Beating Lawyer Finesse: Is He/She a WITNESS or a Lawyer?

If the lawyer is not a competent witness with personal knowledge, then he should shut up and sit down.

See also fraud-on-the-court-reversing-the-tide

See also Judge Young:  federal-appeal-slams-lawyers-and-pretender-lenders-with-sanctions-for-misrepresentation-on-ownership-of-loan

See also modification-fraud-the-latest-game-in-town

 

So you sent a QWR and you know the loan is securitized. The orignating lender says talk to the servicer and the servicer declines to answer all the questions because they didn’t originate the loan. Or you are in court and the lawyer is trying to finesse his way past basic rules of evidence and due process by making representations to the Judge as an officer of the court.

He’s lying of course and if you let it go unchallenged, you will lose the case. Basically opposing counsel is saying “trust me Judge I wouldn’t say it if it wasn’t so.” And your answer is that the lawyer is not a witness, that you don’t trust the lawyer or what he has to say, that if he is a witness he should be sworn in and subject to cross examaintion and if he is not a witness you are entitled to be confronted with a real witness with real testimony based upon real knowledge.

First Questions: When did you first learn of this case? What personal knowledge do you have concerning the payments received from the homeowner or third parties? What personal knowledge do you have as to who providing the actual cash from which the subject loan was funded?

Only when pressed relentlessly by the homeowner, the servicer comes up with a more and more restrictive answer as to what role they play. But they always start with don’t worry about a thing we control everything. Not true. Then later after you thought you worked out a modification they tell the deal is off because the investor declined. The investor is  and always was the lender. That is the bottom line and any representation to the contrary is a lie and a fraud upon the court.

So whoever you sent the QWR to, always disclaims your right to ask, or tells you the name of the investor (i.e., your lender) is confidential, or that they have authority (but they won’t show it to you). That doesn’t seem to be a lender, does it? In fact they disclaim even knowing enough to answer your questions.

So AFTER THEY SERVE YOU with something file a motion to compel an immediate full answer to your QWR since under TILA service on the servicer is the same as service on the lender. You argue that everyone seems to be claiming rights to be paid under the original obligation, everyone seems to be claiming the right to enforce the note and mortgage, but nobody is willing to state unequivocally that they are the lender.

You are stuck in the position of being unable to seek modification under federal and State rules, unable to sell the property because you don’t know who can sign a satisfaction of mortgage or a release and reconveyance, unable to do a short-sale, and unable to refinance — all because they won’t give a simple answer to a simple question: who is the lender and what is the balance claimed by the real lender on the obligation? At this point you don’t even know that any of the real lenders wish to make a claim.

This is probably because they received TARP funds and insurance proceeds on defaults of pools that they had purchased multiple insurance policies (credit default swaps). But whether they are paid by someone who acquired rights of subrogation or they were not paid, you have a right to a FULL accounting and to know who they are and whether they received any third party money. If they were paid in part or otherwise sold their interest, then you have multiple additional unknown parties.

The reason is simple. They are not the lender and they know it. The lender is a group of investors who funded the transaction with Petitioner/Homeowner and others who purchased similar financial products from the same group of participants in the securitization chain relating to the subject loan.

The people currently in court do not include all the real parties in interest for you to make claims against the lender. Cite to the Massachusetts case where Wells Fargo and its lawyer were subject to an $850,000 sanction for misrepresenting its status to the court.

It is not enough for them to bluff their way by saying that they have already answered the interrogatories. When they lost and it came time to allocate damages and attorneys fees, Wells suddenly said they were NOT the lender, beneficiary or current holder and that therefore the damages and attorneys fees should be assessed against the real lender — who was not a party to the pending litigation and whom they refused to disclose along with their misrepresentation that they were the true lender.

It is not enough that the lawyer makes a representation to the court as an officer of the court. That is not how evidence works. If the lawyer wants to represent facts, then he/she should be sworn in and be subject to (1) voir dire to establish that he/she is opposing counsel that it came from some company.

The witness must be a competent witness who takes an oath, has personal knowledge regarding the content of the document, states that personal knowledge and whose testimony conforms to what is on the document.

There is no such thing as foundation without a witness. There is no such thing as foundation without a competent witness. So if the lawyer tries to finesse the subject by making blanket representations to the court(e.g. the property is “underwater” by $xxx,xxx and we need a lift of stay…yet, there is no certified appraisal entered into evidence with a certified appraiser that can be cross examined…just a statement from opposing counsel) point to Wells, or even point to other inconsistencies between what counsel has represented and what now appears to be the truth, and demand an evidentiary hearing. If the lawyer is not a competent witness with personal knowledge, then he should shut up and sit down.

File a motion to extend time to file adversary proceeding(in BK situation), answer, affirmative defenses and counterclaim UNTIL YOU GET A FULL AND COMPLETE ANSWER TO YOUR QWR so you can determine the real parties in interest and serve them with process. Otherwise, we will have a partial result wherein the real owner of the loan can and will claim damages and injunctive relief probably against all the current parties to this action including the Homeowner.

In short, the opposing counsel cannot just make statements of “fact”  and have them accepted by the court as “fact” if they don’t pass the sniff test of real evidence corroborated by a competent witness. …and with every pleading ask for an evidentiary hearing and attorneys fees. Follow rule 11 procedure in Federal Court or the state law counterpart so you can get them later.

13 Responses

  1. […] Liability, Mortgage, predatory lending, rescission, securitization, trustee « Beating Lawyer Finesse: Is He/She a WITNESS or a Lawyer? DOUBLE FUNDING, FABRICATION OF DOCUMENTS AND FORGERY OF SIGNATURES REVEALED » Like Be the […]

  2. Marie in Miami tell that stupid legal aid you didn’t “get it for free” you paid for it with your hard earned money and are entitled to it. it’s the musical chair mortgage industry that made the loan from money out of thin air then got thier money they put up by securitizing & selling your loan chopped up into little fractions to numerous investors, but are still trying to take your house even after the banks were bailed out with more of your hard earned money with little or no obligation on that money, all the while still trying to enforce an obligation that they already sold, made more than a profit and now look at your home like all the other criminal acts they got with and think “I bet you I could “get it for free”. so really who is receiving a windfall here? lawyers lenders brokers and soon enough investors having thier cake and eating ours to.

  3. Hello Everyone!
    I am in south Florida and fighting 3 foreclosure at the same time. 3 investment properties, i put 20% down on all of them. I am an immigrant from eastern Europe with no past education in law at all. But let me tell you i am learning very fast. Thanks to this website and others. I am suggesting for others who are also doing this Pro Se, to keep talking to each other and exchange information and experience. We have so much to learn…..I am looking to talk to anyone and help as much possible.

    Arpad
    Lecso@bellsouth.net

  4. A follow up on my last post. GMAC states in response to my QWR, that Impac Funding Corp is the owner of the note. The note is securitized. So, we know Impac Funding Corp is not the owner. The investors in the trust (Impac Secured assets Corp, Mortgage pass-through certificates series 2005-2) are the owners…..maybe :). Of course, in the complaint, the note has been lost, destroyed, etc…you know the usual terminology. Attached with the complaint was a photocopy of the “original note”. Plaintiff Wells Fargo as trustee claims they own the note. There are no assignment, allonges, etc. showing transfer of ownership on the photocopy. It’s the usual “Trust us your honor, we are the owners of the loan”.

  5. Sent a QWR to the plaintiff law firm and the servicer (GMAC). GMAC responded with a ledger of my payments and charges to the account since they have been the servicer and lists the owner as Impac Funding Corporation. Every other question was answered as N/A or subject to business or trade practices. The law firm for plaintiff (Wells Fargo as trustee under the PSA for Impac pass through certificates 2005-2) responded:

    “Plaintiff’s counsel has not been designated by Plaintiff as an agent authorized to recieve Qualified Written Requests under RESPA.”

    Just recieved the response from plaintiff counsel last week. Guess I’ll file a motion to compel.

  6. Appeal his decision all the way to the Supreme Court on the merits of your case, supported by these recent decisions. Don’t let them intimidate you, demand due process. Try everything, don’t brake. Move for sanctions for fraud and compel them to produce evidence, send them requests for Admissions and Interoggatories, etc…

    This is of course not legal advice…what is legal advice?

  7. What can you expect from a lawyer making $25,000 per year, they are in to negoiate and run for office once they have gamed the system.

  8. Marie in Miami,
    I have no knowledge to help you, only my outrage at your situation, and my hope that you will continue and prevail. You certainly have my admiration. If I were a millionaire I would buy your Judge, obviously he is for sale!

  9. I believe it was Robert Kennedy who said….

    “Each time a man stands up for an ideal,
    or acts to improve the lot of others,
    or strikes out against injustice,
    he sends forth a tiny ripple of hope.”

  10. “after demonstrating before the court that the “lender-emperor” is wearing no clothes?”
    priceless!

  11. Please, more tactical articles such as this one.

    Also, would an action to Quiet Title be filed simultaneously in the original cross-complaint, or on a later motion to amend the cross-complaint after demonstrating before the court that the “lender-emperor” is wearing no clothes?

    Thank you Mr. Garfield and associates for everything.

    SF_Dan

  12. Talk about hearsay, I learned the hard way what that means, namely hearsay are the facts and the law.
    Unless someone can help me prove the opposite by helping me win my case (because I did challenge the lies and I still lost, but I haven’t given up yet).

    Help – Anyone – Please? I’m in Miami, Florida.

    I’ve been fighting pro se for one year and have found that, no matter how many issues I raise, it just doesn’t matter to the judge in my case. I have raised the issues mentioned here plus several more. The judge ruled in favor of the “lender” who appeared in several disguises at the hearing for summary judgment: (a) mystery man (his name and authority to appear are not on the record and the hearing transcript), (b) counsel (for whom no one knows), and (c) lender (“‘we’ are the lender”, notice the imperial posture). To top it off, mystery man’s hearsay did not match my testimony that I had repeatedly asked for and, of course, never obtained debt validation (who is the lender who funded the loan, what are the lender’s actual proven damages, do I owe any money in the first place). He said “she filed a ton of stuff” but mystery man has no clue what stuff. None of my pleadings were ever refuted.

    So a man with no name and no authority can walk into a courtroom and convince a judge with off the cuff false hearsay that there are no issues here and enlist his help to rob me of my house.

    Legal Aid was impressed with my pro se knowledge. I sweated blood and tears for one year to acquire that knowledge. But Legal aid can’t help me vacate this ill-begotten judgment BECAUSE I raise too many legal arguments. Imagine that. All that Legal Aid (the attorney I talked to, not the whole organization) appears to be concerned with is: can I afford to make payments on my house because I shall not “get it for free”. The advice I got was “prepare to move out in a month”. And I thought it was all about facts and law.

    My conclusion: hearsay rules and I must go look for shelter under the bridge. How do I explain this to my kids?

  13. So much to to learn here!

    It makes me even more
    respect the Pro Se’s
    who PREVAIL in their
    contests.

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