Losing Strategy: “Getting it on the Record”

I know I am going to take some heat for what I am about to say. In my opinion “getting it on the record” is an excuse for losing and implies that the judge’s decision was wrong and can be appealed when in fact the judge’s decision was correct and will be easily affirmed on appeal.

Clients and lawyers and others frequently ask me to “review” something they have written. Below you will find my usual responses. The main trap door that losing homeowners fall through is that they bury their own argument in an attempt to litigate the entire case (i.e., to get it on the record, AGAIN) on each and every filing they submit to the court.

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

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Here is my reply to most people whether they professionals or lay people.

The only caveat to this is that I personally know of many excellent legal writers “out there” for whom this article does not apply. They understand that the goal is to win in litigation and that means victory in as many points in the timeline of motions and discovery as is possible. You don’t win without that.

The second caveat is that persuasion and credibility are two sides of the same coin. You gain nothing by tossing out allegations that you can never prove and that are not backed up with foundation and corroboration. Practices like that lead to stuffing pleadings with irrelevant gibberish which might be true, but will dilute the good arguments and will never be considered, much less allowed into evidence.

Here are some of my common replies, shortly before they ask what it will cost for me to rewrite the pleading or memorandum.

In my opinion this needs to be rewritten, it needs to be much shorter and it must focus in on a small number of bullet points. The first points must catch the attention of the judge since it is unlikely that the judge will read beyond page 2.A “Reply” should be exactly that, to wit: something that answers the objection filed by or on behalf of ABC. While components of a reply are present they are buried under what is largely re-litigating the entire case.
Your point about all defendants being represented by the same attorney is well-taken. Do something with that, don’t just say it. Perhaps you could float an argument like “Opposing counsel seeks to invoke alter ego status on the one hand in order to invoke res judicata and on the other hand wants us to believe that ABC is a separate and independent entity with no connections to the alleged violations of law asserted by Plaintiff.
Under either scenario the baseline narrative is completely dependent upon a chain of ownership of the debt that is neither asserted nor substantiated by any foundation or documentary exhibits or evidence. In a sleight of hand maneuver, Defendants instead want us to focus on the note or mortgage (deed of trust), which at best are only paper instruments supposedly memorializing a transaction that is neither asserted nor in existence.
Thus they argue a false equivalency between the debt and the note despite no allegation nor proof that the note accurately memorialized a financial transaction in the real world between maker and payee on the note. They neither allege nor argue the merger doctrine in which the debt is absorbed into the note. This would force them to prove the money trail which nobody in the shoddy history of false claims of securitization is ever willing to allege or even provide a response.
“Getting it into the record” is not a trial strategy. It is a losing strategy both at the trial level and appellate level. That is because the goal is wrong. The goal is really to win, which can be and has been done in tens of thousands of cases. Getting something into the record is a euphemism for negligence, because it means that it is a data dump rather than a compelling narrative designed to persuade the trier of fact. Data dumps are virtually ignored by judges, just as you would if you were sitting on the bench.
“Defendant Counsel’s “Representation” of all defendants, each with supposedly different interests is at odds with his grouping of all the defendants together — ignoring the fact that if the case is decided against one of them it might be applied to them all. Do all the Defendants consent to this representation? Or, as alleged by Plaintiff, are they all sham conduits working for a fee in a common enterprise to create the illusion of an interest in ownership, servicing and transfers of the recorded encumbrance? Does one of them own the debt or are any of the defendants in privity with the owner of the debt?

15 Responses

  1. @ Anon – see that is where you’re going wrong. I’ll try to express it. Winning in court isn’t about being the one guy in the universe with all of the answers. That doesn’t work. You should try to fit your case and its facts into accepted legal principles and argue it that way. You can only stretch it so much. Courts aren’t interested in hearing another “rabbit hole guy with all the answers” who has missed several mundane, common legal issues which make all of his detailed fascinating minutia irrelevant. They’ve seen that for years. It doesn’t work, never did. The cases where homeowners have succeeded by and large are cases involving conventional legal theories, where the homeowner had competent legal representation from the beginning. There are very few if any exceptions to that.

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  2. David Seal – thanks for the advice. There is some truth to what you say. But, the problem is much deeper. To borrow a line from a Pee Wee Herman movie — To Dottie — “I don’t have to see it. I lived it.”

    .

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  3. @ Anon – The system is imperfect. It does not right every wrong. Think of how many Yvanova cases were lost before Yvanova won her appeal! But you can make smart moves – you can consult a lawyer who doesn’t work on the fringes of reality to find out if you have a case and what your chances are. You can make smart moves. Too often I see homeowners who are trying very low probability approaches to cases, and then they do every last little thing they can to minimize their chances of success – they self-represent, they don’t get help with procedure, they call the other attorneys names and insult the judge, and they file papers full of nonsense they learn on the internet. Don’t be one of them, and you might succeed! First and foremost, find good counsel and get as much legal help from professionals as you can. Good lawyers will tell you things you don’t want to hear sometimes, keep that in mind. You don’t want someone who just lies to you, tells you it’s all wonderful and they’re on your side, and takes your money.

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  4. You are correct Anon . There is no justice for the homeowner/borrower. The entire system is rigged. Even after rescission by the Supreme court, the judges still rule against the homeowner. There is no justice. Our court system needs to be overhauled.

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  5. David Seal — it does not matter whether you are paying or not. It does not matter whether you have good grounds or not. It does not matter if you have no title to home. The courts are not on the people’s side. If you have a loan claimed to be in any bogus private label trust, you are done. It is very hard to get the real facts. But, the first question everyone should ask is “Who is the mortgagee? Who is the Lender?” A trust can never lend directly to borrowers. They are never the Lender/Mortgagee. The Federal Reserve has established this.

    The bottom line is that the government allowed this to happen. And, the courts are protecting the cover up.

    These are not real mortgages. All is fake.

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  6. @ roger…you are indeed correct. In Chapter 13 right now and the Defendants I am suing have lost their claims in 2 courts. Are now bringing, the exact same claim to the Federal Court. I say: fraud on the court and you bet, I am objecting to it. Have 6 lawyers, appearing for the same party…what a travesty the judge allows it. Intimidation, cause the case is so weak!

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  7. David Seal, arf arf arf…
    Many cases that are founded in law will not get the judges attention other than his disdain that your mortgage went unpaid for XX number of years. These judges are indeed corrupt.
    I know a lot of people have taken Garfield theories and presented them only to lose. But if judges applied the mortgage and banking laws that are already on the books in their respective states, the banks would fold up and leave. Can’t have that, no can we? Moral hazard is for the people. Not the banksters. May they rot in hell forever.

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  8. @ Javagold – If you have a case you can win. Most people don’t have a case. And they read blogs that talk about magical strategies to defeat ordinary foreclosures. None of that works. You need extraordinary facts and you need to have a bank actually doing something wrong which you can prove in a court of law. Very few lawyers will give it to you straight (and some are even deluded themselves) but there is NO winning strategy if your case consists of not paying the mortgage and being a good person who doesn’t want to lose your home. That isn’t enough.

    You need an actual legal case that would support relief in a court of law of some kind, and you need the facts to back it up. Most people don’t have that and would be better off just moving on with life than spending years trying to find a magical legal theory that doesn’t exist.

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  9. I think, more is better, in these cases. No doubt laser focus is key and presenting relevant facts is the difference between success or failure. But, as a Pro Se I am learning over time and don’t want to miss something on the front end, that cannot be brought in later….covering anything I might need later for an appeal.

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  10. Java, that is how I feel It is all rigged, and fraud on the court is the deal of the day.

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  11. One of the biggest hurdles is getting discovery. Courts will simply ignore the process. Understood that claims cannot be alleged by relying on future discovery. Nevertheless, when the complaint states enough to support claims, discovery should then commence. If judges dismiss without getting to the discovery stage, it a clear decision without regard as to whether the complaint includes all that should be on record – or if it has strategic bullet points that may or may not be read by the court. Simply doesn’t matter.

    I am not attorney. But, I know from attorneys that were once law clerks — judges make up their minds on how the case is to go before they read a page.

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  12. Re Javagold:

    Point well taken. Certainly in California there is no winning strategy. I only know of one case that has ever made it before a jury and they of course ruled badly against the banksters. Unfortunately, the courts won’t let you make it before a jury… due process or rule of law be damned.

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  13. There may be no winning strategy in Rhode Island with the current state laws. Many attorney’s don’t even bother litigating illegal foreclosure unless a client is willing for “modification”. Buying a home with mortgage may be risky here.

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  14. On the same token, if you don’t get an argument on the record you waive it on appeal. I can’t tell you how many recent decisions I’ve read that have had arguments raised for the first time on appeal and the court(s) accordingly, refused to address.

    Making the record for the record’s sake, is a waste of time but if you plan to make any argument it better be there and if it is, make the argument and support it with facts and evidence. Even then, courts routinely ignore even short, concise argument… from what I’ve seen, they don’t read the papers, their clerks do if at all, and will completely pass over issues they don’t want to deal with or if they did, might benefit the borrowers and not their bankster buddies.

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  15. After 10 years of Fraudclosures. Is there even such a thing called a WINNING strategy ????

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