How to Choose a Forensic Report

If you stick to an objective statement of facts without presumptions, anyone can report and testify with credibility if they have backup. Once you cross the line into opinions the report is undermined as to bias, credibility and lack of foundation. Even if it is admitted into evidence the report will be given zero weight in deciding the case.

You undermine your defense if you are relying upon presumptions instead of actual facts or the absence of actual facts. Most presumptions used by homeowners are not persuasive.

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

About Neil F Garfield, M.B.A., J.D.

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Starting with the tidal wave of foreclosures that hit our shores in 2007-present, a cottage industry emerged to help homeowners contest or negotiate with the pretender lender. Some were better than others. Many were at best a good faith failed attempt at understanding the claimed process of securitization, whose hallmark is complexity and obscurity.  In the words of an executive VP at Deutsch Bank, “it is all very counterintuitive.”

The job of the forensic reporter is to break down the facts so that the defense narrative is understandable and believable. Note that in most cases the defense narrative is going to rely on the absence of facts that should be present if the claims for foreclosure were based in fact. The object should be the production of a report that actually provides traction to the defense and not merely justification for the fee received.

  • RULE #1: If the report sticks to the facts and has an adequate presentation it can serve two purposes, to wit: (a) it provides a checklist of issues for an attorney or pro se litigant to know “what is on the menu” of potential defenses and (b) it might serve as evidence or corroboration of narratives pursued in court in creating and compelling discovery, filing and arguing motions and raising well timed objections at trial. If the preparer did fact checking and investigation, it is permissible to describe inconsistencies in the available evidence that need to be reconciled.
  • RULE #2: Anyone can write a report but few people can satisfy the burden of persuasion in court. Just because something is accepted into evidence or even admitted does not mean that it will be given any weight in the final decision. So if you are going to hire someone to review, investigate and report, that person should have a credible level of knowledge and access to data. Someone who has been through a foreclosure is neither credible nor lacking in credibility, but the other side will no doubt argue that the person had a bias against the banks. Certifications are not a substitute for experience. The greater the credentials the higher the credibility.
  • RULE #3: You are starting with bias against the homeowner. So you must focus on what will persuade the trier of fact (a judge in most cases) to rule in favor of the homeowner. To be persuasive means that the facts are presented without hypotheticals or conclusions that should be made by the judge. The presentation must gradually educate the judge as to how specifically in this case, the foreclosing party should not be allowed to continue. You don’t win by pointing out inconsistencies. You win by showing that the inconsistencies cannot be resolved even with the “help” of the robo-witness at trial.
  • RULE #4: “Everybody knows” is not a defense. If there is information available that might assist in showing that the documents are self-serving, then that might be the the jump-off point for undermining the credibility of the witness and the exhibit, but it needs to be much stronger to exclude the evidence altogether. If the foreclosing party has been the target of investigations, charges and settlement agreements based upon fabrication of documents, forgery and robosigning, that could be the jump-off point to argue that the foreclosing party must present its evidence without benefit of a legal presumption.
  • RULE #5: Wording is critically important. Describing the transaction as a loan or as an assignment basically admits that the description fits. At that point you might just as well pack up and go home. The forensic report should describe documents that have a title, and and then describe the contents and any inconsistencies or disparities. But calling the document an assignment or admitting that the loan was transferred, at least implies that there was a sale of the debt. If you check the documentation you will never see anything that refers to the sale of debt, because there was no sale of the debt.
  • RULE #6: Identify the salient points of the report in a memorandum in support of discovery or motions specifically citing to the page and position of the facts revealed in the report. If the report is for internal use only, attorney work-product etc., the use of bullet points in the report is preferable. Anything that takes less time of the attorney will save time and money. Thus if you want to assert forgery of a document the examiner would state that the signature on Document A appears to be inconsistent with the same person’s signature on Document B. THEN bring in a forensic document examiner who can give an opinion as to whether it is a forgery, back it up with demonstrative exhibits. AND remember, just because there isa  forged document doesn’t mean you win and they lose. You must persuasively argue that the forgery defeats their action.
  • RULE #7: CITATION TO CASE LAW IS LEGAL ARGUMENT — not a forensic report. But the presentation could report that as part of the instructions to the examiner, it has been assumed that X v Y case and Statute § ABC has been used as a reference point.

Here at livinglies and LENDINGLIES we are on our 12th iteration of a forensic report  for homeowners or their counsel. We call it the TERA for Title and Encumbrance Report and Analysis. It is the result of review and research by paralegals who are given instruction by me usually after I get together with the client in a short or long CONSULT.

I have long said that homeowners should stick with people who have or held licenses in professions that might affect the case. And while some people may have a professional license in a relevant field you should not make the mistake, based upon this article, of limiting the scope of work performed by them, just as you should not over-broaden the scope.

After many years of doing unrelenting research and investigation there are many people who have valuable insights that should be shared with the client. So if the forensic examiner says he notices a certain pattern of facts and that this same pattern was used in another case where the homeowner won, you should be listening even though the conclusion might be outside of his report and outside of his/her area of expertise. Note that the same fact pattern is often treated differently by different courts or even the same court.

In the TERA that we currently produce, our mission is to set forth the following elements:

  1. Sufficient information to assist the homeowner (or homeowner’s counsel) in deciding whether to fight, and if so, the toward what end.
  2. Identify the factual discrepancies.
  3. Identify areas for further investigation for discovery.
  4. Identify elements that support demands for discovery.
  5. Answer specifically worded questions posed by existing counsel or me.*
  6. Provide copies of all relevant documents as exhibits to the report.
  7. Identify subject for which a Case Analysis might be of assistance as in developing the specific narrative, strategies or tactics to pursue in the case and what to avoid.

In all cases we defer to local counsel. But with the right support and and guidance most attorneys develop specific knowledge and skills to win these cases. You don’t hear about all the cases won by homeowners because the banks pay for silence in the form of confidentiality agreements.

* EXAMPLE: It is wrong to phrase the question “Does US Bank have standing?” That calls for a legal conclusion that only the court can do. The question is better phrased “What factual evidence has been produced to support the assertion that US Bank has an interest in the subject loan?”

 

 

 

Tonight — Silent Roles of Fannie Mae and Freddie Mac — Hiding Behind the Obtuse

How to Withhold Vital Information from Homeowners

Thursdays LIVE! Click in to the The Neil Garfield Show

Or call in at (347) 850-1260, 6pm Eastern Thursdays

Charles Marshall, Attorney and Bill Paatalo, licensed investigator discuss the moral hazard created by the Government Sponsored Entities (GSEs) banks, the courts and the regulators in allowing “presumptions” to be used even when the actual facts are different from the presumed facts.

Fannie and Freddie have long been a mystery wrapped in an enigma.

Before false claims of securitization, before fabrication and forgery of documents, the GSEs had fairly clear role in the origination, servicing and enforcement of mortgages. Now they are used as cover to hide lack of ownership where the banks and servicers make the homeowner travel and endless loop leading nowhere.

Now, as to any specific loan, we don’t know which of the following applies:

  1.  GSE is the guarantor of the loan (basically like a third party insurer with government backing)
  2. GSE is Master Trustee of a REMIC Trust in which there is a named Trustee who has the same powers, rights and obligations as the Master Trustee — i.e., no powers to actively administer the active affairs of the trust because there is no business or assets in the trust.
  3. GSE is or was a purchaser for cash.
  4. GSE is or was a purchaser using MBS issued by a named trust that either exists or doesn’t exist.
  5. GSE, using Trust A MBS paid Trust A for loans owned by the Trust or for loans not owned by the trust.
  6. GSE was a seller of the subject debt, note or mortgage.
  7. GSE claimed ownership when it didn’t own the subject debt, note or mortgage.
  8. GSE showed subject loan on its website but had no interest in the subject debt, note or mortgage (or foreclosure).
  9. Third parties claimed that GSE owned the subject debt, note and/or mortgage and it was true.
  10. Third parties claimed that GSE owned the subject debt, note and/or mortgage and it was false.

Wells Fargo “Lending” Securities It Didn’t Own

Translation: WFB was the “custodian” of alleged “mortgage-backed” certificates issued for the benefit of investors who paid billions of dollars for ownership of the certificates. WFB “Loaned” those alleged securities to brokers. The brokers in exchange provided “collateral” the proceeds of which were reinvested by WFB. In short, WFB was laundering the investors money for the sole benefit of WFB and not for the investors who owned the certificates and certainly to the detriment of the brokers and their buyers of derivative instruments based upon the loan of the securities.

This case reveals the flowering of multiple levels arising from false claims of securitization. First WFB issues certificates from a fictitious trust that owns nothing. Then it keeps both the money paid for those certificates and it keeps the certificates as well. On Wall Street this practice is called holding securities in “street name.” Then WFB engages in trading on securities it doesn’t own, but which are worthless anyway because the certificates only represent a promise from the REMIC trusts that exists only on paper.

It is all based upon outright lies. And that is why the banks get nervous when the issue of ownership of a debt, security or derivative becomes an issue in litigation. In this case the bank represented the trades as ownership or derivative ownership of “high grade money market instruments” such as “commercial paper or bank time deposits and CDs.”

None of it was true. WFB simply says that it thought that the “instruments” were safe. The lawsuit referred to in the linked article says they knew exactly what they were doing and didn’t care whether the instruments were safe or not. If the attorneys dig deeper they will find that the certificates’ promise to pay was not issued by an actual entity, that certificates were never mortgage-backed, and that WFB set it up so when there were losses it would not fall on WFB even though WFB was using the named trust basically as a fictitious name under which it operated.

So I continue to inquire: why does any court accept any document from WFB as presumptively valid? Why not require the actual proof?

Let us help you plan your defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!

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

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Hat Tip Bill Paatalo

see  WFB Securities Lending Scheme

The investments by WFB went into “mortgage backed assets.” Really? So let’s see how that works. First they create the certificates and sell them to investors even though neither the investors nor the trust have any interest in mortgage assets. Then they “loan” the same certificates to brokers, who provide collateral to WFB so that WFB can “reinvest” investor money using commingled investor money from a variety of sources.

Then derivatives on derivatives are sold as private contracts or insurance policies in which when the nonexistent trust assets are declared by WFB to have failed, in which WFB collects all the proceeds. The investors from all layers are screwed. And borrowers, as was originally planned, are screwed.

The lender to the borrower in the real world (where money is exchanged) are be the investors whose money was in the dynamic dark pool when the loan of money occurred. But the investors have no proof of ownership of the debt because of the false documents created by the “underwriter” bank.  The money from the second tier of investors is used to “purchase” the certificates WFB is “printing”. And then derivatives and hybrid derivatives and synthetic derivatives are sold multiplying the effect of every certificate issued. Such has the control over currency shifted from central banks who control around $8 trillion of fiat currency to the TBTF banks who boast a shadow banking market of $1 quadrillion ($1,000,000,000,000,000.00).

This every loan and every certificate is multiplied in the shadow banking market and converted into real money in the real world. Based upon prior securities analysis and review of disclosures from the publicly held banks it thus became possible for a “bank” to receive as much as $4.2 million on a $0.1 Million loan (i..e, $100,000). But in order to maintain the farce they must foreclose and not settle which will devalue the derivatives.

Then having done all that through control of a dynamic dark pool of investor money they must of course create the illusion of a robust lending market. True this particular case involves a business acquired when WFB acquired Wachovia. But WFB acquired Wachovia because it was the actual party in control of a false securitization scheme in which Wachovia acted primarily as originator and not lender.

WFB barely cares about the interest rate because they know the loans that are being approved won’t last anyway. But its trading desk secures extra profits by selling loans with a high interest rate, as though the loans had a low interest rate thereby guaranteeing two things: (1) guaranteed defaults that WFB can insure and (2) buying low (with investor money) and selling high (to investors).

All of which brings us back to the same point I raised when I first wrote (circa 2007) about the systemic fraud in securitization not as an idea, but in the way it had been put into practice. Using established doctrines in tax litigation there are two doctrines that easily clear up the intentional obfuscation by the banks: (1) The single transaction doctrine and (2) the step transaction doctrine. Yes it is that simple. If the investors didn’t part with their money then the loan of money would have never reached the desk of the closing agent. If the homeowners had not been similarly duped as to who and what was being done, they would never have signed on the dotted line.

To assume otherwise would be the same as assuming that borrowers were looking for a way to waste money on non-deductible down payments, improvements and furniture in exchange for a monthly payment that everyone knew they couldn’t afford.

 

Subpoena Compliance Officer at the time the loan was made

Last night on the Neil Garfield Show, Charles Marshall brought up the idea of the use of the subpoena power of the court. I agree that this is a way of lawfully penetrating into the inner recesses of the alleged loan process. People ask me to whom should they issue a subpoena? Opinions vary. But I would say the person who served as compliance officer at the time was being “underwritten.” You’ll probably find out that loan was not underwritten by the originator. But more than that you will find that there exists a witness who can say what really happened at the alleged “loan closing.”

See below for a short list of questions that might be posed at the deposition of such a witness.

Let us help you plan your discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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SeePAPER CHASE AND MONEY CHASE — THE CASE AGAINST CHASE

There are dozens of questions to ask. But I think the following list is a guide toward strategically posing the right questions:

  1. Do you review all prospective loans?
  2. What risks are you looking for? Define them.
  3. What are the primary risks of loss in closing a loan in today’s marketplace?
  4. Does the prospect of “sale” of the debt, note or mortgage affect your risk analysis?
  5. Is the bank using a warehouse lender?
  6. Is the bank making the loan or playing the role of originator?
  7. Is the bank the intended ultimate secured party on the mortgage?
  8. Is the bank the intended ultimate recipient of monthly payments as described in the note?
  9. What is the annual rate of mortgage originations in principal dollars for the bank.
  10. Does the bank have buy-back exposure on its loan originations?

Deloitte and Touche Pays $149.5 Million Settling Claims of Audit Failure of Taylor Bean and Whittaker

One of the first cases I ever handled involved TBW in 2008. As usual they filed a lost note count in their foreclosure complaint. And as is required, they offered to indemnify the homeowner if someone else showed up with the original note. With financial firms dropping left and right, my position was two fold: (1) that an indemnification from a firm that was clearly in trouble as reported in the news was of dubious value and (2) that even if that wasn’t the case neither their complaint  nor their affidavit recited any facts about when the loss occurred, who was in possession of the note, whether the possessor had rights to enforce when the note was “lost” etc. TBW folded, went into bankruptcy shortly thereafter and its principals went to prison.

But throwing TBW under the bus, as much as they deserved it, takes nothing away from the fact that everyone was doing what they did. The only difference was they got caught and could not effectively indemnify the homeowner in the event they were lying about the possession of the original note — something that as proven beyond a reasonable doubt in the criminal trial of the execs..

Let us help you plan your discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip to Dan Edstrom

see  Multiple Sales of Same Loans Force Auditor to Cough Up $149.5 Million

PR shows like this one became one of the ways that the banks were able to throw a curtain over the real customs and practices of the industry — most of which were virtually identical to TBW. The impression from the collapse and prosecution of TBW and its executives implies that this was an unusual event — selling the same “loan” multiple times.

But close examination of the many claims of securitization of debt shows that exactly the same thing was happening in the rest of the industry. In fact, that is where the enormous “profits” came from as reported from their “trading desks.” The only difference is that TBW was blatant about it by using copies of notes that were repeatedly sold, not once, but multiple times.

The leverage of making multiple sales went to ridiculous heights — 42 times in the case of Bear Stearns mortgage related activities. Yes you read that right. That $200,000 loan produced around $8 million in “profit.” Of course none of this was disclosed to the borrower whose name and financial reputation would be used directly or indirectly to accomplish these “sales.” They did it by hiding behind “derivative” documents rather than the actual loan documents, but they also did what TBW did. But while TBW was exclusively faking sales, investment banks mixed up the process such that, if caught, they would be able to say that some of these things happened because of a failure of controls and that they will now correct it.

As the MBS marketplace slowed down and had some hiccups many of the contracts or derivatives came due and Bear Stearns simply didn’t have the money to honor them despite the enormous “profits” earned earlier. This also is a possible indicator that leverage was even higher than what has been reported. As the buying frenzy slowed down and investors suddenly became aware that they were holding certificates issued by entities that didn’t exist and were never active, the buying stopped — and like any Ponzi scheme, the entire infrastructure came crashing down.

Practice Note: So what all of this means is that questions should be posed to parties who file foreclosure actions. But you need to wade through the multiple servicers and multiple “assignees” and multiple “endorsees” and multiple “Underwriters of bogus RMBS to ask the simple question: how many contracts or securities have been issued with the respect to the subject loan? It’s relevant because it is asking whether the foreclosing party has sold its rights to an undisclosed third party. In 99% of all cases, the “REMIC Trust” was never used and the underwriter has already entered into various contracts, sales, and issued “derivatives” in which the PAPER was sold but the underlying debt, if it still exists, was never subject to any transfer, contract or derivative.

Vulture Firms: The Last Step in a Chain of Illegal Paper, with the Debt Long Gone

The key element of the paper strategy has been to create the illusion of transfers of assets, thus supporting the erroneous narrative that with all those parties purchasing the loans, a lot of due diligence MUST have been done and therefore the screaming defense of homeowners (attacking ownership) is nothing but a dilatory stall tactic.

What is consistently missed, even by people who are completely fed up with the banks and regulatory agencies that have given a wink and nod at plainly fraudulent practices, is that the only “asset” is the paper, and that the debt itself has never moved. In a true securitization the debt would indeed be transferred. But all claims of securitization of debt that are based upon CLAIMS of ownership rather than the ownership itself are groundless. Thus neither Vulture Firms nor any of their predecessors ever owned the debt.

This is why we have lawyers go to law schools. Such convoluted schemes are not easily deciphered without experts and lawyers. Lawyers understand the distinction between the debt, the note and the mortgage. But lawyers forget and lay people never knew about the distinction. It isn’t technical. It is all about keeping transactions on paper honest.

And right now nearly all of the hundreds of millions of documents are being used around the world to foreclose, or support the sale of the paper note and mortgage and derivatives based upon the value of those millions of documents containing false recitations and inferences of fact.

So borrowers, whether their payments (to the wrong party) are “current” or not, like the one in the story found in the link below are stuck in the very place that legislators and regulators have said could never happen in a legal mortgage lending situation: no knowledge about the identity of the obligee of the debt. Foreclosure defense lawyers who win cases punch holes in the foreclosure case simply by knowing they are not dealing with anyone who owns the debt nor anyone who is representing the obligee in the underlying debt (i.e., the real world).

Let us help you plan your discovery requests and defense narrative: 202-838-6345. Ask for a Consult.
Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Hat tip Eric Mains and Bill Paatalo

see Vulture Firms Must Clean Up the Mess

So people ask me the obvious question, to wit: “If the paper didn’t transfer the debt because the seller, assignor or endorser never owned the debt, where is the debt now?”

The answer is simpler than you might imagine. The only two parties are the obligor (the person who took the money) and the obligee (the person who gave the money). The current obligee (owner of the debt) in most instances is a group of investors who are beneficiaries of multiple paper trusts that have never existed nor been active. THAT is why you never see any assertion that the debt has been purchased.

No money has exchanged hands in any of the transfers except in the case of vulture firms who pay fractions of a cent on the dollar for the paper. They don’t buy the debt because the seller of the paper doesn’t own the debt.

The one simple law school issue taught repeatedly in several classes — Contracts, Bills and Notes etc. — is that the debt arises no from paper but from action. There is no debt if there is no money exchanged between the parties claiming to be part of the transaction.

The debt arises by operation of law without  and even despite the existence or nonexistence of any written instruments — virtually all of which are subject to hearsay objections and lacking in factual foundation, to wit: an actual transaction in the real world in which reciprocal consideration was exchanged between the obligor and the obligee.

If the written instrument recites or assumes that the parties to the instrument are in fact identical to the parties to the real world transaction, then the parties to the debt would be identical to the parties on the written instrument. So keep this in your bonnet while you are planning defense strategy: at some point, usually at origination, a debt was created, separate and distinct from the recitals on the note and mortgage.

If the written instrument recites or assumes that the parties to the instrument are in fact identical to the parties to the debt, but the recital or assumption is untrue. Assumptions and presumptions are based upon one singular doctrine — they are used for judicial economy only where the the presumption clearly is true and where no contest to the presumption is introduced by the defense.

If the defense asserts and gives some argument or evidence that is inconsistent with the presumed “fact,” then the burden shifts back to the party who claimed the benefit of the presumption — i.e. they must prove the real world transaction that was being presumed. There is no prejudice to forcing such a party to prove the fact that they wished to be presumed — unless they were lying to begin with.

 

Evidence and Forensic Reports

Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.
There is a simple test for hiring a  purported forensic investigator: Are they in close touch with attorneys who understand the law and how to apply the law, particularly the laws and rules of Evidence? If not, steer clear of them as they will lead you down a rabbit hole.
Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

At our upcoming webinar this Friday, 2/16 at 1PM, we explore not only discovery and the actual rules of evidence, but also what constitutes facts that could be admitted into evidence — and cross examination or trial objections that prevent or remove information from being considered as evidence proving the truth of the matter being asserted.

Some of those facts that could be used as evidence or “anti-evidence” (information that removes the foundation or credibility for evidence admitted) come from the court filings but many of them come from forensic investigators whose task is to report on facts that tend to prove gaps in the narrative of the foreclosing party. At the Webinar will be two forensic investigators whose work I support because they understand the difference between facts and the law.

It is challenging for forensic investigators to refrain from  giving opinions on legal matters. But in order for their report to be taken seriously and in order for the conclusions to be persuasive, forensic investigators need to refrain from expressing conclusions of law. If not, they will be ripped to shreds on the witness stand where their credibility will sink to zero. Keep in mind that the report is not evidence nor will it ever be admitted into evidence without authentication and foundation from a live witness (the author).

It is interesting that I frequently come under attack from non lawyers who are constantly trying to steer people to forensic investigative reports that apparently ignore the standards for issuing such reports — because they pretend to be knowledgeable about the law and they offer legal advice and commentary which is the unauthorized practice of law.

Their reports are inevitably half baked and favor the banks by discounting the best defenses and offensive plays for a homeowner in favor of strategies that will almost certainly fail. Which in turn leads to the question: Why are non lawyers polluting the discussion with pro-bank obfuscation?

Even more interesting is that bank lawyers who have published articles about rescission and foreclosure defenses assume that rescission and foreclosure defenses based upon standing and such are valid. Indeed even the most biased courts recognize that standing is the root of their jurisdiction. Without standing the court cannot do anything other than dismissing the vacating the foreclosure complaint or sale. And winning on standing is far from simply delaying the inevitable.

“Mortgage examinations” in lieu of getting advice from a licensed attorney is legal suicide. But there are some entrepreneurs selling exactly that. Slick talking is not replacement for 3 years of law school, internship, and experience in the practice of law. So when I get something like this it worries me that anyone might read or believe it:

What’s wrong with foreclosure pretense defense attorneys all over Florida?  Why to they hang their hats on standing issues that serve only to delay the inevitable, predictable, and proper loss of the borrower’s home to justified foreclosure?
If all those lawyers who “get it” (meaning get the scheme of bilking clients for the privilege of losing their house for them) were to get mortgage examinations done for their clients and thereby find numerous causes of action underlying the loan transaction, then they would have something worthwhile to bring to the court instead of dilatory standing issues.
*
The question is basically a cynical dud advanced by the banks. Foreclosure defense lawyers are not pretending anything. They are doing the best they can with what they are getting paid. Standing is not just important in terms defeating the current foreclosure action. It is also important in preventing future ones, and important for collateral damage cases based in wrongful foreclosure, interference in business relations, emotional distress and potentially punitive damages.
*
As thousands of homeowners can attest, when they won on standing and the servicer and so-called mortgagee or beneficiary has painted themselves into a corner, the scales have tipped very much in favor of the homeowner. The banks do not have a ready option to submit different paperwork and pursue the second foreclosure — although it has been done. The only reason why successor foreclosures are successful is default. Homeowners, exhausted by the first round simply give up and walk away or settle for cash for keys or modification.
Your money is much better spent on licensed attorneys rather than unlicensed, uneducated, untrained lay people whose only exposure consists of presenting false challenges to real lawyers — except where those investigators are working at the direction of or in support of some lawyer. Their reports are no substitute for a lawyer who understands and uses objections and the art of cross examination to bring the factual findings to life.
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Many lay “entrepreneurs” have attempted to lure me into a “debate” so that they can raise themselves on the radar to put out more useless reports. Every once in a while it is helpful for the consumer to realize that a non lawyer giving advice or opinions about legal matters is like going to a nail salon for a medical opinion, or worse, treatment.

 

 

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