Moving to Strike The “Witness” and Their “Business Records”

The general practice of the servicers and trustees is to disclose a list of as many as 35 possible witnesses so that the Defendant homeowner cannot possibly perform due diligence investigation, deposition etc. The Judges got wise to this and agreed that disclosing 35 witnesses, 34 of whom you do not intend to call, is the same as no disclosure at all. So now the banks are filing a disclosure of one witness a couple of days before trial. In my opinion the attorney should move to strike the disclosure both as late (ordinarily the trial order requires such disclosure at least 45 days before trial), and as admission that they were playing games when they previously disclosed 35 witnesses. Attorneys vary on how to attack this through motions to strike, motions in limine, motions for continuance and even filing a motion for summary judgment on the eave of trial.
The filing of a disclosure that they only intend to use one witness (who may or may not have been listed on the original list of 35)  is also an admission that their previous witness list disclosing 30+ witnesses was the equivalent of no disclosure at all. It also gives no information on who, where, what she is or does. or how to contact her. It does not even name her employer or capacity. Is she a corporate representative? It doesn’t say so. If she is just a fact witness and not put forward as corporate representative then they have no foundation for introduction of business records as exception to the hearsay rule.
Tracking one case in which the usual shell game of Plaintiffs and servicers has taken place, the witness that was suddenly disclosed 2 days before trial appears to be an employee of SPS, which ordinarily replaces Chase as servicer.

In one case, she is not a records custodian for US Bank, SPS, Chase or the investors. So she must explain in detail how she knows that the records they seek to introduce are “normal business records, kept in the ordinary course of business made at or near the time of each event.” How does she know that and more importantly how COULD she know that as to US Bank, the Trust, the trust beneficiaries who are the creditors (according to them), SPS and Chase who was previously the servicer.

The bullet point here is that the “records” she will seek to introduce are not a printout of the records at all. They are a REPORT in which data populates the report. She doesn’t know where the raw data is. The report was produced by the witness by simply pushing buttons on her computer. She didn’t have access tot he raw data, and she certainly did not have access to ALL of the records because she won’t have the the cancelled checks, wire transfers, or ANY information on distributions to creditors, without which she cannot testify as to the status of the account with the creditors (investors or trust) because the servicer only deals with the borrower.

ATTORNEYS NEED THE LATEST STATE AND FEDERAL LAW ON BUSINESS RECORDS EXCEPTION TO HEARSAY. THE RECORDS ARE HEARSAY AND THE REPORT PREPARED FOR TRIAL IS EXCLUDED BECAUSE IT IS INHERENTLY SELF SERVING AND NOT CREDIBLE. THE REPORT IS HEARSAY (REPORTING) ON HEARSAY (THE BUSINESS RECORDS). The Court is allowed to admit the documents as an exception to the hearsay rule ONLY if the business records exception is proffered and proven, with the burden entirely on the proponent of such evidence.

She can testify — maybe — as to the dealings between SPS and the borrower but not the receipts by the creditor from remittances or distributions by the servicer to the creditors (she has no access to that information), and certainly not the amounts received by the creditors in settlements, insurance, servicer advances, credit default swaps, and government assistance that was received by or on behalf of the creditor and that cured any “default” as described by the Trust instrument (PSA) . Therefore her testimony is incomplete even if accepted. She might testify as to the dealings with the borrower, but she cannot testify as to the receipt of servicer advances and other payments which is the REAL reason for the foreclosure.

It is becoming increasingly clear that these foreclosures are strictly for the benefit of the intermediaries and not the creditor investors. They are attempting to ride the coattails of the creditors so that their claim for refunds and cutoff of liability for refunds to third parties, can be cutoff. None of those things have anything to do with the investors who have been paid by servicer payments advanced regardless of whether the borrower was paying or not.

They want to say the trust or trust beneficiaries are the creditors and that therefore the foreclosure should proceed, but the truth is the creditors are not showing any default, have been paid, sometimes in full. The intermediaries are cloaking their independent claims against the borrower (independent from the mortgage debt) as though they are claims of the creditors, which they are not.

If the creditors are not here to say they are suffering a default as a result of non payment by the borrower there is no reason for the court to assume that such a default exists. That is part of the prima facie case of the party claiming the right to foreclose, despite the absence of a default recorded by the creditor. Having some new servicer come in with a professional witness who really knows nothing about how and where records are kept and can offer no personal knowledge of how and where those records are kept and who does that fails to offer personal perceptions and memory of those perceptions required for a competent witness in any case.

Thus the hearsay REPORTS prepared for trial fail for two reasons, — they are hearsay and they were prepared especially for trial. And they are excluded under the hearsay rule for another reason — the reports on hearsay reports on the raw data which is also hearsay unless that the raw data is shown and described as records that qualify under the business records exception.

For more information please call 954-495-9867 or 520 405-1688.

36 Responses

  1. FISH FOOD might be another fine description for Ocwen.

    There are so MANY ways to jam those frontal lobotomy mega-retards into the ground it is hard to choose just one.

    I am not the only one completely savoring it. GAAAAWD this could get FUN.

    MAKE IT A GREAT DAY.

  2. Scott Thompson- how about the following descriptive phrase for Ocwen?- “filthy subhuman vermin for only for extermination”.
    That oughta cover it. I speak from experience- we escaped their maw, but the loathsome memories persist.

  3. Found it. Got to 695g’s and started worrying my head would explode. I cannot stand reading Ocwen in print. Far as I am concerned it may as well be Latin for target practice.

    If those are not the most violently despised batch of mega-special-ed-retards the species has ever produced .. I cannot imagine what is.

    But thanks to them, now I know what it is like to want to smell the burning flesh of an entire group of people. So there’s that.

    So they sued an individual because MERS does not exist or did they add in MERSCORP somewhere along the way?

    Nevermind.

    Make it a Great Day.

  4. Scott Thompson- read Ocwen v. MERS- lotta good info there. Although I get the sneaking suspicion that it will only add to your distaste for Ocwen.

  5. This completely vile joke is just the gift that keeps on giving.

    I cannot look at this Ocwen/MO AG thing without practically hyperventilating.

    Home Invasion Inc.

    Do they breed these morons on a farm somewhere because I know you cannot teach that brand of paranormal /frontal lobotomy VILE absurdity.

    How do they phrase their recruitment ads?

    ARE YOU CLINICALLY RETARDED AND GENETICALLY INCAPABLE OF GETTING A CLUE? THEN COME WORK WITH US!!

    WE CONSTANTLY LIE ABOUT EVERYTHING AND NOTHING BAD WILL HAPPEN BECAUSE WE ALL TOTAL-RETARD-TO-THE-BONE!!

    lol.

    What a trip.

    Is it in their charter to make the Iranians seem completely delightful and perfectly enlightened BECAUSE IF SO THEY HAVE DEFINITELY ACED THE COURSE.

    There are strains of ALGAE that have demonstrated a keener sense of awareness than these outfits.

    How many more massive fuck tons of litigation can they generate before this deal spins out?

    Who else on this earth gets sued for umpteen gazillion dollars ALL THE TIME??

    Make it a Great Day.

  6. Also / I believe no SOL for criminal acts

  7. Dwight
    In your post 7/5 12.17
    Re number 2. Your wrong on that point. Criminal prosecution is option they are not in the clear and neither are their little helpers

    Not and attorney, lay research.

  8. From a case (part of a mtn to strike a declaration):

    “The declaration violates the best evidence rule, FRCP 1002, and
    constitutes inadmissable opinion, against FRE’s 701 and 602, as
    the declarant shows no evidence of experiential competency. The declarant has not established his qualification to testify about the topic he discusses, nor does the declaration establish or even claim that he was in any way involved with events which would identify any historical holder of defendant’s (alleged) loan and certainly does not and cannot establish Wells Fargo as the real party in interest.
    The declaration is further hearsay against FRE’s 801 and 802 (cite)

    The documents attached to the declaration lack authentication, which the declarant is unable to make, pursuant to FRE 901 and FRCP 43 and do not support the Plaintiff’s claim.
    “A document may be admitted as evidence if accompanied by an
    affidavit from a competent witness (FRE 602) that authenticates
    the document (Rule 901) – AND – (emphasis added) the document is
    otherwise admissable. (cite) Nothing attached to the declaration
    is evidence of a debt owed to the claimant or an interest in
    the subject property.

    Defendant therefore moves the court to strike the declaration of
    Martin Tenoff and the attached documents at dkt no.37 pursuant to Rule XXX (cite).

    (Plaintiff has had seven months to support its claim and in the
    eleventh hour has attempted to do so with a declaration and
    attachments which comply with no evidentiary rules and are
    wholly inadmissable.” )
    .

  9. This video articulates exactly what my earlier post below was referring to with the problems inside the court rooms. The Settlements, Consent Orders, the National Mortgage Settlement, the money that was paid to the States is now being used to purge the foreclosure cases from the Dockets and to further injure the victims of those crimes that the money came from . etc, etc .. Matt sums it up in a nutshell .. the whole entire system is now broken and not working. The States are now part of the Ponzi scheme because they have benefitted from the criminal enterprises money. https://www.youtube.com/watch?v=s9vgiAaUY0c

  10. Matthew Weidner seems to agree with my assessment of the problem in State foreclosure courts and says that maybe our tactics need to change because of the lack of Due Process going on inside these courts. He suggests we take it to the Federal Court system, but I’m not completely sure of what he means, is he saying that Bankruptcy is the avenue to take? Or are there other ways into the Federal Courts?

  11. So what do we do as a class of citizens who are being denied our rights and protection of the laws which deemed the banks schemes and conduct as criminal acts?

    Here are the known facts :

    1) Everybody knows and has agreed that what the banks did was a crime.

    2) Those banks have opted to settle (bribe) the government and States Attorneys General into not prosecuting them for their crimes.

    3) The settling parties (government) made it clear that those settlements do not prevent the homeowner/victims from raising these issues in their own defenses.

    4) The Courts/Judges are preventing the truth from being revealed in the foreclosure court proceedings and are helping the banks cover up the true essence of the criminal acts that were the basis of the settlements and Consent Orders.

    Now with all of the above known, it would appear that the Courts / Judges are guilty of some sort of judicial conduct violations, from as simple as Abuse of Discretion , all the way up the ladder to actual and intentional violations of the Canons that they are sworn to.

    The question is now , how do we address this problem as a group of citizens? And who is the watch-dog that is willing to confront the Judges in these cases? The Supreme Court?

    Too much power is given to Judges in this type situation, where we as a nation know that crimes took place, but are now silently sitting back and watching as the Judges in our judicial system fail to address the crimes committed. The Judges are now part of the criminal act, they are now the final step of the Ponzi scheme.

    Do we have any legal way to confront and address this problem?

    Appealing and trying to use the SYSTEM THAT IS NOW PART OF THE PROBLEM is totally useless. The Judicial system is now part of the crime.

    Can the Freedom of Information Act help reveal the crimes that were discovered that led to the settlements with our States Attorneys General? We as taxpaying citizens should have access to the evidence which led to the settlements with representatives of our States, who happen to be employed by us , the victims of the crimes.
    The Sates all got paid .. and we have to continue to be victimized by those crimes? Our law enforcement allows criminal acts to continue to injure citizens because of a settlement where they got paid money? That doesn’t even make sense. In no other scenario would this ever be allowed. There must be a different way to fight this than the way we have been doing it thus far. Our law enforcement and our judicial system are allowing a criminal act to continue to play out. Who can we turn to when that happens?

  12. I cannot stop freaking out about this. Seeing Ocwen and MO AG on the same memo fairly well hit my HURL switch all the way.

    Birds of a feather much? Oh I bet they get along beautifully – all that shared mega-retard gene and all.

    Wow.

    MO AG letterhead with an Ocwen mail-to address incase anybody does not know who the Daddy is in this scenario.

    They call getting sued by everybody on the planet “A Business Model”.

    How do they sleep knowing there is a gigantic segment of the market completely smokin’ hot to go set fire to their office’s?

    Have they thoroughly infuriated enough people yet, maybe we could get a burn permit?

    I wonder if they all board an aircraft at the same time if the negativity is so strong the motors start running backwards? A paranormal magnetic field of VILE that spazzes’ out the altimeter maybe ???

    WOULDN’T THAT BE WONDERFUL🙂

    MAKE IT A GREAT DAY..

  13. None of us met but we recognize the stuff we are made of and those who oppress our efforts fear that which we are made of, and in their hearts want that, they do not realize it but they are driven by fear of never having enough that is their mentality and they will never be free from what they do or otherwise . Do unto others as you would do unto yourselves. I hold all of you in my prayers . ONWARD…

  14. @ UKG ,

    God Bless You… All of us working our own cases and not giving up will eventually end this “criminogenic scheme” … might not be before the US Dollar breathes it’s last on the world stage … but the truth is known … all we can do is nibble away from all directions.

  15. Ladies and Gentlemen: thank you for fighting this war against the banking oligarchies and our Federal Government. Time has exposed the facts that the judiciary, the Treasury, and the Obama Justice Department are colluding with the banksters to perpetrate this fraud on the citizens. We owe it to our children and grandchildren to continue this battle against fraud. We know that our debt-based monetary system is crumbling. Becaused the money is worthless, they are intent on stealing the land and the commodities, as they are the only things of value.
    Six years ago when I made my last payment to Wells Fargo, I was convinced the rule of law would protect me in the court system. HOW WRONG I WAS! The hostility of the judiciary was evidenced immediately. With or without counsel, your appearance before the court is not just resented, but is taken as an affront to the power these judges wield against citizens while ruling for their own self-interests. We know what happened, and so do they. Because they’re on the receiving end of the payment streams from this fraud, they will protect the banks, the law firms who commit fraud on the courts, and the Government agencies who are in place to enforce the laws that were there to protect US!
    It will not be an easy battle. But it must be fought! We are a minority among the populace. 95% of the people threw their keys on the floor and walked away. We are the ones who chose to stand and fight the injustice. Thanks for your comraderie. And thanks to those who seek to make a difference by standing up to these criminals. You are making a difference.
    In Patriotism, Roger Rinaldi

  16. Elex
    Could be viewed as aiding the continuance of illegal acts. Hence rule 60b which my appellate case is under in
    Part. Covers mistakes and gives the judges a broard ” reservoir” to allow justice to prevail and must lean towrds the plaintiff/ appellant. Of course theres more to my appeal. Judges hold the key i hope they open the right door for me and others, by now they have to have a grasp of whats hsppened and is continuing as is the harm because its being allowed to continuie. The bleeding must stop.

  17. I say we celebrate Independence Day by having a great big bonfire @ Ocwen’s offices. BIG-BIG bonfire. Happy 4th everybody.

  18. @DwightNJ – “… the judge doesn’t want to be the first to give a free house to the borrower …”. Ask the judge if he wants to be the first to be removed from the bench for violating the Judges’ Canon by condoning illegal acts by a party unknown to the contract. Follow that up by an (oral) request for statement of decision of why the court provides relief for illegal actions by the banks, while punishing the borrower who has done no wrong. An attorney can’t / won’t raise such a point, but a pro se can. Preface question with “with all due respect, …”. And you better have facts based on documents showing legal leverage when you do so. Hopefully you presented more than the inane legal theories proffered here that have no case law to support them.

  19. Java.. I’ll go check and send you a reply, Thank you.

  20. DwightNJ. I emailed you and offered to share notes with you that might help you but I never hear back from you ??????

  21. @ elexquisitor … Agree, no time for Hudes , and I have absolutely zero understanding of court rules and procedures. And yet when I speak to so-called “foreclosure defense attorneys” on the telephone , they have zero understanding or knowledge about the defenses and arguments discussed in this blog and comments section. The last lawyer I spoke to was “trained in foreclosure defense” and was trying to convince me that none of these arguments (discussed here) would be successful, he told me that one Judge told him that he does not want to be known as “the Judge who gave the free house away” to the borrower. The attorney said my only chance would be to try and work towards a modification, etc. He wanted 3,000 dollars up front , that would pay for him answering the complaint (750) and writing a motion after the bank motioned for a summary judgment (750) and then appear for the hearing (750) … he said that if It led to discovery and depositions he would need to charge 300 dollars an hour. And he warned me that if I wanted to raise all of these defenses about the issues we discuss here, he wanted no part of it, he said the Judge is a friend of his in my county, and he would not take my case if it was based on these types of arguments. Now he’s a “trained foreclosure defense specialist”. So even if I had the 3000 dollars, he wouldn’t be the one. I’ll keep looking and see if anyone would be willing to help procedurally, but that’s a longshot. I already sent my answer in and if need be, I will be forced to argue my case the best that I can with no legal representation and no knowledge of procedures and rules as I did the last time we met in court. The Judge actually complimented me on my efforts. Wells Fargo asked the judge to vacate the judgment and sheriffs sale and dismiss the complaint. Hopefully I can be even more effective this time around.
    Thank you for the Nardi deposition tip , I wasn’t aware of that.

  22. @DwightNJ – you don’t have time to be distracted by the likes of Hudes. If you don’t know about filing a cross complaint you appear to have an abysmal understanding of the court rules and procedures you will need to be successful. You also need a basis of case law to support each and every point you are making. If you have WAMU / Chase in your chain of beneficiary interest you should be figuring out how to apply the Nardi deposition to your case, for example.

    As for the judge’s questions, you need to have responses ready for the standard set of questions that raise questions not presented by opposing counsel, with a ready reference to case law. You do that a couple of times and the judge might actually try reading your briefs occasionally.

    Try to find an attorney who will mentor you for a reduced fee. You strategize, research case law, make the points, write the briefs, and he reviews your work for legal reasonableness.

    IANAL (I am not a lawyer) but I’m one of the lucky few that even got a glimpse of discovery in CA as a homeowner.

  23. Here is a world bank whistle-blower who used to be their general counsel .. putting the politics aside and the distractions of political parties, etc. , look at the deeper issues of how the banking cartel runs our government and our judicial system .. and once we grasp the level of corruption and understand the illusion they hang out there for us all to believe in , that’s when we can better understand how the courts are ignoring the foreclosure fraud and the crimes of the securitization Ponzi scheme .. this is much deeper than any of us realize and is a war between good and evil. see the video link below where she is interviewed > https://www.youtube.com/watch?v=ZAvlMBdT0Vo

  24. elex .. Thank you for the info and tips, I appreciate the effort. I have my hands full just answering the complaint and am in no position to get into filing my own complaint at this point, but I will keep those tips in mind for future reference. And as far as appearing in court before a judge in this foreclosure case it will be of utmost importance not to be drawn in or baited into admitting default or missed payments , etc. .. this is the obvious tactic of choice utilized by the judges to undermine your case before it even starts. As long as we keep denying that a legal or valid financial transaction ever took place at origination , the question of default should be irrelevant. But can a judge find me in contempt if I refuse to answer his questions about being in default? That’s a question of self incrimination , we are supposedly protected against being forced to incriminate ourselves in a court of law.

  25. @DwightNJ – Knowing what is coming in CA from the judiciary, you can understand why you DENY EVERYTHING, and ADMIT NOTHING, while OBJECTING TO EVERYTHING put forth by opposing counsel. Likely in the case cited the homeowner did not ‘admit default’, but stated they stopped making payments, and the KKK (Kalifornia Kangaroo Kourt) presumed in favor of banksters. This is why a QWR is necessary before you file a court action – to determine the leverage you can bring to the early motions in order to get into discovery. To file a complaint, you don’t have to have all the evidence, but you have to state that foreclosing parties are required to have it, and to share that information in discovery. So your facts are what you will be seeking in discovery, but stated in your Complaint as though you already received that discovery.

    And you better have the case law supporting your contention that parties must provide evidence of material facts stated in your complaint or else they will be excluded from using it against you. So an early discovery request to protect electronic documents depicting common business records showing the sale and transfer of your promissory note, as well as the records memorializing the document’s transfer, either through vault custody records or bailment. So, for example, when they don’t produce those records, then there is no foundation for their claim of recorded assignments. Questioning the banksters’ ‘expert witness’ then becomes something fun to look forward to, if your case gets that far.

    As for the KKK, their Achilles heel is the ethics violation of kondoning illegal acts to the benefit of the parties kommitting those acts. If the justices don’t understand the the concept that courts punish illegal acts, not reward them, then expect to bring this before the U.S. Supreme Court, because the state BAR is obviously so corrupted that no fair hearing would be expected in a state court.

    IANAL, or even have any legal training, for that matter. The foregoing is a stinking pile of dung, but there may be some merit in its content. As such, use at your own risk, or pay an attorney who won’t cross the state BAR that licenses their profession.

  26. Wow , see what we’re up against? Most Judges are purposely pushing thru foreclosures at break-neck speed in order to try and just get past this national theft and criminal disgrace , they are condoning the theft and changing the rule of law while denying the victims due process and protection of those laws that were broken. It’s the unwritten and unspoken agreement among the judicial system on how to get rid of all this .. simply deny the victims justice and affirm and condone the criminal conduct that lays at the heart of the crisis. They have twisted this into a noticeable hatred and disdain towards homeowner victims. I did notice in that opinion that they made sure that they mentioned the homeowner admitted he was in default. They also said he did not specifically indicate that the wrong party in interest was plaintiff . See how they look for any sliver of a reason to justify their own disgraceful conduct in allowing the fraud and foreclosures.

  27. @Mike – This is the typical arrogant rationalization for CA courts condoning criminal acts. “Whether the transfer is alleged to be void or never made, there is no preforeclosure cause of action to challenge the authority of the person initiating foreclosure.” (Based on Gomes)
    http://www.courts.ca.gov/opinions/documents/B246193M.PDF

  28. @Mike – The fees to JPM are a fluke. The typical decision is a rationalization of criminal acts by a party unknown to the contract based on the presumption the borrower ‘owes someone’, and is not prejudiced by the foreclosure, so it may as well be a free house to the bankster (Debrunner). –
    http://www.courts.ca.gov/opinions/nonpub/H039469.PDF

  29. JPMorgan CEO Dimon Will Undergo Treatment for Throat Cancer

    http://www.bloomberg.com/news/2014-07-01/jpmorgan-ceo-dimon-will-undergo-treatment-for-throat-cancer-1-.html

    “caught early”

  30. Try this link…it should get you where you need to go!

    http://www.courts.ca.gov/opinions/nonpub/D063508.PDF

    CHASE lawyers caught doing DIRTY DEEDS, and not DIRT CHEAP!

  31. Fresh CA Apellate decision going against CHASE who appealed after the trial court awarded attorney fees exceeding $250,000 in addition to granting homeowners quiet title. THIS is precisely what prompts banks to lobby for the proposed Home Foreclosure Procedures Act legislation…when the banks start losing BIG!

    Anyone being foreclosed by CHASE claiming to own a WAMU loan
    ***MUST READ***

    I do not understand why CHASE keeps using the firm AlvaradoSmith. They are costing CHASE a lot of money with cases such as this along with Glaski. CHASE…you are being had!

    http://www.courts.ca.gov/opinions/nonpub/D063508

  32. Tell me about it – but I wonder if this can be done without 3 years of motions-threats-stalking-lying and everything else.

    Make it a Great Day.

  33. $700 ….. HA. HA. Better add at least two more zeros, before I even think about it.

  34. MO AG is sending out Ocwen settlement offers – something about “at least $700.00” Apparently for people foreclosed (robbed at gunpoint) between Dec 1 2009 -2012.

    I wonder if this is anything counsel can run with? Maybe give it a push for a split?

    Any foreclosure lawyers around here?

    I can fax over a copy of the one we just received.

    Make it a Great Day.

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