Garmin factors: Proving Your Need to Force the Opposition to Respond to Discovery Requests

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

===========================

see Garmin Factors to Justify Order Compelling Discovery

Lawyers Practice Note: Compelling discovery is the most important part of foreclosure defense. The current strategy of the banks is to object to practically everything. Set down their objections for hearing and file a motion to compel. But in your motion to compel you need to establish both facts and law entitling you to the answers to interrogatories, production of documents and answers to requests for admissions. The last thing these banks want is to open up their books and show there was no consideration for any of the paperwork that pretends there was funding of the original loan or that there was no consideration for any alleged sale — because in the absence of that there was no loan and there was no sale. That would make them strangers to the transaction clearly lacking standing.

The first Garmin factor requires that the party requesting discovery should already be in possession of evidence showing, beyond mere speculation, that something useful will be uncovered by the discovery requests. Here, the patent owner had only established the “mere possibility” that something useful would be found, which was not enough.

[Editor’s Note: If no holder in due course has been alleged or there is an absence of documentation proving the essential elements of a party entitled to enforce, that might be enough to convince a judge to compel discovery. If you can show conflicts in the documentation already provided by your opposition, that should close the deal.]

the third Garmin factor, provides that it is not in the interest of justice to require a party to produce information the other party can reasonably figure out or assemble on its own without additional discovery of the opposite party.

[Editor’s Note: The actual best evidence of the existence of a true transaction is the canceled check, wire transfer receipt or ACH confirmation. This is solely within the care, custody and control of a party seeking to foreclose — and if it isn’t available, they should not be in court because they cannot prove standing]

the fifth Garmin factor, which provides that any additional discovery should be “sensible and responsibly tailored according to a genuine need.”

[Editor’s Note: Since most defenses are predicated on the real ownership of the debt, the real status and identity of the creditor, and the real rights to the note and mortgage, if you state your narrative in your motion it is apparent that this goes to the core of your defense. By denying the request to compel discovery the court is effectively denying your defense even after it has survived legal attack by your opposition when they moved to strike your affirmative defenses.]

NEW FORM FOR REQUESTS FOR ADMISSIONS IN CALIFORNIA

In responding to an attorney request, I thought the end product, while not perfect, was worthy of sharing with our readers, especially the lawyers and paralegals. Hat tip to Dan Hanecek who wrote most of it.

In compliance with Code of Civil Procedure Section 2033.220, each response to the requests for admission shall:

(a)                          Admit so much of the matter involved in the requests as is true;

(b)                         Deny so much of the matter involved in the requests as is untrue; and

(c)                          Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information and knowledge.

PLEASE TAKE NOTICE that if the RESPONDING PARTY fails to serve a timely response to these REQUESTS FOR ADMISSIONS, the RESPONDING PARTY thereby waives any objections to these requests, including objections based on privilege or on the protection of work product pursuant to Civ. Code Proc. §2018.

PLEASE TAKE FURTHER NOTICE that in the event the RESPONDING PARTY fails to serve a timely response to these REQUESTS FOR ADMISSIONS, this PROPOUNDING PARTY reserves the right to move the Court for an order deeming all facts set forth herein admitted.

PLEASE TAKE FURTHER NOTICE that if the RESPONDING PARTY fails to admit the truth of any matter when requested to do so under this section, and if the PROPOUNDING PARTY thereafter proves the truth of that matter, the PROPOUNDING PARTY may move the court for an order requiring the RESPONDING PARTY to pay the reasonable expenses incurred in making that proof, including reasonable attorneys fees.

If any of these requests for admissions cannot be fully answered, please answer to the extent possible, specifying the reasons for your inability to answer the remainder, and set forth any information, knowledge or belief you have concerning the unanswered portions.

INSTRUCTIONS & DEFINITIONS

            A.            A CREDITOR MEANS A PARTY WHO IS QUALIFIED UNDER CALIFORNIA LAW TO SUBMIT A CREDIT BID AT A FORECLOSURE AUCTION.

B.            Please furnish all information in your possession and control.  If you cannot answer the requests in full after exercising due diligence to secure the information to do so, state the answer to the extent possible specifying your inability to answer the remainder, and state whatever information or knowledge you have concerning the unanswered portion.

C.            Each request and interrogatory is considered continuing, and if you obtain information which renders its answers or any of them incomplete or inaccurate, you are obligated to serve amended answers on the undersigned.

D.            Insofar as may be applicable, and except as otherwise indicated, the term “DOCUMENT” or “DOCUMENTS” shall refer to any and all writings and recorded materials, of any kind whatsoever, that is or has been in your possession, control or custody or of which you have knowledge, whether originals or copies including, but not limited to contracts, documents, notes, rough drafts, inter-office memoranda, memoranda for the files, letters, research materials, correspondence, logs, diaries, forms, bank statements, tax returns, card files, books of account, journals, ledgers, invoices, blueprints, diagrams, drawings, computer print-outs, discs or tapes, reports, surveys, statistical computations, studies, pictures, maps, graphs, charts, minutes, manuals, pamphlets, or books of any nature or kind whatsoever, and all other materials handwritten, printed, typed mimeographed, photocopied or otherwise reproduced; and slides or motion pictures, television tapes; all tape recordings (whether for computer, audio or visual replay) or other written, printed or recorded matter or tangible things on which words, phrases, symbols or information are affixed.

E.            A request to “IDENTIFY” a document is a request to state (insofar as may be applicable):

1.            The date of such document.

2.            The type of document or written communication it is.

3.            The names and present addresses of the person or persons who prepared such document and of the signers, senders and addresses of each document.

4.            The name of any principal whom or which the signers, senders and preparers of

documents were thereby representing.

5.            The present location of such document.

6.            The name and present address of the person now having custody of the document.

7.            Whether you possess or control the original or a copy of thereof and if so, the location and name of the custodian of such original or copy.

8.            A brief description of the contents of such document.

F.            A request to “DESCRIBE” any oral statement or communication is a request to state:

1.            The name and present address of each individual making such statement or communication.

2.            The name of any principal or employer whom or which such individual was thereby representing and the position in which such individual was then employed or engaged by such principal or employee.

3.            The name and present address of the individual or individuals to whom the oral statement or communication was made, and the name of any principal or employer whom such person or persons were representing at the time of and in connection with such oral statement or communication, as well as the employment position in which they were then employed or engaged.

4.            The names and present addresses of any other individuals present when such oral statement or communication was made or who heard or acknowledged hearing the same.

5.            The place where such oral statement or communication was made.

6.            A brief description of the contents of such oral statement or communication.

G.            A request to “CITE” portions or provisions of any document is a request to state, insofar as applicable with reference to such portion or provision, the title, date, division, page, sheet, charge order number, and such other information as may be necessary to accurately locate the portion or provision referenced.

H.            The term “PERSON” shall include a natural person, partnership, corporation, association, or other group however organized.

I.            Whenever a request is made to “IDENTIFY” a natural person, it shall mean to supply all of the following information:

1.            His/her full name.

2.            His/her employer and position at the time.

3.            The name of any person or entity (natural or artificial) whom she/he is claimed to have represented in connection with the matter to which the interrogatory or request relates.

4.            His/her last known address, telephone number, and employer.

5.            His/her present employer.

J.            A request to “EXPLAIN FULLY” any answer, denial or claim is a request (insofar as may be applicable) to:

1.            State fully and specifically each fact and/or contention in support of your answer, denial or claim; and

2.            For each such fact or contention, to identify each person who has knowledge relative to that fact or contention, each document that tends to support that fact or contention; and each document that tends to dispute that fact or contention.

K.            Unless otherwise specified, the terms “SUBJECT LOAN,” “SUBJECT LOAN TRANSACTION,” or “SUBJECT TRANSACTION” means the transaction(s) described in the complaint(s), including any prior or ongoing contract or communication relating to the transaction and/or account, up to and including the date of your answers to these interrogatories.

L.            Throughout this request, “YOU” or “YOUR” refers to the answering party or parties, and their owners, officers, agents, representatives, independent contractors, employees, attorneys, and/or anyone acting on their behalf.

If any paragraph of this request is believed to be ambiguous or unduly burdensome, please contact the undersigned and an effort will be made to remedy the problem.

REQUESTS FOR ADMISSIONS

  1. ADMIT THAT YOU ARE NOT A CREDITOR.
  2. ADMIT THAT THE LOAN ORIGINATOR NEVER HAD THE SUBJECT LOAN ON ITS BOOKS AND RECORDS AS A LOAN RECEIVABLE.
  3. ADMIT THAT THE LOAN ORIGINATOR WAS PAID BY THIRD PARTIES, NOT DISCLOSED TO THE BORROWER.
  4. ADMIT THAT THE LOAN ORIGINATOR WAS NOT THE SOURCE OF FUNDS FOR ANY FINANCIAL TRANSACTION WITH THE BORROWER.
  5. ADMIT THAT NO ASSIGNMENT OF THE ALLEGED LOAN WAS EVER SUPPORTED BY CONSIDERATION OR VALUE.
  6. ADMIT THAT NO ACCOUNTING OR REPORT HAS EVER BEEN ISSUED (AND DELIVERED TO BORROWER) BY THE SOURCE OF FUNDS FOR THE ORIGINATION OF ANY ALLEGED LOAN TRANSACTION WITH THE BORROWER.
  7. ADMIT THAT THE MASTER SERVICER NEVER ISSUED (AND DELIVERED TO BORROWER) AN ACCOUNTING OR REPORT FOR THE ORIGINATION OR TRANSFER OF THE SUBJECT “LOAN.”
  8. ADMIT THAT THE CREDITOR WHO WOULD QUALIFY UNDER CALIFORNIA STATUTES TO SUBMIT A CREDIT BID AT AUCTION WAS RECEIVING PAYMENTS FROM THIRD PARTIES IN RELATION TO THE SUBJECT “LOAN.”
  9. ADMIT THAT THE MASTER SERVICER OR OTHER AGENTS OF THE CREDITOR AS DEFINED IN THE PRECEDING PARAGRAPH RECEIVED PAYMENTS FROM THIRD PARTIES IN RELATION TO THE ALLEGED POOL IN WHICH THE SUBJECT “LOAN” IS CLAIMED TO BE INCLUDED AS AN ASSET.
  10. ADMIT THAT NO THIRD PARTY PAYMENTS HAVE BEEN REFLECTED IN THE DEMANDS UPON BORROWER.
  11. ADMIT THAT NO ACCOUNTING DEBITS OR CREDITS HAVE BEEN REPORTED TO THE BORROWER OR SUBSERVICER AS TO RECEIPTS AND DISBURSEMENTS RELATING TO THE SUBJECT LOAN, DIRECTLY OR INDIRECTLY?
  12. ADMIT THAT THE “BORROWER’S” ACCOUNT WAS NOT REDUCED BY THIRD PARTY PAYMENTS.
  13. Admit that the note and deed of trust at issue in this litigation were never assigned to DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR14 (hereinafter “AR-14 Trust”).
  14. Admit that, as the alleged servicer, OneWest Bank, F.S.B. is required to make advance payments of principal and/or interest under Section 3.06 of the Pooling & Servicing Agreement of the AR-14 Trust.
  15. Admit that, as the alleged SUBservicer, OneWest, Bank, F.S.B. is required under Section 3.07 of the Pooling & Servicing Agreement of the AR-14 Trust to have individualized loan by loan accounting of the Notes and Deeds of Trust/Mortgages allegedly in the AR-14 Trust.
  16. Admit that the arrears amount listed in the Notice of Default on August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office was from the alleged SUBservicer’s (OneWest Bank, F.S.B.) account and not the account of the alleged creditor.
  17. Admit that the AR-14 Trust never sent a written Declaration and Demand for Sale to MTDS, Inc. a California Corporation dba Meridian Trust Deed Service for the Notice of Default dated August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office.
  18. Admit that the amount listed in the Notice of Default on August 10, 2011, #20111074447, recorded in the Los Angeles County Recorder’s Office, did not match the amount that was reported to investors of the AR-14 Trust as required under Regulation AB Item 1122(4)(v).
  19. Admit that the alleged loan obligation under the Note and Deed of Trust at issue in this litigation is not in default.
  20. Admit that no due diligence was conducted by YOU as to whether the note and deed of trust at issue in this litigation was ever properly assigned to YOU pursuant to the requirements of the Pooling & Servicing Agreement and 424B Prospectus.
  21. Admit that there was never any memorialized monetary transaction between YOU and Plaintiffs.
  22. Admit that MTDS, Inc. dba Meridian Trust Deed Services was never substituted as Trustee.
  23. Admit that representations were made to the Superior Court County of Los Angeles that the AR-14 Trust was the beneficiary and proper foreclosing party.
  24. Admit that third parties have made contributions to Plaintiffs’ account by way of, but not limited to, advances, credit default swaps, insurance or government funds.
  25. Admit that these contributions were never credited to Plaintiffs’ account.
  26. Admit that mortgage payments received by Plaintiffs were never properly credited to their account.
  27. Admit that YOU never had the necessary documents to show ownership and status of YOUR account as the alleged creditor.

WINNING FORECLOSURE TRIALS: BOA Loses Another One in Brevard County Florida

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

FOLLOW THE MONEY TRAIL

Editor’s Comment: Here is a firm that believes the Banks don’t have the goods and is willing to go after it. They also show some courage and tenacity in going on the offensive, which is where all of the winning cases get their traction. The prevailing tactics by foreclosure defense attorneys is defensive, which is why they lose so often. If you don’t believe that the client should win then you need to study more or refer the client out to a lawyer who does believe it.

These cases all come down to one issue: MONEY. If money was loaned then an obligation to repay it arises, but to whom? And if the note and mortgage are materially defective like failing describe the true creditor, then the obligation exists and is neither documented nor secured.

Most Banks are successful at bluffing their way through this. But even in the bluff, the transfer of paper is not dispositive of the issue even if the paperwork is “right.” If there was no consideration paid, no transfer of actual money, then the transaction is a sham. And THAT is where the Banks fail every time. In nearly all cases, the money was transferred or funded long before the borrower even made application for a loan. So the securitization paperwork does not follow the money transactions.

There is even doubt as to whether any money was transferred at all in the refi’s. Nobody cared. Each transaction gave rise to a new round of derivatives and bogus mortgage bonds which bloated Wall Street to the bursting point. Keep in mind that the entire economic landscape is being supported by worthless paper growing at an alarming rate from the sale of derivative products and the access to the Fed window. That access by Fannie, Freddie, and central banks and institutions all over the world excludes institutions that are devoted to the needs of ordinary people.

The story is that they are saving us from a catastrophe — but in Iceland (look it up) the country got punished and pummeled for not playing by the rules. They went broke and then still scoffed at the demands to save the Banks. The Banks were dismantled and the banksters went to jail. The world didn’t end. In fact, Iceland, now enjoys the only real growth compared to the countries in Europe. IN THE END IT’S THE PEOPLE WHO ARE TOO BIG TO FAIL.

Using discovery procedures available to all litigants, can result in in revealing fatal flaws in the Bank’s case. In this case, like thousands of others like it, Bank of America simply ignored the request for admissions and tried to escape from violating the rules with the usual — oral argument from counsel.

They still win (the Banks, that is, because the case does not stand for the proposition that the foreclosures are fraudulent. It stands for the proposition that if you don’t follow the rules, you lose.

In failing to respond to the Request for Admissions, BOA, under close regulatory scrutiny simply didn’t put itself in the position of lying or perjury. Since they don’t have any money in any of the loans anyway, their goal is to (a) keep the number of losses minimal so that everyone doesn’t do it and (b) lose on procedural rather than substantive grounds. This way they continue the biggest fraudulent land grab in human history which matches the arrogance with which they pulled off the largest financial fraud in human history.

Shuster & Saben wins another foreclosure case against Bank of America

Shuster & Saben won another foreclosure case against Bank of America subsidiary BAC Home Loans. This victory in Brevard County, follows a trial victory for the firm, in another case against Bank of America pending in Miami-Dade. The firm’s victorious foreclosure client was a family living in Palm Bay. At the onset of the case, the firm diligently assisted the client in submitting a complete loan modification request under HAMP. When the firm’s efforts to reach a reasonable settlement were not countered with a single loan modification offer, firm lawyer Richard Shuster knew it was time to go on the attack. The firm served requests for admission on Bank of America that asked the bank to admit that the bank did not own the note and mortgage on our clients home and did not hold the note.

When Bank of America failed to reply to the requests for admission within thirty days the requests were deemed admitted by operation of law. The firm then filed a motion for summary judgment on behalf of the homeowners. The firm expected that the bank’s lawyers would files responses to the requests for admission prior to the summary judgment hearing but the bank’s lawyers never filed responses to the requests for admission. At the hearing on the Defendant / Homeowner’s motion for summary judgment, the bank, for the first time made an oral motion for relief from admissions. The motion was untimely and was denied by the Court. The Court then granted Defendants’ Motion for Summary Judgment and adjudicated that Bank of America did not own or hold the loan. Since this was an adjudication on the merits Bank of America will NOT be able to re-file the case. The firm will now seek prevailing party attorney’s fees on behalf of its client to be paid by Bank of America and will commence an action to quiet title to the client’s property.

Lawyers and scheduling staff at Shuster & Saben are often told by judges and Court scheduling assistants that very few foreclosure defense lawyers go on the attack and file offensive motions for summary judgment. Often foreclosure defense lawyers are content to simply file a motion to dismiss. Unfortunately, when a motion to dismiss is granted, it is usually either with leave to amend or with leave to re-file a new lawsuit. When a homeowner wins a motion for summary judgment on a pertinent issue, the losing bank will not be able to prosecute a new lawsuit under the principals of res judicata. http://en.wikipedia.org/wiki/Res_judicata
Shuster & Saben has won other cases with this aggressive strategy and encourages other foreclosure defense lawyers to give this technique a try.
http://floridaforeclosuredefense.blogspot.com/2011/05/shuster-saben-wins-foreclosure-case.html

To view a redacted copy of the entire order please click the link below:
REDACTED ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
http://thetruthaboutloanmodification.files.wordpress.com/2011/11/redacted-order-granting-def-msj.pdf

About Shuster & Saben: Shuster & Saben, LLC is firm of eight civil litigators, practicing foreclosure defense, insurance litigation, and consumer protection law, from four Florida offices in Miami, Doral, Fort Lauderdale, and Melbourne. The firm passionately defends foreclosure cases pending in counties within two hours drive of the firm’s 4 offices. The firm can be reached by E-mail at foreclosuredefenselaw@gmail.com
Posted by Richard Shuster at 9:00 AM

E

How to Attack MERS and WIN!

 

NOW AVAILABLE OF AMAZON/KINDLE!

EDITOR’S NOTE:MY WIFE WILL KILL ME IF SHE FINDS OUT I’VE BEEN WORKING. SHHHHHHHHH.

This news is irresistible. MERS is all but dead with this single decision (see below). Here are the salient points:

 

  1. MERS is not a beneficiary even if the mortgage deed or deed of trust states otherwise.
  2. MERS lacks standing in bankruptcy to seek relief from stay.
  3. MERS lacks ANY financial interest in
    1. the obligation
    2. the note
    3. the mortgage
    4. any assignment, allonge (often misidentified as an assignment, indorsement etc.
  4. MERS cannot acquire rights to foreclose unless it acquires a REAL financial interest
    1. In a non-judicial state
    2. In a judicial state
  5. MERS’ Appearance on ANY instrument in the securitization chain clouds the homeowner’s title by extension of the reasoning set forth in the case decision reported below.
    1. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust invalid
    2. MERS’ appearance on the deed of trust renders the mortgage deed or deed of trust VOID
      1. This means there is no security instrument even if the obligation is still outstanding
      2. This means there is no security instrument even if the note is still outstanding
      3. This means the obligation arising from the funding of the “loan” or”security” to or for the benefit of the homeowner is UNSECURED.
      4. This means that there is no legal procedure to take property — real or personal, tangible or intangible — by virtue of using non-judicial procedure or judicial procedure — unless the creditor (i.e. — the one who advanced actual cash for the funding of the obligation) gets a money judgment against the homeowner — a process which by definition requires the creditor to use exclusively judicial procedures in which they must
        1. A Lawsuit properly served
        2. Allegations that if taken as true would entitle the creditor to a money judgment (e.g. “I gave money for the benefit of this homeowner and I never got the money back from anyone”). By the way this debt, even if they get ajudgment, is dischargeable in bankruptcy.
        3. Attachments to the lawsuit of ALL documents that conform to the allegations
        4. Your Defenses, affirmative Defenses and Counterclaims
        5. Discovery on both sides:
          1. Interrogatories — how they know, what they know, who they know, where did the person signing the interrogatories get their information — when were they hired, by whom, when did they work for MERS, how many paychecks did they get from MERS etc., what documents do they rely upon, what do THEY call those documents, where are those documents, who has them, what is the title of that person, by whom are they employed, what’s their telephone number address etc.
          2. Investigation: on any (AND ALL) signature follow the lead of one of our lead homeowners — find a mortgage or other document filed in the county recorders office and see if the signature matched the one in which they signed, notarized, or witnessed.
          3. Who prepared their website. Where is the source code? Who has the current source code, the prior source codes and any source codes or emails with meta data that will enable you to determine what parties were involved in the preparation of the website, where MERS, for example, advertises that you can use their name but they will never make a claim against the property or for the money.
          4. Request to produce using their answers to interrogatories
          5. Subpoena Third Parties for records with option to give you copies
          6. Request for admissions: VERY POWERFUL weapon when used properly
          7. Notice of deposition
          8. Request for access to their network servers and workstations for forensic examination
          9. Notice of deposition from the people identified in their answers to interrogatories
          10. Motions to compel
          11. Motions for Contempt
          12. Motions to Strike MERS pleadings
          13. Motions to Strike the pretender lender’s pleadings
          14. Motion to enter default after judge orders pleadings struck
          15. Motion to enter default final judgment
          16. Motion for Summary Judgment on your counterclaims including quiet title, money damages for violations of TILA, RESPA, SEC, etc.
          17. Recording final judgment in recorder’s office

Foreclosure Defense and Offense: Lost Document Affidavit

This is reply to a question which has been posed to us recently by several readers through email and at least one comment. We have advised demanding the alleged lender (the one suing you in foreclosure or who has scheduled the sale) allow you to inspect and provide you copies of original documents so they can prove their standing or authority to proceed — or you can assert they have no standing, no authority because they don’t have the supporting documentation, they don’t own the loan anymore, and they have no written authority to proceed along with bona fide original documentation showing the assignment.  If they do not respond or admit they don’t have the documents, the case is over, you win they lose.

By the way, they are definitely NOT going to want to show you or anyone else that assignment. It has things in it that they don’t want public. 

But what if they come back with something — just not what you asked for, like an affidavit that says the original was lost? The answer is that an affidavit which does not contain an explanation for what happened to the original and does not attach a copy of the original with a person who REALLY knows, signing the affidavit that the copy is indeed a copy of the original, it is worth nothing. You win, they lose.

An affidavit without those components is simply an admission that they don’t have it. Case over.

The explanation must be plausible and be signed by someone who REALLY knows. If such an affidavit is sent in, in all probability is signed by someone who was presented with it along with the instruction “sign this or be fired.”

  • So you want to ask by interrogatory
  • or bluff them with a request for admissions 
  • (or take their deposition), along with a subpoena duces tecum that demands they bring with them all the original loan documents — if they have some of them, they better have a very convincing explanation of what happened tot he rest besides “we can’t find it)
  • that establishes that the person who signed it didn’t work for the lender at the time of the loan closing, and/or 
  • had nothing to do with the loan closing, and/or 
  • never saw the alleged original, and/or if they did see it, 
  • whether they are taking the blame for losing it on themselves with again, a plausible explanation.
  • whether they have been disciplined or if any change in policy was published for the company at the time of the alleged discovery of the “lost document.”

Without a copy of the original, nothing matters. They don’t have it and it is extremely unlikely that will succeed in proving the “lost document” since these documents are copied all over the place. If the copy doesn’t have your signature on it, it isn’t the original. The copy you have probably doesn’t have your signature on it either. Thus they can’t prove it with their records or even yours.

 

%d bloggers like this: