Hearsay Practice Hints: Meeting Intimidation with Facts

I went to a hearing yesterday on the Bank’s Motion for Summary Judgment. The Motion had the usual deficiencies and the affidavit was, as usual, worthless because the witness failed to state any basis for personal knowledge. The attachments to the motion were absent. The Bank avoided the allegation that it ever made a loan and avoided any allegations that there was financial injury and if so, to whom. The Foreclosure Mill was rotating coverage attorneys who knew little about the case. We quickly agreed to drop the motion for summary judgment and move forward to a status conference in 120 days, allowing time to explore modification and discovery.

The interesting thing is that the Bank’s attorney actually said to me that we should not conduct discovery because it would only add to the attorneys fees that the homeowner would owe. This rolled out of his mouth in a manner that indicated to me that it was a standard ruse to get the homeowner to give up rather than fight. Of course I didn’t take his suggestion seriously and I told him so. But I could see how pro se litigants and even inexperienced lawyers have their confidence undermined by that “suggestion.” The ruse is that the Bank is going to win anyway. The facts are that the Bank in that case has potentially insurmountable proof problems. And the tactic is also used because the foreclosure mills are paid a flat fee for all cases, usually $1200 or $1400 and the law firm therefore wants as little work as possible on each case.

Practice Hint: always check the State Statutes (or the Federal Rules) on evidence, especially here say and hearsay exceptions before you open your mouth or file any discovery. There are some juicy morsels in there. Like how you can use business records as an exception to hearsay and how the fundamental issue is the trustworthiness of the records. Simply stated, if the records are those of a non-party who has no interest in the outcome, then the Court should lean toward allowing the business records into evidence upon the proffer of an appropriate witness and compliance with other rules of procedure requiring notice to the opposing party. Those rules should be carefully reviewed and used against the Bank if they don’t comply. REMEMBER ANY INSTRUMENT IS PROBABLY HEARSAY BECAUSE IT ISN’T A WITNESS. the issue is whether the records qualify for an exception to the hearsay rule. If the records come from a party, then they are inherently suspect because they are self-serving even if they are true or could be true. The rules should be strictly applied and you should preserve the issue not only with motions in limine but also by objecting at trial should the issue come up again even after the Court has entered an order barring the introduction of the business records.

As far as I can tell the Banks make no attempt to comply with the law and rules regarding business records, as an exception to the basic rule that hearsay is not admissible in evidence. If you read and study the applicable laws of evidence, rules of civil procedure and hold their feet to the fire, you just might have punctured their case. Failure to comply with those laws and rules is fatal to the foreclosure case, even if they right. It is potentially fatal to the homeowner if there is a Failure to object to hearsay on the basis that the Bank failed to comply with the laws and rules governing introduction of business records.

Practice Hint: lawyers for the foreclosure mill really know very little about securitization. In fact, few foreclosure defense lawyers have mastered it, which is why my law firm is providing litigation support across the country. The proof of that is that when I ask lawyers to informally comply with our request of proving the money trail with cancelled checks, wire transfer receipts, wire transfer instructions, the lawyers say “no problem” only to later nervously evade the issue after they ask the Bank that is foreclosing.

The lawyers for the Banks honestly believe that the homeowner’s closing was largely in compliance with Federal and state laws. They don’t understand that the securitization was an illusion. They don’t understand why a closing agent would take money from a third party and apply it to the closing and then have the homeowner sign a note and mortgage in favor of a party who was not loaning any money at closing, directly or indirectly. They don’t understand that the original note is fatally defective in those circumstances and that the mortgage is a non-perfected encumbrance that is not enforceable. They don’t understand that recording the mortgage doesn’t correct deficiencies in the closing process.

As always, check with an attorney licensed in your jurisdiction before you apply anything contained in this article. And always remember that just because you are right it doesn’t automatically follow that you win. The Judge must also be convinced that you SHOULD win, which is why I counsel pro se litigants to get lawyers or at least legal advice. Remember that the devil is in the details.

28 Responses

  1. You talk about hearsay but what about when we the Plaintiff filed suit against the bank for an illegal foreclosure that was never in default nor was the MGL ch 244 sec 14 complied with. We had the Facts of Law on our side and the Preponderance of proof. The bank did not and could not prove they owned the loan or followed the law. They also did not respond the the Interrogatories, Production of Documents etc. We also have proof of FRAUD, Perjury, Forgery and the list is too long to write. The Judge was corrupt and we recently found out information that should put him behind bars. We all know that will never happen. I have proof of every document, payment, letter, QWR, complaint, Validation of Debt and all Complaints to MA state officials and their INVALID responses. I know people who have not made a mortgage payment in 3 years and here we are we paid off an invalid loan 3x over and lost it illegally. You tell me where the JUSTICE is?

  2. Here she is again, starting at 13:52 mn. “The American people don’t realize that they have already won… The days of the Federal Reserve notes are counted. Something happened in July…” Etc., etc. Even more details on what’s really going on. Uplifting.

  3. She won’t shut up about it and I believe her when she states that this is the end of the corruption. Everything that has happened in the past months supports it: the recent Vatican upheaval and firings, BRICS increasing weight in IMF and the World Bank, Europe discussing the possibility of returning to individual currencies, the US downgrades and even the series of investigations of Chase and other major banks worldwide.

    She is consistent and increasingly more detailed about what is really going on. In the light of what Karen Hudes has been extremely vocal about, international news sure make incredible sense!

  4. Thanks for the replies everyone. I’m doing fine and I’m not going anywhere. Which makes me admit something, when I was younger and this happened I would wish for it to happen to everyone else ……now whether I’ve lost for good or not , is not most important to me, I am going to do my best to wake people up and hope they are able to avoid the theft, fraud and corruption that is sitting in their own mortgage. I guess I have finally grown up.

    I’m in NJ. Keep up the good work folks.

  5. All these “systems of injustice” are failing…everywhere. With the little time we have left before we pass to the next world, we all have to search for—and do—what makes the most sense for each of us individually. I chose my family, art, and music rather than try to find money to fight these bastards in court in brutal CA. I did an extensive list of the “wrongs” in my IFR packet—and it’s been almost a year with not a peep from them. No surprise there.
    Java—what state are you in?

  6. Javagold,
    .
    There are no winners. Lots of souls are already lost, some of them are just clambering for who has the top rung on the ladder to hell.

    People who fought and won still ended up dealing with another crisis be it credit, job, illness, natural disaster, etc that took away the win.

    Kind of hard to know the future. Just live day to day and if an urge hits you to step back into the fight, you may want to ask yourself what the motive is.

    You haven’t lost. There is no honor among thieves. Courts are a business,(they have signs stating they are open for business), the bench is a bank, someone is settling their accounting books and not revealing that activity to the rest of us.

    If there is any quality of life left, you may want to just take the time to figure out what it’s worth to give your quality of life your focus.

    With utmost respect,
    Trespass Unwanted, Creator, Corporeal, Life, People, Free, Independent, State, In Jure Proprio, Jure Divino

  7. for god sakes ive had to cram

  8. shelter , yeah that’s what I said :[

  9. Subpoena duces ‘tecum’ “SDTs”

  10. Java- I told a little story a few weeks ago about a person I got chatting to and it went kinda like this, they foreclosed behind her back (not that unusual) she was up to date on payments according to her, she had a little real estate background too, she called fannie mae repeatedly and desperately trying to find out what the h eck was going on, long story short , the “attorney” picked up at fannie mae on last occasion and told her “its fortunate that you got hold of me today because after hearing your story im going to arrange for you to buy your home back at market value (you mentioned your home sold for a bit higher that what you owed -hmm to that) but anyhoo, that’s what happened , AND WE ALL KNOW IT STINKS, A LOT.

  11. don’t forget subpoena duces tactum in discovery,

    Java if you get a second chance or you feel up to it
    if I were you I would sit tight and fight the unlawful detainer when they file it. (lay opinion of course not an attorney

  12. Securitization and understanding it is not the main point regarding claims of malpractice, to be reasonable no one can know everything right at the time of retaining council, however, basic drafting, introducing experts, giving experts what they need or have requested failing to use fact information and requesting for production of documents, known points of contention and failure to conduct discovery accordingly is the issue for malpractice. what the judges do is another matter, having said that what do think happens if you do not respond and rebut a motion to dismiss.

  13. Java – My recommendation – Fight any attempts to evict you in and out of court. Tell anyone who comes to the house that they don’t have clear title and you’re not leaving until they can prove they do. I did, and just kept advising ALL the parties why they don’t have clear title. My sale actually got rescinded after about 5 mos, saying they did so because of a TRO, which was only partially true, but who am I to argue. I’m still here and although it’s been another couple of years, they haven’t given up and I’m still in the game and fighting. Now dealing with them on the issue of it being an unsecured loan past the SOL. You might want to consider getting help from your local Occupy people if they are knowledgable and active, as they can sometimes provide support to keep you in the house until things do turn around in your favor.

  14. Challenge…!! One of the assignments has a certain pool #, which is in very fine print, later after “stop payment” of the pretend loan, the next assignment is to a beneficiary of a trust, RALI 2006 QS14 ( Servicer acting like they have authority to assign into the trust, which per PSA has no authority to do so ) in which Deutsche is trustee as an unsecured creditor ( Attorneys foreclosure mill claiming that Deutsche is the beneficiary although the loan was not transferred into the trust 5 + years after the closing date), according to Residential Capital’s bankruptcy documents. When you go to that trust (PSA), that loan # has a different pool #. The challenge is how do you determine what is the correct pool # or what “trust”, “how many trust” is that loan in.??..and how many parties can claim standing to foreclose along with how many parties does the borrower owe. Pay off the pretend loan then some else say’s you owe. Object to all, as is hearsay? What would you do in this situation? I’m am not asking for any legal advice, just some feedback so I can at least go into a direction that will not tie up the courts or my pocket book. Neil Larkins 541-884-3055….Oregon

    ________________________________

  15. Thank you for pointing out very few lawyers know about securitization. But isn’t that grounds for malpractice. I know its a double edge sword but why don’t more lawyers try to educate themselves?

  16. That’s funny you ask me if this was all about me, Christine. Because my own attorney told me …. worry about yourself and not everyone else. I was stunned because all I have ever done was worry about Everyone Else but myself. Maybe that’s why they didn’t tell me how they were protecting me ???? I don’t like being kept in the dark and others making decisions for me … I like to get all the facts and make the decisions for myself. That’s just me ….

    Java, I am So Sorry to hear the news. I know once the home is auctioned its a Conversion. Wish I could be of more help.

    Hman.. I wish I could elaborate, but after finding out the Undisclosed by way of my Personal Knowledge in another case… they put me on their expert witness list and gagged me. I told them I was no expert and they argued otherwise … hmmm.???

    Stripes, give us an update on your case since Aug. Did you take care of those land contract issues?? Taxes and Ins ?

  17. […] Hearsay Practice Hints: Meeting Intimidation with Facts. […]

  18. http://www.spreaker.com/user/thepetesantillishow/the_pete_santilli_show_754 As far as the truckers/bikers/million man marches go if you listen to Pete santelli’s show on Guerilla Media Network they are keeping touch on what is up. They are making a point NOT to speak to MSM because of how much they twist everything. They have “General Lee” on a lot, he is the ‘lead man’ of all the truckers. He has on fb “General Lees ride for the constitution” – GROUP, not page and the admins try to keep the latest to date. There is some junk conspiracy posts and whatnot but that is a good place to know what the truckers are doing. The “anonymous” groups sporting “V” masks are popping up ALL over and planning who knows what. People are pist and finally joining together doing something. MSM is not announcing shit, I believe they are all ‘under orders’ not to cover it. Vets, tearing town barrycades and literally walking them down to throw on the white house lawn –not even our little town news stations covered that for those ratings??!! Yeah right!! Some have, but it was not the correct story. “They” do not want “we the people” in the dark that only have MSM to rely on seeing how many THOUSANDS AND THOUSANDS of people are joining up and making plans. Truckers are going again,soon. Bikers and thousands of citizens are going. Veterans are going, the people that want revenge of any type are going, people that just want to raise hell are going, redneck hillbillies are going, college kids, people are finally fucking waking up!

  19. Don’t know what’s going on with Poster Boy… And it sure took a while to transpire. Something’s up.

    http://ml-implode.com/staticnews/2013-10-17_DimonSaidtoHaveGivenUpRoleatBankUnitAfterOCCRequest.html

    Dimon Said to Have Given Up Role at Bank Unit on OCC Request
    By Dawn Kopecki – Oct 17, 2013 1:59 AM ET

    JPMorgan Chase & Co. (JPM) Chief Executive Officer Jamie Dimon stepped down as chairman of the bank’s main operating subsidiary in July because of a recommendation by the Office of the Comptroller of the Currency, according to two people with knowledge of the matter.

    The agency asked for the change as part of an effort to improve corporate governance at the company, said one of the people, who asked not to be identified because discussions were confidential. The move wasn’t punitive, that person said. Robert Garsson, an OCC spokesman, declined to comment on the talks.

  20. No 1099 yet. Just happened this week. Plus believe it or not sold for a few dollars more than was owed. So no deficiency.
    Still, the scumbags at WF stole my house and I’m not OK with that. (And this has been going on for 5 years and everyone thought I was nuts in 2009, most think I’m awesome in 2013, still the change in thinking isn’t moving fast or strong enough yet !!!)

  21. Christine what we really have is REPUBLICRATS

  22. if I could drive a truck I would go too

  23. Java- did you get your 1099 yet, HA, A or C ?

  24. The whole country is imploding…

    Here is a list i picked up from some fringe site. That letter from Chase limiting bank withdrawals to 50K and stopping international wire transfers doesn’t even make the list yet but… something’s definitely up! And even though MSM has remained fairly silent, we know that thousands of bikers, vets and truckers went to DC and that more are going down there.

    – Obamacare?
    – food stamps being cut off?
    – government shut down?
    – consulates and embassies being shut down?
    – Military spending cut drastically and vets being cut off?
    – fiscal cliff? raising the debt ceiling? borrowing more money?
    – the LIBOR debacle
    – mortgage banks bailing out of the industry?
    – home foreclosures doubling? People fighting against foreclosures?
    – Benghazi?
    – tantrums between democrats and republicans like 2 year olds?
    – Syria?
    – Libya (which people are now seriously questioning after seeing this Syria shit!)

    As the writer said, “…. never before have people seen S*%# like this all at once, in their face…… THIS is transparency!!!! and it’s F*%#’ awesome!!

  25. Some people are starting to implode…

  26. Java java
    I started my fight when instead of a loan mod I was surprised to receive NOTS, on a Saturday morningim in a panick im like – my god im going to loose the roof over my head- never in my wildest dreams did I think this could ever happen- I googled, not what to do when in a big ass panick, but how to defend myself in this totally unfamiliar teritirry,found Neils site that was in 09, I fought and am fighting hard, ive had 2 attys who threw me under the bus , bus missed, so after working my derrire off getting some kinda insight into FRCP and motion practice and moving from rental to rental 3 times to get my best deal to give money for paralegal support im left pro se, case is too much like an uphill struggle for any council to help me at this stage and I have no money left anyway to retain and pay their big fees, most of my own work is appellate- not easy, ive been dicked around by the opposing council and bank for 4 years, theres no end to their cruelty they want to wear you down, well unless you are as bloody minded as myself save yourself some pain, but is it worth it, that’s an absolutely because how would I ever know- if I could have got justice, im fighting for my piece of justice and because financially they got everything I had going for me- my lifes work and fruits of my labor,, they just snatched it like candy fro m a baby. im not the only one I know, there are far worse stories, at least I have no other responsibilities, kid is all grown up,so I have nothing to worry about because I know what they did, as do they. so if you bad guys read this- I want my justice and I want my money back with damages. and, im not leaving MY court room until then..

  27. Mr. Garfield, thank you..in the extreme. I have been fighting for almost six years and still have possession. I just received notice of Intent to Foreclose, but assume they are seeking my acknowledgment of the fraudulent debt and hoping that I mediate. I am going to get my certified paralegal degree to fight them and will be retaining your services. I would like to sue them for operating a Continuing Criminal Enterprise, as well as the obvious breaks in the chain of title. Is there any status for this type of citizen prosecution of this control fraud? Btw, I was an appraiser when this all went down and saw this control fraud first hand for a long time before resigning. It was rigged out of the gate. All the very best and once again…thank you!

  28. What is the best course of action, now that house has been foreclosed and sold at sheriff sale by a SERVICER who did NOT lend money, did not own note or mortgage , foreclosed for investor Fannie , with broken assignment of title, with robo signed and incorrect/fraudulent docs.

    1. Sit back and wait for one day to be made whole if/when country catches up to the fraud.
    2. Keep fighting and attacking (and if so how?)
    3. Time to give up the fight

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