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MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. I believe our recovery will never reach the majority of struggling Americans until we restore equal protection for all citizens and especially borrowers in our debt-ridden society. LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient resources to combat bloated banks who are flooding the political market with money. We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. I provide paid services, books and products that enable us to maintain an infrastructure to provide a voice to the victims of Wall Street corruption.

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RECOMMENDED READING:

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Pretender Lenders: How Table Funding and Securitization Go Hand in Hand” By William Paatalo and Kimberly Cromwell. CLICK: http://infotofightforeclosure.com/tools-store/ebooks-and-services/?ap_id_102

Homeowners Sue SPS in Class Action Over Failure to Mitigate

Thousands of cases like this one have pointed out that SPS and other servicers like Ocwen do not consult with any investor, do not evaluate the case for settlement, modification or mitigation. The answer to questions arising from the unwillingness of those companies to comply with law stems from the fact that the  vast majority of their income comes from undisclosed third parties (the TBTF Banks).

TBTF Banks (BofA, Chase, Wells Fargo, Citi, etc.) do not want settlements or modifications or anything that will make the loan start performing. Subservicers like SPS and Ocwen are used as conduits to other conduits that provides window dressing for claims of compliance or efforts to comply.

Contrary to common sense nobody wants a settlement or modification. The players would rather have the value of the alleged loan reduced to zero or less in the case of foreclosures requiring the bank to maintain the property without any hope of selling it. Common sense says that faced with a value of ZERO versus a value of $200,000, for example, any normal business would select the obvious —- $200,000.

The most extreme cases are where the modification is deemed approved and a new servicer comes in to dishonor it and forecloses, even though the homeowner made the trial payments. Yet Petitions to Enforce the modification agreement are rare; but when they are filed they are usually successful. And in many of those cases the modification is modified for a greater principal reduction than was originally offered.

GET A CONSULT

FREE RESEARCH: Go to our home page and enter subject in search bar.

GO TO LENDINGLIES to order forms and services. Our forensic report is called “TERA“— “Title and Encumbrance Report and Analysis.” I personally review each of them for edits and comments before they are released.

Let us help you plan and draft your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult.

REGISTRATION FORM: You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions. The consult is important to determine how we may be of assistance in the drafting and filing of documents in court or complaints directed to law enforcement.

Purchase audio seminar now — Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations.

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

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Whether or not the class gets certified or settled the suit brings up certain salient points which again give rise to the most common question of all, to wit: “Why is that?”

The answer is hiding in plain sight: None of these parties represent a creditor or owner of the debt . All of them represent undisclosed third parties who are making money hand over fist in the shadow banking market. A completed foreclosure represents the first and only valid legal document in their long train of lies promulgated by piles of fabricated, forged, robo-signed paper. The justice system isn’t always right but it is always final. That is the game the banks are playing.

If SPS or Ocwen actually was set up to help homeowners avoid foreclosure and preserve the value of the loan receivable they would lose virtually all their business. A performing loan would change the makeup of the pools that the players claim to have created. All the re-sales of the same loan would be based upon a loan, even if it existed at one time, that doesn’t exist presently.

So the players NEED that foreclosure not for investors or a trust that doesn’t exist, but for themselves because most of the proceeds of the re-sales of the same loan went the TBTF Banks. They want to preserve their ill-gotten gains rather than do anything that could possibly benefit investors. And the best way they can do that is with an Order or Judgment signed by a duly authorized judge in a court of competent jurisdiction — not with a modification.

Practice Hint: If you see a case that has been ongoing for 8-10 years that is a strong indicator that the investors have received a settlement and no loner have any claim for payment and/or that the “Master Servicer” is continuing to allow payments to investors out of a pool of investor money — i.e., a Ponzi scheme. Those continuing payments have been inappropriately named “servicer advances.” They are not “advances” because it is merely return of investor capital. And since the payments come from an investor pool of cash the payments are not from the servicer since the money came from the same or other investors.

They are called servicer advances because using that name fictitiously allows the “Master Servicer’ (actually the underwriter of the certificates) to claim a “recovery” of “servicer advances.” The recovery is ONLY allowed after sale of the property after a foreclosure where the buyer is a BFP.

So for example if payments to investors attributed to the subject loan are $2,000 per month, 10 years worth of “servicer advances” results in a “recovery claim” of $240,000. Generally that is enough to wipe out any equity. The investors get nothing. The foreclosure was actually for the sole interest and benefit of the banks, not the investors. And the homeowner again finds himself used as a pawn for others to make money over the rotting carcass of what was once his home.

Hence the trial strategy suggested would be drilling down on whether the trust is receiving payment from a “third party,” whether that party has rights of subrogation or is satisfied by some other fee or revenue. If you get anywhere near this issue the bank will fold up like a used tent. They will pay for confidentiality.

Paralegal Training — Entity Research

Producing a USEFUL report that can identify gaps, inconsistencies and deficiencies in the primary documents used for foreclosure is a complex task. It must be thorough and it must be correct and free from “opinions” that the writer is not qualified to present. Opinions ruin credibility under they come from a qualified expert with credentials, education, training and experience in cases other than your own.

This article is devoted to one tiny step in the process of forensic research and investigation. A properly trained paralegal is far more likely to get it right than a pro se litigant and even most lawyers.

GO TO LENDINGLIES to order forms and services. Our forensic report is called “TERA“— “Title and Encumbrance Report and Analysis.” I personally review each of them for edits and comments before they are released.

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase audio seminar now — Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations.

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

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STARTING POINT: An entity has been identified in a document that is in the chain of title as recorded in the public records in the county where the property is located.
  1. You must report on the status of that entity.
  2. Did that entity exist at the time the document was supposedly executed?
  3. Is that entity actually a part of the chain of title or is it merely referenced? Or is it not clear, because of the way the signature block was constructed?
  4. Does that entity exist now?
  5. What is the history of that entity?
  6. Has that entity been involved in alleged robo-signing in other cases — check with top 400 robosigners.
  7. Based upon the documents and facts you have obtained, is there any indication as to whether that entity has a financial interest in the debt, the note or the mortgage? [They are different. In order to foreclose the foreclosing party must own all three].
Where to start? Start on your own. Become proficient in Google searches.
Step by Step: Example XYZ Savings Bank, FSB. First look in search index on LIVINGLIES BLOG
  1. Google: “Who is XYZ Savings Bank FSB”
  2. Google: “What is a “Federal Savings Bank?”
  3. Google:  “Implodometer”
  4. Google: “Where is XYZ Savings Bank FSB located?”
  5. Google: “Where is XYZ Savings Bank FSB registered?
  6. Google: “XYZ Savings Bank FSB + merger”
  7. Google: “XYZ Savings Bank FSB + FDIC”
  8. Google: “XYZ Savings Bank FSB + lawsuit”
  9. Go to LIVINGLIES BLOG homepage and insert name of entity in search index.
Example Report:
  1. XYZ Savings Bank FSB is referenced on an instrument bearing the title “Assignment of Mortgage.” There is no reference to a financial transaction in which the debt, note or mortgage was acquired.
  2. It was created (or chartered) under and regulated by United States federal law, and administered by the United States Department of the Treasury’s Office of the Comptroller of the Currency, which shows XYZ Savings Bank FSB as “Active”on its website.
  3. The specific reference to XYZ Savings Bank FSB is that the “Assignment” instrument dated the 5th day of July 2009 recites that Ocwen Loan Servicing is the attorney in fact for XYZ Savings Bank FSB. No Power of Attorney is attached to the instrument nor has any such power been presented in any of the documents we have reviewed. Discovery and further investigation should be focused on whether the “assignment” actually transferred any rights to the Assignee.
  4. XYZ Savings Bank FSB is presented as the trustee for the 123 Trust. No organizational document for the 123 Trust  has been presented for our review. The trust may or may not exist and therefore XYZ Savings Bank FSB may or may not be the trustee.
  5. XYZ Savings Bank FSB is a Federal Savings Bank and currently exists as an independent entity with headquarters in Akron, Ohio. It was formerly known as First Community Bank which was formerly known as Akron Savings Bank, organized under the laws of the State of Ohio.
  6. It has not been party to a petition for bankruptcy or seizure by the FDIC.
  7. It has not been a party to any merger nor has it ever been acquired by another entity.
  8. It was created (or chartered) under and regulated by United States federal law, and administered by the United States Department of the Treasury’s Office of the Comptroller of the Currency, which shows XYZ Savings Bank FSB as “Active”on its website.
NOTE: Our paralegal staff stands ready to help ghostwrite discovery, pleadings, motions and other documents. This is performed under my supervision and subject to my edits and comments. Go to LendingLies for more information.

No Surprise: Ocwen & US Bank Hit by $3.8 Million Verdict in Chicago Federal Trial For Violations in Fake Foreclosure

“The jury, after deliberating for approximately 7 hours, determined that Ocwen breached its contract, violated RESPA for failing to adequately respond to Saccameno’s Qualified Written Request, violated the FDCPA and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act.  Monette Saccameno was awarded $500,000.00 in compensatory damages, $70,000.00 in non-economic damages, $12,000.00 in economic damages and $3,000,000.00 in punitive damages. Nicholas Heath Wooten, Esq.Ross Michael Zambon, Esq., and Mohammed Omar Badwan, Esq. led the litigation team on behalf of Saccameno.”

And I ask again: WHY DO OCWEN DOCUMENTS AND “BOARDING PROCESS” GET ANY LEGAL PRESUMPTION ON SCANT TESTIMONY AND EVIDENCE THAT WOULD NOT BE ACCEPTED AS FOUNDATION IN ANY COURT OTHER THAN ONE IN FORECLOSURE PROCEEDINGS? With this verdict and dozens of other verdicts, settlements, lawsuits and whistleblower  news stories has establishing a crystal clear pattern of conduct of fake foreclosures based upon false documentation, false posting of payments and a clear mission to seek foreclosure whether the homeowner is current in payments or not.

The many cases akin to this one against OCwen and US Bank should be served up to judges hearing foreclosure cases with a single message: the foreclosures you are allowing are wrongful. Your decisions are giving rise to many lawsuits for damages.

GO TO LENDINGLIES to order forms and services

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

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 TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR 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 Greg da’ Goose

Case Number: 1:16-cv-05278
Court: Illinois Northern
Nature of Suit: 423(Bankruptcy Withdrawl)
Companies:
Ocwen Financial Corporation
U.S. Bancorp

see OCWEN BANGED WITH $3.8 MILLION VERDICT

This case shows that juries are still angry about the 2008 meltdown and that the entire burden was shifted to homeowners and taxpayers — who “bailed out” financial institutions that had no losses.

And it also shows that lawyers can get rich by charging contingency fees in wrongful foreclosure actions that most lawyers avoid or rush to settlement. It provides ample encouragement for homeowners to sue and for lawyers to take the cases.

So for those of you who are  contemplating filing a wrongful foreclosure action against Ocwen, or U.S. Bank or any of the other players that are acting in concert with Ocwen, here is a case that no doubt will be settled under “seal of confidentiality” (like thousands of others). I think it is high time for borrowers to pool their complaints in either a class action or mass joinder action.

And here are some of the causes of action that could be filed that a federal jury found were reasons enough to award $500,000 in compensatory damages and $3 Million in punitive damages:

  1. Breach of contract
  2. RESPA violation (failure to respond to QWR)
  3. FDCPA violations
  4. Violation of state law — Illinois Consumer Fraud Act: Unfair and deceptive acts.

There are many other causes of action that could be filed. Each case needs to be evaluated as to which causes of action are most appropriate for the subject “loan”, most of which have resulted in substantial verdicts.

And don’t forget the role of US Bank whose name is used as trustee of a trust that  either doesn’t exist, doesn’t own the debt or both. US Bank is paid a fee to pose as trustee not to BE trustee.

See also

https://www.prnewswire.com/news-releases/atlas-consumer-law-secures-3-582-000-jury-verdict-obtained-by-monette-saccameno-a-resident-of-cook-county-illinois-and-against-ocwen-loan-servicing-llc-a-national-mortgage-loan-servicer-300628541.html

https://cookcountyrecord.com/stories/511388869-jury-awards-3-5m-to-woman-who-claimed-loan-servicer-mishandled-mortgage-during-after-chapt-13-bankruptcy

Ocwen (OCN) Receives Daily News Sentiment Rating of 0.15
https://www.thelincolnianonline.com/2018/04/13/ocwen-ocn-receives-daily-news-sentiment-rating-of-0-15.html

https://www.leagle.com/decision/infdco20180410901

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 265 (N.D. Ill. 2018)
DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW Document #: 265 Filed: 04/09/18
https://www.gpo.gov/fdsys/pkg/USCOURTS-ilnd-1_15-cv-01164/pdf/USCOURTS-ilnd-1_15-cv-01164-3.pdf

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 231 (N.D. Ill. 2018)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/9/2018
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/231/0.pdf?ts=1520678019

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 152 (N.D. Ill. 2017)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/8/2017
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/152/0.pdf?ts=1517249686

Saccameno v. Ocwen Loan Servicing, LLC et al, No. 1:2015cv01164 – Document 75 (N.D. Ill. 2015)
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/19/2015
https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv01164/306387/75/0.pdf?ts=1448015323

US Government Publishing Office
15-1164 – Saccameno v. Ocwen Loan Servicing, LLC et al
https://www.gpo.gov/fdsys/granule/USCOURTS-ilnd-1_15-cv-01164/USCOURTS-ilnd-1_15-cv-01164-0

Fla 4th DCA Slams Door on “another Ditech loan” in foreclosure claims

The trial court erred (i.e., it was wrong) when it accepted unfounded hearsay testimony over Defendant’s timely objections.

Kudos to Mark Stopa, Esq.

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

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 TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR 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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Spencer v Ditech involving Everhome

We are seeing a paradigm shift reflecting changes in consensus of appellate courts. Contrary to thousands of decisions over the years, the courts are now applying the laws and rules of evidence in court proceedings and motions for summary judgment. I spy a suspicious attitude towards the banks and servicers that is long overdue.

Just because the bank or servicer says a fact is true doesn’t make it so. Applied to homeowners that would mean if they said they made a payment it would be automatically true. The informal rule allowing representations to be made in court and then treating it as evidence seems to be finally coming to an end.

Here we have the usual musical chairs of companies claiming to be servicers and in this case claiming that they sent a notice of default. The denial by the homeowner that they received the notice of default has nearly always been taken with a grain of salt, thus giving an insurmountable edge to the servicer or bank who filed the action.

The fact that the servicer had no way to prove the notice of default had been sent combined with the denial, in the pleadings, that the notice of default ahd ever been received should, under existing law, be sufficient to involuntarily dismissing the foreclosure lawsuit.

The  foreclosure complaint said they had complied with all conditions precedent. BUT then they had to prove it. They could not prove it. The trial judge allowed testimony and exhibits that were patently without foundation, testimony that was obviously without foundation and which fell apart in cross examination.

And THIS TIME the 4th DCA said it had enough of the ‘refiling” of cases after banks and servicers lost the first round of litigation to the homeowner. The 4th DCA specifically instructed that the case could NOT be refiled. In short, the case was over. However it is possible, although highly unlikely, that the banks will come up with a whole new string of fabricated documents providing the basis by a new lawsuit by a new foreclosing party.

As you will see, hearsay and personal knowledge was the basis of this opinion from the appellate court. Pressed for how the witness came into knowledge she acknowledged that it came from other co-workers. Textbook hearsay.

Interesting quotes from case:

EverHome, Ditech’s predecessor in interest, failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required by paragraph 22 of the mortgage.

EverHome filed a foreclosure complaint against the Spencers. EverHome alleged that it was the servicer of the loan and the holder of the note. EverHome also alleged generally that all conditions precedent to the acceleration of the note and mortgage and the filing of the foreclosure suit had been fulfilled.

In addition to the default letter itself, Ms. Knight’s testimony was the only evidence that EverHome provided to show that the letter had been sent to the Spencers. Throughout Ms. Knight’s testimony, Spencer repeatedly objected based on hearsay, arguing that Ms. Knight lacked personal knowledge to testify about EverHome’s routine business practices because she was not an employee of EverHome. The court overruled Spencer’s objections, and Ms. Knight testified that pursuant to EverHome’s procedure and policy, once a letter is generated it is mailed. But she explained that her knowledge of these procedures and policies was based on “training.” And when pressed, she admitted that this “training” consisted of informally discussing EverHome’s policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.

Ms. Knight admitted that no such discussions about this loan or any other loan had taken place prior to 2014, when the service transfer occurred—years after the default letter, dated June 17, 2010, had been generated by EverHome.

Testimony regarding a company’s routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014) ). But the witness must have personal knowledge of the company’s general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company’s routine practice for mailing letters. See id.; Edmonds, 215 So.3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome’s mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

 

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.

Discovery in Foreclosure Actions

Discovery is more complex than lay people realize. There is a lot of work that goes on behind the scenes in court. Our paralegal, Connie Lasco, saw the problems and forwarded the request for service to me for comment.

Here is an example of my comments to one homeowner who is defending her home pro se. She is asking us to do a motion to compel — based upon her filing of a request for production.

We do provide those services. But there were certain prerequisites that were unknown to her. My response should assist lawyers and pro se litigants in considering the discovery demands and the the usual “answers” from the banks and servicers.

Let us help you plan your discovery requests and defense narrative:

954-451-1230 or 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 TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR 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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Discovery is a process by which one party can ask the other anything related to the case. Anything that might lead to the discovery of admissible evidence is allowed to be asked or demanded. If you don’t get it, you can ask the court to compel the answer or production. If you still don’t get it, you can ask the court for sanctions that might include striking the pleadings of the opposing side. BEWARE: Trial orders often contain discovery cutoff dates and instructions on how to preserve objections, or else they are waived.

Hawaii is one of the many jurisdictions that require “meet and confer” before allowing a motion to compel to be heard.  that means that the proponent of the discovery requests calls the opposing attorney and schedules a telephone conference in which the parties meet and confer regarding objections that were raised and answers that were insufficient.

I always recommend that a careful and complete Journal be started and maintained with respect to all contact with opposing counsel. You may need assistance from us in reviewing your demand for discovery, reviewing the response, and suggesting the specific questions you will ask of opposing counsel. You should also have an understanding as to why you are saying that response was inadequate or the objection  was inappropriate. You should treat the “meet and confer” as having the same priority as a prospective hearing on a motion to compel.
The usual procedure in discovery is as follows:
  1.  Initial discovery should basically track the pleadings. In a judicial state that means seeking discovery that allegedly supports the allegations in the foreclosure complaint and seeking discovery that supports the denials and affirmative defenses (and possibly counterclaim). In a nonjudicial (“Power of Sale”) state it means the same thing but in reverse — the complaint in those states is filed by the homeowner instead of the bank and it is the bank that serves answers and affirmative defenses to the claim of the homeowner, as alleged in the complaint.
  2. Initially a package of discovery is served upon the opposing party.
  3.  This includes interrogatories, requests for production, and requests for admission.
  4.  You have only served a request for production
  5.   Interrogatories and requests for admission generally ask for responses as to factual events and possibly legal “contention.”
  6.  The request for production should generally track the interrogatories and requests for admission. In most foreclosure cases the responses on all three discovery tools are generally inconsistent with one another. This is a double-edged sword. Opposing counsel and the client seeking foreclosure will intentionally provide inconsistent answers in order to obfuscate the real answers. But the homeowner can use the inconsistent answers as the basis for a motion to compel.
  7.  A motion to compel responses to a request for production without including interrogatories and requests for admission opens the door for arguments from opposing counsel that might otherwise be closed.
  8.  It is extremely important and often overlooked that the homeowner and propounding discovery demands uses language that could be interpreted as an admission against interest. This is why I have repeatedly recommended that all discovery demands be carefully reviewed. As one example, homeowner should avoid assuming that any document, assertion or allegation from the foreclosing party  is authentic, valid or true. It is better to say “transaction” then to refer to a “mortgage” or “loan” or “note.”
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