failure to provide contractual pre-foreclosure notices are presently still viable based upon the findings supra. THIS SITE IS NOT INTENDED TO BE MISCONSTRUED AS LEGAL ADVICE. This form and instructions are NOT a substitute for legal advice. The Forth District elaborated on this rule in Phillips v. Choate, 456 So. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. 5 As such, it is 462 So.2d 1178, (FLA. 3d DCA 1985). What are the affirmative defenses to a foreclosure lawsuit? This would be a feasible defense if the lender plainly states that they are unable to produce the note. A US company (Kumar) sold TV sets and parts to a Venezuelan company (Nava) with an agreement that they would be paid after the parts were sold by Nava. The lender should not have the ability to foreclose. Complaint. (Affirmative defenses should be placed after your answers to the allegations). FRAUD STOPPERS Foreclosure Traps Pitfalls and Swindles, If you or anyone you know facing foreclosure, or has lost a property to foreclosure, and want to sue for mortgage fraud or foreclosure fraud, FRAUD STOPPERS PMA can help you save time and money and increase your odds of success getting the legal remedy that you deserve. 702.01. A "statute of limitations" sets a deadline for filing a legal action, like a foreclosure. Plaintiff is required to notify Defendant, pursuant to 15 U.S.C 1601, et seq., that Defendant may dispute the debt and Plaintiff is required to provide verisifcation fo the debt. Thus, Bad Aibling cultivated an underground economy for many years, trading in secrets. Moreover, Amoco failed to factually refute the allegations raised by the Knight Entities' affirmative defenses. An action to set aside a trust deed foreclosure is an equitable action in which the parties have no right to a jury trial. If the HOA improperly records the lien or doesn't record the lien at all, you might have a defense to the foreclosure in a state that requires recording. to the foreclosure action because the relevant "safe harbor" provisions in the condominium and homeowners' association statutes provide that the foreclosing lender's liability for past due assessments is capped so long as the association is joined as a defendant in the foreclosure action. On October 2, 2012, the Trustee filed a Complaint against the Borrowers in the Circuit Court for Miami-Dade County, Florida, seeking to enforce the Note and foreclose the Mortgage. If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement. It will also include exhibits, such as a copy of the note and mortgage. You would probably be less worried about giving the new guy the money, right? In Texas, defendants must assert affirmative defenses in their Answer at the beginning of the case or risk not being able to use them later. During the transport everything was stolen. (See Virkhus v. Virkhus, 250 Wis. 90, 95, 26 3d 170, 173 (Fla. 4th DCA 2012). The Bad Aibling Station (BAS), also known as the 18th United States Army Security Agency Field Station, Field station 81, and Hortensie III is a satellite tracking station operated by the German SIGINT agency BND from nearby Mangfall Barracks in Bad Aibling, Bavaria.. If an allegation is admitted, the court will accept it as fact. There shall be a complaint and an answer; an answer to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint pursuant to R. 4:8; a third-party answer, if a third-party complaint is served; and a reply, if an . The doctrine is often stated as those seeking equity must do equity or equity must come with clean hands.. . summons and complaint. If their documents don't show that they did, they can't take your property. Prior to the enactment of Real Property Actions and Proceeding Law ("RPAPL") 1302-a, defendants waived their affirmative defense of standing in a residential foreclosure action by failing to raise that defense in an answer or a pre-answer motion to dismiss. 17. Unclean hands is when the defendant argues that the plaintiff is not entitled to obtain an equitable remedy because the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint that is, with unclean hands. Violation of TILA. As detailed below, the new law provides [] 2d 556, 57 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) 19. Stated differently, each monthly payment that the borrower fails to pay restarts the 5-year clock. by:a) Failing to promptly and/or properly pay taxes or insurance premiums when due, so that the maximum tax discount available to Defendants could be obtained on Defendants property and so that insurance coverage on the property would not lapse.b) Failing to provide Defendants with an annual statement of the escrow account kept for payment of taxes and insurance.c) Failing to properly disclose at or prior to closing all costs, fees and expensesassociated with the loan;d) Charging excessive fees and making payments of fees to parties not entitled to receive them;e) Obtaining a yield spread premium (YSP) based upon the selling of a higher interestrate, and/or non disclosure of the range of interest rates for which Defendantsqualified.f) All such actions by Plaintiff and/or its predecessor(s) in interest are unconscionable acts or practices, and/or unfair or deceptive acts or practices in the conduct of trade or commerce in violation of 501.204, Florida Statutes, and entitle the Defendants to a setoff, recoupment or civil penalty, nominal and actual damages, attorneys fees and costs. This rule requirement is regularly ignored. Standing is important because it is what the lender should have in order to foreclose. Kiefert v. Nationstar Mortg., LLC, 153 So. After you answer each numbered allegation you will have the option to use case law, previous court rulings, and local statues to point out flaws in their foreclosure summons. There was no Assignment of Mortgage attached to the Complaint which alleges to confer any legal rights in the Note and Mortgage. For example, in a foreclosure complaint the plaintiff will charge that you haven't been paying your mortgage and they're entitled to foreclose because of that. The lender will then be able to sell the property. The general rule in equity is that all persons materially interested, either legally or beneficial, in the subject-, To begin, there is nothing attached to the Complaint which establishes that Plaintiff, WELLS BANKER, AS SUCCESSOR TRUSTEE UNDER SUPERSTAR MORTGAGE FUNDING TRUST, SERIES 2010-, DISMISSAL OF COUNT TO REESTABLISH PROMISSORY NOTE. 2d 297, 299 (Fla. 3d DCA 1982)(An indispensable party [is] one without whom the rights of others cannot be determined.). Learn How to Control Lawyers and Judges and Win Your Case. Quiet Title.Plaintiffs request this Honorable Court to enter its judgment against Defendants declaring the Mortgage, null and void; canceling the Mortgage of record; quieting title to the property owned by Plaintiffs and against Defendants and all persons claiming under Defendants; and granting costs of this action and such other relief as the Court may deem proper. Going Through Probate and Avoiding Foreclosure On An Inherited House. Nopal argued that Kumar did not have standing to sue because there is a Florida statue that says the risk of loss or damage as passed to the buyer (Nava) after items are sold. We go on to define what standing is: Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. Because the prosecutor or plaintiff has the burden of proving his case, a defendant can use a negating defense to bring .