Evidence: No Magic Bullet

Information is not the same as Evidence. It’s only evidence if the Judge (1) rules it is evidence and (2) admits it into evidence into the court record. Once admitted, the Judge is free to consider the information with as much or as little weight as it chooses.

Get a consult! 202-838-6345

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-
Nearly all pro se litigants and too many lawyers combine a shotgun approach on legal argument and a single focus on unprovable facts. More than judicial bias, the presentation of information in court lies at the heart of “bad” decisions by the the courts. Combining presentation deficiencies with bad pleading and an utter failure to control the narrative, such litigants and their lawyers are doomed to failure.
 *
This is a summary of the subject of evidence at trial, as I see it. Information, testimony, documents and the public domain are the sources of information from which litigants and their lawyers draw conclusions and develop a narrative of the case. None of these constitute “evidence” and will therefore be ignored or ruled irrelevant by a court of law unless a court rules that the data or information is somehow connected to the case at hand. Even allegations of patterns of conduct are insufficient to support the proffer of such information unless the information is coupled with direct evidence (testimony, documents) connecting the behavior of the bank or servicer with the case at hand.
 *
Nothing is evidence that can be considered by the trier of fact (Judge, jury) unless the judge rules that it is evidence AND that it is admissible in the case at hand. Unless the homeowner can show that the preferred evidence is relevant to a defense or avoidance, the Judge has no choice but to exclude the information from evidence and thus from the Court record.
 *
My observation is that there are four levels of “EVIDENCE:”
  • General information not directly related to the case at hand
  • Specific information that is relevant to the defenses raised.
  • Persuasive evidence supporting either defenses or avoidance
  • Conclusory evidence that inescapably leads to a result either by logic or rule of law.
 *
INFORMATION AND BELIEF: Pro se litigants understandably don’t understand the difference between general information and the rules of evidence. They come to court with information from the media or other sources showing what they think is evidence of wrong-doing and they are frequently right. But information about wrong-doing in OTHER cases is not evidence of wrongdoing in your case.
 *
RELEVANT INFORMATION and EVIDENCE: Testimony, such as those cases where the bank or servicer mislead the homeowner by steering them into default through assertions that a workout or modification is only possible if they are 90 days behind is information. It is also evidence that the court will generally allow in evidence. But allowing it into evidence doesn’t mean that the trier of fact will give it any weight when coming to a decision. The well-versed lawyer will ask for the recordings of the conversations in which such misleading representations were made. More often than not the recordings are said not to exist. Their alleged nonexistence can be challenged by information, ruled as evidence by the court, that all other conversations had been recorded. The absence of conversations regarding the modification MIGHT be used as evidence of concealment and corroboration of the homeowner’s testimony that he/she was mislead into stopping payments and thus going into default.
 *
PERSUASIVE EVIDENCE: Just because information is allowed into the record as evidence doesn’t mean the trier of fact will use it in making a decision. As related in the preceding paragraph you can see how raw information becomes relevant evidence and then evolves into persuasive evidence. You are always working against the beginning supposition that no bank would want a loan to become non-performing. And you probably can’t prove that policy, although there have been occasions where testimony or recordings were admitted into evidence showing that the purpose of the alleged servicing company was to obtain a foreclosure judgment and foreclosure sale. Even then, the Judge is left wondering why such a policy would exist, using the reasonable man foundation for believing that the rational thing to do as a lender is to collect on a debt, not to waste the collateral or the debt. Thus the level of persuasion in order to win is much higher in that context.
 *
CONCLUSORY EVIDENCE: This falls into two categories — legal presumptions that are outside the judge’s scope of discretion and “weight of the evidence”that remains within the scope of the judge’s discretion. It is rare that you can introduce anything that requires the judge to rule in favor of the homeowner. But the reason why “greater weight of the evidence” is the rule is that the trier of fact is receiving evidence that cumulatively leads inescapably to the conclusion that the foreclosure is defective. Evidence does not rise to this level unless the robo-witness on the witness stand acts or says irrational things. I call this the “Perry Mason moment.” This is eminently possible in a proper cross examination because the robo-witness’ knowledge is intentionally limited and usually nonexistent as to the workings of the REMIC Trust, the distribution of income from servicer to the “creditor”, and the agreements in which servicing has been created or changed.
 *
Actual Example from My Recent Trial in Orlando:
Q: Here is the Power of Attorney you introduced as evidence that is signed by Chase. And here is the Pooling and Servicing Agreement. Can you show me where Chase is mentioned as being in the chain of ownership or authority?
A: NO.
Q: NO?
A: NO.
Q: Don’t you want to look?
A: NO.
At that moment the court was left with the inescapable conclusion that Chase had no authority to execute the POA and that the Plaintiff’s case had failed.

Why Is the PSA Relevant?

Many judges in foreclosure actions continue to rule that the securitization documents are irrelevant. This would be a correct ruling in the event that there were no securitization documents. Otherwise, the securitization documents are nothing but relevant.

There are three scenarios in which the securitization documents are relevant:

  1.  The party claiming to be a trustee of a trust is claiming to have the rights of collection and foreclosure.
  2.  The party claiming to be the servicer  for a trust is claiming to have the rights of collection and foreclosure.
  3.  The party claiming to be the holder with rights to enforce is claiming to have rights of collection and foreclosure. If the party claims to be a holder in due course, the inquiry ends there and the borrower is stuck with bringing claims against the intermediaries, being stripped of his right to raise defenses he/she could otherwise have made against the originator, aggregator or other parties.

The securitization scheme can be summarized as follows:

  1.  Assignment and Assumption agreement:  This governs procedures for the closing. This is an agreement between the apparent originator of the loan and an undisclosed third-party aggregator. This agreement exists before the first application for loan is received by the originator, and before the alleged “closing.” It governs the behavior of the originator as well as the rights and obligations of the originator. Specifically it states that the originator has no rights to the whatsoever. The aggregator is used as a conduit for the delivery of funds to the closing table at which the borrower is deceived into thinking that he received a loan from the originator when in fact the funds were wired by the aggregator on behalf of an unknown fourth party. The unknown fourth party is a broker-dealer acting as a conduit for the actual lenders. The actual lenders are investors who believe that they were buying mortgage bonds issued by a REMIC trust, which in turn would be using the money raised from the offering of the bonds for the purpose of originating or acquiring residential loans. Hence the assignment and assumption agreement is highly relevant because it dictates the manner in which the closing takes place. And it demonstrates that the loan was a table funded loan in a pattern of conduct that is indisputably “predatory per se.” It also demonstrates the fact that there was no consideration between originator and the borrower. And it demonstrates that there was no privity between the aggregator and the borrower. As the closing agent procured the signature of the borrower on false pretenses. Interviews with document processors for both originators closing agents now show that they would not participate in such a closing where the identity of the actual lender was intentionally withheld.
  2.  The pooling and servicing agreement: This governs the procedures for collection, disbursement and enforcement. This is the document that specifies the authority of the trustee, the servicer, the sub servicers, the documents that should be held by the servicer, the servicer advance payments, and the formulas under which the lenders would be paid. Without this document, none of the parties currently bring foreclosure actions would have any right to be in court. Without this document trustee cannot show its authority to represent the trust or the trust beneficiaries. Without this document servicer cannot show that it performed in accordance with the requirements of a contract, or that it was in privity with the actual lenders,  or that it had any right of enforcement, or that it computed correctly the amount of payment required from the borrower and the amount of payment required to be made to the lenders. It also specifies the types of third party payments that are made from insurance, swaps and other guarantors or co-obligors.
  3. Of specific importance is the common provision for servicer advances, in which the creditors are receiving payments in full despite the declaration of default by the servicer.  In fact, the declaration of default by the servicer is actually an attempt to recover money that was voluntarily paid to the creditor. It is not correctly seen as a declaration of default nor any right to demand reinstatement nor any right to accelerate because the creditor is not showing any default. It is a disguised attempt to assert a claim for unjust enrichment because the servicer made payments on behalf of the borrower, voluntarily, to the creditor that are not recoverable from the creditor. Usually they make this payment by the 25th of each month. Hence any prior delinquency is cured each month and eliminates the possibility of a default with respect to the creditor on the residential loan.

It is argued by the banks and accepted by many judges that mere possession of the note sufficient to enforce it in the amount demanded by the servicer. This is wrong. The amount demanded by the servicer and does not take into account the actual payments received by the actual creditor. Accordingly the computation of interest and principal is incorrect. This can only be shown by reference to the securitization documents, including the assignment and assumption agreement, the pooling and servicing agreement, the prospectus and supplements to the PSA and Prospectus.

For more information please call 520-405-1688 or 954-495-9867.

Keystone Fraud by Banks: Business Records Exception to Hearsay Rule

Practice Note: Hearsay is not evidence and should not be used as the basis for any conclusion of facts that would support any conclusion of law. While the banks are extremely vulnerable to having all testimony and documents barred by the hearsay rule, this is ONLY true if the proper objection is made at the proper time — and objections should be made when opposing counsel makes reference to the content of those records as though they were already established. Although representations by counsel are not evidence, the attorney’s failure to object to the representation is a failure to bring to the Judge’s attention the fact that you contest those assertions. The objection could be phrased that counsel is attempting to get his own representations on record based upon facts that are in dispute and not in the record. A good record of those objections — including the use of a court reporter — is the basis for appeal. Without that record the Judge is inclined to do whatever he or she wants and while it is possible to re-establish the record in the absence of a court reporter it is very difficult and time-consuming. The reviewing court looks only to the record. If the objection does not appear, then the reviewing court has no choice but to affirm the lower court decision. An appeal is NOT an opportunity to retry the case. on substantive grounds. It is primarily a vehicle to contest the procedures and rulings in the court below as to procedure and the admissibility of evidence.

see https://livinglies.wordpress.com/2013/04/29/hawaii-federal-district-court-applies-rules-of-evidence-bonymellon-us-bank-jp-morgan-chase-failed-to-prove-sale-of-note/

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Analysis: Business records are ALWAYS hearsay and barred by the hearsay rule in state and Federal courts. The question is not whether the business records are hearsay but rather whether the records are deemed reliable enough to waive the requirement of testimony from those with knowledge of the facts offered to prove the case of the proponent of those records. If they are deemed reliable by the Judge then they are allowed to be admitted as evidence to prove the truth of the matters asserted in those records. The tests for reliability are in the statutes of each state and the Federal rules of evidence that allow for exceptions to hearsay in order to allow the business records into evidence, which ARE hearsay and otherwise barred as evidence, under the “business records exception.”

The general rule is that evidence consists of testimony from a knowledgeable witness competent to testify as to the matters asserted. Competency of witnesses is determined by oath, personal perception of events, memory and the ability to communicate the facts as personally experienced, viewed, or heard by the witness. The business records exception requires the custodian of records to provide the foundation for asserting the business records exception. This is the starting point.

The custodian of records must be established by foundation testimony and should not be allowed without testimony that demonstrates the witness’ scope of employment, knowledge and authority. Objection should be made when the leading question is asked “Are you the custodian of the records?” An objection is required that the question is leading and lacks foundation — showing the facts and circumstances under which the witness should be accepted by the court as the custodian of the records.

The records must be from a source that is relevant to the proceedings. If the party seeking foreclosure is an asset pool, represented by a trustee, then the business records of the trustee are the only thing that is relevant unless the foundation is laid by opposing counsel to show that the records of the servicer matches the records of the trustee.

TESTIMONY OF THE SERVICER: Without the custodian of records for the trustee, it seems impossible to establish the proper foundation showing that the trustee asserts that the records of the trustee are the same as the servicer. And if that is true, there may be no reason for the servicer to testify as to the business records since it is only the trustee who can account for all money paid out and all money received, directly or indirectly on account of the subject loan.

[NOTE: THE TRUSTEE SHOULD BE ABLE TO TESTIFY THAT IT IS THE TRUSTEE OF THE TRUST THAT OWNS THE SUBJECT LOAN AND TO PRODUCE DOCUMENTS SHOWING THE SALE OF THE LOAN TO THE TRUST OR ASSET POOL. REMEMBER THAT A SALE REQUIRES CONSIDERATION AND THUS THE RECORDS SHOULD INCLUDE A RECORD OF THAT SALE, THE AMOUNT PAID, AND THE DOCUMENTS MEMORIALIZING THAT TRANSACTION.]

The witness who testifies for the proponent of the documents sought to be admitted into evidence must be competent to testify as records custodian that the trust has been and still is the owner of the loan. The banks will vigorously oppose your effort to hold their feet to the fire because all indications are that the trustee has no records and doesn’t even have a bank account for the “trust’ or asset pool, much less evidence of the amount paid for the loan, and the documents memorializing the “transaction.”

In many cases, the case for ownership or foreclosure collapses completely because in fact the trust or pool never did acquire ownership because there was no sale and the trustee never had any records showing the money paid by the homeowner or other parties who may have paid down the loan under non-subrogated obligations to payoff the debt. The creditor only being entitled to recover once on the debt, must show that there were no mitigating payments received by the trustee or anyone on its behalf as agent, servant or employee or affiliate.

In truth the relevant records are either wholly within the records of the MASTER SERVICER and neither the subservicer that the proponent wishes to offer nor the trustee has a complete record who who funded the origination or purchase of the loan. Thus while the business records of the sub-servicer might eventually be admitted over objection of the homeowner, it can and should be argued that this is only a partial picture; this accomplished on cross examination or if possible voir dire, where the witness is questioned as to what they don’t know, to wit” the details of the origination, purchase or funding of the loan together with all receipts relating to the loan account directly or indirectly.

Having started with the question of whether the witness is in fact a records custodian, the question then becomes whether the proffered witness is the only records custodian. At one trial recently conducted the witness was (a) not a custodian, (b) declared that the records came from numerous “clients” and other departments, the identity of the custodian of those records never being mentioned.

[Practice Note: When the witness is from the “loss mitigation department” or some similar division or department, they are by virtual definition not the records custodian, and cannot be a competent witness to testify as to the records. On voir dire conclusion the objection should be made that the witness is not the records custodian for any or all of the records sought to be introduced and is therefore not competent to provide the foundation for the business records exception to the hearsay rule.]

The first requirement (see Florida statutes below for example) to test the reliability of the records is that the the record entry be made at or near the time of the event.

If the servicer is testifying, then the servicer cannot testify as to the either the origination or sale of the loan, both having preceded the involvement of the servicer virtually by definition. While the impulse of the court is going to be presume that the closing was completed, this is overcome by the denial of the homeowner that the closing was in fact completed because the named payee on the note and mortgage never fulfilled their obligations — to fund the loan. It is not enough to be the party who caused the loan to be made —- that is a mortgage broker who obviously has not rights to ownership or foreclosure. This leaves the proponent with the requirement of proving up the completion of the initial transaction showing the funding by testimony of a competent witness (custodian of records of the relevant parties) to show payment and receipt of the funding of the origination or sale of the loan.

The second test relates to competency of the witness which is that the person offering the testimony or even the affidavit must show that they are a person with personal knowledge sufficient to be either the records custodian or a witness to the event.

The banks in Florida will attempt to get around this problem by offering a certification, but the certification must contain sworn statements as to the personal knowledge of the person who executes such certification. The requirements of testimony on the stand are NOT waived by virtue of submitting a certification. Without establishing the competency of the person to be admitted as a witness custodian of the records, the certification is a sham. And such certification should be determined before trial in a motion in limine before trial begins or objection to certification (see below).

The “certification” must contain the same required statements of fact that would otherwise be required on the stand as a live witness. Timeliness of objections is the key to trial practice. Failure to object and take the offensive on this issue will result in documents being admitted into evidence that establish a prima facie case when no such case exists.

If a certification is intended to be used, the homeowner must receive notice of such intent, the identity and contact information for the person signing the certification and an opportunity to challenge the veracity of the statements contained in the certification and the authenticity of the documents itself given the constant practice of robo-signing and surrogate signing.

Discovery is appropriate to require the proponent of the certification to show the employment record and other indicia that the person is indeed a custodian of all the records and that all the records sought to be introduced at trial are within the custody of the witness. A trick often used in court is that the witness will testify as to custody of one document and without an alert objection from the homeowner, the rest of the documents, which are hearsay, are then admitted into evidence without the certification or the foundation because the homeowner failed to object.

Failure to give notice of the intent to use certification in lieu of live testimony is fatal at trial — if the homeowner objects. Certification should ALWAYS be met with a well written objection — and fee free to plagiarize anything in this article. In most cases in an abundance of caution, the Judge will require live testimony in lieu of certification.

Conversely, failure to object to the certification may well leave the homeowner in the cold, because by the time the trial begins all acts necessary to the prima facie case of the proponent of foreclosure or ownership of the loan will have already been established.

Florida Statutes 90.803 et seq: in pertinent abstract is as follows:

(6)  RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.–

(a)  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(b)  Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.

(c)  A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

(7)  ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY.–Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.

(8)  PUBLIC RECORDS AND REPORTS.–Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

Forgery! Now You’ve Got Them, Or Do You?

CHECK OUT OUR EXTENDED DECEMBER SPECIAL!

What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, Tennessee, Georgia, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s Analysis: First of all hats off to April Charney, http://www.nakedcapitalism.com and Yves Smith for the article on Forgery (see link below) James M. Kelley as a forensic document examiner — outstanding work!

This is one of the places where the rubber meets the road, but before you start celebrating take a deep breath: proof of forgery will NOT necessarily stop delay or alter the foreclosure. That is why I start with questioning the monetary transactions before I introduce the document deficiencies, fabrications and forgeries.

You have to put yourself in the Judge’s seat (or more properly, bench). A simple example will suffice to make my point. Suppose I loaned you $100 and you didn’t pay it back the way we agreed. Later I sue you and produce a promissory note you know you never signed but it looks like your signature, but you’ve admitted you owe the $100 and you admit you defaulted. Under those circumstances your evidence of forgery might be excluded from evidence –— because it is already established you owe the money and defaulted. In fact it should be excluded because it is no longer relevant to the proceedings. The debt is not the not — and vica versa.

The note is only evidence of the debt and taking that out of the equation still leaves the admissions, presumptions and witnesses by which the authenticity of the debt and default have already been taken as agreed and irrefutable. Some people look askance as Judges who apply the rules of evidence and accuse them of stupidity or dishonesty. But the truth is the forged fabricated note is at most corroborative evidence of something that is no longer a material issue of fact in dispute. The Judge has little choice but to rule in favor of the forecloser at that point. Hence, we keep pounding on DENY AND DISCOVER.

If you are filing the lawsuit you should, along with the initial summons and and complaint, file whatever discovery requests you have at the same time which all amount to “who are you, what are you doing here, why are you seeking collection of this debt, and by what authority.

Admitting the debt, note, mortgage etc can be either direct (“I admit that”) or indirect/tacit (“I understand what you are saying Judge but there is ample evidence of skullduggery here”). In most cases, either one is enough, especially with a Judge who is already assuming that the bank wouldn’t be there if there was no debt, note and mortgage and the presence of a default.

The borrower, who knows they did get money on loan, knows they did sign papers and knows they didn’t pay, naturally assumes that it is pointless to deny the basic elements of the foreclosure — the debt between the borrower and the forecloser, the note, which is evidence of the debt, and the mortgage, assignments and other instruments used by the banks to get you pointed in the wrong direction. AND THAT is where the defense goes off the deep end every time there is a “bad” decision.

The Judge is going to be looking for admissions by the borrower (not the forecloser) because of a very natural presumption that at one time was a perfectly reasonable assumption — that the bank would not waste time and money enforcing a debt that didn’t exist and a note that was never valid, nor a mortgage that was never perfected.

And the Judge is going to see any avoidance of enforcement on the basis of paperwork as a tacit admission that the debt is real, the default is real, and the note and mortgage were properly executed under proper circumstances —- because that is what banks do! Maybe it isn’t “fair” but it is perfectly understandable why we encountered a mindset that treated borrowers as lunatics when they first came up with the notion that the paperwork was missing, lost, fabricated, forged, robo-signed etc.

The study by Katherine Ann Porter, the San Francisco study and the studies in Massachusetts and Maryland and Massachusetts all point to a credit bid being submitted at foreclosure auction by a party who wasn’t a creditor at all. The San Francisco study said 65% of the credit bidders were strangers to the transaction and strange is the word to use in court. Did it change anything? No!

So where does that leave you? In order to be able to show the relevance of the forgery or fabrication you must attack the debt itself. Where would I be if I sued you on the $100 loan, produced a fabricated, forged note and you DIDN’T admit the debt or the default. The burden falls back on me to prove I gave you the $100.

What if I didn’t give you the $100 but I know someone else did. That doesn’t give me standing to sue you because I am not injured party. Can any of you state with certainty that the loan money you received came from the originator disclosed on the TILA, settlement and closing documents? Probably not because the ONLY way you would know that is if you had seen the actual wire transfer receipt and the wire transfer instructions.

Thus if you don’t know that to be true — that the originator in your mortgage loan was funded by the originator and was not a table-funded loan (which accounts for about 95%-96% of all loans during the mortgage meltdown), why would you admit it, tacitly, directly or any other way?

As a defense posture the first rule is to deny that which you know is untrue and to deny based upon lack of information or deny based upon facts and theory that are contrary to the assertions of the forecloser. Deny the debt. THAT automatically means the note can’t be evidence of anything real, because the note refers to a loan between the originator and the borrower where the borrower unknowingly received the money from a third or fourth party (table funded loan, branded “predatory” by TILA and reg Z).

Your defense is simply “we don’t know these people and we don’t know the debt they are claiming. We were induced to sign papers that withheld vital information about the party with whom I was doing business and left me with corrupt title. The transaction referred to in the note, mortgage, assignments, allonges etc. was never completed. The fact that we received a loan from someone else does not empower this forecloser to enforce the debt of a third party with whom they have had no contact or privity.”

THEN HAMMER THEM WITH THE FORGERY BUT USE SOMEONE AS GOOD AS KELLEY TO DO IT. WATCH OUT FOR CHARLATANS WHO CAN CONVINCE YOU BUT NOT THE COURT. THUS THE DEFICIENT DOCUMENTS CORROBORATE YOUR MAIN DEFENSE RATHER THAN SERVE AS THE CORE OF IT.

Practice Pointer: At this point either opposing counsel or the Judge will ask some questions like who DID give the loan or what proof do you have. If you are at the stage of a motion to dismiss or motion for summary judgment, your answer should be, if you set up case correctly and you have outstanding discovery, that those are evidential questions that require production of witnesses, testimony, documents and cross examination. Since the present hearing is not a trial or evidential hearing and was not noticed as such you are unprepared to present the entire case.

The issues on a motion to dismiss are solely that of the pleadings. At a Motion for Summary Judgment, it is the pleadings plus an affidavit. Submit several affidavits and the Judge will have little choice but to deny the forecloser’s motion for summary judgment.

Attack their affidavit as not being on personal knowledge (voir dire) and if you are successful all that is left is YOUR motion for summary judgment and affidavits which leaves the Judge with little choice but to enter Summary Final Judgment in favor of the homeowner as to this forecloser.

http://www.nakedcapitalism.com/2013/02/expert-witnesses-starting-to-take-on-forgeries-in-foreclosures.html

%d bloggers like this: