Learn more about our services at: www.lendinglies.com
or Self-Schedule with Attorney Neil Garfield at: www.vcita.com/v/lendinglies
THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
The entire foreclosure mess can be summed up in one word: PRESUMPTIONS. Under the rules of evidence certain documents are presumed to be true and valid. The “Holder” of a negotiable instrument is often presumed to own it and have the right to enforce it. If the instrument is a promissory note, then it is presumed that the note is evidence of a valid debt. It is through this vehicle, that the banks and servicers have successfully conducted millions of foreclosures.
*All rebuttable presumptions are subject to the same test before being applied — go research it — are there circumstances that give rise to reasonable doubt as to whether the presumed fact is true? If so, the presumption does not apply and the proponent of that fact must actually prove it rather than rely on a presumption. Circumstances do not include mere information or reports. The facts relied upon the party challenging the presumption must be admissible as evidence that there is doubt as to the credibility or authenticity or correctness of the fact being presumed.
So if you want to say that the proponent “beneficiary” or “mortgagee” has engaged in a pattern of conduct that involves fabrication of documents, fraud, forgery, robo-signing etc. you need to do two things. First you must produce admissible evidence that the pattern of conduct exists. AND Second, you must show how that pattern of conduct has a nexus (connection) to the case at bar.
*It is a grey area as to whether news reports can establish that the pattern of conduct exists. It probably is better to have someone testify (corroborating the reports in public domain) that the pattern of conduct exists based upon his or her own experience. Showing examples of cases where this pattern exists would be pretty conclusive as to abuse of the court’s discretion in relying upon the presumption.
*Lastly you must show the court that the documents in the case at bar are similar to the ones used where the proponent was offering evidence that was found to be fraudulent, illegal, wrong etc.
Filed under: foreclosure