PERJURY OR JUST FRAUD ON THE COURT?

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

article by r j koenig

Editor’s Comment: The following article exposes the anger, confusion and frustration that homeowners feel when they hear the lawyers for pretender lenders state things that are patently and obviously untrue. Perhaps more importantly it addresses the underlying bias of the court system for people with the most money — and nobody has more money than banks. AND finally, the underlying theme here is that there is an honest confusion on the part of members of the fiduciary and members of the Bar over what is actually happening — which is contrary to virtually everything they learned in law school.

For the sake of clarification, the general consensus is that a lawyer does not commit perjury unless he is under oath and is testifying as a witness. It is also generally accepted that if there is even a hint of an arguable point, the lawyer is free to make the most of it in his oral presentation and pleadings.

However, it is also true that the lawyer puts his license at risk if he knowingly misleads the court, and, more to the point of our contributor below, probably ought to be investigated for the commission of a crime if he or she as lawyer is knowingly acting in furtherance of a fraudulent conspiracy for the sole reason or mostly because of the monetary benefit flowing to the “lawyer” for doing it.

I put “lawyer” in quotes, because a lawyer is acting as an advocate when he makes the best of what is available in the facts and in the law on behalf of his client. In fact, he is obligated to do exactly that or he is not living up to the standards of his profession. But if the person who is licensed as a lawyer is taking affirmative action to further or create or promote a fraud upon the court and innocent victims, then he or she is no longer acting as a lawyer and so not protected by the above statements for effective advocacy.

The mere fact that someone is licensed as a lawyer doesn’t mean everything they do, even in a courtroom falls under the scope of their work as a lawyer. This might ring familiar: the mere fact that a company is a bank doesn’t mean it was acting as a bank. In most cases, the “bank” that acts as an originator was in fact acting as a mortgage broker and their financial records will show that they didn’t make the loan, they merely got paid a fee for arranging it.

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by r j koenig

I write about the observed practice of US lawyers to fraudulently utter, in front of judges, prejudicial statements of arguable and questionable beliefs as if they were fact.

Is there a term for these sorts of lies: the lies and patently false assertions that lawyers routinely utter in front of judges?

This sort of lawyers perjury often takes place when a lawyer states a “hoped for fact”, or perhaps a fact he/she wishes to prove, without preceding the utterance with the qualification “upon information and belief”.

A simple way to place this sort of information before a court might be to precede it with the word “arguendo”.

It also strikes me as being extraordinary that lawyers are allowed to state any fact(s) at all except those that have been established by a prior trial upon the facts; and even then only then when pertinent to the instant litigation.

Over the course of a 10-year legal action in NY City involving whether my insurer or my cooperative apartment corporation should pay for exploding steam pipe damages to the physical premises of my family’s leased cooperative apartment . . .

. . lawyer Daniel White for 55 Liberty Owners Corporation and Robert Spadaro for my insurer USAA uttered serially untrue statements to the long sequence of apparently corrupt judges who sort of heard the case.

I found myself paralyzed by the lies these two lawyers told – one after the other: what do you say in a court as a non-lawyer civilian when the licenses lawyers cavort with the judge by lying? It’s really disheartening.

One of Daniel White’s particular lies to Judge Carol Huff was most memorable.

Lawyer White actually told Judge Huff that the reason why “I” did not want to pay the $25,000 to repair “my” apartment’s damage from the landlord’s exploded steam pipes was because “I” was not insured.

Well – my insurance policy and USAA’s lawyer were standing right there in the court when lawyer Danial White lied to the judge.

I was insured but my insurer USAA was characteristically evading its obligation to indemnify my wife’s and my obligation to repair the damage even though it was landlord’s exploding steam pipes which caused the damage.

USAA’s skillful evasion of its obligations is another story for another time.

At one point I finally interrupted and stated my concern to Judge Huff that the lawyers were being patently untruthful.

So help me God – this is what Judge Huff said.

She said that all lawyers lie; that lawyers are allowed to lie; and that she (the judge) would sort out the truth. But if I were to utter one single even minimally questionable fact – that I would be jailed for contempt.

A review of the pertinent Federal Statute:

18 U.S.C. § 1001 False Statements (The Martha Stewart Act)

shows indeed that lawyers are allowed by Federal Statute to tell lies to judges; to wit,

b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

Truth is stranger than fiction.

So: what do we call these sorts of lies that lawyers tell judges?

10 Responses

  1. as a reporter never lets the truth get in the way of a good story.

    A good attorney never lets the truth get in the way of a good legal battle.

    As in a few good men – it does not matter what the truth is – it is what you can Prove!

    http://www.petters-fraud.com and the DOJ Cover UP page therein is a good reflection of what Sal infers can happen if you allow them to hang themselves.

    In order to win a case that is false – they have to continue down an erroneous pathway of testimony.

    Take notes – and learn the laws of your state and nation pertaining to your issue.

    If it is not worth your time to learn – then the court will assume it is not worth its’ time to fight for your impaired rights.

    They = the Erroneous Horde – only win when we give up!

  2. It’s pretty sad when you can’t even count on lawyers to tell the truth in a courtroom.

  3. Jurisdictionary-Motions & Hearings … by Frederick Graves, JD

    To get “due process” in your case and protect yourself from crooked lawyers and corrupt judges, you must demand it … and make a record for appeal if you don’t get it.

    YOUR DAY IN COURT

    You’ve taken your seat. The courtroom doors have closed behind you. The bailiff announces, “All rise!” Enter the judge. Everyone stands. The judge looks around the room before saying, “Please be seated.” Don’t sit down!

    The judge will announce the hearing, telling everyone including the court reporter you brought to write things down (You did bring a court reporter, didn’t you?), “We’re here on case number 05-123, Peter Plaintiff versus Danny Defendant. This is the plaintiff’s motion for summary judgment. Mr. Graves, please proceed.”

    The movant goes first. Don’t let the other side interrupt. This is one of the most egregious things crooked lawyers do. They will jump to their feet and interrupt as often as the judge lets them get away with it. After the second or third interruption, stop your presentation long enough to request of the court, “Your honor, I have only a limited time to present my argument.

    May I proceed without interruption?”

    Even if the court allows your opponent to continue interrupting, at least there will be less tendency for the judge to overlook obvious rudeness designed to disrupt your concentration. If the other side doesn’t have a valid objection, you should insist on being able to speak without interruption.

    Often a good thing to say is, “Your honor, I need to make my record here, and counsel is interrupting with no legitimate purpose other than to prevent me from doing my job.”

    You have a right to be heard. It’s been bought for you by the blood of men and women who died for your right to be heard. Remember this, and demand to be heard.

    Getting Started

    The first question I ask the judge at hearings on my motion is, “Have you read my motion, your honor?”

    If the judge says he’s already read my motion, then I can refer to it in general as an outline while making my argument – taking care to touch all points so my court reporter writes down every word.

    If the judge says he’s not read my motion, I ask, “Would the court care to take a moment now to review the written motion?”

    If the court agrees, I wait silently while the court reads my motion, keeping on guard for my opponent’s attempts to interrupt the judge’s train of thought (which happens when you’re dealing with crooked lawyers).

    If the court gruffly commands, “Get on with it, Mr. Graves. Present your argument,” then I make certain I touch every point of my written motion completely and in every pertinent regard, with my court reporter writing down every word I say. After all, my written motion was prepared at the office, where I wasn’t being interrupted, where I had hours (instead of only a few minutes) to set out my arguments. While writing the motion I had the advantage of doing legal research, reading cases, statutes, rules, and occasionally constitutional provisions in support of my motion … whereas standing in a courtroom, being stared at by a gun-toting bailiff, being listened to by an impatient judge who’d rather be playing golf, and being interrupted by my opponent at every opportunity imaginable, it is far less likely I can keep my concentration on all those points by simply working from memory.

    I use my motion as an outline and cover every point in detail before sitting down.

    Controlling the Opposing Party

    At some point you will finish arguing your motion and sit down. It’s now the other side’s chance to shoot holes in everything you just said. Some unscrupulous bums in the profession will take personal shots at you, insinuate you’re trying to deceive the court, even suggesting you’re a dishonest person who should never be believed no matter what you may say.

    Don’t put up with it! Object! Make your record!

    Do whatever is necessary to be certain the record being taken down verbatim by the court reporter reflects everything pertinent that takes place at the hearing, including the things that are done without words.

    For example, if the other side makes inappropriately threatening or insulting side glances in your direction during his argument, speak up.

    “Your honor, may the record reflect opposing counsel is making childish faces at me when you aren’t looking.” That will put a stop to it.

    This is also effective at depositions or any place where the record is preserved only by what a court reporter writes down. If opposing counsel drums fingers on the table or glowers or rolls his or her eyes in an effort to disarm or discredit the witness, speak up.

    “Let the record reflect opposing counsel is making threatening gestures at the witness with his fountain pen.” If you’re up against a crooked lawyer, hang him out to dry!

    Avoid helping your opponent – unless you can help him shoot holes in his own case.

    If the opposing party cites cases or statutes that don’t apply to facts before the court,let the argument continue but make notes. As moving party you should be allowed an opportunity for rebuttal. That’s when you explain to the court how the other side misrepresented what those statutes and cases truly stand for. Don’t interrupt if the other side is going down the wrong path. You might unwittingly give him an opportunity to correct his errors. It’s far better to wait till he sits down before showing the court, in calm, measured tones, that he’s misrepresented the law and the facts and is “attempting to mislead this Honorable Court, your Honor.”

    An exception to not interrupting the other party is when a lawyer for the other side begins telling the court what the evidence is, rather than referring to evidence that’s already been admitted. Lawyers are not supposed to testify. They weren’t present at the time of the matter being testified to, so they don’t have first-hand knowledge. If you’ve studied our tutorial Evidence Made Easy you know that testimony by persons lacking first-hand knowledge is not competent testimony and is,therefore, inadmissible. If a lawyer begins telling the court what the facts are – instead of referring to facts already made a part of the record by admissible testimony and other evidence – jump to your feet.

    “Objection, you’re honor. Counsel is testifying. Counsel is incompetent to testify as to matters about which he has no first-hand knowledge. I move the court to strike his attempt to testify as to facts beyond his personal knowledge.”

    In most courts the judge will sustain your motion and instruct the lawyer to stick to legal argument.

    Rebuttal Argument

    After the other side concludes his argument against your motion, the court may give you a chance to rebut what’s been said. This is especially true if the other side raised new points of fact or law that weren’t discussed in your own argument. This is the purpose for rebuttal. It’s normally not a chance to re-state what you said during your initial argument, but many judges will give you this second bite at the apple (whether or not the other side raised new issues that open the door for rebuttal). If permitted to do so, make a final summation argument why your motion should be granted and sit down!

    Above all, don’t be afraid. Whether you’re arguing in favor of your own motion or arguing against your opponent’s motion, if you’ve done your homework, so you already know what needs to be said to make your record and convince the judge. You’ve already spent hours studying the law and drafting your motion and memorandum (or response in opposition), and if you stick to your paperwork you’ll not wander or be drawn off-course
    by an unscrupulous adversary’s intentional interruptions.

    Follow the arguments you’ve already written and stick to them. Don’t let the other side throw you off course.

    Keep it simple.

    Judges are just humans (well, most of them, anyway). They are not the rocket scientists most people tend to believe they are. Many judges “sit on the bench” because they can’t make it in private practice as a working lawyer.

    Don’t be afraid of the judge. Don’t be intimidated by the black robe or imposing high bench he sits on.
    Above all, don’t think the way to win is by making complex arguments, as if the judge will respect you more and give greater weight to your cause because you couch it in complicated verbiage.

    Don’t do it.

    Talk to the judge (not to the opposing party) and talk directly to the judge and only to the judge. Speak as if you were talking to a small child. Use measured tones, one short sentence at-a-time. Don’t imagine for a moment that the judge is “smarter” than you are.

    He may know more about the law, but in the facts you’re trying to present he may be as empty-headed as a box of rocks. Explain your argument the way you would if you were speaking to an acquaintance of only average intelligence.

    Be understood. Maintain eye contact with the judge. Don’t look about. Pay no attention to anyone else. Look the judge straight in the eye and, if the judge looks away, pause and wait silently until the judge looks back at you. Scientific studies have proven that people who look away from a speaker are less likely to absorb and retain what’s being said to them. Those who maintain eye contact fare much better, as if one mind speaks directly to the other.

    Don’t look down (except to find papers on the table or lectern). Look alert. Speak loudly enough to be heard clearly and no louder! Do not emphasize what you’re saying by raising your voice or wildly inflecting your pitch. Measure your words, and use vocabulary – not physical emotion – to emphasize strong points. Lawsuits are won with words, not gymnastics or histrionics (no matter what you see on Law & Order or other TV court shows).

    Don’t allow yourself to be rushed.
    You’re here for a purpose. This is your time to be heard. Valuable time. Make the most of it.

    Whether you win your motion or not, you’re there to make a record of the argument in support of your motion and of all the judge and opposing party say and do!

    Take your time. If the judge says, “Hurry it along!”, simply thank the court and proceed as before. Determine to cover all the necessary points in your argument. Use all the time you are allotted for the hearing. Each side should be given equal time. Use all of yours.

    If you win, so much the better. If you lose, at least you’ll have made an effective record on which to predicate a successful appeal.

    The trick about making your record for appeal is that the better you make your record at the trial level, the less likely the judge will be to rule against you. Judges hate to be appealed.

  4. Sounds like a FLORIDA JUDGE! Of course, Florida is a lawless State run by Corrupt vigilante Judges.

    We have to find a way to impeach or remove Judges that allow FRAUD to infect heir respective court rooms!

  5. Perjury and Fraud on the Court are two separate issues.

    You can commit Perjury to accomplish Fraud on the Court and/or you may do a fraud on the court that fosters erroneous testimony forward (Perjury)

    There are also different levels of Fraud on the Court – including THE most serious being Fraud on the Court by Officers of the Court (one granted permission by the court to be involved in a case) –

    Fraud on the Court by an Officer of the Court is such a perverse miscarriage of justice that the US Sup Ct stipulated In re Hazel Atlas Glass (1944)

    That expunges the Statute of Limitations!

  6. Doing some research for my own case, I found a recent sale that was curious in that the foreclosing party was US bank as trustee for BNC mortgage loan trust 2006-1 and apparently did a credit bid and got the property. However, the purchaser’s address was the exact same address as Wells Fargo in Ft. Mills, SC. Then I came across this mass confusing posted in the trust’s sec filings:

    a) Aurora Loan Services LLC, as Master Servicer
    b) Aurora Loan Services LLC, as Servicer
    c) Deutsche Bank National Trust Company, as Custodian
    d) First American Real Estate Solutions of Texas, L.P., as Sub-Contractor for Aurora Loan Services LLC
    e) FIS Tax Services f/k/a LSI Tax Services, as Sub-Contractor for Option One Mortgage Corporation
    f) Newport Management Corporation, as Sub-Contractor for Aurora Loan Services LLC
    g) Option One Mortgage Corporation, as Servicer
    h) Regulus Group LLC, as Sub-Contractor for Wells Fargo Bank, N.A.
    i) Risk Management Group, LLC, as Credit Risk Manager
    j) U.S. Bank National Association, as Trustee and Paying Agent
    k) Wells Fargo Bank, N.A., as Servicer
    l) ZC Sterling Insurance Agency, Inc., as Sub-Contractor for Option One Mortgage Corporation
    m) ZC Sterling Insurance Agency, Inc., as Sub-Contractor for Wells Fargo Bank, N.A.

    And on our county’ recorders site there is a assignment of a DOT to Lehman Bros. and a seperate one to BNC at the exact same second of the exact same day. I didn’t pull the docs so I’m not sure if one was a first and one was a second or if one was an assignment to the other or what. But recorded at the exact same second??? Anyway, any thoughts on this mess? I was thinking about contacting the former owner to inform him of possible fraud just for grins.

  7. Unfortunately, much of the system is rigged. Money is really the root of all evil. The lawyers lie so that they can win against the homeowner so that the bank will hire them again against another homeowner. All US citizens who have pretender/lender servicers taking your home, need to fight back. The more we fight, the more it will come out, and the more we will have moved in the direction of justice. Whether they know it or not, many of these attorneys are going to get nailed in the next wave of litigation. Giving up is not an option. http://www.challengingforeclosure.com Sirak@challengingforeclosure.com

  8. This clain is very simple, we call them the americam way (Bull Shit).

  9. This is a big problem in courts. Not only lies as to issues — but lies as to who the law firm actually represents.

    Cannot understand why judges do not demand accountability for representation. But, attorneys say that you cannot even question this in court.

  10. Another thing that sad is the so called “in rem” foreclosure. There is no such thing

    Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 166, 30 L.Ed. 372 (1886)

    This has been the bench mark for case since this ruling that gets over looked. Justice fields stated that “modern foreclosures are quasi in rem”. You need the person, and without the person the court does not have jurisdiction. This is even for tax liens. The in rem that the courts try to pull is from admiralty law and the last time I check this is not war time nor is your house a ship.

    If you pull up Andrew B. PHILLIPS, Plaintiff-Appellee, v. CHAS. SCHREINER BANK and Schreiner Bancshares, Defendants-Appellants.No. 89-5563 that supports Freeman v. Alderson, Judge Smith states:

    ” Phillips’s complaint seeks monetary damages for wrongs allegedly committed by Schreiner Bank. This lawsuit is thus an ordinary in personam action, and the mere fact that debts secured by real property are at issue in the dispute does not transform it into an in rem proceeding. See e.g., Universal Business Computing Co. v. Comprehensive Accounting Corp., 539 F.Supp. 1142, 1144 (N.D.Ill.1982)”

    So do not let these judges try to pull Long v. Bullard, 117 U.S. 617 (1886). This is about if you try to fraud out creditors, not that banks have an in rem action if they can not sue the person.

    We need to wake up and read and learn the law so we just don’t depend on lawyers to tell us what the law say.

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