Fla 4th DCA Provides Short Lesson on Business Records Exception to Hearsay Rule

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It is interesting that the ruling comes from a condo lien case rather than the hot topic of securitized mortgages. But the rules are the same and in this opinion the Court gives the reader a lesson on hearsay, objections, preservation of issues for appeal, and exceptions to hearsay. As a prelude, evidence is properly admitted into the record if it is unopposed. So you must object if you don’t want it in. If you don’t object, you are cooked.

When an objection is properly AND TIMELY raised it specifies what exactly you are challenging and why. Trustworthiness, Credibility and authenticity are at the heart of all evidence questions. The court will tend to allow the evidence if it determines that it has some “probative value” which is to say it might be concluded that a fact is true based on this evidence. But since courts are composed of human beings there are some boundaries to issues of hearsay and exceptions that have been set by both common law and statutes so that the litigator knows what he is entitled to expect from the court as to rulings on his own evidence or that of his opponent.

Business records are hearsay and therefore excluded from evidence if an objection is made. If an objection is made and properly framed, then the burden shifts to the other side (the proponent of the “information” being tendered as evidence) to explain why the records are not hearsay (that is impossible with business records) or why there is an applicable exception.

The guiding principle behind the rules are that evidence should be admitted if it is trustworthy. If the records come from an independent third party who could care less who wins the lawsuit, the chances are that the judge will be liberal in applying the rules. If the the records come from one of the parties in litigation then the possibility or probability of it being self serving and potentially prepared for litigation rise and the judge is supposed to apply the rules very strictly.

In this case the judge did what judges are doing across the country. The Judge erred. He applied a lenient standard to records that were clearly coming from a party with a stake in the outcome and which could have been fabricated for the purposes of litigation and which relied on the work of other parties without any knowledge of the timing of the entries that were made, the knowledge of the person making the entries, and the documents or events upon which the the outside person relied. Therefore it was unlikely that the business records could be admitted without a very tight foundation from a credible witness.

The Judge admitted the records after extremely dubious testimony and obvious evidence that there was a personal fight going on as well as a bribery or theft claim between a group of unit owners and the association’s board. The appellate court reversed. That means the unit owners win the case even though judgment was entered for the association against the unit owners by the trial court. By the way, the defense, as I have suggested in foreclosure defense cases, was payment.

 

The unit owners had made a large prepayment that had not been carried forward. The receipt was acknowledged but somehow, like the foreclosure cases go, the judge felt it was OK to foreclose the association’s lien even though there was unrefuted evidence that the association had indeed received a huge amount of money for no other purpose than to offset the amount of monthly dues and special assessments.

Note on page 4 the Court says “Because the condo owners’ attorney did not object to the ledgers on the ground that they were untrustworthy, this issue is not preserved. The lack of foundation, however, was argued and preserved.” In my seminars and books I have always stressed that objections must be timely, precise and well-focused preferably with back up in case law. And I generally refer people to Trial Objections by Dombroff, a small book that is worth its weight in gold.

Note that in this condo case the association’s attorney was at least smart enough to put the records custodian on the witness stand. Getting business records into evidence without the records custodian ought to be very difficult. In the lone arena of foreclosure litigation, the courts have veered out of bounds because they think they know how the case should end.

“Magic words” do not suffice. The witness must know that the records are trustworthy and how and why they are trustworthy.

Now in foreclosure litigation it gets even crazier. The party on the stand has some title that more or less clearly shows that the title was invented to have him or her testify in court. Strike one. Like the case reported here, the party lacked personal knowledge that is a prerequisite for any witness to testify about anything — it is called competence of the witness. Strike two.

And after the witness has committed to saying she saw all of the records, ask her about he payments that went out, not the payments that were received. After all, she represents the servicer who collects and then forwards the money, right? Who did the servicer forward the money to? Where are the records of that? Has she seen them? Why not? So she has not seen all the records of the servicer, has she? And what did she do to corroborate that the creditors’ books show the same figures in the account receivable or if extraneous third party transactions have resulted in a reduction or increase of the account receivable as it relates to the subject loan? So she doesn’t know if the balance due on the servicer’s books is actually the same balance due shown on the creditor’s books?

That is the part the opposing side doesn’t want to see. By opening the door to payments out to the creditor, you are now tracing the money trail. By showing that there was deception on the part of the servicer, the records are untrustworthy.  Strike 3.

http://www.4dca.org/opinions/August%202013/08-28-13/4D12-3363.12-3364.op.pdf

69 Responses

  1. Deb, yes, I KNOW there are innocent people in jail. Once they are kidnapped, shackled like slaves, and offered bond(age) and sign the bond(age), they are taken through a rigorous process of deception and lies to get a ‘verdict’ from people who are ‘playing a role’ as jury.

    That, in my opinion, is a test for their soul. The judge is plays ‘hands off’ and I did say ‘play’, and the Prosecutor plays ‘it’s not my fault the jury didn’t ask us to define the words we are using to make our claim’.
    Plus a prosecutor’s client is a corporate body that cannot sign a contract for the prosecutor to represent it.

    So the Prosecutor is hired by a representative of the corporation to represent the corporation which is stupid because the corporate owner should be one hiring the prosecutor to represent it’s interest, but I didn’t mean to go down that path.

    Some are convicted of jury that are NOT their peers. A juror has to be a US Citizen, have a Driver’s license and be a registered voter.

    Some who are so called convicted have opted out of all of those and are still put under the scrutiny of people who are NOT given all the information and still think they have the ‘right’ to judge their brother or sister. Rod class’s case in Washington DC is a prime example. He’s being tried for having firearms, when by definition he didn’t have firearms. He also had a license to carry, but was not aware that Washington, DC does not recognize any state’s right to carry within their 10 square mile radius. He has been recording his journey on talk shoe AIB radio. He gave the grand jury the definitions and if those people still decide he has to defend himself after all that, it will be another ‘innocent’ affected by people ‘playing a role’ and not knowing the definition of words used to make claims of violating the ‘law’.

    So I know what you mean and I sympathize with your situation and want more than anything for you to not suffer or need.

    It’s all perception and direct perception. Maybe I offset their ‘consumption’ by working to give. It’s a personal choice and by observation it has a good balance for me.

    Back to the innocents in jail; the people in the court system have used mental institutions, paid for with state and federal funding, as an extension of jail to obtain jurisdiction and force continued bondage of people who do not belong in jail. State and Federal funds should not be used to force ‘involuntary servitude’.

    Trespass Unwanted, Creator, People, Corporeal, Life, Free and Independent State, In Jure Proprio (In One’s Own Right), Jure Divino (by Divine Right)

  2. carie at 12:50 – took a gander. I don’t believe enforcement rights of these particular notes are regulated by UCC III. maybe must refer to III’s def of transfer, but I believe the language in the note mol restricts enforcement to the orig lender or a successor or assign of the orig lender and therefore, a blank end is not evidence of a right to enforce- THESE notes.

  3. JG,

    “Monster thanks to deadly clear for the invaluable info. (and thanks to christine for linking)”

    It’s been a serious pet peeve of mine for a long time. NG has been advocating fighting the banks. I’m all for it. NG has encouraged people to do it no matter what, pro se or otherwise. Again, I’m all for it.
    NG needs to make a living and I understand it. BUT some of the most important tools pro se need have been… well… not shared very well.

    Either we’re all in this together and we share knowledge or some people’s agenda get in the way. If I were a pro se and were told by NG to pay him for something anyone could do with the proper information, I’d be frickin’ pissed! NG’s trade is litigation, or so he says. Not investigation. Not record research. Li-ti-ga-tion. Going before a judge and pleading a case. By forcing pro se homeowners to pay for investigation they can do themselves and to waste money they don’t have, NG foreclosed on their financial ability to pay for litigation. You know… the pro who actually goes before the judge and stops homeowners from making glaring mistakes that will kill their case.

    Is NG a trial lawyer or a peddler? Giving half the information and none of the tools is morally wrong. Deadly Clear gave something precious.
    And NG fell one more notch down in my value ladder…

  4. sorry I get off track.

  5. TU- I depends on an individuals perception of reality, that’s my take- some cant give, if I live in a “world” of plenty and some to spare- do you think I need anything. what I want is the true reason that the constitution was written, after the magna carta- bottom line to prevent the worst injustices happening. if we do not have the rule of law we have nothing to protect those who live in a different world whereby they are born disadvantaged. do you think there are innocent men in jail, because I SURELY DO.

  6. well, I think i finally know what a ‘default servicer’ is. The servicers agree to make payments if borrower’s aren’t. ( When loans goes thru fnma and fhlmc, who have guaranteed the loans, the servicer presents f or f with a bill for those payments it’s (allegedly) advanced.)

    if a servicer can no longer meet this obligation, the MS may move the servicing to someone else who will. If no one is found who will, the
    MS is allowed to move servicing to a servicer who won’t. I don’t know if this means the whole portfolio must be moved or if it only means loans with borrower defaults may be moved. This is likely an over-simplication, or maybe even way off, but that’s the way I got it. Lord help us if attorneys are not educated about this stuff. It seems to me, then, that if one’s loan is allegedly in default, but no one is foreclosing, it’s likely a default servicer has that loan and is accruing fees against what’s owed the trust….? We dont’ know,or at least I certainly don’t, how long the trust agreements “tolerate” such a situation before f/c is a must or the loan must be dealt with by the available insurance. What I think about default servicing makes sense on one hand, but on the other it doesn’t because of the guarantee. That would all be diff, I guess, on loans which were not insured by anybody. Something for people ahead of me to think about, anyway.

    I have more questions about these late assgts to trusts and am more convinced the IRS et al said they’d look the other way on taxation
    as long as some record were ultimately made of assgt to the trusts. But then, why do they wait til there’s borrower default? Is it that they are allowed to just “pretend” on non-borrower-default loans (they’re
    taken as in the trust)? Or is it that the assignment is what I’ve said – prima facie evience there were no earlier assignment so they only do them when they “must”? AND, if the IRS, gov, whomever did say this,
    it seems to me it’s an acknowledgement that whatever MERs is, it’s not an agent or other party who stands in for the trusts either in the dot or in public record. But then, I guess the banksters have to assign to SOMEone since the unhandy as hell for them Consent Order….?

  7. As for charity, I try to act like the family in the tv show ‘The Rifleman’. People would come into town, have nothing to eat or no place to sleep and the rifleman would say, ‘we don’t have much but you are welcome to share it with us’.

    My observations are my own, so this opinion is just that, an observation that is mine and biased on what I was thinking, feeling, experiencing when I observed it.

    There are people who are like ‘black holes’. Whatever they get, they keep, they hold onto it, are reluctant to share, and if they are to part with it they have the mentality of ‘what’s in it for me’? People will give them things and they will ‘sell’ it and make a profit. People will share things with them, but those same people will have to ‘ask’ them for help because they are of the mindset ‘if you need me, let me know’, and when someone suffers they’ll say ‘well all they had to do is ask’, they didn’t ask for help.

    There are people who have and share, and if they see a need, they offer their assistance before the one needing asks. Sometimes its welcomed and sometimes it’s met with resistance because the one needing help has a lot of ‘pride’ and they don’t take kindly to people exposing to them their inability to handle a situation to where the ‘nosy’ person actually had the nerve to ask if they can help, or to offer help when they weren’t asked.

    I am the second. I give. If I get, I give, if I don’t get I give, if I have something and need to make it to tomorrow and someone needs something ‘today’, I’ll give them my today and wait for tomorrow. If I’m alive tomorrow, I’ll get what I need and if I’m not, then I gave up what I had today because I wasn’t going to use it anyway.

    The black holes of the universe suck in everything that comes their way. As above, so below. Eventually things stop coming their way because they suck up so much of everything and contribute nothing.

    As one blogger mentioned out some people in society with their hands out take so much from the rest of us, to where there is nothing else to give.

    But the others who give, supply the universe with an abundance that is never ending. Some things end up in black holes but some things end up benefiting society as a whole and leads to the supplier being supplied by other suppliers in a what goes around comes around scenario. I am always at my last but I am never without.

    When I’m in need, someone is there to provide and I don’t have to ask, they just do, and when I have, I give, not sell but donate. If I got my use out of it and already paid for it, then there is no need for it to be paid for twice.

    All my opinions, but I see that in a crisis, the black holes will surface and suck up all the things that could be shared by many.

    During Hurricane Ike in Texas, there were news stories that people rushed to the grocery and hardware stores and bought up an abundance of bottled water leaving none for anyone else. When the crisis was over, they tried to return the bottled water and was angry that there was a no return policy on bottled water.

    You wonder if they needed it, why not keep it, because other people needed it and had no access to it because they took all of it and didn’t care that anyone who was not there before them didn’t have bottled water for their family, babies, elderly, and pets included. The people they hoarded from, survived anyway. Universe has a way of keeping alive what it will regardless of what others do to thwart the survival chances.

    Much love as we find a balance. There is no right or wrong way when it comes to these things.

    Trespass Unwanted, Creator, People, Corporeal, Life, Free and Independent State, In Jure Proprio (In One’s Own Right), Jure Divino (by Divine Right)

  8. No suggestions. I did not file them. I never abandoned my property, but I can assure you the IRS was waiting for the copy to be filed, because a rep mentioned something like, ‘and I see you were in a foreclosure.’ and I responded, ‘my house was stolen’, and the call continued. I had been audited for ‘how’ I had filled out many amended tax returns within the three year period.

    I got through the audit and I never filed the 1099A.
    Everyone would experience something different, but viewing the IRS forms and pubs, there is a 1099 pub and it explains the A for abandoned, the B for bartering and the C for cancellations and such like that. I’m not a tax expert, so I don’t quote me. The info is online in the irs.gov pubs.

    My inner truth tells me not to file anything I don’t agree with as the document has a signature line that indicates the information is true and under penalty of perjury. In my case, I didn’t abandon my property and the one who said I did, filed their copy and sent me a copy to file and I have a right to refuse to be forced into a contract I didn’t enter into of my free will. To send the form in, to me, was to be in some agreement with them and would tie us together as if the theft was ‘legitimate’, and believe me. Nothing they sent me would I ‘ever’ be in agreement with, let alone a tax document where I’m signing and entering their paperwork as if I’m the ‘second witness’ to an agreement that was never made.

    All opinions of course, no facts, no proof, I don’t know anything,

    Trespass Unwanted, Creator, People, Corporeal, Life, Free and Independent State, In Jure Proprio (In One’s Own Right), Jure Divino (by Divine Right)

  9. what worries me is its hard to be chartable, practicing human kindness and empathy when you are starving. we have gotten spoiled and when what a lot of people got free or charged to a credit card is no longer, they will take it, and I think this government doesn’t particularly care.

  10. hear ya Christine, kinda, but im keeping it simple,
    I understand theres a bigger wheel- just reading Jeremy Rifkins European Dream sista-
    (sista isn’t in the title) but the opening chapter I quote
    ” the fledging European dream represents humanities best aspirations for a better tomorrow. A new generation of Europeans carries the worlds hopes with it. This places a very special responsibility on the European people, the kind of our own founding fathers and mothers must have felt more than 200 years ago, when the rest of the world looked to America as a lesson of hope.
    I hope our trust is not trifled away.
    so, whats that got to do with my friggin mortgage and the Ponzi scheme- I guess the likes of Diamon and Goldman timed it right perhaps, or perhaps not.
    I still want my money back.

  11. exactly trespass I did NOT ABANDONE my property they ran me off, they were bigger than me they filed a forcible,
    I can not and will not accept that 1099A AND NEITHER SHOULD THE IRS until ive had my due process and right to a fair hearing with equal opportunity to defend MY PROPERTY.

  12. christine – we may well be ‘lazy butts’, but some people concentrate their efforts on things which are of particular interest to them, like the right to bear arms, the right to choose, right to life, free speech, and so on. I can tell you they feel just as passionately as most of us here do about fraudclosure. Our particular issues necessarily run into the entirety of the economic picture which runs into…….

  13. trespass – interesting point you make -any suggestions?

  14. carie – I’ll look at those. thanks

  15. Monster thanks to deadly clear for the invaluable info. (and thanks to christine for linking)

    Both DC and I are and have advocated whistle blowing (fight back) if your loan (or any – why stop at your own?) is purportedly “assigned” to a trust post-closing, inform the IRS. if you go into Edgar and muck about, you will find the tax payer ID no. registered to the trust. In my lay opinion, anyone actively litigating should move heaven and earth to get a statement from the bankster that it’s relyiing on the MERS’ assgt for its claim (or make the allegation that it is and thus it’s prima facie evidence of the date of the transfer, aka “when your opponent’s evid is evidence against them). It seems to me to be inevitable that with the inevitable finding by more and more courts that the homeowner has standing to raise NY trust law if not the presumptions I’ve alleged should be presumptions about post-cut-off date assignments, that banksters will begin to claim the transfers already occurred and these “assignments” are simply memorialization of past events. ( Right now they are claiming there were none, for instance, which are subject to recorder’s fees. They will further up their args that a coll instrument followed the note (undated endorsement) to the trust.

    A while back I mentioned that I’ve heard that loans had to be “seasoned” before being eligible for securitization. Today I discovered that the seasoning of the loans is disclosed in the docs available following deadly clear’s link. Only a handful meet the seasoning requirement (that I heard about but can’t substantiate – yet). Because I personally belleve (gut, whatever) that the loans had to have been seasoned before going into trusts, thanks again, DC, for the next stepping stone in my chase.

  16. 1099A if you file it with your taxes your are indicating you ‘abandoned’ the property.

    IRS got a copy when you got a copy and they are waiting on you to verify what the ‘creditor’ claimed…that you abandoned the property and that you were the Debtor.

    Trespass Unwanted, Creator, People, Corporeal, Life, Free and Independent State, In Jure Proprio (In One’s Own Right), Jure Divino (by Divine Right)

  17. Re: GLASKI

    08/29/2013 Order denying rehearing petition filed. JAA

  18. Taken from the CA APPELLATE COURT website:

    08/29/2013 Order denying rehearing petition filed. JAA

  19. We kinda knew that. Now, it’s in black on white.

    Money Is Not Safe In The Big Banks
    Posted on August 28, 2013
    1
    Under the Dodd-Frank Act “losses will be assigned to shareholders and unsecured creditors. …as a depositor in a bank, under the law –
    YOU ARE an unsecured creditor.”

    “The Leveraged Buyout of America” by Ellen Brown, Author, Web of Debt, Public Bank Solution; President, Public Banking Institute

    Giant bank holding companies now own airports, toll roads, and ports; control power plants; and store and hoard vast quantities of commodities of all sorts.

    They are systematically buying up or gaining control of the essential lifelines of the economy. How have they pulled this off, and where have they gotten the money?

    Click here to find out…

    http://deadlyclear.wordpress.com/2013/08/28/money-is-not-safe-in-the-big-banks/#more-4680

  20. FINALLY!!!

    Once in a great while, someone puts out some very, very important How-to information. here’s something I’ve been asking Garfield forever and back.

    Thanks Deadly Clear. About time!

    http://deadlyclear.wordpress.com/2013/08/28/how-to-search-the-sec-for-a-securitized-trust/#more-4706

  21. If I were a shareholder, I might be a tad ticked by this… Enough to take to the streets? I don’t know… Nobody can figure out why Americans have become such lead butts. Is this just plain fear or laziness?

    U.S. Bank Legal Bills Exceed $100 Billion

    2013-08-29 — bloomberg.com

    “The six biggest U.S. banks, led by JPMorgan Chase & Co. (JPM) and Bank of America Corp., have piled up $103 billion in legal costs since the financial crisis, more than all dividends paid to shareholders in the past five years… That’s the amount allotted to lawyers and litigation, as well as for settling claims about shoddy mortgages and foreclosures, according to data compiled by Bloomberg. The sum, equivalent to spending $51 million a day, is enough to erase everything the banks earned for 2012.” — One wonders if THIS will finally be enough deterrence…

  22. And Deb,

    Speaking about tax liability… if you’ve listened to Karen Hudes, you’ve heard that your taxes have not gone where you thought they did for centuries… A country doesn’t find itself 16 trillions in a hole by accident.

  23. Deb,

    Nothing wrong with having no attorney but fighting regardless. Although the uphill battle is much, much steeper when you do it alone… Then again, when people get to the point of fighting for the principle of it, they’re not so hung up on the outcome and they don’t falter as much when things don’t turn out as they wished. The idea is the guerrilla war: attacking banks wherever we can, relentlessly. Eventually, something is bound to stick.

  24. and incidentally- the reason im still doing the kindergarten stuff looking and reading what you are all raising on here is because ive clawed my way back to keep my case alive after firing prior council who did untold harm, so that’s one reason i have no atty.

  25. Right Christine,
    FEAR- false evidence appearing real.

  26. Christine- this is it you said

    “What’s important is not what we know here. What’s important is that more and more people formulate it out loud.”

  27. Deb,

    If you do not have a 1099C, read on 1099A and, in doubt, consult a couple of tax accountants. Always get 2 opinions. Just in case you get contradictory ones. And then, you pick the best one, follow the advice and move on to your merry way.

    No point on wasting your life over something that may be nothing. Unless, of course, worrying is pleasurable but you sound fairly sane. Shaken, like all of us, but reasonably sane. So, I don’t believe you get your kicks out of worrying…

  28. im way past “flipping” im flipped out , done, over it, at peace just walking the walk of destiny my friends, i embrace it.

  29. i hear you, its not the whole story, i realize no ones grasping it, you need to read my case, I HAVE NO 1099c, SO WHAT AM I SUPPOSED TO DO NOW. like i said, its just an area of contention, but, enough to get into discovery of the money trail.

  30. @ Carie
    indeed loopholes, they search for any and all,
    so they need to be closed by careful pleadings that are well researched,
    as UKG knows and does the work, as do i. thsnk you for posting links.

  31. Deb,

    I think you may be making way too much out of that 1099A. You need to study the difference between 1099A and 1099C. 1099A do not automatically trigger a tax liability whereas 1099C do. Before you go out of your mind with worries about that piece of paper, please do yourself a big favor and study to which extent you owe anything and to whom.

    For all we know, you’ve been flipping over nothing.

    http://taxes.about.com/b/2010/02/27/what-to-do-with-form-1099-a.htm

  32. I refuse to accept im doomed ET, (pro se, pro per, Me Myself I)
    when the opposition tramples their own Ch from the recorders office ,to district court AZ to 9th circuit they have a real mess if my case is remanded, add a little IRS 1099A and the foreclosing trustee V substitute trustee have a little explaining to do as to who is the real mr shady, back to the beginning- who had the right to declare a default when there was no default, who had the right to sell the collateral home and issue trustees deed upon sale to a non party submitting a credit bid, who had the right to demand money from me ab initio. where did my payments go, what was my down payment for, and all this is described in my documents as a ‘CONVENTIONAL’ HOME LOAN.
    who was harmed, me myself I, and im still on the hook- 4 years and counting. so wheres the fat lady. not over till its over, im detached from the outcome. all I need is that sun to rise tomorrow and to be breathing.

    Someone bought my home from one west- who issued the 1099A, i9ndymac/Onewest by the grace of FDIC and their sweetheart deal
    I have questions re “assets sold” “one of them being “servicing rights”
    for a “trust” my loan was unqualified to be in.

    so I ask you why cant i get an attorney to take this case it is worth multi millions if that attorney knows what he is looking at.
    i guess im pro se all the way,

    USCA 9th circuit 12-16192.

    not an attorney not legal advice just stating my lay person opinion based on my own personal experience.

  33. gault, it was from another case we’re working on, not mine.

    carie, thanks for posting the link to the briefs. I’ve been busy.

  34. “100 years ago, President Wilson knew that he had sold the US and he regretted it all his life. Other presidents tried to fix it and got killed. JFK was one of them.”

    World Bank whistleblower Karen Hudes says this is not a fight about money, but survival of the planet. “We’re dealing with whether we can continue as humanity and have an earth or whether we blow ourselves up. . . . whether we love each other enough to save the world, or we all go to hell in a hand basket,” says Hudes. Join Greg Hunter as he goes One-on-One with World Bank Whistle Blower Karen Hudes.

  35. Oh well… Moody can downgrade them until the cows come home. Management still keeps making killings year after year, for such a job well done. And the rest of us struggle a little more every day. Something will have to give. Just don’t know when.

    Rating Action:Moody’s reviews US bank holding company ratings to consider reduced government support

    Global Credit Research – 22 Aug 2013

    Ratings on bank-level subordinated debt also affected

    New York, August 22, 2013 — Moody’s Investors Service has placed the senior and subordinated debt ratings of the holding companies for the six largest US banks on review as it considers reducing its government (or systemic) support assumptions to reflect the impact of US bank resolution policies. Four — Goldman Sachs, JP Morgan Chase, Morgan Stanley and Wells Fargo — are on review for downgrade. Two, Bank of America and Citigroup, are on review direction uncertain, as the rating agency considers the potentially offsetting influence of improvements in the standalone credit strength of their main operating subsidiaries, the ratings on which were simultaneously placed on review for upgrade. Included in the review are the short-term ratings of several of these bank holding companies, as described further below. Two additional banks, Bank of New York Mellon and State Street, whose ratings were previously placed on review for downgrade, are also included in this review. At the same time, and also in response to the possible reduction of government support assumptions, the ratings on the bank-level subordinated debt of JP Morgan Chase Bank N.A. and Wells Fargo Bank N.A. were placed on review for downgrade, while those at Bank of America N.A. are on review direction uncertain. The bank-level subordinated debt ratings of The Bank of New York Mellon and State Street Bank and Trust, which were previously placed on review for downgrade, are also included in the review. There is no rated bank-level subordinated debt outstanding at Citibank N.A., Goldman Sachs Bank USA or Morgan Stanley Bank N.A.

  36. Re. that video about MERS, etc.

    Seems like the whole point was:

    “Chain of title assessors”—the wave of the future!!

  37. Aren’t the banksters asking for a “rehearing” for Glaski mostly because they are saying that the judge goofed and went by NY law instead of Delaware law? I know it’s all BS, but…just wondering…

  38. usedkarguy – what else you got on Glaski after that decision? New pleadings somewhere?

  39. aw, now, usedkarguy – we all know you’re describing a copy of a scanned note! Do that to you, did they? We need some new bad words – the ones we have aren’t cutting it! Rat-b is one a lot of us seem to like.
    Last night I decided the reason the rat – b’s put their 10.00 stamps on the back of the notes (they’re supposed to be on the front unless there’s no room) is because fraud is supposed to be apparent on the FACE of the instrument in order to assert blah blah blah

  40. christine – I listened for 21 minutes. Now I admit I did so while I ws trying to take a rest, but I thought DK mentioned Glaski and quickly moved away from it…..?

  41. What I meant and want to make clear to anyone interested is that
    the MERS m.o. which it denied to Nebraska was designed and implemented in the 90’s, well before Nebraska in 2005.

  42. Ms Mech (no doubt an employee of Aurora or like that) swears herein she was appt’d as an officer of MERS in l998 by corporate resolution.

    1) By 2007, MERS was on its third iteration and a corporate resolution
    from the l998 iteration would not make her an officer (gag) of the third iteration of MERS.

    2) She, as an officer of MERS, swears in this affidavit that MERS is the HOLDER OF THE NOTE.

    As I opined in a blog at sourceoftitle 2 years ago, “MERS’ ” f/c’s often relied on the alleged officer’s (like Mech) alleged possession of a note allegedly endorsed in blank for its right to enforce and f/c. It apparently made no difference to whom the note actually belonged. On the same basis, poss of a note end’d in blank, MERS allowed its Hultman appointees (all 20k + thousand of them) to execute an assgt in its name. Before the MERS’ Consent Order, those assgts were by and large done to the servicers, also by their own employees like Ms Mech. After the Consent Order, they’re being done to sec’n trusts, and throw in an assgt of the note to boot, all based on alleged poss of a
    bearer note and imo errant reliance on UCC III.

    Now, MERS swore in MERS v Nebraska Dept of Banking and Finance
    that it had no involvement with notes and no interest in the dot, such that it shouldn’t be compelled to be licensed. I would call claiming under penalty of perjury to be the note holder ‘involvement’, and since this MERS’ m.o. was devised and implemented years earlier (the NB deal was in 2005), isn’t it clear MERS committed perjury?

    If you’ve read much material about MERS membership agreement, than you know this m.o. was the plan from the get-go. There are other
    such “MERS” officer’s affidavits as attachments to docket no. 49
    in NV bk no. 07-16226 swearing that MERS is the note holder because the case involved around 20 loans.

    The court, the DC on appeal, think it was, told MERS ‘no you’re not the holder by your (alleged) possession’. So they had to give it up in some courts but kept right at it in others.

    As someone said the other day, if we live long enough, we’ll be shaking our heads in amazement that this nonsense went on for so long (and we may shed some tears over its cost).

  43. For perspective…

    Schwartzwald was good. When it lasted. Here is the problem: it doesn’t work retroactively.

    Let’s say Homeowner (HO) pays Servicer for 3 years on the face of a letter “Please be advised that Servicer has taken over”. Dutifully, HO pays, month after month, year after year.

    HO cannot use Schwartzwald unless HO is in foreclosure… Schwartzwald doesn’t work for unjust enrichment or conversion. Pretty swell, huh?

  44. @UKG 07:37pm ,,

    Printing on both sides? The banksters are getting smarter ,, the “allonge” which mysteriously shows up at the 11th hour was always invalid because computer generated docs always had the backside blank … and available to place a typewritten/handwritten assignment… no allonge needed ,, and not valid if the backside of last page is blank or if there is space available at the bottom of the last page.

  45. gault, Glaski is indeed huge. they’re coming with both barrels blazing, and want to move to the bearer note theory.

    speaking of notes, when was the last time you saw notes with printing on both sides? 4 page note, page 3/4 are backwards, and paper shows no sign of aging.

  46. So… JG,

    Krieger refers to Glaski up and down in that piece. Which you still haven’t listened to, right? In my book, that makes it very current. Try listening: you might learn something…

    Now, about O… Nothing happens in a vacuum. Don’t know what “politics” means. What I know is moral courage. There was plenty at the beginning. None left today. All there’s left is rhetoric. What happened to moral courage?

    Gawd damn fear. That’s what. Where from? Take your pick. The fact is, we’ve lost lots of freedom in 5 years. And Snowden sought refuge in Russia. Not a good sign that O is up to the task. At the very least, it tells me that transparency is a joke. 180 degrees. Blackmail is a pretty good explanation that allows me to still keep a few ounces of respect for the guy.

  47. c – politics not generally my thing, x as they impact laws specifically.
    O blackmailed? Maybe. I can see that. But I can also see what I said and how naive he may have been.
    His blackmail may be ours, also. I’m thinking of those errant key strokes that move markets 500 pts in a day.

  48. JG,

    If you find otherwise, I’ll gladly stand corrected but I’m like you: too much old stuff lying around… I fish for new, all the time.

  49. JG,

    Did you listen to it? 8/27/13. And no, it’s not when it was posted. It’s when it was recorded. And posted. I know Krieger has been around for a while. Listen to both Krieger and the interviewer: even the questions start indicating that people “get it”.

  50. c – got a date on that? Dave Krieger has been around, knowing what he knows for a long time now……..I believe it was Krieger who brought MERS 7 year contract with “Genpact” to our attention. I’d be very interested iin what he’s learned about that pretty much hidden contract in the past few years. So I’ll listen longer to the video and hope it’s not old news. Krieger and Ludden ought to get together. And invite McCandless. And that Roper guy.

  51. IN RE ABBOTT (S.D.N.Y. 5-4-2010)
    In re Suzan Roberta Abbott, Chapter 7, Debtor.
    Case No. 09-37125.
    United States Bankruptcy Court, S.D. New York, Poughkeepsie Division.
    May 4, 2010

    “The note, complete with the missing page, was filed on CM/ECF on April 12, 2010, and
    shows Debtor’s signature, and two stamps. At the hearing on April
    28, 2010, counsel (for Aurora Loan Services, LLC – sic) advised the Court that the document is called
    an endorsed note. The Court noted that the account numbers were
    properly blacked out on ECF, for protection of Debtor’s
    privacy (thank God! sic); counsel had an unredacted copy for the Court’s review.Counsel advised the Court of the meaning of the stamps: “After the note was executed, there was an endorsement. The endorsement went from Lehman Brothers Bank, FSB, to Lehman Brothers Holding. And that’s the first endorsement that you see. Then there’s an endorsement in blank, from Lehman Brothers Holding, Inc. And that is the second endorsement that you see. And that is what you see when you have foreclosures, they want it endorsed in blank.”

    jg: you think? That way, they have gotten away with take one down, pass it around, 99 notes on the wall….. The purpose of the blank
    enfraudment is to allow ANYone in the club in alleged poss of a note to enforce it. Then, with a handy Hultman-resolution, use its own employee for a self-assignment of the collateral instrument. Voila!

    Yes, a-man, I’m with you – a person in poss of a note must demonstrate that it’s the lender and successor or assign as defined in the note. I say a pact was made with the borrower that such a party would be the only party entitled to enforce THESE notes. Like I said, the note does NOT say “see UCC” for who may come after us.

  52. What’s important is not what we know here. What’s important is that more and more people formulate it out loud.

    Now think about that: Olbermann (whom I respected for a while): big mouth. Got fired for refusing to cave in and be muzzled. Went to Al Jazeera (Gore’s TV). Opened his big mouth and… got fired. Still respect him. The guy is coming back. Fully muzzled. Sports only. Can’t talk about politics and… agrees to take the job because there’s plenty of money to gain by shutting up. No lost respect left from me.

    For every Karen Hudes, Snowden, Barofsky, Austin Fitts, there are 100 of your compatriots who caved in and decided that the money was better than the freedom or their legacy. And Olbermann doesn’t even have the excuse of young kids whose lives were threatened.

    Am I pissed at Americans. the pioneers of the world, the explorers, the tough guys who stood for something once and have since fallen for everything? You bet!

  53. John,

    Breakthrough into MERS. Take the 25 minutes to watch what has come out in the recent weeks.

  54. Any which way you want to call it. robosign fraud perjury etc…. is a breach of contract, that clouds the title.

    NEVER AGAIN

  55. JG,

    Did you ever watch Kay Griggs? She gave an 8 hour-long interview with supporting documents, names, facts, proof, you name it. Blackmail of everything that breathes is the name of the game and has been for centuries.

    Bassett is under the impression that, as soon as Obama was elected, he was blackmailed into obedience. That makes absolute sense when you look at the dichotomy between what he stood for and what he wrote in his books and the stands he’s taken since.

    It’s not his ego. it’s fear. Lack of moral courage. Fear of becoming a martyr. Obama has nothing of a Nelson Mandela or MLK. Just a disappointing, gutless ideologist. Didn’t even have the guts of a “The buck stops here” Truman. A nobody. A big failure as a president. With one chance only to redeem himself and not much time to do it.

    I ain’t paying his meals.

  56. The key word is “Lender” John Gault. They first have to establish that they are or who is the “lender”. Once they establish who is the “lender” then they can go forward and foreclose. And if they cannot find who the Lender or Lenders are the so called Borrower (they are not a borrower anymore) can foreclose on them or ask for the clouded title be removed.

    NEVER AGAIN

  57. well, Christine, sometimes in my dark hours I have thought O wants to pay us all back. But then I think of his ego and see a competition.

  58. One of the very things which promotes a patent conflict is that the dot trustee is paid by the lender (or its goons). A set fee might be prescribed, with upfront agreement about who’s to pay what of it.

  59. The glaski lower court also said something (quoted in the appeal decision – mol borrowers just can’t challenge the other guys rights because it would upset the purpose of non-j f/c) which is imo partially behind AZ’s decision in Hogan. Non-j foreclosure was in fact legislated to make enforcement of mortgages less time-consuming and less expensive for lenders. That’s why a third party, the dot trustee, was introduced to collateral instruments. If the leg. had not introduced a third party, what the lenders wanted – the speedy remedy for default provided by non-j – would have totally vitiated the due process rights of the other party to these contracts, the borrower. The legislators never said or intended that whatever one party to a contract said was true could be determined solely by that one party. The legislation did not mean to say nor did it say that a lender could cry default and foreclose, but that’s exactly what’s happening now. CA’s ridiculous
    2924 et al does in fact vitiate the borrower’s rights. it violates due process if not the constitution. One of those (I’m no scholar) says one may not be separated from his property without due process.
    CA “law” says the lender, the trustee, or an agent may foreclose. The lower court said a borrower may not challege anyone’s authority! Bulll!!!!
    If the lender or its agent (agent = same as lender) may foreclose without consideration of the other party’s contentions, there is simply no due process. The borrower must have a forum to assert his contentions, whether it’s to a dot trustee or a court, and the legislation when implementing the dot as a collateral instrument didn’t intend otherwise. That’s why title companies are listed are the orig trustees in dots. They have staff attorneys generally regarded as having the
    credentials to determine what must be determined to go ahead and foreclose as requested by the lender. Such an attorney would be at least theoretically able to say yeah or nah on disagreements between the lender and the borrower and advise the lender and the borrower accordingly. What’s to be done if that trustee either can’t find resolution in what he’s got to work with or the other two won’t come to an agreement? I suppose the lender of borrower may take the issue to a court, or maybe even it’s that the trustee must refer the matter to a court.
    CA is stripping the right of due process from one set of people to a contract. They have statutorily defeated those people’s
    rights by passing legislation which says that a lender or its agent may itself do this or that., when the only thing a lender may really do is declare default. CA has also violated due process if not the constitution by interpretting legislation to mean that a borrower has no recourse against acts by those with no rights to perpetrate them.
    Californians should be screaming bloody murder: those laws are unconstitutional. If courts are misapplying ther laws, they should be called on it there and then. If one is not the dot trustee or if one is not the beneficiary, then one is not protected by statute from illegal acts which are legal if done by trustees or beneficiaries consistant with their own rights. And as long as non-j is tolerated, no entity without the intended qualifications of the orig dot trustee should be legally allowed to be appt’d a sub trustee.
    Courts to my knowledge may not enforce unconstitutional laws and there is no prohibition against challenging the constitutionality of a law.

    When I see the banksters’ influence in legislation, I think about being
    Christine’s second-in-command.

  60. This is it. America has made more enemies in 30 years by poking its nose into everyone’s business and failing to clean its own house than any country every did before it, in recorded history. From getting into a pissing contest with Uruguay over Assange and with Brazil over Monsanto to having its nose cut off by Russia over Snowden while publicly rewarding its bankers for destroying the country, it has deserved the title of… biggest loser. You know what Obama’s legacy will be? The black man with no balls and no moral courage, who managed in 2 terms (if he’s not impeached before) to:

    Foreclose on any chance blacks in this country will ever have of ever being president or of holding any position anywhere;
    Fail to clean his own house before inspecting others’ but opened his big mouth about torture and such while practicing it at home;
    Fail to abide by his promises by caving in to fear and blackmail;
    Make more enemies in 8 years than any other president, however disliked they were;
    Thoroughly complete Bush work of destroying the middle class;
    Cause an entire country to completely and thoroughly distrust its government by spying mercilessly on anything that breathes.

    And I’m sure I’m missing a few…

    Argentina rejects court order to pay ‘vulture fund’
    © AFP
    By Joseph BAMAT (text)

    Argentina has said it will continue to pay back debt on its own terms, after a US appeals court ordered the South American country to hand $1.47 billion (1.1 billion euros) to two hedge funds holding its defaulted bonds.

    “We will continue to pay (the debt) as we have been until now, under the same terms,” Economy Minister Hernan Lorenzino told state news agency Telam on Sunday.

    Buenos Aires’ defiant stance is just the latest chapter in an ongoing dispute over the repayment of government bonds it was forced to default on in 2001.

    Facing bankruptcy at the time, the country struck a deal with almost all of its creditors to restructure its debt at a discount of nearly 70 percent in two phases, in 2005 and 2010.

    However, two funds, NML Capital and Aurelius, refused to take part in the arrangement.

    Argentina has claimed that the court’s decision would spur the other 93% of creditors who previously agreed to a deal to also demand full repayment, thus forcing the country back to the 2001 bankruptcy scenario.

    The New York court endorsed an original 2012 judgement in favour of the hedge funds, but Lorenzino repeated on Monday that Argentina would continue fighting in the courts.

    “Everyone agrees that the default was over. Ninety-thee percent is a large enough majority to consider that the debt restructuring plan was completed,” he told the left-leaning Pagina/12 newspaper. “ However, because of an improbable legal interpretation… the question is now open again. The past returns.”

    From seized ship to Supreme Court

    The row between Argentina and its creditors has already made international headlines.

    In October 2012, a ship belonging to the Argentinian Navy was detained in a port in Ghana, after NML Capital convinced a judge to hold the vessel as collateral in the unsettled dispute.

    The Libertad ship eventually sailed home, with the episode further souring relations between embarrassed Argentinians and their unhappy creditors.

    President Cristina Fernandez often refers to NML as a speculative “vulture fund”, which bought most of the debt at a discount after the Argentinian default, a controversial practice in as much as it profited from the country’s painful economic crisis.

    She has been forced to charter a foreign-owned jet to avoid having her own plane seized in a repeat of the navy ship incident.

    Lorenzino told Pagina/12 that President Fernandez was reviewing “all the options on the table,” but that Argentina had requested that the US Supreme Court review and make a ruling in the case.

    He said that the Supreme Court would make a decision on whether to take on the case in early 2014, and if the request was accepted, the open dispute could “go on for much longer”.

  61. Thank you guys for the vote of confidence. Apparently, no one appears to realize that China, Russia and iran have Keshe technology, which Obama outlawed in the US by presidential order in July 2011 (or was it 2012?) Know what that it? Exactly what the US military has been developing ever since Roswell and has been blocking humanity from getting. Well, brains exist everywhere. And Keshe GAVE AWAY his patented technology to pretty much every country. He did not sell it. he gave it away, starting with Sierra Leone in April 2012.

    If anyone is really interested in finding out where we are, worldwide, I strongly suggest you listen to Stephen Bassett who is becoming more virulent and focused as time goes.

    With Russia and China withdrawing together out of the UN Security Council meeting today (despite their 2000 year-long feud over Mongolia…), and that moron Obama intent on restarting the economy a la Republican by stepping into Syrian soil, this country is toast. Unless people get involved and off their butt, which, apparently, they no longer know how to do.

  62. NG – the other day, your post discussed affirmative defenses, but you left out the very salient issue of when and what aff defenses are in fact available in re: holder in due course v holder.
    One can play it a couple ways (or even seek relief under alternative
    theories): ask for a more definitive statement: is the claimant claiming as a holder in due course or as a holder? Or one could posit that the date of the assignment is one which is after the borrower’s alleged default = prima facie evidence not holder in due course and accordingly assert all available defenses. But, Neil, wouldn’t it be better if you covered that distinction (hidc v holder) when advancing aff defenses as a post? Or are you suggesting we make them on an unstated presumption the claimant (if a true “holder” at all) is a holder but not one in due course? I’d like to repeat that one in poss of a bearer note does not yet meet the definition set out in the note about
    whom may enforce, not if he’s not 1) a successor or assign of the original lender and 2) if he hasn’t’ taken the note by transfer.

  63. iwantmynpv or usedkarguy (?) said Glaski is being hotly contested. More details? They HAVE to fight hard or their whole facade falls down. Not only will Glaski’s case mean borrower’s may attack assgts based on trust law (void), it will out the fact that there were no MBS’s. opening banksters and trustees up to actions from investors which imo should have already been filed. Banksters and trustees also would be found liable for the taxes the investors actually owe. The govt, imo, still seeking to protect the banks for whatever the real or claimed reasons, will likely bring pressure to bear on courts to not allow our lawful challenges. I wish that weren’t true, but think it is. As to the U.S. SC rejecting a case re: MERS, it doesn’t necessarily mean the SC feels MERS is legit. The case as postured might have just stunk.
    In fact, if the U.S. SC has given any thought to MERS, they must know
    MERS operation is not legit. I know some would argue the SC will get on board (or is) and follow the cue being given by Holder’s refusal to
    engage in any meaningful prosecutions of bad actors. I really don’t want to believe that one. Yet, anyway.

    kudos to CA attorneys Catarina Benitez and Richard Antognini for their work on Glaski. I do applaud the appeal court, but there’s a “but”: I was more than concerned to see that the court found it needed to deviate from popular opinion and rule that “void” actually means “void” in a law. The court implied if not said that a law shouldn’t be taken literally if doing so harms someone! (Isn’t that called bench law?) Here the court, in its “deviation”, decided void should mean void to protect the destruction of the trust in accepting late loans. (Oh.)

    That a trust wouldn’t for that reason, never minding that the law says they may not, should be a presumption, as should that a trust would not take a loan in default. But, at least theoretically, the trust has received monies monthly on loans not in the trust. What a C-F. (sorry I know no better words for that)

    If borrowers argue and courts accept, which imo they must, the presumptions that a trust would not accept a late loan because it kills the trust and that a trust would not accept a loan in default, it would force the trustee to acknowledge acceptance of late assgts. An assignment requires acceptance. What I’m trying to say is that
    those two things should be held to be presumptions, and the onus is on the proponent of the late assignment to demonstrate it’s been
    accepted by the trust. He can’t do that without outing his own
    negligence in, among other things, accepting payments for something other than a mortgage- backed security, and of course, he needs to pretend the payments were from MBS’s. So the challenge to these late assignments is a rather large deal.
    When a bankster purports that a loan has been accepted by a trust
    after the cut-off date, I have suggested that a notification be sent to the IRS with a cc to that trustee and any attorneys known to be associated with those investors. They can all choose to ignore it, but at least a record has been made to some extent. Or place a Notice in a paper or file the Notice on your property while you’re still the owner of record or ? lay person – ask a lawyer

  64. JG, +1 works as a like button on boards like this. And I agree, Christine +1.

    As to the reality in the courts in my neck of the woods, the judges will not allow a pro se “victim” to object. I wrote about this here years ago, and was shot down as a liar, but I’m here to tell you, they will not let you object. The bankster attorney is simply allowed to state, unopposed, that the borrower defaulted, owes $300K, and that they are the mortgagee, and the foreclosure is legalized. End of story. MTD granted. NEXT!

  65. re: Christine’s comment: check. (wish there were a “like” botton here)

  66. All Schwartzwald managed to accomplish in Ohio is to put banks on notice that they need their paperwork in order before foreclosing. So… they postpone foreclosing nfor a while, record the transfer and file their complaint a few months later.

    Other than that, MERS is still doing extremely well…

    http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2013/2013-ohio-3690.pdf

    And people still won’t riot. With winter coming, it means that nothing will happen for another year. And by then, we’ll be in Syria, getting our ass kicked by the Russians and the Chinese. America the suicidal…

  67. Strike three indeed !!!!!

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