Peaking Inside the Mind of a Trial Lawyer

Knowing that there was fraud, robo-signing, fabrication, forgery is not enough. The trial lawyer must know how to prevent admission of false facts into evidence and how the robo-witness testimony will be discredited.

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https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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People often ask us to do a title and securitization report, as though that is going to be the golden keys to the kingdom. We tell them that a flat title report and a flat securitization report is not only incomplete it is misleading. For example, when documents are uploaded by an unidentified person to http://www.sec.gov, many people respond by “Found it!!”
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In truth all that has been found is the CLAIM that the loan was securitized and the CLAIM that a Trust exists and the CLAIM that the Trust actually acquired the loan. There is no restriction on what can be posted to http://www.sec.gov. Many a fraudulent foreclosure has been the result of a legal sleight of hand — uploading what appears to be trust documents even if they are unsigned and lacking the exhibits referred to in the Pooling and Servicing Agreement. THEN they ask the court to take judicial notice or at least to presume that a copy of the document produced in the courtroom is an authentic, valid document giving the Trust the right to appoint servicers, agents etc.
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Like everything else in 95% of all foreclosure proceedings, they are based upon self serving documents fabricated by undisclosed third parties who have nothing to do with the creation of the trust, the activities of the trust, the acquisition of loans or the foreclosure of mortgages that were never owned by the trust.
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Title and securitization reports should neither be (a) a straight up report on title history (going back 2-3 owners) and securitization search and/or (b) analysis of the real story PLUS ways to undermine the foreclosure case and win the day. I have a track record of winning those cases and the method I used is the basis for all our work.

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What lay people do not understand because they have no education and training to understand it, is that trial work is like brain surgery. The brain surgeon knows that genetics and bad life choices are what caused the patient to be in need of his services. He might even believe that companies should not be allowed to push the foods and medications on people that undermine health. But when he/she steps into the operating room, he/she has a much narrower scope — drilling and cutting into the scull to get to the part of the brain where he can perform effective repairs. All the rest doesn’t matter at that moment.

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A trial lawyer prepares for trial from the moment he receives a case. A good trial lawyer develops two narratives — one is the internal narrative that he/she knows and will serve as the basis for making decisions and assumptions in discovery and at trial and the other is the external narrative which is the limited story and is directly related to the (a) the things he/she wants to block from evidence and (b) the things he/she wants in evidence. When he/she steps into the court room the internal narrative is good to know but is mostly irrelevant to the issues that will be heard at trial.

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So for example, people say securitization is bad or illegal. Actually it is not and there is no reason why it should be. Diluting risk among many investors is the cornerstone of capitalism.

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The internal narrative is that the way securitization was practiced in real life was wrong, illegal and probably criminal. The internal narrative is that the Trust was never funded and therefore could never have purchased any loans. These facts are known in the mind of the trial lawyer but he/she will make no attempt to prove them because the Court in all likelihood would not allow it. But KNOWING the internal narrative leads to conclusions about weaknesses in the case of the opposing attorney. If the Trust never acquired the loan, the Trust had no right to be appointing servicers, agents, etc. and the Trustee had no power or relationship to the loan in litigation. The internal narrative is also that the loan contract never existed.

The external narrative (the one used in court) is that there is insufficient evidence that the Trust owned the subject loan, and insufficient evidence that the so-called servicer had any right to service the loan.

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Using the external narrative the trial lawyer attacks the inconsistencies between the testimony, the trust documents (paying special attention to the exhibits to the PSA which are frequently blank), and the attempt to hop over those defects by suddenly coming up with a Power of Attorney that STILL comes from the Trust (or a third party who was never in the alleged chain of documents proffered by the attorney for the foreclosing party).

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The trial attorney attacks by using objections and cross examination to reveal the defects in the position of the party alleging it has the right to foreclose and in the position of the servicer who sends a representative of the servicer to court as a robo-witness who in truth knows nothing.

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We help by preparing the best possible route for discovery strategy and preparation for trial.

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For a long time we provided a flat report that was put into the hands of pro se litigants and lawyers who really were not trial lawyers and therefore did not have an adequate strategy for using the reports.  There are many vendors who produce a 2 dimensional report promoted as 3 dimensional. It is a flat report that tells the customer nothing about how to use the report and gives unfiltered opinions about potential defects in the foreclosure case.

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We provide guidance as to what services should be ordered but we cannot provide legal advice unless it is (a) me on the phone and (b) a case pending in Florida. That is why we strongly recommend that when booking a consult, you have on the line an attorney who is licensed to practice in the jurisdiction in which the property is located.

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After attempting to drive down the price of services by commoditizing the reports, it is now apparent that such reports are at best helpful only in the hands of a good trial attorney and at worst, misleading in that inexperienced pro se litigants and lawyers take the report into court as though it is evidence and attempt to get the court to rule upon what is obviously a document, which is hearsay.

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So we are now concentrating on providing highly interactive paralegal services to support lawyers and their clients when litigating a foreclosure case. Yes we still provide reports, but our focus is now on actually drafting the operable pleadings, motions and memoranda needed to properly litigate a case and to provide actual scripts that can be used as guides for what actually happens in court.

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Watch these pages for further assistance. We are re-starting our seminar series — “Garfield Continuum” with a short inexpensive seminar called “OBJECTION!” for lawyers and their clients.

8 Responses

  1. this is all about greed of the bankers, attorneys on both sides taking advantage of desperate homeowners
    All of you will have to answer to this mess one day. Sleep tight!

  2. dont insult us “lay” people by insulting our intelligence, neil. You dont have to be a brain surgeon to weed out the bank’s scam. It is based on lies upon lies. Any layman could figure that out especially when the bankers are stupid enough to put themselves deeper in the muck with their completely fabricated documents, trusts and the entire scheme. you cannot create something out of thin air. Really, Neil you should not insult your readers

  3. https://www.carltonfields.com/files/Uploads/Documents/realprop/2016-Oct14/Powers-v-HSBC-Bank-USA-NA.pdf

    Homeowner wins against HSBC on Standing. Florida is the place where it’s happening, folks.

  4. It took quite awhile, but I did finally discover that SEC filings, by themselves, may not be legitimate. As stated, they can just be posted there regardless of their actual validity.

    I recommend the use of that info only as a starting point. Check the documents there for the State of Incorporation. Most are either NY or DE. If, as mine, the State of Incorporation is DE, go to the Secretary of State’s website to verify the actual corporate filings there. I found my trust to have “not now and never” to have been established as far as the SOS is concerned, AND the SOS will certify that in writing (for fee).

    Turns out, when a Trust is established, according to the Trust Laws of Delaware, it is a shell. Meaning (and stated so) the PSA is an after-the-fact attachment to the corporate trust. This means the trust must first be established, then the PSA attached as its governing rules. If the trust was never established, it would seem impossible to attach the PSA at all. No PSA, no trustee, no servicer, no custodian, nothing.

    I haven’t gotten yet to use this in court, so can’t yet tell how effective this may be, but, to me, it is rock solid.

    btw, I’m not an attorney, so take it all with grain of salt, or shot of vodka.

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