Why You Need an Expert Witness and Why You Should be Aggressive in Discovery

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There are three central strategies that need to be pursued with vigor. The Banks have once again moved the goal posts because they are starting to lose cases with increasing frequency when confronted with the requirement that they actually prove their case with facts instead of presumptions. They are attacking the need for discovery, the need for an expert witness, and the need for foundation of fabricated documents by leveraging certain legal presumptions to achieve results that were never intended to be used to win a case that they would lose if they had to prove their case with actual facts from a witness who has personal knowledge.
Yet that is exactly what is happening. It happens almost automatically in non-judicial foreclosures and it happens most of the time in judicial states. “Legal presumptions” are being manipulated to win an unwinnable case. Those presumptions are for expedience and not to slant cases in favor of a litigant who is wrong.
In Discovery it is important to set a hearing on the blanket objections that are commonly filed by the Banks without any obligation on their part to set those objections for hearing. So it is up to the borrower to set the objections for hearings. Lawyers are finding that they must also file a motion to compel and that without a compelling memorandum of law supporting discovery or supporting the need for an expert witness, the banks will control the narrative by maintaining the impression that laws and presumptions about negotiable instruments are the only issues.For the Judge, the real issues are hidden from view, so you must reveal them. The latest iteration the the Bank tactics is the “Self-authenticating” document which is the subject of another article.
The central theme is always the same. The Banks can’t win on the actual facts, so they are relying upon and leveraging certain rules of evidence that allow certain documents to be admitted into evidence, where the contents of those documents are taken as true (despite the fact that they are barred by the hearsay rule) and the Judges are treating the contents as true over the objection of counsel for the borrower. Like Judicial notice, such documents might be admissible for the limited purpose of acknowledging their existence, but their contents are very much in issue.
However, many judges disregard the notion that the contents are at issue unless the borrower produces compelling evidence that the facts in the document are false. In my opinion, it is wrong to require a defendant who has no access to the actual facts — the money trail — to bear the burden of proof and doubly wrong when the borrower has asked for exactly that information through statutory, formal, informal and discovery requests only to be met with stonewalling.
My thought is that this is an opportunity to educate the judge — against what he or she wants to hear. It is an opportunity to get him to hear YOUR narrative twice. Iadvise lawyers to file a memorandum in opposition to objections and file a motion to compel to make your record. Present a credible argument for the need for the borrower to get information that either lies solely in the hands of theforecloser or in the hands of others who are co-venturers with theforecloser.The need for an expert is evident from the section of the PSA which is entitled “Definitions” which uses words, concepts, business processes, lending and practices that are outside of the statutory scheme for the transfer of loans. The same arguments exist for enforcing discovery. Attach a copy of the PSA Definitions section to your memo. Despite the current trend of the Banks toward introducing the PSA as an exhibit at trial, they continue to argue that the borrower has no standing to contest whether the procedures and restrictions of the PSA are relevant in a foreclosure case. Many judges agree. I believe they are wrong and that this is an evasion of the truth with the help of the Court.

They may seem unrelated but they are identical — only the other side has or does not have the actual evidence of the transactions that are presumed to exist by virtue of some document they are producing like an assignment, a mortgage, a note, or a notice. To the extent that they are responsive to discovery, the need for an expert diminishes or is reduced.

The plaintiff is alleging that a trust owns the mortgage and that various parties have authority to service, receive documents and pay for the the origination of acquisition of loans. It is only the PSA that establishes the right of the Plaintiff forecloser or beneficiary under a deed of trust to pursue foreclosure.

The very essence of the defense is that the Plaintiff does not own the loan, is not a holder with rights to enforce and is not a holder in due course because the plan laid out by the PSA, was never followed. That starts with the conclusion that the trust was never funded and therefore could not have the resources to pay for the origination or acquisition of loans. The defense theory is that based upon the pleadings and proof of the Plaintiff, it is a stranger to the loan transaction despite a snow storm of paper creating appearances to the contrary.

The Plaintiff has not alleged it is a holder in due course. Thus by law they are subject toall of the potential defenses of the borrower starting with the processes that began in the application stage for the loan, the presence of an assignment and assumption agreement that governed theactual events that occurred at closing — includingthe fact that the named party identified as “lender” was not the source of the loan and had no rights under the agreement with third parties toperform any act with respect to the loan except topermit their name to be used as a nominee.This was a table funded loan in which an undisclosed third party funded the loan. The importance of that is that the third party should have been identified on the note and mortgage and the mortgage should not have been executed, delivered or recorded. It is ONLY with the help of an expert who understands the terms and processes that are outside the norm of conventional lending — which is already so complex that Federal law requires that summaries and good faith estimates and disclosure are required to be delivered to the borrower prior to closing.

The plaintiff is taking two opposite positions at the same time — first that they have a trust that exists, that has engaged in business pursuant to the requirements of the PSA and who has paid for the origination or acquisition of the loan. Second, that it doesn’t matter whether the trust exists or owns the loan because they are a holder, and they want this court to presume that being a holder creates a presumption under state law that as such, they have the rights to enforce. Hence they want presumption to triumph over fact.
Theirposition is that they can close the matter of refunds and repurchasing obligations with the creditors by foreclosing the mortgage and getting a judgment on the note. Both the investors and the borrowers think otherwise.The defense theory of the case is that the trust was never funded nor used in this transaction and thus should not be allowed to enforce a loan that it never owned, funded, originated or acquired. The initial proof lies in the pleading of the Plaintiff in judicial cases. They never assert that they are a holder in due course, the elements of which are payment of value for the loan, acting in good faith and without knowledge of the borrower’s defenses. Through aggressive and relentless pursuit of truth in discovery (which only requires the possibility that it might lead to admissible evidence) you can easily establish that they are not claiming that the Trust was acting in bad faith or with knwoeldge fo the borrower’s defenses (although in some situations that might also be in issue). That leaves the single element of payment for the loan.

Each PSA sets forth the elements of a holder in due course for the loan to be accepted by the trustee. If the allegation is onlythat that there is a holder, or even a holder with rights to enforce, the only conclusion, from their own pleadings is that the trust has not paid for this loan. If it has not paid for the origination or acquisition of the loan, the Trust has no reasonable basis for claiming any interest in it. Hence it shouldn’t be suing for collection or foreclosure. And the allegation that the Trust or representative is a holder is contrary to the presumption underlying court proceedings that the Trust has paid money and will lose money if the loan is not enforced. The truth is that the investors will lose money if the loan IS enforced.The defense theory of the case is that there is a direct debtor-creditor relationship between the investors, as creditors and who should have been on the note and mortgage but were not, in order to create the illusion of a veil in which the investors would not be liable for fraudulent, deceptive or shady lending practices.

And the defense theory of the case is that the securitization plan under which the investors were supposedly parties through the Trust and the PSA never occurred and that therefore the mortgage was defective on its face for naming the wrong lender and for not disclosing, as required by Federal and Florida law all the parties to the transaction and all the intermediaries were were receiving compensation and profits arising from the origination of the loan. — since it was the investor funds that were used in the origination or acquisition of the loan.

Since we can presume that the distance of the Trust from theactual origination eliminates any questionas to whether they were proceeding in good faith IF they accepted the note and mortgage, we must then presume that were acting in good faith and without notice of the borrower’s defenses. Those are two out of three of the elements for a holder in due course.By alleging that the Trust owns the loan, that would by definition mean that that if the PSA was followed the Trust was intended to be a holder in due course — having paid value for the loan in good faith and without knowledge of the borrower’s defenses.

That would mean that the PSA requires the Trust to be a holder in due course, because that would prevent the borrower from raising most defenses against the Trust when it seeks to enforce the loan. If it is not a holder in due course, the Trust provisions bar acceptance of the loan. Hence any allegation to the contrary is void under New York State law.

Thus the plaintiff is trying to slip by on two conflicting theories — that the trust owns the loan and that the trust can enforce it just by alleging it is a holder despite the fact that the trust is a stranger to the loan transaction and never transacted any business in which it acquired ownership of the loan. This leaves the actual creditor — a group of investors who were in the same darkness as the borrower — without having received the truth when the transaction was proposed to either of them.
What is interesting here is that the allegation is not that the trust is a holder in due course which can only mean that the Trust never paid consideration for the ownership of the loan. And the acceptance of the loan by the trustee has not been alleged because it most likely never happened because the transfer was outside of the cutoff period.The cutoff period exists for two reasons — to get certain tax advantages for the trust beneficiaries who are the real creditors and to prevent any defective loans from coming into the trust that would have an adverse consequence to the trust and its beneficiaries.

And the fact that the Trust is governed by New York State law means that any act that is expressly prohibited by the PSA is void not voidable. So the assignment is a cover-up for what really happened.

For the loan to be included in the pool of loans that form the res of the trust, the trustee must accept the loan. That acceptance is manifest after the cutoff period when the pool is closed. After that individual acceptances based upon opinions of counsel must be documented. None of that happened.

At best it is an offer that could never be accepted by the trust — because there was no acceptance by the trustee who could not accept because it would be a void act both because of the cutoff period and the fact that it produce adverse consequences in both tax treatment and actual money paid to them to allow the late deposit of a loan that has been declared in default). See the provisions for acceptance by the Trustee.

An expert witness steeped in the language and practice of investment banking and the securitization of loans is necessary to explain how this transaction must be interpreted and the conclusion that the investors are the direct creditors — not the trust — because their money was mismanaged, as the investors have alleged in their own complaints against the underwriters.

At worst, it is, as the investor suits and the suits by government and insurers allege outright fraud in which the money and the documents were intentionally managed in a way that was to the detriment of both the creditors and the debtor and ultimately the government and society.

The second point in the defense is that the documents submitted by the Plaintiff are not supported by anything because they have refused to provide appropriate responses to discovery that would show the actual authority to represent the actual creditors, based upon the actual creditors granting them that authority.At trial documents will be admitted for the forecloser if you have failed to enforce discovery. Admission into evidence is barred if they have failed to respond even after being ordered to do so by the court — but those cases don’t go to trial. They are settled. And that is the point.

24 Responses

  1. The more I learn the less I know for sure

  2. Deb, I am in state court, but I have plenty of experience in federal court as well. Ninth Circuit esp., which is located in San Francisco where I lived for over 20 years. Considered to be the most liberal across the country which is why it is good for you to go there because AZ is loaded with teabaggers. I have a friend in OH where the courts are all over the map. He is in hyper conservative district and got royally screwed even though some of the best case law has come out of OH like Schwartzwald.

  3. I served the parties out of state but I was in federal ( district) court for Arizona because parties were from multi jurisdictions that I had in my lawsuit at that time. I was asked to show cause on one who refused service and they were in AZ state.

  4. Louise- are you in State Court?

  5. Not really pertinent for my case Louise because of its current posture.
    I want to encourage anyone reading here in State of Arizona- it’s imperative you study and get the 9th circuit ruling on the Cervantes case it’s published opinion and will give you insight into the judges mentality whether you agree or not it is what it is.
    Look at how it was plead ( or rather not) understand that an appeal and no new issues may be raised but you can give judicial notice if you think it may help providing its material to the particularities of the case. This opinion talks about MERS and it’s interesting. Get it.

    Not an attorney pro se just sharing info that might help understanding
    Case number 09-17364
    D.C.no.2:09-cv-00517-JAT

  6. Deb, typically, whatever is the subject of the lawsuit must be located in that state. For instance, you live in Or and the property being fought over must be located in that state. In federal court, you can file in a different area if you want, but it can be a pain in the butt. Also, judge just told me on my case that I could not serve WFB in Sioux City, SD because it is not local. Well, they are a national bank. Then, he told me the proof of service by the Sheriff’s Department was no good either.because it was out of state and not notarized. I have signed THOUSANDS of Proofs of Service in my life, and they are not notarized. More juice for the appeal.

  7. Lol. Yes I’ve had 2 (two ) glasses I’m a lightweight

  8. Has anyone moved a case to New York – under New York trust law that governs the trustees carry on. Just asking

  9. Obama and Eric Holder should be ashamed. The Apartheid enforcerers in the USA. .

  10. JUDICIAL APARTHEID BULLY

    http://libertyroadmedia.wordpress.com/2014/08/07/mary-mcculley-the-railroad-to-hazelton/

    But to say I’m surprised? no.

    NEVER AGAIN

  11. I think there’s an apathy out there that about 40 years of slow mind numbing conditioning has taken place
    The kind of “revolution” that is needed to change the thinking patterns can NOT be achieved through violence -but maybe that is what they want, or rather they care nothing either way – because that us their ” conditioning’. There are three truths – theirs, ours and gods and I know who will have the last word. In the intermin we should do the best we can with what we have got and not worry about what we have not got.
    Change begins with self
    “Without change something sleeps inside us, and seldom awakens, the sleeper must awaken” – Frank Herbert

  12. Unfortunately, The only thing to fix this mess is a full scale revolution.Do You Know anyone Who remotely has similar characteristics of Our Founding Fathers. People in Connecticut line up and be counted for everyday and they dont even know it.

    I try talking to people I work with and they Just keep ignoring it, Hoping Somehow it will get better without any vigilance. Unreal.

  13. I believe I met my burden

  14. Actually the irs 1099a raises it to beyond reasonable doubt

  15. Re beneficiary. The recorded info is a lie
    This has to be proved by the plaintiff. beyond reasonable doubt ( fair – not -but that’s the playing field)
    In there is the issue, being allowed to get the evidence you have into evidence is the first hurdle you can present it of ourse as exhibits to back up your claims. I had my house taken under a cloud of lies and fraud upon the court I was lucky because I found things on the record thAt they did which raises reasonable doubt and I was not served.

  16. James
    Only the beneficiary can change the trustee or substitute a trustee. Question who us the real beneficiary that would suffer a loss

  17. Think about this,not only did they get us on the way in to these pieces of garbage but if ur lucky enough to make this long then u go to sell,the realtor,escrow,title,straw buyer,etc ect,they dont pay the pay-off amount you and I would pay if any at all.Thats part of why they have been able to scoop up so much land,they dont pay full price if anything as we know these loans dont exist until one is in default.

  18. Amen, Pat. All lies and fraud on the court,

  19. Has anyone every moved a case to federal court ??

  20. Louise, it seems like IRS law was violated, but it was not,the mortgages CANNOT be put in the trust after a certain date,they never were,the lawyers just said they were and the judge accepts it along with a bribe,and the world keeps turning.That is how lawyers and judges make money,Kill them all.

  21. Dear Neil, too many words,judges are not intelligent or patient enough to grasp all this.VOID AB INITIO, Pursuant to New York Estate Powers and Trust Law, Art.7 sec 2.4. AOM’s are void, not voidable per argument, VOID. The IRS has not taxed any trust with late AOM’s, because the AOM cannot be done.It is VOID,period.Case closed.

  22. Who is Authorized to change the trustee in a securitized loan. US Bank National Association was the Trustee before we went into the Bankruptcy Process. Once the Bankruptcy proceedings started, Wells Fargo’s (Servicer)’s Attorneys created documents to appoint individuals within thier lawfirm as trustees. Im no attorney, but something just does not seem right about that. James 443 677 2799 jsmith5915@msn.com

  23. By the way this is just the tip of the iceberg regarding Judicial Economic Apartheid in the United States of America under an African American President and African American Attorney General. They should be ashamed of themselves. I bet that if they are doing it to homeowners etc… they are doing it to others on a mass scale.

    End Economic Apartheid in the United States Now.

    Too big too fail i= Economic Apartheid.

    NEVER AGAIN.

  24. IRS law regarding REMIC trusts is being violated as well. It is too bad that the IRS is in on the scam as well.

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