You do not have good chances of success at a Motion to Dismiss under the circumstances. A Motion to Dismiss tests the sufficiency of the pleadings. The Court is supposed to accept as true any well-pleaded allegations in the complaint. If there is a dispute about facts, those would have to be resolved at either a Motion for Summary Judgment (after discovery is completed) or after trial.
Affidavits and other evidence that are outside of the pleadings (the Complaint and/or the Answer) are not permitted to be considered on a motion to dismiss. You can and should develop your case further through discovery, request for documents, interrogatories, request for admissions, deposition testimony. After this is completed you can notice the case as being ready for trial or file a motion for summary judgment if there are no disputed issues of fact.
This is a great time to hire a competent attorney to address these issues for you, because the rules of civil procedure and evidence will either be your friend or your foe.
While the information provided may deal with legal issues, it does not constitute legal advice. If you have specific questions related to your legal concern, you are encouraged to consult an attorney who can investigate the particular circumstances of your situation. The law is rapidly changing, and as such I do not warranty or guarantee the accuracy of this information until after a thorough legal analysis that addresses your specific concern.
Believe it or not, it is OK to stamp an endorsement. But the person using the stamp must be the person on the stamp, and how you would prove otherwise is beyond me.
Fraud on the court is a special animal and is generally applied where the perpetrator used fraudulent means to acquire jurisdiction of the court or prevent a fair hearing in acquiring the jurisdiction. The fraud is on the court, not you.
You need an attorney and should have had one before you had the documents examined. There is more to this case then you have explained in your post and the only legitimate direction that anyone can give you is to hire a competent attorney. You should strategize this case with a realistic end goal and an exit strategy, if necessary.
Jerry Solomon, Esq.
Law Office of Gerald Solomon, PA
By answering this question I am not becoming your attorney, nor am I tendering legal advice. Foreclosure cases are complex and require a full review of the facts before any attorney can answer legal questions specific to the case.
How could your expert possibly know that the original note was endorsed after the summons was issued? Did he reach this conclusion because the copy of the note attached to the original complaint did not have the blank endorsement of the later-filed original promissory note? Using a scanned copy of the original promissory note without endorsements as an exhibit to a complaint is sloppy paperwork and used to be common practice, and it may give rise to legitimate defenses, but fraud on the court is not one of them. You may be surprised at how unimpressed your trial court judge is with your expert's affidavit when it comes before the court. If the original note has been filed a summary judgment hearing is probably coming up shortly.
Contact experienced foreclosure defense counsel to help you defend your case and guide you to your best outcome while you still have time.