Fla 4th DCA Reverses Based Upon Trial by Ambush

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see 4th DCA Reive v Deutsch Trial by Ambush J Oftedal reversed DOC032515-001

Those of us who have been fighting this ground war have seen it again and again. The “corporate representative” is allegedly employed by the servicer. Nobody shows up representing the Plaintiff, except a lawyer who says he represents the Trust or other Plaintiff but we really don’t know that this lawyer has been retained by, say, US Bank as trustee for XYZ Securities Pass Through Trust 200X-A. In fact, we don’t even know if US Bank is the Trustee.

And even if they are the Trustee neither they nor their so-called trust (probably unfunded, so it couldn’t have purchased or originated any loans) have legal standing because they don’t own the loan. There is a huge difference between pleading and proof. AND standing means different things depending upon what you are looking at. If party files a complaint alleging the requirements of standing then the complaint will stand up to a motion to dismiss based upon standing. But if at trial they don’t prove standing, they lose.

The erroneous procedure I have seen at trial is that the standing issue has already been decided when the borrower filed the motion to dismiss. But that required the court to assume the allegations of the complaint were true —a presumption that definitely does not apply at trial. But Judges use it anyway because of the pressure to clear their docket. As a result, cases are not heard on the merits — they are tried by presumptions to which the banks and servicers are not entitled to use because the testimony and the exhibits are fabricated for trial and they have a long history of submitting fraudulent documents to courts across the country.

Hence the presumption of credibility, trustworthiness and authenticity should not apply and the servicer or bank or trustee must be required to prove the facts, which they cannot. Which is why the foreclosures all mostly wrongfully entered as judgments end up in a judicial sale despite the actual facts that would show that none of the parties in the chain relied upon by the foreclosing party actually have any interest in any of the transaction, any of the documents or any actual loan to the borrower.

Piling inference upon inference and then applying legal presumptions that the banks are certainly NOT entitled to employ (given their prior conduct in fabricating, forging, backdating, and robo-signing), the Judges enter rulings that make it inevitable that a foreclosure judgment will be entered.

One of the ways that the Servicer (allegedly representing the Trust) comes to court is with new witnesses and new documents never before seen by the Defendants. Judges frequently point to the fact that you didn’t try to depose them nor compel your previous request for production so somehow you waived your right to object to new witnesses, new testimony, and new documents never provided to you.

Two lessons come out of this decision from the 4th DCA in Florida.

The first lesson is that attorneys should object to anything new that was not provided before trial. The use of witness lists with 35 names on it is the equivalent of no notice at all and puts a burden far too great on the Defendant, who must guess which witness will be used. The defendant can investigate off record or take the deposition of the actual witness or both. If you file a motion in limine to strike their witness list and exhibit list as not giving you notice of what or who they intend to use, you will probably now be sustained in the jurisdiction of the 4th DCA. The key here as specifically enunciated per curium by the 4th DCA is that they will not stand for any “trial by ambush,” which has been the stock and trade of lawyers representing alleged parties owning the loan contract, note or mortgage.

The second lesson is that if there is time, you should move to compel discovery and actually take the deposition of the actual witness who will testify at trial. This is a problem for the servicers since they have robo witnesses whose schedule is not confirmed for more than 30 days at a time.

With Patrick Giunta, Esq. as my counsel we employed the same objections and the objection was sustained. An attempt was made to introduce for the first time a new power of attorney that corrected obvious deficiencies in the first power of attorney we were shown. The trial judge sustained the objection and denied the motion for continuance on the grounds that even the new power of attorney, taken in the context of the other evidence, failed to convey or confer any rights to SPS to represent either the previous servicer or the Trustee of the REMIC, or the REMIC Trust itself or even the holders of certificates in the trust.

The rest of the evidence showed that there was nobody present to testify the date of the alleged default, which in that case was because there was no default. A Final Judgment of dismissal was entered referring to the court’s finding of fact and law in the transcript of the trial.

PRACTICE NOTE: What the banks and servicers are doing is slipping layers in between the true actors and the companies that send robo-witnesses in to testify at trial. They are relying on the so-called “boarding process” done by a “new servicer” who has not serviced a single payment in or out of the subject loan account. They do this because the prior servicer has a lot of explaining to do and would be subject to investigation and discovery as to whether the Plaintiff (REMIC Trust or other entity) actually purchased the loan or was in fact representing an unidentified creditor. The boarding process does not stand up to scrutiny. It IS evidence in most cases but it is NOT credible evidence. The witness cannot explain anomalies in the records of the prior servicer nor testify as to actual ownership or beneficial interest in the loan. But your cross examination (and/or  voir dire examination) will be a lot better if you have already found those errors. These witnesses have no connection with any actual transaction either with money coming in from the borrower, from a third party or anyone else. And they can’t say who the money was paid to as creditor. Failure to object to surprise witnesses or surprise documents is a fatal error at trial.

24 Responses

  1. Okay, suppose you go into court and challenge standing successfully. What happens? You still end up losing because you don’t have a clue how to prove that the borrower didn’t own the money and doesn’t have to forfeit the collateral property for breaching the note.

    Simply: you fought the WRONG BATTLE.

    You SHOULD have attacked the validity of the mortgage. But you don’t know how to do that, do you Neil? You don’t know how to examine all the documents related to the mortgage transaction and unearth all the injuries to the borrower that justify affirmative defenses, counter claims, cross claims, and motions to dismiss that bring a predictably good result – DAMAGES AND FEES for the borrower.

    If you want to know that, call me and I’ll explain it to you – mortgageattack dot com or 727 669 5511 Bob Hurt

  2. @ E.

    Meant the signature doesn’t match the stamp.

    I see you and Chrissy are bantering, LOL Is it just me or the badgering and offering to aid in legal matters is a slippery slope here. Practicing law, UHMMMMMMMM? Also tax, CPA advice, ouch! Cause no harm, my motto…..

  3. @ Christine ,

    I’m with E. Tolle AND the Supreme Court here ,, I have no problem with TILA bringing on discovery as to who owes what to whom ,,, that’s the holy grail here … getting the courts to DO THEIR JOB in a Court of Equity … firstly it will be shown that the Emperor has no clothes ,, all points after that are gold coins pouring down on me…

    Christine or Rock , please explain to me how I am harmed by exposing that the supposed counterparty has no standing and nothing is owed them. PLEASE PLEASE PLEASE…

  4. Neidermeyer:

    Go tell Steve Vondran that the Hyundai case is not relevant. I only quoted his entire prose.

    Rescission of a contract i rescission of a contract. Doesn’t matter if it is for a house, a car or anything. Rescission is a matter of CONTRACT. Not “my argument”. Matter of law.

  5. Christine evidently quotes Vondran saying, “Following a valid rescission, the creditor would be obligated to return all money and proceeds made in connection with the loan, including all loan payments received. This amount should be offset by the amount of money the borrower owes the bank on the loan.

    Is the “should be” part kinda’ like…. “somebody please make it happen. It’s the right thing to do!” Where is the mention of this in the SCOTUS decision? Rock used the same false argument, when he wrote:

    “….success in seeking rescission under TILA would also require the lender to return to the borrower all fees and mortgage payments made under the rescinded mortgage contract. These charges would then be set off against the principal amount of money issued to the borrower. The borrower would then tender an offer to the lender to pay off the remaining balance, for which the lender would have twenty days to accept or reject. Therefore, in most cases you’d still lose your home.”

    Rock’s so off-base here’s he’s not even in the same county. He either, 1) copied and pasted from an old argument on TILA, which he’s shown a fondness for doing here, or 2) decided he’d simply choose all on his lonesome what the fair thing to do in these cases. He obviously didn’t however, read the SCOTUS’ decision. Nowhere do they imply any of Rock’s argument.

    Jesinoski, from this lay viewpoint, put to rest where all the various court interpretations differed, that of rescission by law where tender is necessary, or the other camp that said rescission at equity, fine….but the borrower would need to file suit to get there.

    CW argued that there’s simply no way that Congress would get rid of both sides of this bankster-friendly and court endorsed gimme to the banks. SCOTUS said:

    “WAY”

    Not a legal opinion. Fees may apply. One coupon per customer. Offer good only on second Thursdays of the month. No double coupons. Fees for early withdrawal. I will gladly pay you on Friday.

  6. Like the atty generals and the FBI are in on the fraud, so is the IRS.

  7. To the alleged Bully Judges who legislate from the bench and say there is no “Free House” well there is no “Free Lunch” Your Honor. I pray that corruption did not have anything to do with your decisions. Read the Nuremberg Trials after World War 2. Karma is a B$tch.

    We are gonna get reinforcements from the millions of student loans that have enslaved our children and economy.

    END THE ECONOMIC HOLOCAUST NOW.

    NEVER AGAIN

  8. TILA does hold the assignee responsible when the violations are evident on the face .. The reason the lender or servicer might be a defendant is because the borrower is seeking to collect damages, this is what the extra one year time frame was implemented for, damages. This is not to say you have to file a lawsuit to rescind, you do not. And the TILA laws do infact leave open the door for a “free house”, they set in place two 20 day time periods .. The first 20 days the lender is required to cancel security instrument and return it with monies from payments made … The second 20 days the lender must accept your tender offer or you may keep the property without further obligation. So in my case the lender failed both 20 day steps, they caused their own injury by their own actions of non-compliance, they chose their own remedies when they ignored Federal laws. Once they failed to act in the first 20 days, the second 20 day period triggered ..they lose the house. They are only defendants when the borrower chooses to collect monetary damages as per the Acts intent, but this is just icing on the cake, it has nothing to do with the actual rescission that was effected with the letter mailed. The borrower still wins even if they never seek to collect on damages ..damages are the icing ..rescission is the cake.

  9. @ Christine ,

    Just so I’m clear here ,, I do not believe (although I admit I do not have access to that case file) that the Hyundai dealer case is relevant here , it most likely is about the actual rate charged or undisclosed fees (if financed by a local bank the fees would be between the dealer and the bank) , as someone who worked in the auto business I can tell you that even the slickest F&I guys at any dealership leave themselves open to rescission on almost EVERY loan , it’s the nature of the business with slimy deals between dealers and local banks and third party insurance vendors (extended warranties and such).

    But in no case have I ever seen a dealer proclaim that THEY are funding a loan when in fact it is another party. The real party in interest is ALWAYS disclosed. Dealers sell cars , other people finance them.

    The only exception to this are the “buy here pay here” lots where you are typically quoted a weekly rate at 0% interest (the used dealer is not a bank and cannot charge interest) but with a highly inflated purchase price.. On those lots your “down payment” is typically what the dealer bought the car for… everything else is gravy.

  10. @ Christine ,

    I’m “pretty sure” the US Supreme Court “has it right” ,, you and “Rock” ignore that in our mortgage cases there is a HUGE element of fraud, the named lenders are not the ones putting up ANYTHING except their name, the money came from elsewhere and was undisclosed… You mention ” See also Taylor v. Quality Hyundai, Inc. ” , I don’t have access to see that but I’m pretty sure Quality Hyundai sold Taylor a car out of their inventory not some Hyundai dealer down the road and the loan docs were processed by the dealer getting the Taylors funded by a local bank or Hyundai Motor Credit. Just not the same thing ,, this brand of deception is what the bankster lawyers practice.

  11. http://vondranlegal.com/federal-tila-reg-z-rescission-claims/

    What happens when a loan is rescinded?

    “3. Following a valid rescission, the creditor would be obligated to return all money and proceeds made in connection with the loan, including all loan payments received. This amount should be offset by the amount of money the borrower owes the bank on the loan. There are no free lunches and no “free houses” as a result of the ruling, but when rescission is exercised, the obligation to pay the lender, and the security interest ceases.”

    “What if the Defendant is not the party that originated the loan and is just an “assignee” of the loan – such as a securitized loan trust?”

    … if the what? the DEFENDANT: meaning TILA is an ATTACK allegation.

    Whether an assignee of a loan can be held liable for damages under TILA was discussed in Miranda v. Universal Fin. Grp., Inc., 459 F. Supp. 2d 760, 764 (N.D. Ill. 2006):

    “We begin with the question of whether Miranda may seek statutory damages against the Assignee Defendants. As previously noted, a borrower may seek statutory damages against a creditor for violations of TILA under § 1640. Section 1641 sets forth the requirements for holding an assignee, such as the two Assignee Defendants, liable under TILA. Section 1641(a) provides in relevant part:
    Except as otherwise specifically provided in this [§ 1601 et seq.], any civil action for a violation of [§ 1601 et seq.] … may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary.
    15 U.S.C. § 1641(a). Thus, an assignee cannot be held liable for statutory damages under § 1640 unless the violation of TILA is apparent on the face of the loan documents. See also Taylor v. Quality Hyundai, Inc., 150 F.3d 689, 691 (7th Cir.1998).
    As for the right of rescission (as opposed to TILA “damages”) the statute appears clear on its face when it says:
    (c) Right of rescission by consumer unaffected
    Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation.

    Yep. According to Steve Vondran, No free lunch, no free house, creditor and debtor reimburse each other and Rescission is an attack strategy. So far, Rock and I have it right.

  12. Disclosed by AIG in lawsuit regarding my MBS that the named lender was not involved in the underwriting at all despite all paperwork I received , Bank of America rubber stamped all apps… 82% of loans/apps scrutinized at a later date failed even the most lax underwriting standards.

  13. Poppy, my notary’s in the slammer for 12 years for a laundry list of serious felony infractions. But, who’s keeping score?

  14. Notaries name, not mine. How’s that work?

  15. The notaries name,…UGH. Should she know her own name, ah YES!

  16. Name was misspelled on mine. LOL How’s that happen?

  17. “The fraudulent and forged documents in my case are so obvious that even a person not trained in spotting forgery…..”

    Uh…you mean like all 50 state attorney’s general and the FBI?

  18. ” They do this because the prior servicer has a lot of explaining to do and would be subject to investigation and discovery….”

    How about the originator has a lot of explaining to do. The first question should have been, “Please demonstrate what documents and methods were used to approve this loan.” Anyone ever get a hold of their lender documents only to discover there weren’t any tax or bank financial in the file.

  19. The fraudulent and forged documents in my case are so obvious that even a person not trained in spotting forgery can see it.

  20. Attorney Steve Vondran – More on TILA

  21. Attorney Steve Vondran on Jesinoski – Part 2

  22. Attorney Steve Vondran on Jesinoski – Part 1

  23. United States of Apartheid (judicial). End discrimination against homeowners now

    NEVER AGAIN

  24. As I been saying and I notice Neil admitting is that these clown whether Trust or investors cannot originate or purchase or sell home mortgage loans. So why all the show and tell if your in court fighting against someone that cannot own the debt and have not financial interest at all.

    Now that Wells Fargo is shutting down the ex-Milwaukee WaMu Mortgage Servicing Operations where they are firing 1,000 employee we should get a few dozen employees that now will come to a Jesus moment and confirm what been going on there with forgeries to foreclose on those loans there, if they already have not done so.

    The FDIC recent ex-employee Eric Mains gives the view from inside of the FDIC and problem with of the Sept 25, 2008 seizure of WaMu and the JPMorgan sale that did not sell Ginnie Mae, Freddie Mac & Fannie Mae pooled loan because the Notes are blank and in the possession of these agencies where we know for a fact that Ginnie does not and cannot originate, buy or sell a home mortgage loan but does require that the blank Note are release in order for the BANKS to create the Ginnie Mae MBS. Unlike the Freddie & Fannie MBS where it is the agencies that purchases and creates the MBS, Ginnie does not buy loans and create any MBS.

    Now Neil was onto something when he said that the investors were funding the loans and that show in the Holm v. Wells & Freddie case and the re:Franklin bankruptcy case where either Wells or Freddie could not provide a single bit of evidence of a purchase of the debt!

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