New Federal Rules Create New Discovery Environment

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THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

—————-

 

Not much time for discussion although this probably be discussed on radio show.

The issue is that most judges in Federal State court were ruling on discovery (interrogatories, requests to produce, request for admissions etc) from the perceptual standpoint of whether the requested information would itself be admissible at trial. This was always wrong but judges, particularly in foreclosure litigation, made the error repeatedly. It is probably an excellent point on appeal when this has happened.

The new federal rules, disabuse the judges of their notions that they can do that in order to “speed things along.” The new rules assume correctly that if the discovery is allowed, then the relative positions of the parties will become clearer and more settlements or dismissals will occur. This is just like the Jesinoski decision that disabused judges of the notion that they could over-ride the express wording of the statute and make willy-nilly insertions of language and conditions in TILA rescission. This is important. The new rules have been effective since December 1, 2015.

The standards for discovery have long been litigated. These rules set forth the real standards and will heavily favor homeowners in Federal court and will probably produce a substantial effect on State court because most states already have a body of common law decisions that already say the same thing.

The one point I would make here is that it might be better, for effect, to submit a detailed memorandum in support of your discovery, with citations to case law. Once you do it in one case you pretty much have it for all cases. I would suggest citing to the Federal Rules as well state rules.

Bottom Line: This should make it easier to ask for the evidence of the money trail that supposedly is underlying all that paper the banks are using. My experience is that as soon as the order is entered telling them to open their books, even in a limited way, the case settles under seal of confidentiality. There are reports of some huge settlements that I cannot confirm under exactly those circumstances. Other cases, in which I was a consultant, I actually have the results of settlements but I can’t share them because the client signed a confidentiality agreement.

So try it out for yourself, lawyers, and see what happens. If, as we already know, we have a path to show that the money trail and the paper trail diverged, then we have fabricated false instruments being used in court and used for recording in county records. And the argument that the identity of the real creditor is “privileged” will be revealed as obfuscation of false and fraudulent facts being represented to the courts. Federal law requires this disclosure and the continued failure to give it represents a continuing failure to comply with TILA disclosure and could mean that the loans are still not consummated.

===============================

see http://www.lexology.com/library/detail.aspx?g=d34b6e33-fae9-4568-9ccd-355150323775

*

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.”

38 Responses

  1. Reblogged this on California Freelance Paralegal and commented:
    Good blog post from Neil Garfield discussing the new Federal Rules regarding discovery.

  2. Sign:

    ———————————————————

    NO TREASPASSING !
    “We are tired of hiding the bodies ”

    ———————————————————–

    Put them on Notice !
    ———- 😄———-

  3. Wells Fargo executive team is listed on line. All Servicers are.

  4. James,
    Brooks is no VP and a notary is required by law to witness as the ‘VP’ signs the ‘papers’.
    Fraudulent…check to see if the notary even exists in South Carolina.

  5. that HSBC link is very succinct, of why the banks need to take a tila rescission seriously there has been so much discussion on here despite the SCOTUS ruling
    Everyone should read it,
    Thank you for posting dbabelanger.

  6. Djabelanger
    That link 👍🏼

  7. The statute and regulation specify that the security interest, promissory note or lien ( arising by operation of law on the property )( becomes automatically void.) (15 U.S.C. 1635(b); Reg. Z 226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary 226.15(d)(1)-1, 226.23(d)(1)-1.). Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. This requires HSBC Mortgage Services to submit canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary 226.15(d)(2)-3, 226.23(d)(2)-

  8. Does anyone know how I can find out what Wells Fargo location a particular employee works out of. They signed Foreclosure documents as Vice President of Loan Documentation, but the document was notarized in South Carolina. The name is Asahia Brooks. Any help would be appreciated. James Smith, 443-677-2799, jsmith5915@msn.com.

  9. Kali,

    What I have been able to uncover would blow away any pretender lender. No TMI yet.
    I contacted the Secretary of State the ‘lender’ proclaimed to have their ‘corporate headquaters’ as is listed on our ‘loan’. You know, ‘payable to’, Does not, nor never existed. More is involved…you must know that yourself.
    Once you start contacting any and all Secretary of States you may think possibly involved in your supposed ‘contract’…the gloves will come off. You will be shocked.

    Where is William Wallace when we need him…he refused to let his fellow countrymen be raped, pillaged and plundered.
    Re read your ‘loan’ supposedly consummated…NOT…

    If more homeowners would do this, go over everything with a fine tooth comb…
    Then we all shall too…scream…

    FREEDOM.

    I want to be careful not to show any disrespect to those who have gone before and fought the good fight and lost their home. What they did was not in vain. It has helped countless others.

  10. @ BLD

    Most, if not all, of the AGENCY/GSE REMICs/CMOs do not exist in any of the several states Secretary’s records.

    Please include factual details of the existence which you’ve referenced, which should be detailed in another clarified post.

  11. In trying to clarify the purpose of the previous SIX (6) posts with links, below, the GSE/AGENCY-based securitizations were admittedly VERY COMPLEX STRUCTURES.

    WHY? In order to conceal FRAUDulent, INTENTIONALLY COMPLEX, LAYERED STRUCTURES as methodically CONSTRUCTED.

    Cumulatively, it appears that the criminal’s focus was on creating COMPLEX LAYERs in order to capture the CONDUIT’S BACK-END MARKs in the SHAM: the investors.

    The FRONT-END MARKs, the homeowners, were also the END-GAME patsies.

  12. Kali,

    Superb info!

  13. In Delaware, the trust is listed, yet is ‘owned’ by a trust services company, not the original lender. Never was.

  14. When I researched our defunct lender, they were registered as a Foreign Corporation an in order to do business in NY, ‘ They’ must file a fictitious name in order to do so.

    This just never ends.

  15. @ beth

    Please hang on, and do not give up the stand just yet.

  16. […because it is endless…the final post…breaking away from the research…]

    Real Estate Financing: How to Document Securitized Commercial Real Estate Mortgage Loans

    A SECURITIZED MORTGAGE LOAN is a commercial real estate mortgage loan that is underwritten and documented to ensure that it will be marketable to investors in the commercial mortgage backed securities (“CMBS”) market. Real estate securitization is an increasingly important aspect of real estate financing and investment, and thus, of real estate practice. To document a mortgage loan success-fully for securitization, counsel must be thoroughly familiar with the requirements of the public markets and rating agencies and must be able to negotiate, draft, and assemble the necessary documentation effectively and efficiently. At the outset, note that the loan documentation standards for traditional mortgage loans and loans destined for securitization differ. In addition, there may be differences in documentation attributable to the nature of the assets that the mortgages will encumber and the identity of the borrower.

    http://www.lexisnexis.com/documents/pdf/20080327091958_large.doc

  17. EXCERPT(s)

    Following are the State of California Treasurer’s holdings in each category as of August 31, 2013:

    Asset-Backed Securities
    a. Small Business Administration Pools $ 529.006 million
    b. Agency MBS-REMIC’S $ 168.115 million
    c. GNMA Pools $ 0.000 million (Medium term sub-total) $ 697.121 million
    d. Commercial Paper (Short term sub-total) $ 174.943 million

    Total Portfolio As of: 08/31/13 $52,463,262,506.06
    Structured notes and Medium-term Asset-backed securities as a percent of portfolio: 2.09%
    Short-term Asset-Backed Commercial Paper (ABCP) as a percent of portfolio: 0.33% *
    Total Medium-term and Short-term Structured notes and Asset-backed securities as a percent of portfolio: 2.42%

    *ABCP purchased by the Pooled Money Investment Account (PMIA) does not include Structured Investment Vehicles (SIVs) nor do any of the approved ABCP programs include SIVs as underlying assets.

    http://www.treasurer.ca.gov/pmia-laif/disclosure/2013/201308.pdf

  18. Safe No More? Court Vacates Opinion Safe Harboring REMIC Payments

    We recently blogged about a decision from the U.S. Bankruptcy Court for the Northern District of Illinois where the court held that a debtor’s payment in respect of mortgages pooled and held by a REMIC trust were safe-harbored under section 546(e) of the Bankruptcy Code. On September 10, 2015, the bankruptcy court vacated its decision on the basis of newly disclosed information.

    […or newly disclosed material changes of facts and law such as those following Yvanova?]

    http://business-finance-restructuring.weil.com/avoidance-actions/safe-no-more-court-vacates-opinion-safe-harboring-remic-payments/print/

  19. Interagency Agreements, Memoranda of Understanding and Other Information-sharing Agreements

    The Department enters into certain agreements with other government agencies and authorities, both domestic and foreign.

    Banking-Related Agreements

    Release Date Government Agency
    January 4, 2011

    Consumer Financial Protection Bureau and Conference of State Bank Supervisors Agree to Share Information for Consumer Protection Purposes

    August 5, 2008

    FDIC and New York State Banking Department Agree to Share Information on Money Service Businesses

    April 15, 2008

    New York, New Jersey and Pennsylvania Bank Regulators Regional Interstate Branching Compact

    December 4, 2006

    OFAC and New York State Banking Department to Exchange Information on Bank Compliance

    November 30, 2006

    OCC and New York State Banking Department Agree to Share Consumer Complaints

    April 26, 2005

    Financial Crimes Enforcement Network (FinCEN) and New York State Banking Department to Exchange Bank Secrecy Act Information

    April 21, 2005

    IRS and New York State Banking Department to Share Information Concerning Money Services Businesses and Certain Other Non-Bank Financial Institutions

    July 11, 2003

    New York State Insurance Department and the New York State Banking Department To Share Information

    Insurance-Related Agreements

    Release Date Government Agency
    June 22, 2011
    Swiss Financial Market Supervisory Authority (FINMA)

    July 28, 2009
    China Insurance Regulatory Commission (CIRC)

    July 20, 2009
    The Office of Insurance Commission, Thailand

    June 29, 2009
    Superintendencia del Sistema Financiero de El Salvador (SSF)

    June 12, 2009
    Financial Services Agency of Japan to NYSID

    NYSID to Financial Services Agency of Japan

    March 31, 2009
    Autoridade Monetária de Macau

    October 30, 2008
    Autorité de Contrôle des Assurances et des Mutuelles (ACAM)

    October 10, 2008
    Financial Services Authority of the United Kingdom (FSA)

    September 25, 2008
    Bermuda Monetary Authority (BMA)

    September 2008
    Autorite de Controle des Assurances et des Mutuelles (ACAM)

    June 12, 2008
    Bundesanstalt fur Finanzdienstleistungsaufsicht (BaFin)

    September 7, 2007
    Financial Supervisory Commission, Taiwan

  20. Home
    For Industry Professionals
    Content Licensing
    TRACE Content Licensing
    Volume Reports

    – See more at: http://www.finra.org/industry/trace-monthly-volume-report-legend#sthash.W8l20w5A.dpuf

    http://www.finra.org/industry/trace-monthly-volume-report-legend

  21. Wow

    On Feb 20, 2016, at 9:40 AM, david belanger

    i sent out a foil request for info on the fake trust that must be approved and registerd under new york law. to be legal. this is what i got from secretary of state of new york, request right on there site for info.

    the Department of State has no record of a corporation or other business entity with the names listed in your email.

    —–Original Message—–
    From: DAVID A BELANGER
    Sent: Monday, January 25, 2016 9:09 AM
    To:
    Subject: “Contact Us” Form: TRUST INFO,REGISTRATION

    I WOULD LIKE TO KNOW IF THE FOLLOWING
    TRUST , WAS FORMED , REGISTERED , IF
    THEY EVER WAS FORMED OR REGISTERED,
    THE TRUST NAMES ARE AS FOLLOWED.

    GMACM MORTGAGE LOAN TRUST 2006-J1.

    GMACM MORTGAGE PASS-THROUGH
    CERTIFICATES, SERIES 2006-J1

    Residential Asset Mtge Products,
    2006-J1,

    Mortgage Asset-Backed Pass-Through
    Certificates 2006j1

    > We hope you find this information to be of assistance.
    >
    > Sincerely,
    >
    >
    > Division of Corporations
    > (518) 473-2492

    http://www.dfs.ny.gov/about/whowesupervise.htm#banks

    Banks & Trust Companies

    Banks, also known as commercial banks, are community, regional or national for-profit business corporations owned by private investors and governed by a board of directors chosen by stockholders. Banks are generally institutions focused on commercial lending to help finance business and other ventures, but are also involved in unsecured lending or lending secured by items other than real estate (i.e. credit cards or inventory loans).

    A trust company is an entity that is authorized by the Superintendent to exercise fiduciary (trust) powers. A trust may be a stand-alone entity or be part of a bank. These companies provide a number of fiduciary responsibilities. The “trust” name refers to the ability of the institution to act as a trustee – someone who administers financial assets on behalf of another.

    In the case of a Limited Purpose Trust Company, the application process generally receives the same level of scrutiny as other bank and trust companies with two exceptions: the minimum level of capitalization and the requirement for FDIC insurance. The basic restriction on limited purpose trusts is the prohibition on receiving deposits and making loans except as incidental to the exercise of fiduciary powers. The DFS charters and regulates banks and trust companies under Article III of the Banking Law.

  22. Once a Failed REMIC, Never a REMIC

    Investors in mortgage-backed securities, built on the shoulders of the tax-advantaged Real Estate Mortgage Investment Conduit (“REMIC”), may be facing extraordinary tax losses because of how bankers and lawyers structured (or failed to structure) these securities. This calamity is compounded by the fact that those professional advisors should have known that the REMICs they created were flawed from the start.

    https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=78&cad=rja&uact=8 ved=0ahUKEwi33pHy7IbLAhVCzWMKHa5eByE4RhAWCEUwBw&url=http%3A%2F%2Fbrooklynworks.brooklaw.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1016%26context%3Dfaculty&usg=AFQjCNEg5fBuFH9sdkZjY1ppa0ta_Fw9Hg&bvm=bv.114733917,d.cGc

  23. Shining a Light on the Most Complex Fixed-Income Products

    If you were to imagine fixed-income products lined up in a row in order of complexity, a cluster of acronyms would stand fairly close to the end of the line – the complicated end of the line, that is.

    The cluster of acronyms represents debt securities that include a range of products — from those collateralized by pools of residential mortgages (in some cases guaranteed by Fannie Mae, Freddie Mac or Ginnie Mae, but in some cases not) or commercial mortgages, to other collateralized debt, bond or loan obligations. These securities are generally highly structured and hard to analyze and value.

    In an attempt to shine a little more light on trading activity in these knotty products, the Financial Industry Regulatory Authority (FINRA) has proposed releasing information about transactions it collects in TRACE, FINRA’s reporting facility for fixed income securities.

    Wait a Second. What ARE These Things?

    https://www.thealertinvestor.com/shining-a-light-on-the-most-complex-fixed-income-products/

  24. RiskProfiler

  25. eMBS

  26. INTEX

  27. @ johngault, mn, and EVERYONE

    WORKING PAPER NO. 13-8
    UNDERSTANDING AND MEASURING RISKS IN AGENCY CMOs

    ABSTRACT
    The Agency CMO market, an often overlooked corner of mortgage finance, has experienced tremendous growth over the past decade. This paper explains the rationale behind the construction of Agency CMOs, quantifies risks embedded in Agency CMOs using a traditional and a novel approach, and offers valuable lessons learned when interpreting these risk measures. Among these lessons is that to fully understand the risks in Agency CMOs a full bond-by-bond analysis is necessary and that interest rate risk is not the only risk that needs to be considered when conducting risk management with CMOs.

    https://www.philadelphiafed.org/-/media/research-and-data/publications/working-papers/2013/wp13-8.pdf

  28. SO …my mom was murdered, still missing 31 years – my exstep father is serving time in somers prison for attempting to bribe a judge {friend} to destroy our grand jury -Just BROUGHT TO MY ATTENTION ,, the judge ruling on my foreclosure has a long career with the Connecticut State police , he was the commissioner of public safety , etc – there is corruption all over my mothers unsolved homicide for which I made it my mission to be my moms voice for these 31 years ,,, shouldn’t this judge Danaher III recused himself ! or could daddy dearest gotten hold on yet another judge?
    will some one please take my hand here and help me out of this darkness I don’t know how to fight anymore ! I need an attorney that is willing to take their 3rd of a multi million dollar lawsuit in the end

  29. Before I forget, I emailed the lady at the notary clerks office for verification and she told me his commission started on 12/24/2006 and expired on 12/23/2010.. I went and double checked for myself and it states his commission started on 1/18/ 2007…

  30. I have some very interesting disvovery for everyone. Does everyone one recall the notary signer Deeter N. Today I discovered who he was through the orange county recorders office. Deeter Ninth LTD family partnership. Might as well say a holding company for the purpose of holding property Etc. There are pages and pages of granter and grantee listings. They all run under the names Deeter ninth, Deeter tenth, Deeter sixth, Deeter seventh, Deeter fifth, and so on. All of which are partnerships.

  31. Off topic but not really, Elizabeth Warren is my hero
    Just paroozing and i found this which makes me wish n wish she had run

  32. 42 cases from the Housing Justice Foundation which address suddenly appearing endorsements (and what may – or may not – be done about it):

    http://thjf.org/2014/06/27/suddenly-appearing-endorsements-used-by-bank-trustees-in-foreclosures/

  33. IMHO, excellent changes and additions to FRCP. Good for homeowners/advocates.

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