The West Coast Radio Show with Attorney Charles Marshall: JPMorgan Chase & its Witnesses who know Nothing

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Thursdays LIVE! Click in to the The West Coast Foreclosure Show with Charles Marshall.

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

MAIN NUMBER: 202-838-NEIL (6345).

Get a Consult! https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

A Witness to What?  Fake documents, affidavits and depositions rule at JPMorgan Chase.

See: McCormick Deposition

See: Objection_to_Notice_of_Errata_Martin Deposition JPMC

Investigator Bill Paatalo joins California attorney Charles Marshall on the West Coast Foreclosure Show, and continues his ongoing analysis of the Washington Mutual/Chase ‘merger’ that appears to be little more than an elaborate ruse to keep homeowners and the courts from recognizing that the emperor has no clothes.

In April 2017, California Attorney Ronald Freshman of Newport Beach, California deposed Chase witness Rosemary Martin.  Ms. Martin inundated the court with a ream of mortgage documents and statements that had the appearance of validity, but when placed under oath had no information relevant to the Plaintiff’s loan.  Martin had been coached poorly and the plaintiff’s attorney, Ronald Freshman, annihilated her testimony.

Chase witnesses, or ‘persons most knowledgeable’ universally testify that they don’t know when the endorsements were/are placed on the notes, or by who, and that they are unaware of anyone up the corporate chain of command who could answer questions regarding the notes, assignments and investors.  Yet, this information is in the “DOCLINE” database and reports, as testified by Chase witness Rosemary Martin.  Martin said, “”AO1,” this was in 1-24 of ’07. That’s when Washington Mutual still had the file. So I don’t know what their codings are.”

Martin’s typical and pathetic responses included:

“I think I’ve done possibly one or two (referring to an affidavit).”

“I’m able to understand different screens and different documents that we use in regards to normal bank practices with loans.”

“When this specific document was entered into

our system, I do not.  I do know that I did see it in

our system.”

Eventually the witness surrendered that they had no knowledge of anything of importance.  The Chase litigation strategy is to play coy and hope the judge won’t catch on.  The Martin deposition reveals that the codes and names of the ‘investors’ do exist in Chase’s ‘LISA system’ database, despite JPMorgan Chase’s attempts to claim ignorance.

And that folks, that is how a poorly coached bank ‘witness’ is permitted to steal your home. The Martin deposition is 200 pages documenting a witness’s attempts to come off credible while failing spectacularly.  Meanwhile, the bank’s attorney objects constantly to prevent the admission that the witness can read a computer screen, but knows nothing of value regarding the loan.

Livinglies recently received a copy of an Errata motion filed by JPMorgan Chase.  The motion was a request to remove sections of former JPMorgan Chase in-house attorney, Michael McCormick’s deposition. Not because there was en error or ‘Scribner’s error, but because Chase attempted to use an Errata motion to censor information that was potentially harmful to them- not because it contained an error.

An Errata (“error”) motion is typically used to correct minor errors or omissions in a pleading such as the late submission of a missing exhibit or page from a declaration or motion, or a replacement page that is necessary by a glitch in photocopying.  By filing a Errata motion, Chase attempted to ‘get around’ opposing counsel’s ability to challenge the motion.  Fortunately the judge refused to grant the motion.   Chase use of an Errata motion was an underhanded strategy to remove potentially harmful information contained in its former attorney’s deposition.

It isn’t just low-level employees that are coached-up by Chase prior to a deposition, but also prior in-house attorneys too.

Former JPMorgan Chase in-house counsel Michael McCormick provided a deposition that confirmed that the “AO1” investor-designation refers only to Washington Mutual Bank (WaMu) ‘loans’, and yet, JPMorgan Chase has adamantly denied that this code refers exclusively to WaMu loans.

Despite working for JPMorgan Chase for five years (2011-2016), McCormick stated he knew nothing about the systems he was supposed to be trained to operate.  Despite this lack of knowledge, McCormick was the attorney submitting and approving affidavits and loan verifications, but knew nothing beyond what he read on a computer screen or was coached by Chase attorneys to parrot, “Chase is the investor, Chase is the investor…..awk…Bank owned. Bank owned.  Polly wants a real backer.”

Furthermore, JPMorgan Chase is in violation of the National Mortgage Settlement consent judgment that required Chase to stop it’s illegal practices including forging endorsements, manufacturing documents, filing fabricated documents in county recorders offices and providing false testimony.  Former FDIC team-member Eric Mains has encouraged homeowner who have been harmed by an unscrupulous loan servicer to file FOIAs with their state Attorney Generals offices in order to determine compliance with the consent judgments, and if that fails, to contact the ACLU.

McCormick’s deposition has been used in other cases investigator Bill Paatalo has been involved in, to document that ‘AO1’ is an investor code designating WaMu loans, and that Chase relies on speculation and imagination instead of facts, real documentation and hard evidence to convince the court they are valid creditors:

  1. As an example, attached as Exhibit 6 is a transcript of JPMorgan Chase’s witness taken from a deposition in “comparable case #2.” (Note: Per Bill Paatalo, this case involves two WMB loans with “Investor Codes ‘AO1’” that JPMC denied belonged to WMAAC.) The witness, Michael McCormick, a former in-house attorney for JPMC, testified that he had never seen the “original” note (P.114, L.13-16), that he had seen different images of the same note (P.115, L.20-24), that he had seen a copy of the 2005 WMB note without the endorsement in 2011 (P.117, L. 13-25 & P.118, L. 2-5), and that he had no knowledge of who placed the endorsement upon the note and when (P.119, L. 17-19, P.121, L. 8-12, & P.123, L. 18-24). However, when asked if there was a way to find out when the notes were endorsed within the servicing system(s), McCormick responded, “perhaps.” And when asked if he knew where to look to find that information, McCormick responded, “sure.” (P.123, L. 18-25 & P.124, L. 2-6).

-and-

  1. In hundreds of cases I have investigated involving WMB (WaMu) endorsed notes proffered by JPMC, or an assignee from JPMC, no witness has attested to, or has been willing to attest to anything specific regarding the endorsements and/or allonges; who endorsed the notes and when? Answers are much like that of McCormick; evasive, with no knowledge or recollection. With McCormick, he testified that he knew of no one at JPMC who could answer the questions as to the endorsements. Yet, he personally knew where to find these answers but deliberately chose to play coy.

JPMorgan Chase’s strategy is a plausible-deniability defense where there is no one (not even counsel) that can confirm nor deny the securitization process, the purchases, sales, transfers, assumptions- or anything else.  Therefore, Chase’s use of compartmentalization keeps everyone ignorant of the real truth.  In fact, by now, the only ‘evidence’ of ownership Chase can provide on acquisition of WaMu loans is the account number listed on a computer screen.

Attorney Stephen Wright in Connecticut did an exemplary job of digging deep and providing a plethora of evidence damning to Chase.

Charles Marshall, Esq.
Law Office of Charles T. Marshall
Fax 866.575.7413

Bill Paatalo
Oregon Private Investigator –
BP Investigative Agency, LLC

LIVE NOW! 3pm Pacific/ 6pm Eastern: The West Coast Foreclosure Show with Attorney Charles Marshall, Investigator Bill Paatalo and former FDIC team-member Eric Mains

Thursdays LIVE! Click in to the The Neil Garfield Show

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

MAIN NUMBER: 202-838-NEIL (6345).

Get a Consult!

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

See Nordolillo v. JPMorgan Chase: Nardolillo v. Chase

This session of the Charles Marshall’s West Coast Foreclosure Show features former FDIC team leader Eric Mains who will discuss FOIA strategies in regards to the LPS/BlackKnight consent judgment.  Eric Mains originally introduced the FOIA BlackKnight LPS concept during the August 3, 2017 broadcast here.

Mains urges listeners to immediately contact their state AG offices to obtain information about the LPS/Black Knight consent judgment in your state, and to demand answers why LPS is not in compliance with the judgement.  The information you discover may allow you to file suit on a prior foreclosure, or provide an opportunity to obtain information that will help you in current litigation.  See articles here and here.

Investigator Bill Paatalo will discuss Nardolillo v. JPMorgan Chase, a northern California case scheduled for trial in April 2018.  JPMorgan Chase’s Motion to Dismiss was recently denied based on its failure to demonstrate ownership of the note and Deed of Trust.  Chase relies exclusively on a Purchase and Assumption Agreement (PAA) as proof of ownership, but the court has stated that the PAA does not by itself, “establish as an incontrovertible fact that Chase is entitled to enforce the note.”  Nardolillo alleges that the Note and DOT were already securitized prior to the FDIC receivership of Washington Mutual Bank (WaMu), and therefore WaMu could not convey what it did not own.

Attorney Charles Marshall serves the state of California.  Please contact him to discuss your foreclosure issue:

Charles Marshall, Esq.

Law Office of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

 

Investigator Bill Paatalo of BP Investigative Agency can be contacted at:

BP Investigative Agency, LLC
P.O. Box 838, Absarokee, MT 59001

www.bpinvestigativeagency.com

Office: (406) 328-4075

info.bpia@gmail.com

 

 

The Mains Event: Demand that Attorney Generals Nationwide comply with LPS/Black Knight Consent Judgement

 

Please listen to the West Coast Foreclosure Show.  Attorney Charles Marshall interviews former FDIC team leader Eric Mains about his foreclosure battle and FOIA strategy.

By K.K. MacKinstry

Anyone who knows former FDIC Team Leader Eric Mains knows he is one tenacious ex-banker.  In eight years of litigation, every court he has approached for relief has stonewalled his efforts to discover who owns his mortgage loan.  Mains is still in his home despite Chase’s most recent Motion to Dismiss that was granted by the United States District Court based on Rooker-Feldman doctrine that shouldn’t have applied due to the fact neither the parties or subject matter of his federal complaint was covered in his State foreclosure action.

It is astonishing that Mains has not prevailed in his lawsuit against CitiBank and Chase.  In his lawsuits, he has variously provided evidence of the following:

– His Note was “endorsed” in blank and undated with stamp of one Cynthia Riley, a former WAMU employee laid off from her job at WAMU before his note was endorsed, and whose FL deposition in 2013 revealed she never worked at the SC facility his loan documents were sent to, never personally endorsed any notes herself, and her stamps were not located at the SC facility.

-Whistleblower Lynn Syzmoniak’s qui tam lawsuit revealed that one Jodi Sobotta (alleged “attorney in fact” for Chase who signed another of his Note assignments) was in fact a LPS employee in MN who alleged in the qui tam suit to have been involved in unauthorized robosigning and forgery at that facility. Christine Sauerer, notary on the assignment, filed an official notary card with MN which contains her signature, but it does not match her alleged signature on his assignment. Even more damningly, she supposedly notarized the assignment over 1 year before it was recorded in the county recorder’s office. This is an amazing feat as the assignment, ANY loan assignment, would have been sent to the local recorder’s office for recordation directly after execution as a normal course of business to ensure timely recording and priority- as any competent attorney could attest. This is direct evidence the assignment had been back dated as well as forged.

-While the above is incredible enough, it doesn’t end there. The above assignment was one of the assignments that was the subject of a $125 million 2013 multi-state consent judgment with LPS. LPS and its agents, which would have included the attorneys it contracted and retained to instigate the very foreclosures its forged assignments were used in, was required by the CJ to have reached out to consumers affected by their forgeries and remediated their forged assignments executed from 2008-2010, of which Mains was one. Mains foreclosure judgment occurred months after the signing of the CJ, and the foreclosure mill law firm in that case, Nelson & Frankenberger, never disclosed LPS as a material party in discovery, and never disclosed to the court the forgery activity it was aware of.  To this day, they have still proceeded to try multiple times to move forward with sheriffs sales on Mains property using the same forged documents, in violation of the CJ, and while the Indiana AG’s office remains mute.

Mains has appealed to the Supreme Court of the United States his 2017 federal appellate court ruling that their jurisdiction to hear his complaint was barred by the Rooker-Feldman doctrine.  Meanwhile, Mains has continued to seek information in his case, notably through a Freedom of Information Act request, in which he demanded that the Indiana Attorney General’s office provide information regarding the 2013 consent judgement with LPS/Black Knight, and their stated compliance with its terms, which is required to be documented in quarterly reports to the AG’s of all 50 states who were signatories to the settlement.

He requested copies of all the information relevant to the consent judgement, and he specifically requested copies of the all compliance reports the AG’s office held and was to have received from LPS/Black Knight. Mains wanted to know what LPS/Black Knight was doing to comply with the consent judgement to stop its stipulated to unauthorized signing of loan documents, the use of those documents, and most basically what their compliance activities consisted of. This is just common sense, as any Indiana consumer, homeowner, legislator, or attorney would expect to be apprised of the what, where, when, and how of LPS/Black Knight’s compliance with the CJ…. especially after paying the IN AG’s office $1.6 million to settle it violations!

After Mains sent his FOIA to the AG’s office he received a pathetically anemic response.  The AG ignored most of his request and were only willing to disclose 19 pages of documents. The 7 page CJ itself, and 12 supposed cover letters to the compliance reports and the original complaint.  That is it!!!!  Mains has indicated his suspicion that the compliance reports either don’t exist, or they fail to address the requirements of the consent judgements.

The IN AG has generally claimed that everything in relation to the settlement and information related to it is attorney work product or is somehow privileged/confidential.  This is patently ridiculous and violates the Indiana Public Records Act.  The various state AG’s offices are required to follow up on the consent judgement until January of 2018.  Mains wants to know what the state AG’s have done to protect consumers and ensure the compliance with the terms of the 2013 CJ, especially after taking millions of dollars of LPS money for that privilege. He encourages consumers and the media to do the same in each of their respective states given the danger that state AG’s are still knowingly and negligently allowing these fraudulent documents to be used in foreclosures in their states despite the 2013 CJ specifically prohibiting this conduct.

Look for Part II on Monday regarding how you can benefit from your own FOIAs, what you can do to help others, and why it matters.

The Neil Garfield Show with Attorney Charles Marshall: What areas should you target when you litigate?

Thursdays LIVE! Click in to the The Neil Garfield Show

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

What areas should you target when you litigate?

In foreclosure litigation there are many pointless rabbit-holes an attorney or homeowner can attempt to go down, but they serve only to confuse and distract.  Instead, litigants should focus on areas where actual leverage can be obtained.  Neil Garfield has warned litigants not to focus on the lender’s vulnerabilities that are not provable.

Recently Neil Garfield held a consultation with an attorney who requested advice on how to deal with two defective instruments.  His advice to the attorney was to cancel two instruments:

(1) as assignment allegedly signed by an authorized person from MERS as nominee for BNC Mortgage which had ceased to exist 3 years earlier. (2) appointment of substitute trustee by the assignee of the void assignment. The lender was handicapped by the cancellation of these instruments.

Despite all of the fraud and fabrication that continues, it is the bias of the courts which has created an uneven playing field that prejudices homeowners.  Therefore homeowners must obtain meaningful discovery related to standing and questionable transfers.  This should be done by examining the chain of title, a forensic examination of the note, trust closing date, and other violations of law by the servicers.  We also recommend that you hire an experienced investigator upfront to root out any major discrepancies that will be beneficial later in litigation (we recommend Bill Paatalo at http://www.bpinvestigativeagency.com).

In order to get something tangible that can be used to leverage your case consider strategic depositions of the pawns the servicer uses to verify ownership. The person signing off on the certification of note possession who files an affidavit claiming the servicer has standing to foreclose is vulnerable because they possess limited knowledge about the actual creditor, movement of the note and have no personal knowledge.

If you spoke with the Master Servicer or Trustee of a mortgage-backed trust they would tell you they don’t own anything and they are only a reporting agent.  They would direct you to the loan servicer for anything related to the loan.  The Servicer actually hired the foreclosure mill law firm to file the foreclosure – and is engaged in camouflaged equitable subrogation.

Foreclosure occurs because fraudster servicers routinely create a MERS assignment of mortgage coupled with a fraudulent note, add an undated stamp on a blank page of a note or allonge and create standing where none exists.  Add a corporate witness who knows nothing about the loan’s movement and boarding process, and the fact they are trained to parrot words like, “normal course of business” or “policy and procedure”– and the court will rule in their favor if not challenged.

Even worse, there is a new foreclosure platform that has morphed into a business model where new servicing companies who have nothing to do with the loan are being created out of thin air (think SPS or Ocwen) claiming they are the servicer for a bogus trust and the court requires NO INQUIRY INTO THE PURPORTED TRUST AT ALL!  The court accepts the validity of the trust without proof despite state requirements for a trust to conduct business in the state and be registered.

In order to gain traction you should depose:

  • The Complaint Verifier
  • Certification of Possession of Note Witness
  • Affidavit in Support of Summary Judgment Signers
  • Asset Manager/Trustee/Master Servicer of a Plaintiff Named Trust

Depose the corporate witnesses for trial and subpoena dues tecum the “policy and procedure” manuals, loan transfer histories and any deposition they intend to rely on.  Anticipate heavy resistance but remember if they don’t turn over the necessary documents those claims must be excluded from testimony.

Southern California attorney Charles Marshall advises homeowners to remember that in judicial foreclosure states where typically the borrower is the defendant, counterclaims or cross-complaints can sometimes be used to bring the legal pleading approach described.

In order to prevail in discovery, motions to compel discovery, summary judgment and at trial, you will need an attorney who can litigate like a mad dog and who is not afraid to become a Country Club pariah.  At the end of the day this is about verbal and evidential combat.

This article and the radio show are for educational purposes only and are not legal advice.

Charles Marshall, Esq.

Law Office of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

Listen now to the recorded The Neil Garfield Show: Setting your case up for Litigation, Modification or Settlement.

Thursdays LIVE! Click in to the The Neil Garfield Show

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

Log-in to listen to archived show.

This episode will discuss setting up your case for litigation, modification or settlement.  California attorney Charles Marshall will discuss settlement framework (writ large and small), and the numerous misunderstandings regarding how settlement should or even can work.

The overwhelming majority of civil cases will settle well before reaching the trial stage of a lawsuit, nationwide. Whether we’re talking about a divorce, a car accident lawsuit, or foreclosure case parties often choose to settle their case rather than leave their respective fates in the hands of an unpredictable jury. But is settlement always more beneficial?

Settlement Basics

“Settlement” is a term for formal resolution of a legal dispute without the matter being decided by a court judgment (jury verdict or judge’s ruling). Usually it means the defendant offers a certain sum of money to the plaintiff in exchange for the plaintiff’s signing a release of the defendant’s liability in connection with the underlying incident or transaction. This can happen at any point in a civil lawsuit. It can even occur before the plaintiff files a lawsuit at all, if the parties can come together a reach a fair agreement soon after the dispute arises, and both sides are motivated to do so.

Benefits of Settling a Case:

  • Expense.
  • Stress.
  • Privacy.
  • Predictability.
  • Finality.

With foreclosure lawsuits a homeowner often has a personal or profound sense of right and wrong, and decides to make an important point that impacts more than the parties in the case. For cases challenging the constitutionality of a law or some other perceived fundamental unfairness, settling also doesn’t create precedent and won’t affect public policy.

If one or both parties aren’t motivated to settle, or aren’t coming to the negotiating table with a remotely realistic offer, then resolution of the lawsuit before trial may not be possible.  This is often the case in foreclosure disputes- by the time the lender is prepared to settle, the homeowner wants vengence for the harm they have sustained (justifiably).

Please contact Attorney Charles Marshall at:

California Attorney Charles Marshall, Esq.

cmarshall@marshallestatelaw.com

Phone 619.807.2628

This program is for informational purposes only and is not legal advice.

https://www.vcita.com/v/lendinglies to schedule, leave message or make payments.

Register for Consultation here: https://live.vcita.com/site/lendinglies

Live Now! The Neil Garfield Radio Show 6pm Eastern: Charles Marshall-the Decision to Appeal or not to Appeal

Thursdays LIVE! Click in to the The Neil Garfield Show

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

To Appeal or not to Appeal: That is the Question.

In this episode California Attorney Charles Marshall will discuss the pros and cons of filing an appeal.

Trial courts are not perfect institutions. They can and do make serious mistakes. And sometimes, trial courts are faced with unsettled areas of law, so that no matter what a judge decides, the losing side will have plausible grounds to appeal.

An appeal can be an opportunity to obtain justice when it was earlier denied. However, an appeal may not always make sense even if you believe that the trial court was in error. The first step in the appeals process is to decide what you hope to accomplish and whether the benefits justify possible drawbacks.

A successful appeal may not end your legal battle
Some successful appeals do provide the complete and final resolution of a dispute. However, this is by no means always true.

Many successful appeals result in the case being sent back for further proceedings in the trial court. This could result in a completely new trial. Although the Court of Appeal’s decision might result in that trial being conducted on ground rules more favorable than the first, there is no certainty that the bottom-line outcome will be any better. In fact, it could be even worse.

That said, a victory in the Court of Appeal could put you in a strong position to settle your case on favorable terms without having to go through a new trial. Often, the losing side in an appeal doesn’t have the stomach for a new trial and proves willing to compromise.

In fact, merely filing a notice of appeal can lead to a settlement that is better than the result obtained in the trial court. A significant number of civil cases settle during the course of an appeal — often, before the briefs are written. The other party may not want to go through the risk and expense of the appellate process and could be willing to give something up in order to achieve closure. If you hire an appellate specialist to handle an appeal, you send a strong signal that you are taking the process seriously — this increases the pressure on the other side.

The costs of continuing to litigate
Entering the appeals process means prolonging the emotional stress of litigation. The average civil appeal can last over a year. Federal appeals are especially slow — often taking about two years.

In addition, of course, there is the cost. Appeals can be one of the less expensive parts of the overall litigation process. Nonetheless, the appeal will add to your legal bills and, if the case then goes back to the trial court, the costs will increase further. This has to be weighed against what you stand to gain by appealing.

In addition, civil litigants will have to post a bond or other security if they want to stay the enforcement of many types of trial court judgment while an appeal is ongoing, including those involving money damages. And a defendant that loses an appeal will also have to pay interest on money that is at issue. The judicial interest rate is steep, 10 percent.

It may be beneficial to weigh the cost-benefit decision easier by having an attorney quote flat rates to handle appeals. While there is never any certainty about the outcome of an appeal, some certainty about the cost is helpful.

Evidence and appeals
Perhaps the most fundamental question to ask is how strong a chance you have of obtaining a reversal. As is shown elsewhere on this Web site, most appeals do not succeed.

One of the reasons is that the Court of Appeal does not reweigh the evidence heard by the trial court or — with very rare exceptions — consider new evidence. If the trial judge or jury believed evidence that “the light was red,” the Court of Appeal will not listen to an argument that “it was really green” — even if there was a lot more evidence pointing to that conclusion. Its job is solely to review whether the law was correctly applied to what the trier of fact in the trial court considered to be the facts and whether proper procedures were followed. An appeal is not a second trial.

That is not to say that an appeal does not provide any type of chance to challenge the evidence that was considered at trial. The Court of Appeal can decide whether certain evidence that was excluded should have been admitted, and whether evidence that was admitted should have been excluded.

In addition, the Court of Appeal can determine whether the evidence was sufficient to support a trial court outcome. But that can be a tall order on appeal — in general, an appeals court will uphold a decision based on facts if there is any evidence in the record that supports it.

The need to show “prejudice”
Even if you can point to legal error by the trial court, that does not of itself mean that you will succeed on appeal. The error must be “prejudicial.” The meaning of that term is itself a subject for argument, but one interpretation is that an error is prejudicial if there is a “real chance” that it made a difference to the outcome.

The need for prior objections
Another obstacle is that the Court of Appeal will not generally consider issues that were not initially raised in the trial court. If a trial lawyer did not object to a particular ruling or piece of evidence, for example, that issue most likely cannot be raised on appeal. It will generally have been waived. That said, an appellate lawyer may be able to introduce new arguments concerning an issue — although there can be gray areas between raising a “new issue” and merely improving upon the presentation of an issue already raised.

There are some ways around the waiver rule. For example, an often-overlooked exception is that a litigant may raise for the first time on appeal a pure question of law that that is presented by undisputed facts. In addition, litigants are not required to “preserve” an issue at trial if it would severely compromise their interests to do so — for example, a defendant at trial does not need to point out required evidence that the other side has omitted.

The risk of creating a bad precedent
Some litigants — particularly businesses — should consider whether or not they want to create a binding precedent in the disputed area of the law. Trial court decisions are not binding on other courts. Once a case goes to appeal, however, a legal precedent may be set that will be binding on trial courts faced with the same issue in the future. (Not all appeals do result in binding precedents — this depends on whether the Court of Appeal decides to “publish” its decision. A large majority are not “published.”)

In some situations, therefore, a party that loses at trial may be better off swallowing the result rather than risking an unsuccessful appeal that will have precedential effect. In other cases, however, a litigant may be eager to get the law settled once and for all.

The risk of cross-appeals
Keep in mind that if you appeal, the other side might “cross-appeal” — in other words, your opponent may try to reverse aspects of the trial court proceeding that were favorable to you. Therefore, even if you succeed in reversing one aspect of the trial court proceeding, the benefit could be offset by a less welcome reversal of another.

Conclusion
Winning on appeal is not easy. And a good appellate lawyer will always counsel a client about the pros and cons. But despite all the hurdles, many litigants do file appeals — and a significant number do go on to succeed. With civil appeals in the state courts, roughly one in five results in a complete reversal — and that doesn’t include appeals that result in some modification short of a reversal.

It is important that every potential litigant does consider the possible drawbacks of appealing. But if you have a good case, the battle can be well worth fighting — providing it is fought well.

For more information on California foreclosure litigation please contact:
Charles Marshall, Esq.
Law Office of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101

The Neil Garfield Radio Show LIVE at 6 pm Eastern: The Statute of Limitation

Thursdays LIVE! Click in to the The Neil Garfield Show

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

Q and A: Statute of Limitations

In this episode I will be discuss two states with drastically different interpretations of Statute of Limitations.  In Florida the Bartram decision ruled that every time a homeowner misses a payment, the statute resets.  In stark contrast is a New York case called Costa v. Deutsche Bank that clarified that statute of limitations will be enforced.

The Bartram decision created a bad precedent where Pretender lenders (or any other Plaintiff) can look to Bartram as support for taking a pot luck shot at getting a foreclosure judgment and sale, followed by eviction. If they fail they can try again.

The application of res judicata, statute of limitations and Rooker Feldman don’t apply to the banks.

This creates a double standard.  The ambidextrous treatment of homeowners versus the financial sector is exactly what the equal protection clause of the U.S. Constitution (and, the Florida Constitution) says cannot occur under guarantees of equal protection under the law.

In stark contrast to Bartram was a New York decision last week called Costa v. Deutsche Bank.

The court was asked whether the statute of limitations applies. It did and according to NY Law it was too late for the pretend lender to take action.

Get a consult! 202-838-6345 or https://www.vcita.com/v/lendinglies

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

Contact Attorney Charles Marshall at:

Charles Marshall, Esq.
Law Office of Charles T. Marshall
415 Laurel St., #405
San Diego, CA 92101
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