Anthony Martinez, Esq. Explains Tactics and Argument in Court on Assignments

I don’t often do this, but I was sent the following link that I feel is worthwhile for lawyers to consider when they are thinking about (or SHOULD be thinking about) the assignment. I like the way Anthony splits up argument into fact and opinion. Where there is nothing in the record to support a factual assertion by opposing counsel (often the case) the objection should be raised that counsel is testifying in which case let’s swear him or her in and let me voir dire the witness on the basis of his knowledge as to the assertion he or she just made. Or, the more likely tactic is Objection and motion to strike. That is something that highlights the point you are making that the assumptions of the Court are being brought into contention.

I don’t know Anthony Martinez, but he seems to be moving in all the right directions. Here is the link I think you should read:

http://discoverytactics.wordpress.com/tactics-strategies/how-to-argue-florida-assignments-to-judges/

 

49 Responses

  1. Hi Keith, I don’t “critique” cases for Neil. I think this particular article was something Neil felt was relevant to share with his subscribers. Feel free to contact me directly if you have any questions.

  2. is Anthony Martinez the lawyer still critiquing cases for you?kp  

  3. I have 34yrs in this marriage, I don’t have time to raise another husband. I don’t plan to divorce anytime soon.

    Entirety..

  4. KC … as One
    Half of the Community
    Property
    Plaintiff
     
    V.
     
     Buttwipes

  5. …..Read It and Weep… Oh Greedy Ones.

    A type of concurrent estate in real property held by a Husband and Wife whereby each owns the undivided whole of the property, coupled with the Right of Survivorship, so that upon the death of one, the survivor is entitled to the decedent’s share.

    A Tenancy by the Entirety allows spouses to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety.

    There are three types of concurrent ownership, or ownership of property by two or more persons: tenancy by the entirety, Joint Tenancy, and Tenancy in Common. A tenancy by the entirety can be created only by married persons. A married couple may choose to create a joint tenancy or a tenancy in common. In most states a married couple is presumed to take title to property as tenants by the entirety, unless the deed or conveyancing document states otherwise.

    The most important difference between a tenancy by the entirety and a joint tenancy or tenancy in common is that a tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant. Upon the death of one of the spouses, the deceased spouse’s interest in the property devolves to the surviving spouse, and not to other heirs of the deceased spouse. This is called the right of survivorship.

    Tenants in common do not have a right of survivorship. In a tenancy in common, persons may sell or give away their ownership interest. Joint tenants do have a right of survivorship, but a joint tenant may sell or give away her interest in the property. If a joint tenant sells her interest in a joint tenancy, the tenancy becomes a tenancy in common, and no tenant has a right of survivorship. A tenancy by the entirety cannot be reduced to a joint tenancy or tenancy in common by a conveyance of property. Generally, the couple must Divorce, obtain an Annulment, or agree to amend the title to the property to extinguish a tenancy by the entirety.

  6. End need of and atty to join my atty Robert N Farinacci, Concord OH
    huge real estate case in Greenville SC 100K give or take going to Federal Court, Washington DC 864-787-2880 Shirley

  7. Re. Matt Weidner comments—EVERYTHING IS CORRUPT. EVERYTHING. Moral compasses are NOWHERE to be found. NOWHERE…NOBODY—NOT NOHOW.😦

  8. From KC’s link at 5:40 – Montana case):
    MERS can’t be the designated beneficiary of an INDENTURED TRUST (pretty much like WA in Bain though I don’t think WA made reference to ‘Indentured Trust’) in Montana, created in and by the dot. I see it like this: if MERS is not the ben, there isn’t one, so there’s no complete contract (if these mtg loans constitute a contract in the first place – I’ve said before I think a prom note – itself – is NOT a contract, but that’s going back longer than some here have been alive!) UNLess courts want to and MAY rule that the lender named in the note is the ben “by default”. Is that lawful? I don’t know. When making their determinations, courts won’t like it that these notes may well be unsecured (because there’s no dot), which to me is the natural consequence of an incomplete instrument – the dot. Incomplete because it has no ben and therefore can’t be perfected by its recordation, either. In fact, if MERS isn’t a ben, I don’t see how any of these instruments can be perfected. (Pandemonium!) WA thought this but stopped short of saying so, if for no other reason than maybe it wasn’t before them. Someone the other day said, and here I’m thinking of the lender being adjudicated the “default ben”, that ‘equity will consider done that which should have been done’, and yeah, I’ve heard that before, but I wouldn’t take it lying down without some serious research on the issue as applicable here because (“if for no other reason”) a document missing a material party is just not perfected, even if a court ruled adversely – for us – in favor of a default party in the dot – that wouldn’t make it perfected. period. imo. And I’m still on novation (except for the failure to name the lender as the orig ben and then substitute “MERS”: the borrower has agreements with two separate and distinct other parties).

  9. A Foreclosure Bank Attorney Comes Up to Me and says “What’s Happening To Courts In This Foreclosure Mess Is Madness And It Disgusts Me”

    January 6, 2014by Matt Weidner

    While waiting for a trial today I spent some good time talking to a good foreclosure attorney on the bank side. He’s the kind of guy that admits to homeowner foreclosure attorneys, “we’ve got these certain problems with this case, this document is missing, here are the problems with my witness.” That’s exactly what good lawyers do. They don’t play games, the don’t cheat and they follow the rules.

    In the context of this conversation he described for me how he was completely disgusted by some of the wins that he had accomplished over the last several months and specifically how, in at least one instance, a court allowed him to get a Final Judgment even though he admitted to the court that he didn’t have possession of the original note. He said, “I asked the court, will you let me get a judgment and I’ll bring the note in later?” Not dreaming that the court would actually allow this…he told me he was quite sickened when the court was perfectly fine with this.

    Can you imagine in any other context? “Your honor we don’t have the murder weapon, but please convict and we’ll get it to you later.” Or, “Your Honor, we don’t have the death certificate, but grant us judgment in this estate and we’ll get you a death certificate later.”

    Well, this is happening over and over….appellate courts are even letting these things happen now, not reversing circumstances where no original note was present in court and a defense attorney properly objected.

    To hear those on the other side of these arguments recognize just how bad this has become is both alarming and cause for deep concern.

    I hate that courts are allowing this to happen.

  10. Todd W,

    Your Pro!

    Thank you for sharing.

  11. Take #2

    Replay of today’s televised Oral Arguments in:
    Bank of America v. Kuchta
    At issue in this case is whether defendants can bring a lack of standing challenge in a post-judgment motion without having appealed the judgment.

    http://www.msfraud.org/

  12. You Just Have to Take #2 …

    Then imagine BOAna opening an old voluntarily dismissed case and claiming CWHL didn’t have standing…..

    Wouldn’t you Just Love to Hear them Argue Both Ends of the Stick?

    Yeah Me To! I waited long enough. Sorry Folks!

  13. Bravo to Stopa! First time a motion for clarification has been brought up here – one actually filed. Yahoo!

  14. Congrats Forthepeople, he gives Great Advise for folks with DOT and are dealing with a trustee. Where has he been hiding?

  15. I hope this argument helps those of you post fc and still fighting …

    I know nothing ……. But they are telling on themselves. 🙂

  16. Replay of today’s televised Oral Arguments in:
    Bank of America v. Kuchta
    At issue in this case is whether defendants can bring a lack of standing challenge in a post-judgment motion without having appealed the judgment.

    http://www.msfraud.org/

  17. Folks the article Mr Martinez wrote back in 2011 kept me alive in court as a Pro Se until I procured a great attorney. I used the info in his article and the Judge listened. This opened the door to Discovery. Plaintiff never complied with Judge’s order and did not even show up in court. I will say thank you to Mr Martinez for the rest of my life.

  18. Charles, were you still closing loans in late 2010 and 2011?
    That’s when they couldn’t fc in MERS or Trusts names anymore … things got really .. ” HOT ” in those refi’s and purchase loans.

    , TWO HUDs, TWO Notes, TWO Mortgages to be signed (paperwork reduction..hahahaha)…..

    Anyway to continue to my point…. The Left Copy and the Right Copy didn’t know what the other copy was doing…. (conflicting each other). And on top of that … there were the Homestead Exemption Waivers and Title Commitment Letters.

  19. If we don’t have air—housing won’t matter…

    http://www.globalmarchagainstchemtrailsandgeoengineering.com/index.html

  20. LOL Charles! I just thought I would point that out before someone else did.. I know what you meant. 🙂

    When did we go from being homeowners to being renters?

    The Answer will cause you a Knee Jerking Reaction , causing your foot to go somewhere the sun don’t shine knocking the plaintiff off his feet .. never to stand again.

  21. KC my bag I meant “red cent”! The rent is to high!

  22. Re; ” The answer is you cannot use the court system to claim a debt that not due to you!”

    Yes, One of the Elements needed to invoke the jurisdiction of the court .. Injury.

    Keep Going Charles … “What are the other Elements Needed to Invoke the Jurisdiction of the Court” In your state?

    Why was lack of standing removed from the OCC settlement? Because its in the States Jurisdiction ….. Yep! Yep!

    AG says .. No More!.. No More!.. No More!

    In some states you get whacked like a mole.
    JG.. By Golly You Got It!

    Scratch that One!

  23. You said it Correctly Charles … Emphasis on rent.

    RE: ” How can I hurt you if I don’t owe you a single rent cent”

  24. Someone said to me that you need to keep it simple stupid. This is not that difficult, but we are making it more difficult than is needed in my opinion.

    How can I hurt you if I don’t owe you a single rent cent, and how can you work through the court system even in a non-judicial state as in submitting an assignment and your not the financial party? The answer is you cannot use the court system to claim a debt that not due to you!

  25. And there are those here who always insist on Getting In The Last Word. Yep!

    Who is the Drama Queen Here?

    I know nothing …..

    Anthony, Exactly! Every Case is Different and State Laws Vary.
    …………….. Keep Up the Good Work! God Bless You!

  26. And that Charles has Trashed our Land Title System. BAC pushed and pushed to get Mod .. when there was no hardship. I didn’t understand why at the time. But I do know … They wanted the Title fc’ed in CW name as CW had claimed owner/holder of the note and mortgagee of record back in 2008. Thus the reason for not releasing LP Or dismissing JC, tolling …..

    I found that out after I went to payoff my husbands loan in 2010 what they did with the title.

    CWHL was Never Owner/Holder/Lender or Mortgagee of Record in 2008 … Or at any other Time!

  27. For some reason, disagreeing with people equates “attacking” them, in this country. Pointing out deficiencies in reasoning equates attacking their mental abilities. How odd that people would so easily take everything so personally… The evidence of a Me-myself-and-I, center of the universe, self-absorbed and self-centered society.

    Any idea why it is so fucked up and nothing gets resolved? 320 million people believe they are the center and the standard of the world.

  28. KC is on point, and where is the endorsement to any of these parties? As I cannot understand the claim that the “holder” (making sure to not call itself holder in due course of lien holder can go to court claiming the Note is lost and the court awards the right to foreclosures without a simple show that the party has purchase the debt?

    How stupid we been that this been allowed to go uncontested that by simply requesting proof under UCC 9 that puts the burden on the party that in possession of the blank endorse Note who now not currently in possession of a Note that never listed them as the owner of the blank endorsed Note.

    A party claiming to the court with no evidence that they even possessed the Note and have admitted that they are not listed on the Note and have not purchase the debt, but are entitled to sell the property to cure what? What is it that the party is asking the court to be made whole? The only thing the claimer is owed is nothing and that should have ended any claim as the claimer did not have right to be in court for and purpose because they were not a party to the Note!

  29. Christine .. you attacked my statement and I was responding (clarifying my answer).

    Now that’s not fair, … you know yourself, you are the one who told me they filed FC in state this past year while your case you filed in federal court was pending.

    I admire you because You Take Action and Tell The Truth No Matter How Hard it is to Swallow.

    But you still have a weakness you need to work on ….Stop Attacking People….. I agree with what you said.. but you should have stopped before the last statement.

    I’ am about to lock you and MS up in a padded room together.

    LOL!

    ~~HUGS~~

  30. There seems to be a great deal of comment on this particular post so thank you all including Neil (spelt your name wrong before – my apologies).

    Let me say that in my experience there are 3 types of lawyers, those that write, those that research and those that litigate in court. This is important to recognize about your attorney because not all attorneys are good litigators. A great litigator is a great salesman/sales woman. They are able to grab your attention and take you to where they want you to go. In truth, you don’t have 10 minutes to do your sales pitch, especially in a 5 min hearing. For each argument you have to hit your mark in what I call 30 seconds or less. You know when you are spot on when you have the judge asking the questions for you and its the judge extending the clock – not YOU!

    Here’s a perfect example with a simple Motion for More Definite Statement currently in play for hearing. Your Honor the caption reads Deutsche Bank as Trustee for FFMLT 2006-FF13. Because the body of the complaint does not identify the corporate structure of who the plaintiff actually is i.e. Deutsche Bank a National Banking Association with its principal office located in…Defendant cannot properly defend themselves. We simply do not know who the Plaintiff is, is it Deutsche Bank in its individual capacity, is it Deutsche Bank as Trustee or is in the actual 2006 Trust that is bringing this action?

    This prompts the judge to have to ask OC the question – who is the plaintiff because anything else is speculation. 9 out of 10 times they will say DB as Trustee which now prompts the reply – ok that’s fine judge however, nothing was attached to the Complaint showing Deutsch Bank is in fact Trustee for this 2006 Trust. It is at this point OC will bring up the PSA which in fact is the only thing they can introduce (outside of a bogus affidavit) that shows some sort of authority to act on behalf of the trust. NOW you can attack the PSA and the transfers and you don’t have to worry about their claim that you are not a party to those contracts and cannot raise the infamous “securitization” argument. See it’s not what you say, it’s how you say it. Good litigators know how to say it and not every attorney is a good litigator.

    Every point in an argument has to be drilled down and factual not speculative. Also remember that most note issues are questions of fact and not law that preclude summary judgment so focus material issues of fact arguments around factual issues i.e. defendants contend the note is a fabricated color copy of the original which is an issue of fact to be determined by evidentiary hearing precluding summary judgment from being entered.

    Neil is a great resource and its always a pleasure to come together to help others. Remember there is no silver bullet. There is a great deal of trial and error. It takes good strategy and tactics to achieve a positive result but most importantly the only way you can get that result is to fight so keep fighting and never give up!

    -Anthony

  31. I feel no need to criticize someone’s lack of legal language or knowledge, like Charles, JG ..etc … because I know I lack that myself (that is what lawyers are for).

    Charles has pointed out something multiple times and no one has listened … He said ” They removed ” Lack of Standing” from the OCC settlements. Then JG followed up and told you why a couple of posts back.

    Ifs Risky Business …. they cant fc those loans, because they lack proof of claim in State and Federal Courts. They get away with it 99% of the time. But that 1% who know … Gets that Attorneys Grass Burned because only past criminal behavior was a given under AG deferred forgivness of their predecessors actions…
    . NOT THEIR FUTURE ACTIONS!

    BUSTED!

  32. Bugger – that was .gov ofcourse :-,

  33. KC,

    You know it to be false but you choose to spread misinformation, for whatever reason, who knows:

    I am not In FC. I thought you had read the case. Had you, you would have known that I filed first and in Fed Court. What are you trying to accomplish? What kind of impairment are you trying to work through? Do you actually enjoy turning on people that way? Are you that kind of a person?

    Then, I guess i was grossly mistaken. Just for the hell of it, though: that kind of behavior seldom leads to any win. In fact, my biggest detractors all ended up folding or losing. Any idea why?

  34. Neil hire Anthony Martinez He will keep you focused. Like I said you have 10 minutes to get your point across without “bube Maises”

  35. agree christine
    Use what you have and know is fact
    Go to the source- for example – sec website – http/www.sec.giv/answers/mortgage securities.htm.

  36. MY Friend, (Miss Lil Know It All) …. had you asked those questions before they filed FC … you wouldn’t have had to appeal anything .

    Just Sayin … Don’t Go There!

  37. 1. Show me where the pretender lender endorsed the Note to MERS.
    Or
    2. Show me where the pretender lender endorsed the Note to the Originator.
    Or
    3. Show me where the pretender lender endorsed the Note to a Trust

    Without delivery, endorsement and acceptance they have Squat!!

  38. I’ve got quite a bit of flack before for stating it but Martinez is absolutely right and this will kill a homeoner’s case any day of the week: court is not the place for “I think”, “I feel” or any display of emotion. Too many people believe that blurting “This is not fair!”, or “This is not right!” or “MERS has no authority to transfer the note” is enough. It ain’t!

    True: judges want to hear facts. That’s why all the securitization theories are so dangerous: too few people so far have gathered the necessary supporting document allowing to introduce them as fact. Most of the posts about it here are based on emotions and feelings. Nothing of substance. Most people don’t even know how to get the PSA info or how to find their trust, let alone read the prospectus! And LL’s article on it are nothing more than sweeping statements without solid proof! It doesn’t mean that Garfield is wrong. Only that, without the proof of what he says, no judge will give him the time of day! Don’t expect that blurting Garfield’s theories will give you greater success.

    Fact: “I paid the bank. My money was accepted. My money was not put where it should have been and I ended up with $800.00 missing. Where did my money go?” Fact: “I asked for a mod. I qualified but the bank refused because I was not behind in my payments. I have the letter they sent.” A fact is everything you CAN prove. Anyone working in litigation knows it: if it’s not in the file, it does not exist.

    “MERS has NO Authority to transfer or endorse a Note …” is NOT a fact. It’s wishful thinking. And dangerous. The kind of thinking that gets judges pissed off. How do we know? Very simple: hundreds of courts have ruled otherwise!!!.

    Lots of these kinds of statements here. Too many. And affirming something untrue or wrong doesn’t make it true! Getting nasty or insulting people for doubting or questioning unproven affirmations still doesn’t make them fact. MS or Garfield’s theories are only that: theories, until proven true for each case presented. Otherwise, it is tantamount to Stating: “Everyone knows that it rains a lot in Brittany. Therefore it rained on the day of the accident.”

  39. Thank You Neil. I might add it would help having 2 to 3 attorneys present so as not to give the Judge any wiggle room. The Judge will appreciate all the help he/she can get.

  40. Different Rules in Foreclosure Cases?

    Posted on January 7th, 2014 by Mark Stopa

    After I got a foreclosure case dismissed, the bank appealed. Then a strange thing happened. The bank never paid the filing fee. Of course, except in limited situations which don’t apply here, no litigant can pursue an appeal without paying the filing fee. So what happened?

    First, Florida’s Second District Court of Appeal issued an Order directing that the filing fee be paid within 20 days or risk dismissal. That was reasonable. Cases should be decided on the merits, and if failure to pay the fee was an oversight, the bank (or, for that matter, any litigant) should be given a chance to fix it.

    At the end of that 20 day period, the bank did not pay the filing fee. Instead, it filed a motion for extension of time.

    Huh? A behemoth financial institution needs more time to pay a $300 filing fee?

    Over a month later, and nearly two months after the 2DCA warned the bank to pay the fee or risk dismissal, the bank had still not paid the filing fee. As such, the Second District dismissed the appeal.

    The bank never sought rehearing of that ruling. Instead, two (more) months later, the bank asked that the appeal be reinstated when it finally paid the filing fee. All the bank said to support its position was that failure to pay the fee was due to some unspecified “clerical error.”

    A behemoth financial institution takes four months to pay a filing fee, despite receipt of two Orders pertaining to the issue … and that’s a clerical error?

    Over my objection, the Second District reinstated the appeal. No explanation was given, and the Order reinstating the appeal did not identify any judges who joined in that ruling.

    Disappointed, I filed this Motion for Clarification, Reconsideration, and Written Opinion. http://www.stayinmyhome.com/blog/wp-content/uploads/2014/01/Motion-for-Clarificaiton-Reconsideration-Written-Opinion.pdf

    I explained how there shouldn’t be two sets of rules, one for foreclosure cases and one for every other type of case. I lamented the absence of any legal authority for reinstating a dismissed appeal two months after the fact. I asked the Second District to identify the procedural mechanism which authorized the appeal to be reinstated. I asked that the judges who joined in that ruling identify themselves. I argued defendants in foreclosure cases should not be made to feel the rules are different for them.

    Today, I received an Order directing the bank to respond to that motion. What an interesting and unique opportunity for the Second District to comment on the banking industry’s failure to perform the most basic tasks inherent in prosecuting foreclosure cases – and to let everyone know the rules aren’t different for homeowners in foreclosure.

    Mark Stopa

  41. Todd w
    Awesome. Im there, patience is indeed a vitue !

  42. meant “tribunal” moving fast here

  43. I think I posted before but to encourage and support this post- google “Thomas Dore no firsthand knowledge”. I got “lucky” and got Dore under oath at an 11 Aug 2010 hearing, only 2 months before story broke in Daily Record and Baltimore Sun that Dore got busted. He tried to “authenticate” a purported “original” note and got busted, but “judge” still ignored it, shameful, but I’ve learned to be patient.

    Dore got a 90 day “vacation” (suspension) in Aug 2013 but came back from his vacation with a tan and laughing all the way to the bank. But- you can find the above on Scribd and download and use in cases to demonstrate pattern and practice of fraudclosure mill attys testifying when they have no knowledge (we all know this). Here is link someone picked up and reposted. Hope it’s helpful. FYI- like everyone else I’ve been obstructed from getting even basic discovery and doofus attorneys show up and let the “judge” do their bidding for them. They hid Dore away and I’ll never see him again but I’m playing the long game.

    http://stopforeclosurefraud.com/2012/12/21/thomas-p-dore-sworn-testimony-admitting-no-first-hand-knowledge-in-foreclosure-case/

    fyi- Dore lied on stand at Atty Griev. Comm v. Dore and guess what? Not one homeowner who had testimony or evidence to impeach Dore’s testimony where Dore was “the only witness to testify in his defense” was “invited” no postcard, no subpoena, no “would you like to show up and bring your evidence, nothing. The Atty Griev. Comm- James Potluck (Botluk), Asst Bar Counsel is the clown who purposefully let Dore off the hook.

    All the “character reference” letters in the file were from other fraudclosure attorneys since Dore was not only “hair club” (USFN) president, he was also a member.

    I’m just extrapolating all the way out since I’ve been down this road and whoever disciplines attorneys in your state— get way out in front of this and let dumbos know their ba…… are going to be on chopping block when they cover up for fraudclosure attorneys knowingly violating Rules. of Prof. Conduct- 3.1- meritorious claims, 3.3. candor toward the tribuman, 3.4 fairness to opposing party, 3.7 lawyer as witness.

    Hope this helps- hang tough

  44. Good Morning Neil and Anthony, Excellent Article! Letting these Turkeys file LPs without an assignment of the Mortgage/DOT breaks the chain of title. Filing FCs without the Note leave the borrower in a situation of double claims against them.

    Especially those oldies that come back to bite ya in the ass when you go to market the property.

    MERS can not be used to back date an assignment of the Note and Mortgage together …. It further complicates things for the homeowner and borrower both.

    MERS has NO Authority to transfer or endorse a Note … No “Ifs “Ands” or Butts about it …….

  45. We need more Anthony’s
    As pro se ( not by choice it ended up that way ) but I know this, there is nothing more important than to fight for our rights to the land we cultivate so if you are going to fight it’s got to be with everything you’ve got and if your going to litigate the individual plaintiffs must get involved too and support your attorney – it is your case and no one will care about it more than you do. The subject matter demands all hands on deck – for years, so bring on more Anthony’s, and let’s get a strong front of well researched ammo with a sound strategy. After all these years we know so much more about the playing field. I’ve said this before play chess and let them play poka.

  46. I appreciate Neal and his positive commentary. I just want to point out that I am not a practicing attorney, I am a litigation discovery consultant/expert that works with practicing attorneys across the country providing pleading support and training in courtroom strategies and tactics best suitable for a positive outcome.

    Thanks again Neal! – Anthony

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: