Writ of Mandamus: The Right Procedure

submitted by Frank D’Anna

Writ of Mandate 2 Frank D’Anna

COMMENT: I don’t know if Frank got help, but however he did it, this is a fine piece of work. He obviously understands that if you want to take an appeal, you must state a reason that the trial court erred. If you want to win it, you better come up with a procedural issue that is compelling. Most appeals fail. The reason is that the Appellant wants the appellate court to say the Judge was wrong on the facts. They don’t do that except in the rarest of cases, so don’t bother.

The best appeal is to be able to say and show IN THE COURT RECORD that you didn’t get your day in court, which is to say that the trial judge refused to hear your case on the merits. Any other appeal will get “Per Curium, Affirmed” without comment.

The second best appeal is to imply that the trial judge was tone deaf and ruled based upon presumptions he wasn’t allowed to make. D’Anna’s appeal is a combination of the the two approaches. They both amount to the same thing: you were not heard on the merits and the trial judge prejudged the case based upon incorrect presumptions.

Speaking in legalese this means that the trial judge presumed that YOU had the burden of proof and allowed your opposition, over your objection, to introduce information that was not authenticated, verified or given proper foundation to be taken into evidence. In many cases there is no evidentiary hearing. Your case is a denial of the allegations of the oppositions whether they have filed (judicial states) or they haven’t filed them (Non-judicial states).

The mistake repeatedly made in the trial court is acceptance by the borrower that the borrower has some burden of proof regarding the standing of the opposing party, whether the opposing party is a real party in interest, and whether the note was properly assigned or ever made it into the “Trust.”

This is just plain wrong: There is only party actually seeking affirmative relief — the one who wants to enforce the note and foreclose on the property. The party seeking affirmative relief is the ALWAYS charged with pleading a case upon which relief could be granted and ALWAYS required to prove each and every allegation. The allegations and the proof must line up with the elements of their cause of action as stated by statute, the rules of civil procedure and previous common law decisions.

In non-judicial states these errors are magnified. Because the law is universally misapplied, a party can foreclose through power of sale even if they would have no right to foreclose judicially. That is not the law and if it was the law it would be unconstitutional.

  • The fact that the forecloser ignores the basic elements of law does not shift the burden of pleading or the burden of proof onto the borrower.
  • The fact that the borrower/debtor must bring an action seeking injunction or restraining order to stop the non-judicial sale does not change the burden of pleading or the burden of proof.
  • Once the denial or objection is registered in any fashion, the Trustee in a non-judicial state and the mortgagee in a judicial state MUST, under all conditions, plead and prove their case in a court of law.
  • Non-judicial election is simply not available.

BUT HERE’S THE RUB: IF YOU DON’T OBJECT TO WHAT THE COURT IS DOING, YOUR OPPOSITION IS GOING TO ARGUE, MANY TIMES SUCCESSFULLY THAT YOU WAIVED THAT ARGUMENT. BUT JURISDICTIONAL ISSUES CAN BE HEARD AT ANY TIME EVEN IF THEY ARE FIRST BROUGHT UP ON APPEAL.

10 Responses

  1. I recently filed an opposition to the banks request to take judical notice of the notice of default, trustee sale, and assignment of note (previously assigned 7yrs prior) and subsitution of trustee. My objection was in writing and supported by case precedent that denies judicial notice if disputed facts are present. The judge granted the bank’s request and took judicial notice of the NOD, ASSIG. Sub; and trustee sale date. The judge did allow me 20 days to amend my complaint after his ruling on the demurrer. The Writ of Error Corum Nobis sounds llike a good idea, however I was fortunate to discover my loan in the GSR Trust the bank states it did not sell. I have also discovered the agreement of sale between my bank and GSR. I had previously blogged my facts and updating per David and Jan request. I am learning a great deal from everybody and appreciateit. Write me.

  2. August 21st, 2010
    Dear John Q Public
    I am concerned over the massive amounts of foreclosures that have plagued this nation, robbed homeowners of their equity and their homes by the predatory lending practices of the banks. Many of these foreclosures are done through “Trustee sales” which do not allow a hearing and a right to a jury trial. I am concerned because the entities seeking this remedy are overwhelmingly federally chartered corporations created under acts of Congress for public and national purposes. Several Supreme Court decisions have ruled that the activities of these type of corporations are governmental not propriety. I am seeking help from the city of Sacramento based on my research to send a letter to the regulatory authorities—The Office of Thrift Supervision and The Office of the Comptroller of the Currency to issue “Cease and Desist Order” to its members to use only Judicial Foreclosure which does not violate the 5th Amendment. Most of these lenders are not making meaningful modifications. They would rather foreclose and affect everyone’s equity downward than modify the loans. If the banks were required to go to court, the homeowner could raise affirmative defenses like unclean hands because most of the loans were inherently predatory because they were not intended to go to term but to be refinanced in a couple of years creating a revenue stream for the banks. The city would be impacted by revenues tied to the sinking value of the homes through lower property taxes thus forcing severe budget shortfalls. If the regulatory authorities failed to comply with the cities demand, then the city could seek a writ of mandamus coupled with a preliminary injunction prohibiting banks from foreclosing until the legal issue as to their right to foreclose non judicially could be established.
    On July 13th, 2010 I spoke before the city council of Sacramento. You can see my video plea on the website of the city of Sacramento. If there is anyone who can help stop these foreclosures with funding, you can contact me at reuben.nieves@yahoo.com I will send you a copy of my research.

    Thank you

    Reuben Nieves

  3. Hi Sirina:

    You are not mistaken, however they have been abolished, by NAME ONLY, in the federal courts just like the abolishment of demurrers. Nonetheless, just like demurrers were replaced by 12(b)6 motions, writs of error coram nobis were replaced by Rule 60. More specifically, 60(d)(3) which is what one can catch the foreclosure mills–fraud on the court!

    I just like the succinct definition of “coram nobis” better (A writ of error directed to a court for review of it’s own judgement…) than Rule 60’s three hundred and sixty-five word description.

    It’s a much better procedure than having to go to a higher court for a possible remedy under mandamus. Besides, when your cogent legal argument goes back in front of the same judge, it has a tendency to garner one respect in front of a judge you’ll possibly see more of!

  4. Storm,

    If I am not mistaken, a Writ of Error Coram Nobis has been abolished in civil cases.

    Sirina

  5. I am so pissed today and totaly floored by what a court house clerk said to me. I frequent my case file up at the court house on a regular basis tp make sure nothing gets filed behind my back as has happened in the past. Last night I went to the courtclerk site to see what if anything new was posted and I took another look at my own case where I noticed on 12/14/2009 an alledged person I have never heard of was served as a tenant on my property. On 10/2/2008 it stated “filed original note and mortgage” So I went up to the court house today and asked to speak with somebody in reference to my case (again). The lady told me no such person is listed in her records as being served. to this I simply said, “well, it is there and I will print you a copy of your court house documents that say it is and bring it here for you to look at. It’s probably just a mistake and something I’m not that concerned with. What I am concerned with is the docket stating ‘filed original note and mortgage’ I would like to see it”. She flipped through the file and handed me the piece of paper that stated “FILED: ORIGINAL NOTE AND MORTGAGE”, but nothing was attatched. I said’ “OK, so where is it?” She replied, “I don’t know it isn’t here its not my job to question that.” ” I said Isn’t that fruad?” She simply said, “I don’t know”. I left but everybody in that court house stopped to listen to what I was saying and perhaps she will question it later.

  6. the courts won’t allow any legit hearings where real people show up because the judges know they’re all sham proceedings, the judges just expected everyone to lay down and take it and didn’t expect people to fight.

  7. Actually, a writ of error coram nobis would be the better procedure, where you throw it back in front of the same judge to get it right!

  8. George Babcock will help any family in foreclosure or behind in payments. He will beat the lenders! Call an Attorney who gets it.Free Consultation & Budget plans for every family. Call for Rhode ISLAND & Massuchusetts at 401-274-1905

  9. Esquires work for great britain and are unconstitutional holding no US citizenship under US Const. art. amend. XIII

  10. Those in nonjudicial states are encouraged to contact bryllaw.com

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