Prima Facie Case and Burden of Proof

In Court, a prima facie case is, in plain English, the completion of a party’s burden of proof. That means if you are seeking AFFIRMATIVE relief from the Court, then you have the burden of proving your case. In order to prove your case you must present evidence. Your evidence must conform to the legal requirements or elements of your lawsuit. So for example if you want to prove a case for damages, you must prove a duty, breach of duty and damages related to the breach of that duty. If you want to prove a case for breach of contract, then you must prove up the contract, the breach of the contract and the damages from that breach. If you are seeking to have the court make the other party do something, like pay you damages, then you are seeking affirmative relief.

In judicial states, there is no issue of who has the burden of establishing a prima facie case. In non-judicial states the issue is muddled because the borrower is required to file a lawsuit even  though it is the “lender” or “creditor” who is seeking affirmative relief. For reasons expressed below, it is my opinion that the prima facie burden in ALL states lies with the the party presuming to be the “lender” or “creditor.” So in all situations in all courts, federal or state, bankruptcy or civil, the burden is on the party seeking to enforce the note or foreclose on the property because when all is said and done, the party actually seeking affirmative relief is the party seeking to recover money or property or both.

Legally, tactically and strategically, it is a mistake and perhaps malpractice to ignore this point because it is at the threshold of the courtroom that the case might be won or lost. If you ignore the point or lose the argument, you are stuck with going beyond the simple position of the homeowner — denial of the claim of the opposing party. Even the petition for temporary restraining order should be translated as the homeowner’s denial of the claim of of the “creditor” and a demand that the creditor prove up its claim.

In other words, once a homeowner denies the claim, the case automatically becomes judicial simply because the parties are in court. At that point the court must adjust the orientation of the parties such that the party claiming affirmative relief becomes the plaintiff and the homeowner becomes the defendant notwithstanding the initial pleading that brought them into court.

The essential legal question is first, what is the prima facie case, and who has the burden of proof? The party seeking affirmative relief is the party seeking to enforce the note and deed of trust (mortgage). That would be the beneficiary under the deed of trust and the party to whom the note is payable. The note is payable legally and equitably to the investors if the securitization of the note was successful. The beneficiary is also the investors, making the same presumption. The party seeking negative relief (i.e., seeking to avoid the enforcement) is the homeowner who may or may not be considered a “borrower” or “debtor” depending upon the outcome of a presentation of facts that include an accounting of ALL receipts and disbursements related to or allocable to the specific loan in question.

It is obvious that in plain language, the party initiating a non-judicial sale is seeking affirmative relief and that in cases where there is an adversary judicial proceeding, the homeowner wishes to deny the claim of the creditor. In non-judicial states where the sale is essentially a private sale NOT based upon judicial proceedings, the mistake made by judges and lawyers alike is that they become confused by the fact that homeowner brought the suit to stop the sale.

That homeowner lawsuit is actually in substance no more than a denial of the claim by the alleged beneficiary under the deed of trust. In practice, the error is compounded by making the homeowner prove a “case” based upon the homeowner’s denial. In effect, this practice presumes the existence of a prima facie case by the alleged creditor or beneficiary, which is a denial of due process. Due process means that first you make a claim, second you prove it and ONLY AFTER the claim and the proof does the opposing party have ANY obligation to offer ANY proof.

Further compounding this error in process, many such states have rules that prevent the homeowner from contesting an eviction (unlawful detainer, writ of possession) even though that is the FIRST TIME the case has been in court. In effect, the Court is making the presumption that legal process has been completed, and giving the Private Sale the status of a judicial order — and then inappropriately and without realizing it, applying the doctrine of res judicata or collateral estoppel in a case where there was no other proceeding, order, adversary hearing or any hearing on law or fact.

Therefore, in my opinion, the party who must establish a prima facie case is the party assuming the position of “creditor” or substitute lender, notwithstanding the apparent orientation of parties in the pleadings. Or, the prima facie case of the homeowner would consist of a denial that the opposing party is a creditor or that any money is due or that a default has occurred. Thus the burden would shift to the party actually seeking affirmative relief anyway. The prima facie case for the party seeking affirmative relief would require the following elements:

  • Establishment of the originating transaction
  • Establishment of chain of title as to homeowner
  • Establishment of chain of title as to obligation
  • Establishment of chain of title as to note
  • Establishment of chain of title as to deed of trust or mortgage
  • Establishment of chain of securitization documents
  • Establishment of acceptance of subject loan into each successive loan pool
  • Establishment of true party in interest and standing
  • Establishment of 1st party payments
  • Chain of 1st party payments step by step to the true party in interest
  • Chain of 3rd party payments step by step to the true party in interest
  • Establishment of allocation of 3rd party payments and receipts to subject loan
  • Accounting for all receipts and disbursements from all sources
  • Establishment of default date
  • Establishment of current status of the loan
  • Establishment of balance due
  • Establishment of encumbrance and status
  • Allocation of encumbrance to the property (if encumbrance covers future payments other than principal and interest — like taxes and insurance payable to 3rd parties, then the court must allocate a monetary value to the encumbrance for the benefit of the beneficiary)

The above elements would only be satisfied by the Court’s acceptance of testimony and documents with adequate foundation to be admitted into evidence. It would require actual persons with actual knowledge based upon personal observation, participation or experience with whatever aspect of the transaction is within the scope of their direct examination proffered by the party seeking affirmative relief. By virtue of the confusing panoply of documents, events and facts applicable to a securitized loan, it is my opinion that no legal presumptions would apply with respect to the obligation, note, encumbrance or default.

Hence, non-payment by the payor shown on the note would not give rise to the presumption of a default because of the explicit reference to third party payments, insurance and credit enhancements in the securitization documents. The party seeking affirmative relief would be required to proffer the testimony of a competent witness (probably someone from the investment banker that created the securitization chain and/or someone from the trading desk of the investment bank) that would provide a record and status of third party payments, receipts and disbursements allocable to the loan pool in which the subject loan was securitized. Failure to do so would lead to the conclusion of a failure of proof, or, in the court’s discretion, requiring the homeowner to cross examine each witness offered by the party seeking affirmative relief with the following question: “So you don’t know whether any third party made payments that would offset losses or principal in the loan pool, is that right?”

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40 Responses

  1. Alina:

    These cases still do not comport with your statement: “In Florida, the statutes are guidelines and case law always takes precedence.” We’ll have to agree to disagree on this point.

    I agree, one of the purposes of the courts is to help define and/or make clear any ambiguity within a statute, therefore technically one could always say that “case law always takes precedence.” However, it is a tenet of statutory construction that the legislature is supreme, and that the court is merely an interpreter of the law.

    Don’t think for a second that I don’t believe there is some judicial activism going on out there, but where i disagree, if a statute is clearly unambiguous the courts must stay out of it. Every piece of case law out there, in every state of the union, basically says the same thing: “[i]t is a fundamental principle of statutory construction that where a statute is plain and unambiguous there is no occasion for judicial interpretation.”

  2. Hi,
    I am trying to find a form or some info on filing for a Temporary Restraining Order against my lender.

    The servicer sent me a letter saying they plan to change the locks on my house, because it is vacant.

    The home is not vacant. It doesn’t even look vacant or abandoned. I don’t know how they arrived at that conclusion.

    When I contacted them, they said that they have the right to inspect and go into my home at any time.

  3. storm,

    Great intellectual discourse – however, the case you quoted continues as follows:

    “we agree with Jenkins that statutory construction is required because although the written notice requirement of subsection 448.102(1) is clear and unambiguous, subsection 448.103(1)(c) creates an ambiguity requiring statutory construction as to whether that written notice requirement extends to all whistle-blower claims.

    The first principle of statutory construction is that legislative intent must be determined primarily from the language of the statute. See McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). The preface to Florida Statutes provides that “a cross-reference to a specific statute incorporates the language of the referenced statute as it existed at the time the reference was enacted.” Preface at VIII, Fla.Stat. (1995); see Van Pelt v. Hilliard, 75 Fla. 792, 808-09, 78 So. 693, 698 (1918). We have also stated that related statutory provisions should be read together to determine legislative intent, so that “if from a view of the whole law, or from other laws in pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature.” Forsythe, 604 So.2d at 454 (quoting Van Pelt, 75 Fla. at 799, 78 So. at 695).”

  4. Alina:

    Actually, that was a quote from the Supreme Court of the United States.

    Here is what Florida has had to say as well:

    “[i]t is a fundamental principle of statutory construction that where a statute is plain and unambiguous there is no occasion for judicial interpretation.” Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla. 2000) (alteration in the original) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992)).

    Nonetheless, I agree with your final comment 1000%: “Bottom line, know your state, its case law and its statutes. Do your research.”

  5. storm,

    That’s federal case law you cited. Federal courts like GA courts rely on strict statutory interpretation. It was a culture shock for me to go from GA to FL where the statutes are more guidelines. Florida case law is based on loose interpretations of the statutes. Two judges looking at the same case will rule differently. That’s why I call Florida an esoteric state – everything is open to interpretation.

    GA and the federal courts, however, rule on cases based on strict statutory interpretations.

    I am in Texas now and it’s a whole lot different ballgame. I don’t even want to get into some issues with cases I’ve had in Cali.

    Bottom line, know your state, its case law and its statutes. Do your research.

  6. Alina:

    I think your in the right church, but the wrong pew.: “[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.” United States v. Ron Pair Enterprises, 489 U.S. 235, 240-41 (1989).

  7. Thanks storm,

    I was alluding to the fact that in some states, if there is a conflict between case law and a statute, the statute wins. Whereas, in other states, case law wins.

    Georgia is an example of a strict statutory state whereas Florida, is a case law state. In Florida, the statutes are guidelines and case law always takes precedence.

    Bottom line – know your state – if you have an attorney, it is their responsibility to know what is controlling in their particular state.

  8. Anonymous,

    I basically disagree with your first paragraph. Because actually, “the legal process is” NOT “complicated” for those that know what they are doing; and your comment: “Another judge may have interpreted the O’Grady case in a different way;” not so, the law cited in O’Grady’s opinion is the law–period.

    Notwithstanding, I do agree with the first sentence of the second paragraph, and the first sentence of the third paragraph, but not the rest. A little thing called the Constitution of the United States Article I, Section 10, Cl. 1 Obligation of Contracts; mostly prohibits any intervention by the legislatures.
    Having said that, the U.S. S.Ct. has on occasion helped the homeowner. See
    Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934.)

  9. Alina,

    Well said, with one caveat. EVERY state is a “statutory” state, case law is nothing more than the courts interpretation of the statute.

    I really like what you said about keeping it simple, that’s dead on point. BTW, that’s what we teach.

  10. Storm

    The legal process is a complicated one – and law is often subjected to interpretation by the judge. You will have law interpreted by one judge one way – and another judge another way. Another judge may have interpreted the O’Grady case in a different way. Thus, many conflicts of law exist . This used to be a direct path to US Supreme Court – but that court often limits the cases it takes (public policy is now also criteria – not just a difference of opinion in District Courts.) Further, little guy rarely gets to US Supreme Court.

    In addition, law is often slow to catch up with financial engineering. Many laws are outdated and financial institutions use that advantage against the little guy. That is why Congress needed to step in from the onset of the crisis and protect the people. They did not. They falsely hoped that financial institutions would voluntarily help the people since they were bailing out the institutions.

    Agree, there seems to be much trial and error in the courts as to legal arguments. And, again, I blame the government for not stepping in. Nothing like this has ever existed in American history.

  11. Storm,

    I agree with you 100%. Everyone should do the required research. This site along with several others give you the baseline to follow. From there, you need to know your own state’s statutes and case law. The cases presented here need to be shepardized to make sure they are still good case law and aplicable in your state.

    What works in one state will not work in another. Some states, like Georgia, are statutory states – meaning that O.C.G.A. prevails whereas in most staes, case law prevails. Additionally, you have to find out if your state is a judicial foreclosure state or non-judicial.

    I like to stress the fact that you should keep it simple and keep to the facts of your particular case. ANALYZE the documents filed, research case law for your state (courts like it when you give them local case law), research the issues as it pertains to your case, etc.

    Not every case has the same issues nor is every state or even every jurisdication the same.

    Knowledge is power.

  12. Hi Anonymous,

    I agree, but the reason we’re losing is because of all the legal speculation being promoted. You have attorneys who allegedly “get it” going into court with arguments that have no factual or legal basis. Conversely, the ones that know the law are making cogent legal arguments and prevailing; the others are CREATING bad case law for the rest. That’s why I’m adamant about making sure whenever statements are made by an alleged guru, or anyone else for that matter, take it for checking, do not blindly follow it.

    The part I disagree with is, it is “hit and miss with a judge.” In Ruggia, Judge O’Grady backed up his opinion with LAW, not theory or speculation. The law is what it is, O’Grady didn’t make up the law, he just spanked the plaintiff’s attorney with it.

    It literally makes my skin crawl to see these specious arguments in complaints being filed across the country. We know of one attorney who allegedly “gets it,” that has filed about 60 odd cases with the same arguments the attorneys in the Ruggia case made; that’s going to be over 60 instances where the homeowner wasted their money, and will still lose their home. I would speculate that there are probably HUNDREDS of others that have been filed or are being filed. Not only is that outrageous, it’s also an ethics violation to test out legal theories on unsuspecting homeowners, subjecting these attorneys to bar complaints and law suits for malpractice and disgorgement of fees.

    The courtroom isn’t some laboratory where one gets to experiment; it’s a battlefield where words are bullets on paper, and if you don’t have the bullets, (facts, law and procedure) you die!

  13. Look, Storm, why do you continue to run at me?

    Anyone who can’t see that 44-14-162 and 44-14-162.2 is similar enough to each other that a typo is possible simply wants to argue. I’m not doing it with you. On TOP os which the verbaige I provided IS the correct verbiage. Whatever problems you have with me, you really should just get past it. You claim to want to “help” but you’re trying to lead people astray.

    In addition, you’re quoting a NY ruling and I’m quoting GA law. Both control in their respective states.

    Had you paid ATTENTION, you would have noted that I clearly stated that MANY home in GA have been foreclosed upon without regard to the statute I quoted. I am working with an attorney to help rectify that now.

    Additionally, I have PERSONALLY helped THREE homeowners who will be able to quiet the title and get their houses free and clear using this one law and the knowledge around a certain mortgage company that has been shutdown for years.

    Anyone can email me and I’ll show you how it was done. I have nothing to hide. Anyone can look up the public records in GA and I’ll point you right at the names of the owners and the mortgage company.

    What have YOU done?

  14. There’s more than one way to attack the prima facie case though—here’s a good example of a nice result from attacking the assignment…

    This NY decision lays out the legal reasoning for dismissing cases for problematic assignments:

    Decided on April 19, 2010
    Supreme Court, Kings County
    The Bank of New York, as trustee for the benefit of the
    Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff,
    against
    Sameeh Alderazi, Bank of America, NA, New York City Environmental Control
    Board, .
    Plaintiff submits anet al

    Upon reading the Affirmation of Linda P. Manfredi, Esq., counsel for the
    Plaintiff, dated November 20, 2008, together with Plaintiff’s Memorandum of
    Law, dated November 19th, 2008, together with the proposed Ex Parte Order
    Appointing a Referee to Compute, and all exhibits annexed thereto, the
    application is denied without prejudice, with leave to renew upon providing the
    Court with proof of the grant of authority from the original mortgagee to
    MERS specifically to act in its interest as related to the secured loan
    which is the subject of this action.
    Plaintiff seeks summary judgment to foreclose upon the property located at
    639 East 91st Street, (Block 4751, Lot 31), in Kings County.
    In order to establish prima facie entitlement to summary judgment in a
    foreclosure action, a plaintiff must submit the mortgage and unpaid note,
    along with evidence of default. Capstone Business Credit, LLC v. Imperial
    Family Realty, LLC, 70 AD3d 882
    , 895 NYS2d 199 (2nd Dept 2010). The Second
    Department has also required a showing that the mortgage was valid. Washington Mut.
    Bank, FA v. Peak Health Club, Inc., 48 AD3d 793
    , 853 NYS2d 112 (2nd
    Dept.2008).
    In this case, Defendant Sameeh Alderazi borrowed $408,000.00 from
    “America’s Wholesale Lender” on January 25, 2007. The mortgage was recorded in the
    Office of the City Register, New York City Department of Finance on
    February 14, 2007. MERS was referred to in the mortgage as nominee of the
    mortgagee, America’s Wholesale Lender, for the purpose of recording the mortgage.
    MERS purported to assign the mortgage to Plaintiff BANK OF NEW YORK on
    July 23, 2008. The assignment was recorded on September 19, 2008. The
    assignment was executed by “Keri Selman, Assistant Vice President of MERS, as
    “authorized agent pursuant to Board of Resolutions and/or appointment”. However,
    no resolution nor other proof of authority was recorded with the
    assignment or submitted to the Court.
    A party cannot foreclose on a mortgage without having title, giving it
    standing to bring the action. (See Kluge v. Fugazy, 145 AD2d 537, 538 (2nd
    Dept 1988 ), holding that a “foreclosure of a mortgage may not be brought by
    one who has no title to it and absent transfer of the debt, the assignment of
    the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 AD2d 243
    (1st Dept 1998), holding that “[p]laintiff’s attempt to foreclose upon a
    mortgage in which he had no legal or equitable interest was without foundation
    in law or fact”.
    “To have a proper assignment of a mortgage by an authorized agent, a power
    of attorney is necessary to demonstrate how the agent is vested with the
    authority to assign the mortgage.” [*2]HSBC BANK USA, NA v. Yeasmin, 19 Misc
    3d 1127(A), 866 NYS2d 92 (Table) N.Y.Sup.,2008. “No special form or
    language is necessary to effect an assignment as long as the language shows the
    intention of the owner of a right to transfer it”. Emphasis added, Id.,
    citing Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 (1st
    Dept 1996); Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612
    (2nd
    Dept 2004).
    The claim in this case is that the mortgage was assigned by MERS, as the
    nominee, to the Plaintiff. However Plaintiff submits no evidence that
    America’s Wholesale Lender authorized MERS to make the assignment. MERS submits
    only its own statement that it is the nominee for America’s Wholesale
    Lender, and that it has authority to effect an assignment on America’s Wholesale L
    ender’s behalf.
    The mortgage states that MERS is solely a nominee. The Plaintiff, in its
    Memorandum of Law, admits that MERS is solely a nominee, acting in an
    administrative capacity.
    In its Memoranda, Plaintiff quotes the Court in Schuh Trading Co., v.
    Commisioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which
    defined a nominee as follows:
    The word nominee ordinarily indicates one designated to act for another as
    his representative in a rather limited sense. It is used sometimes to
    signify an agent or trustee. It has no connotation, however, other than that of
    acting for another, or as the grantee of another.. Id. Emphasis added.
    Black’s Law Dictionary defines a nominee as “[a] person designated to act
    in place of another, usually in a very limited way”. Agency is a fiduciary
    relationship which results from the manifestation of consent by one person
    to another that the other shall act on his behalf and subject to his
    control, and consent by the other so to act. Hatton v. Quad Realty Corp., 100
    AD2d 609, 473 NYS2d 827, (2nd Dept 1984). “[A]n agent constituted for a
    particular purpose, and under a limited and circumscribed power, cannot bind his
    principal by an act beyond his authority.” Andrews v. Kneeland, 6 Cow. 354
    N.Y.Sup. 1826.
    MERS, as nominee, is an agent of the principal, for limited purposes, and
    has only those powers which are conferred to it and authorized by its
    principal.
    In the mortgage in this case, MERS claims, as nominee, that it was granted
    the right “(A) to exercise any or all of those rights, including, but not
    limited to the right to foreclose and sell the Property, and (B) to take
    any action required of the Lender including, but not limited to, releasing
    and canceling this Security Instrument.” However, this language quoted by
    MERS is found in the mortgage under the section “BORROWER’S TRANSFER TO LENDER
    OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by
    the borrower. The fact that the borrower acknowledged and consented to MERS
    acting as nominee of the lender has no bearing on what specific powers and
    authority the lender granted MERS. The problem is not whether the borrower
    can object to the assignees’ standing, but whether the original lender,
    who is not before the Court, actually transferred its rights to the
    Plaintiff. To allow a purported assignee to foreclosure in the absence of some proof
    that the original lender authorized the assignment would throw into doubt
    the validity of title of subsequent purchasers, should the original lender
    challenge the assignment at some future date.
    Furthermore, even accepting MERS’ position that the lender acknowledges
    MERS’ authority exercise any or all of the lenders’ rights under the
    mortgage, the mortgage does not convey the specific right to assign the mortgage.
    The only specific rights enumerated in the [*3]mortgage is the right to
    foreclose and sell the Property. The general language “to take any action
    required of the Lender including, but not limited to, releasing and canceling
    this Security Instrument” is not sufficient to give the nominee authority to
    alienate or assign a mortgage without getting the mortgagee’s explicit
    authority for the particular assignment. Alienating a mortgage absent specific
    authorization is not an administrative act.
    Plaintiff submitted no other documents which purport to authorize MERS to
    assign or otherwise convey the right of the mortgagor to assign the
    mortgage to another party.
    A party who claims to be the agent of another bears the burden of proving
    the agency relationship by a preponderance of the evidence, Lippincot v.
    East River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and “[t]he
    declarations of an alleged agent may not be shown for the purpose of proving
    the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing
    Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky
    Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept
    1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept
    1978). “The acts of a person assuming to be the representative of another
    are not competent to prove the agency in the absence of evidence tending to
    show the principal’s knowledge of such acts or assent to them”. (2 NY Jur
    2d, Agency and Independent Contractors, 26).
    Plaintiff has submitted no evidence to demonstrate that the original
    lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the
    secured debt to Plaintiff.
    Thus, Plaintiff has not made out a prima facie case that it is entitled to
    foreclose on the mortgage in question.WHEREFORE, it is ORDERED that the
    Plaintiff’s application for an Order appointing referee to compute amounts
    due to the Plaintiff is denied with leave to renew upon proof of authority.
    This shall constitute the decision and order of this Court.

  15. Meant to say mis-justice – clicked on submit by mistake.

    And, all here are genuinely trying to help – just need to remain open.

  16. HI Storm

    Not sure if you are addressing ANONYMOUS or Anonymous – but I published the O’Grady case – so guess it is me.

    Look, winning any case is hit and miss with the judge. Do not think this case is necessarily over. And, many can learn by it.

    We are up against tremendous power – and we have to use every available tool to attack the fraud. And, it is fraud.

    We are losing, and unless we “redirect” our focus – the losses will continue.

    Need redirection – and I hope others that have the ability to utilize “different” information (or theory) will incorporate it.

    Again, I gain nothing – I am only here for the people – and the people need our help – whether or not we a part of a network – or if we are just here to tell what we know and share. What has been done to the people is a great mis

    My goal remains – the people need help.

  17. Hi Anonymous:

    I know the case; Judge O’Grady’s well reasoned opinion is just one of many shooting down these money wasting arguments.

    I’m glad you pointed out that case I’ve been meaning to comment on the “Acceptance of the Assignment…” post because as aforesaid that holding is just one of many shooting down these arguments, I was going to post the cases as a response to that post, you’ve saved me the time.

    We train attorneys on how to argue COLORABLE claims properly, so, we advise them to avoid such academic theories that lack backing in the law; because at the end of the day, these arguments fail and just waste the homeowners money they don’t have to waste!

    It’s ok to have opinions on a subject, and maybe I’m guilty of misconstruing these opinions being posted as though they are factually and legally correct statements of the law,when clearly they are not. If that’s the case I apologize for jumping to conclusions, but from reading the responses to posts, I would surmise most others assume it the same way as i did.

    It would be helpful to add law backing up one’s opinions and/or statements before they post or reply because there are a lot of viewers who are just blind followers and believe anything posted as gospel.

  18. Storm and Forsensic

    You may want to read case I posted under “Acceptance of the Assignment…”

  19. Anyone who wants to believe your nonsensical argument that citing an entirely different code section is merely a typo is free to do so. Furthermore, anyone who REALLY knows the law will tell you that what’s in the code IS NOT controlling as to how the foreclosure is to be handled anyway.

    Having me shoot you down is better than some judge who might just not be so kind. Like the one in Arizona who awarded $20K in legal fees to the bank because the homeowners lawyer, who allegedly “get’s it,” made some of the same “typos” and arguments posted here!

    BTW, Judge and Willow who actually take the time to KNOW the law, made it clear that what I stated was factually correct, and not confusing or B.S. I can see for someone who is not a legal professional you would find the law confusing.

    So you won’t be confused anymore, and there is no more misunderstanding as to what the courts say; here’s the law:

    “The Court’s ruling is consistent with New York state courts’ rulings on similar requests for relief, such as in U.S. Bank, N.A. v. Flynn, — N.Y.S.2d —, 2010 WL 936224 (Sup. Ct. Suffolk County, March 12, 2010), in which the court granted summary judgment in favor of the bank in its effort to foreclose on a house. The court stated, “It is well established that a plaintiff who seeks summary judgment on its claims for foreclosure and sale establishes a prima facie case for such relief by production of copies of the mortgage, the unpaid note and evidence of a default under the terms thereof”). Id. at *1. Upon such showing, the burden shifts to the defendant to rebut the prima facie showing.” IN RE ABBOTT (S.D.N.Y. 5-4-2010)

  20. Forensic

    This is correct –

    “They are required to present a “perfected” title, a “perfected” chain of assignement, and if need be a “perfected” chain of endorsement(s) of the note.

    In the simplest terms, it MUST be A-B-C-D-E-F, and not A-D-F, with “F” coming to court and making CLAIMS.”
    (Holding the note and “holder in due course” should only be supplemental).

    Yes this works (further fraud because F is not real party at all)- have seen it – but you will not always see a court decision. Judges try to avoid decision. But we need decisions!!! Settlements avoid decision. Anytime too close – they will settle. Also, need counter claims

    Not only are assignments false, and party not the real party, but the process denies borrower the right to negotiate directly with the real creditor – who has likely purchased collection rights for much less than stated loan.

    The “OLD” “ANONYMOUS” (capitals)

  21. Storm, dude, the typo is obvious. Why are you still yammering on?

    There’s no “misinformation”. Anyone who wants can check the link, I don’t know how much clearer you want it to be.

    MY points are clear and well within the LAW.

    You need to just let it go, you lost this one. Deal with it and quit trying to confuse people who come here with your BS.

    Once again, a CLAIM is not a prima facie case, it is MERELY a CLAIM.

  22. This is what’s wrong with the foreclosure problem today; the massive amounts of mis-information.

    Like this character mortgage fraud examiner, who TOTALLY mis-states the law and calls it a typo; and then this blind follower castigates others like Judge and Willow who checked out what was posted and found it to be wrong as I pointed out originally, as trying to confuse people. It’s the people posting or commenting on posts who don’t know what the laws REALLY say, are the ones confusing the populace!

    Mis-information and mis-statements of the law is not helpful to people; and blindly folowing “information” without checking it out first, will only lead to disaster–guaranteed!

  23. Seems my post in response to “storm” has been waiting a while to be “moderated” so I’ll post it again:

    Storm…. you’ve exposed a typo…. (oooo, I’m shaking that you’ve been so successful at “exposing”me)

    Sorry to ruin your day, pal, but….

    OCGA 44-14-162 (B)

    reads

    EXACTLY

    AS

    I

    PROVIDED.

    Comprende?

    I know you’ll want to check so, here, for everyone to check, is a link for you…

    http://www.lexis-nexis.com/hottopics/gacode/

    You’ll have to agree to “terms of service” and then type in 44-14-162, which will bring you another link, which WILL give you the exact language.

    Happy reading (and comprehending)

    And, yes, I DO and will continue to help attorneys and homeowners.

    If YOU need help (or want to apologize… not that I’m holding my breath, mind you) you may contact me at
    comment name AT gmail.com

  24. By the way.. the typo in no way invalidates the REST of my post…

    to reiterate for those following this “exchange” between “Storm” and I…

    There is, and always has been, a requirement that whomever claims to be the “creditor” in your mortgage actually BE the creditor.

    They are required to present a “perfected” title, a “perfected” chain of assignement, and if need be a “perfected” chain of endorsement(s) of the note.

    In the simplest terms, it MUST be A-B-C-D-E-F, and not A-D-F, with “F” coming to court and making CLAIMS.

    Presentation of a mortgage, a note and an affidavit of default is NOT PROOF of that claim.

    Make them PROVE it. Neil was simply expanding upon that. Don’t let folks like “Storm” confuse you.

  25. Storm…. you’ve exposed a typo…. (oooo, I’m shaking that you’ve been so successful at “exposing”me)

    Sorry to ruin your day, pal, but….

    OCGA 44-14-162 (B)

    reads

    EXACTLY

    AS

    I

    PROVIDED.

    Comprende?

    I know you’ll want to check so, here, for everyone to check, is a link for you…

    http://www.lexis-nexis.com/hottopics/gacode/

    You’ll have to agree to “terms of service” and then type in 44-14-162, which will bring you another link, which WILL give you the exact language.

    Happy reading (and comprehending)

    And, yes, I DO and will continue to help attorneys and homeowners.

    If YOU need help (or want to apologize… not that I’m holding my breath, mind you) you may contact me at forensicmortgageexaminers@gmail.com.

  26. Actually Forensic Mortgage Examiner I agree with you, “reading is good, comprehending is better.” But you need to be able to read law before you can comprehend it.

    GEORGIA, OCGA 44-14-162.2 (b) DOES NOT say what you claim it says!

    Below is the actual text of 44-14-162.2 (b)

    (b) “THE NOTICE REQUIRED BY SUBSECTION (A) OF THIS CODE SECTION SHALL BE GIVEN BY MAILING OR DELIVERING TO THE DEBTOR A COPY OF THE NOTICE OF SALE TO BE SUBMITTED TO THE PUBLISHER.”

    Did I read correctly, you’re helping an attorney and homeowners?

  27. In Texas the Attorney General’s website says they take foreclosure fraud seriously and take immediate action.
    So after realizing an ‘identity theft’ issue with someone who has no standing attempting a foreclosure, and after getting evidence of their lack of standing…ie no assignment in the public (Statute of Frauds, real estate transactions have to be in writing) and the boldness of the servicer to give the copy of certified copy that is a modified version of the Deed of Trust on file, and providing a copy of the Note, front only, which could be considered endorsement in blank, but the copy was from a title company copy, (not good enough, you have to have the original), I opened a compliant of identity theft, that was a real estate transaction, and evidence of the foreclosure fraud, indicated the Trustee filing.
    Said in the complaint, if the servicer is not the beneficiary in the public, then the trustee they hired does not have the protections that those Deed of Trusts give them to foreclose. As far as I’m concerned, both are guitly of fraud, because, the attorney has a duty to view the instrument they are enforcing, and in a real estate non-judicial foreclosure, the basic thing an attorney should know is that they represent the beneficiary, and there had better be an “Assignment/Transfer” to that beneficiary before you file notice of an Acceleration or notice of a Foreclosure and name yourself as a substitute trustee in that transaction.

    Foreclosure fraud is worse than a bad check fraud, or an internet lotto scam…people are out of a few thousand dollars in those scams.

    Foreclosure fraud is in the hundreds of thousands and its worth it to the pretenders to get several million and pay a few $10,000 per violation for the few times someone stands up and shows their violations.

    The previous bubble was housing and the money flowed through banks, title companies and attorney trustees.

    The new bubble is foreclosure and the money is flowing through banks, courts and county clerks, and attorney substitute trustees.

  28. Neil has never said we should argue that the mortgage doesn’t exist. He has said we should always remember that even if they can’t “prodcce the note,” that doesn’t mean there isn’t an obligation.

    The question that we, the little people, need to create in the judge’s mind is the following: is the party claiming the right to foreclose, i.e., enforce the instrument, the proper party, or a charlatan?

    In my case, the party claiming the right to foreclose does not have the right to enforce the instrument because they do not hold the note and they have admitted that they do not hold the note. Guess what, that means? No foreclosure, for two reasons: 1) if you don’t hold the note, you don’t have any claim to the deed of trust and therefore can’t enforce it, and 2) UCC 3–”holder in due course” requirements are clearly defined, one of which is that if you want to enforce the instrument, you must hold the instrument. Simple.

    I think the judge in my case will more than likely shoot down my claims of breach of fiduciary duty, breach of contract, fraud, etc. But I don’t think he’ll be inclined to shoot down the argument that “the mortgage follows the note.” That one’s older than all of us posting here. If he wants to overturn decades if not centuries of common law, well, that’s his call, I suppose. But it would be a bad call and would be overturned on appeal, and the judge knows it.

    Then on top of that, we add the atom bomb in Neil’s arsenal–quiet title. If, as in my case, two different parties claim to hold the note, then they’ve either got to put up or shut up. Shit or get off the pot.

    Even if either party–servicer or Fannie Mae–in my case produces the note, it doesn’t end there. From there we move to questions like, were the indorsements done properly? If so, we point out that MERS is a straw man and cannot be “solely” the nominee AND the beneficiary. The phrase “acting solely as nominee” NECESSARILY precludes being anything else, especially a beneficiary. If the judge thinks otherwise, then we’ll trot out the legal defintion of “beneficiary,” which does not apply to MERS in any way, shape, or form.

    Then there’s the fact of third party payments, bailout, credit default swaps, insurance or some combo thereof having exhausted the obligation. That’s a big discovery hurdle, but not insurmountable, particularly if one is involved with Fannie Mae, who continues to beg for taxpayer money and is de facto a ward of the state. Don’t forget that Fannie Mae’s trust documents guarantee payments to investors, so investors/noteholders never experienced default.

    Neil’s given us a lot to work with. All we have to do is go down a list like the one above until we give a judge something he feels comfortable hanging his hat on. I will admit that I have moments of doubt about my case, despite all the above. I think to myself that the judge won’t get it, won’t try to get it. But that doesn’t matter. I may ultimately lose my case, but I have already won by fighting. I may not get to keep my house, but there are other houses. I’ll have the satisfaction that I made the bastards work for it. I stood up for myself. I participated in The Great Slave Revolt. We’ll lose a lot of battles, but we will definitely win the war against these bankerrorists.

    Resistance is victory!

  29. If you are the party seeking affirmative relief, you MUST have VALID (and not fabricated) documents to back up your claim and MAKE a “prima facie case”. Which would include a VALID chain of title and a VALID assignment of the mortgage (if you are nto the originating lender.. and most servicers are NOT, at bare minimum!

    In other words, VALID proof that you (the party seeking relief) are the ACTUAL party the would suffer some damage!

    Otherwise, any old windbag could come into court waving fabricated documents and be granted a summary judgment!

    Besides which, each state has their own requirements as to what is required to COMPLETE a foreclosure.

    For instance, in GEORGIA (a non-judical state) the foreclosure mills MUST make certain that ALL of the law is complied with and, in GEORGIA, OCGA 44-14-162.2 (b) requires:

    “The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.”

    There have been foreclosures completed without this requirement being fulfilled. The attorney I am working with and a couple homeowners who have hired me have been able to use that ONE violation to either set aside or COMPLETELY STOP foreclosure

    So, no, just any old DOT (or security deed), and/or a degraded copy of someone else’s note (that had your signature photoshopped onto it) and a claim of “default” is NOT ENOUGH TO MAKE A PRIMA FACIE CASE!

    Period.

    Those elements make up a CLAIM. Nothing else.

    One thing none of you (especially those supporting ol’ Stormy) have considered, and Neil has not mentioned, is this; in most non-judicial foreclosure states, there are very strict “notice” requirements, if those are not followed TO THE LETTER, then the foreclosure is invalid and can be (and should) set aside.

    It is important to remember that foreclosure is a derogation of common law and the code requirements must be followed to the letter or your “lender” may have a defective foreclosure.

    Remember, reading is good, comprehending is better.

  30. It is not the law if the judge has his/her eyes closed.
    Now days this seems to be the case.

  31. hate to say it but, the case law i have read , backs up storm :(
    please tell me I am wrong! :O

  32. Not sure if Storm’s comments are referencing judicial or non-judicial states. Case law here in Florida requires establishing most if not all the items Neil lists, for note and mortgage. Check 2nd and 4th DCA opinions dd Feb 2010 through April 2010.

  33. BSE, you’re missing the point Willow and I are making. It’s not “arguable,” it’s the law.
    Saying those elements are needed is a mis-statement of the law.

  34. The problem: how to submit a mortgage that was not properly assigned, a mortgage assigned in blank, a mortgage that was submitted to MERs, and the original note that can not be produced.

    This “why” the prima facie case for the party seeking affirmative relief would require the elements.

    It is all aurgable and may not be proven. The borrower has a chance to survive and win the case.

  35. Storm is correct. In most jurisdictions, the deed of trust IS prima facie evidence that the mortgage exists. On the DOT lists the beneficiary (our friend MERS), the lender, the borrower (you) and the trustee. All they would have to show in order to foreclose in a non-judicial state is that you failed to pay. In order to object to foreclosure, you are going to have to show that you did pay and this foreclosure is wrong; or that these folks are not the proper party to foreclose because of…whatever; or that there’s been some other intervening act. If you are the plaintiff you’ve got the burden of proof. And it better be at the minimum clear and convincing.

  36. OH I FORGOT THE MORAL OF THE STORY:

    MIGHT IS RIGHT BUT CRIME DOES NOT PAY.

    G-D DAMN BANK OF AMERIFRAUD

    GOD BLESS AMERICA

  37. I “clearly” understand how to read the english language.

    The statement was: “The prima facie case for the party seeking affirmative relief would require the following elements,” and then listed some 18 odd “elements.”

    Your statement: “Submission of “mortgage and unpaid note, along with evidence of default. ” IS the banksters attempt to prove a “prima facie case.” It’s not an “attempt,” it’s all that’s needed; because that’s the law!

  38. Are there any current cases using this argument?

  39. Storm, clearly you didn’t understand the article…

    Submission of “mortgage and unpaid note, along with evidence of default. ” IS the banksters attempt to prove a “prima facie case”

    Neil is saying that with the commonly known existence of mortgage backed securities, the homeowner (via a lawwsuit in non-foreclosure states) need only DENY that they are a debtor to the already moving party (servicer, trustee, whomever).

    THAT legal maneuver transfers the burden of proof back to the so called “creditor” seeking to toss your kiester onto the street!

  40. That’s not how it works in the REAL world!

    It is well established in order to establish prima facie entitlement to summary judgment in a foreclosure action, a plaintiff ONLY has to submit the mortgage and unpaid note, along with evidence of default.

    The burden then shifts to the defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff.

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