DID YOU OBJECT?

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

ORAL ARGUMENT IN HEARINGS AND APPEALS

In listening to the questions of BAP Judges sitting on a 3 Judge panel in appeals from rulings of the sitting Bankruptcy Judge, there were a few things that jumped out at me besides what I have already reported. The fundamental argument on appeal is , in theory, that pretenders are foreclosing on property despite the fact that if the rules of procedure and rules of evidence were applied they would not only be dismissed, they would be sanctioned. Cases from around the country corroborating this premise have been reported on these pages where the lawyer and the client (including large institutions like BOA, Wells Fargo etc.) have been fined huge amounts of money.

Setting apart bias and prejudiced and conflicts of interests with their own pension funds, as well as worrying about opening flood gates of litigation that could not be contained, the question that sticks out  like a sore thumb is why the Judges are ruling so often against the borrower? Answer is abysmally clear: Lawyers are not lawyering.

In my seminars, DVD’s, media appearances and writing I keep making the point that you should be objecting as soon as the opposing attorney starts talking and you should keep objecting until you are in handcuffs threatened with contempt — not that you should be disrespectful to a Judge (that is just stupid) but you should be persistent far past annoying. Having a Judge annoyed with you is very different from having mad at you in a personal way. Very frequently, when I sat on the bench as a substitute master or judge, my annoyance was actually a reflection of my rising discomfort. PASSION, communicated in a consistent, respectful way without fear of intimidation, will often turn the head of the Judge.

The example is an attorney who is really good at at this stuff — knows chain of title, securitization, TILA, RESPA etc. But he or she is not prepared for the drop dead question: “counselor, are you questioning the authenticity of the note or mortgage.” The answer is “YES” but 99 out of 100 lawyers are afraid to say that. Most lawyers are as hypnotized by the Wall Street myth as the Judges, and so when even a copy of the note shows up attached to an unverified pleading, the lawyer feels compelled to admit the “obvious.” That is exactly what happens on appeal and in the record, the attorney is often quoted in the record from the trial proceedings as saying “NO we are not objecting to their authenticity, we are objecting to their enforceability”.OOPS. If they are authentic then they are presumed to be enforceable unless they have something illegal or against public policy in the document itself. So if you admit authenticity, you lose.

Here is a little tip for you would-be litigators: if your position is that you know your client is wrong or has violated a contract but that for some technical or equitable reason you want the Judge to turn the law on its head, you are (1) going to lose that case and (2) you will have very little credibility in the next 10 cases you have in front of that Judge.

Here is another tip: if your position is that you know the facts don’t look good the way the other side has presented it, but that you object to everything opposing counsel has proffered and you object to the authenticity of the copies AND the originals based upon advice of experts who have examined the available evidence, then your Judge will know that this is going to be a fight AND the next ten times you appear in front of that Judge, the Judge will be listening for issues that could result in being overturned on appeal.

Specifically, here are some SAMPLE objections you can raise at the trial level, so you don’t sound like an idiot when you go in front of an appellate panel:

  1. Objection: Counsel has represented facts that are not in evidence. If Counsel is testifying, I would like to voir dire counsel to determine whether counsel is a material witness, whether counsel is a competent witness with personal knowledge and whether counsel is attempting to proffer argument in lieu of inadmissible hearsay.
  2. Objection: Counsel has stated that he/she represents Wells Fargo when in fact the homeowner received a letter from another law firm and another lawyer stating that they represented the real party in interest. If that other letter was referring to Wells Fargo, then we have two lawyers who each claim to represent Wells Fargo, in which case, I am demanding that counsel provide proof of authority to represent Wells Fargo naming he/she and the law firm. If the party referred to in the prior correspondence is not Wells Fargo, then we obviously have two different financial institutions who are competitors in the open market, each making a claim to enforce a note and mortgage, each of which documents is subject to numerous objections as to authenticity and admissibility as evidence. The only thing we know is that they both want to buy this home without offering any money to anyone by submitting a credit bid.
  3. Objection: Counsel is attempting to refer to an exhibit to pleadings that have not been admitted into evidence. We object to those copies being used and we will object to the use of any purported original until we can examine and determine the authenticity of the so-called original, since there are now numerous cases on record involving these same parties wherein the documents offered as originals were in fact mechanically produced, fabricated and forged. WE DO NOT ADMIT THE AUTHENTICITY OF THE NOTE, MORTGAGE, ASSIGNMENT, INDORSEMENT OR ANY OTHER DOCUMENT THEY HAVE OFFERED. QUITE THE CONTRARY, WE BELIEVE THEY ARE FAKE AND THAT LIKE ANY OTHER CASE THEY SHOULD BE REQUIRED TO PLEAD AND PROVE THEIR CASE.
  4. Objection: Counsel is arguing for a presumption in favor of his alleged client in lieu of presenting evidence that can be tested on the merits. Counsel is also arguing and attempting to raise the presumption in favor of his client that in a judicial forum the burden of proof is on the party with the least information. First they stonewall us despite Federal law that requires them to answer and then they say we lack specificity. They can’t have it both ways.
  5. Objection: We are the defending party (same statement in both judicial and non-judicial state). They want to sell real property without the requirement of proof that would be admissible in a judicial forum — a forum in which they would lose every time and in which, when pushed they always dismiss the day of trial. They are the party seeking affirmative relief — they want a home that currently belongs to my client and they want to be able to take it without paying for it by submitting a credit bid as though they were the creditor. So they are not only asking the court to allow the foreclosure to go forward, they also will use your order as proof of a judicial finding that they are in fact the creditor and can submit a credit bid at auction without using any money whatsoever. And they want you to do all this for them because their client has the word “bank” in it — and that should be enough with no pleadings or proof from the party seeking affirmative relief — namely his client who wants to sell my client’s property without a hearing and buy it without any money.

Now it is your turn counselors — add to this list and I’ll publish it…

29 Responses

  1. HI, does anyone know of an attorney who can file an objection to a proof of claim.. the whole claim is fraud and forgery. I have all the documents as proof. Everything from the deed, to the note, and to the notary is all fraud. So is the claim…. thank you…email if you do.. nanaz_01@comcast.net

  2. Hello Neil,

    Are you still doing loan level accounting reports for homeowners?

  3. I had k & W and they dropped me due to work overload and left me hanging, so I am not a fan

  4. Mario: Congratulations! You were one of the first to personally respond and answer my questions two years ago… I am so happy for you. Thanks for reporting back to encourage the rest of us. Keep on keeping on, dude!

  5. If writes a QWR to a servicer and that servicer does not respond in the 15 day time period,

    why can’t one sue them for mail fraud?

  6. cubed2k, MN state ct. Absolutely verbatum from the judge. I can understand why you wouldn’t believe it. I found it hard too. The pro se was a friend of mine. Believe me it took/takes place. The judge obviously had a cozy going with the mill attorney.

    In MN, the judges are in bed with the largest lobby/law firm in the state. This firm, M&K, is a nationwide scum-sucking debt collection firm centered in MN that has defeated many an AG over their slimy practices i.e. having people arrested for unpaid credit card debts, garnishing when proof of waivers have been sent, etc. Deep pockets these guys. Although they recently lost a million to a NE AG.

    This firm, besides being the largest lobby registered in the state, is the private counsel for the MN judges guild, yes, they have a union. So this might just explain why the last AG filed a huge law suit against M&K and lost.

    The AG blasted the judge afterwards when they overheard the judge telling the M&K crew after a court proceeding how much he thought it would cost them to fight the suit, and whether or not they would be successful.

    No shill here. Remember, MN leads the nation in bending over for Mers, as well as having the dubious honor of passing a Mers statute making it legal from a legislative angle to assign, foreclose, and steal in Mers name. I think the cold and snow has screwed with too many heads up this way. It’s a lost cause.

  7. Frankielee, if you do not respond to my post you are indeed a shill. It’s common practice in auctions.

  8. There have been many dismissals in Florida, all the lawyers talk about this all the time now, they are thinking of getting the Plaintiff to pay the fees and other costs, in Florida. The Plaintiff is already paying the fees when they lose or give up. It is actually working.

    The mills are tired, afraid and understaffed; some young lawyers do not want to work for the mills.
    I saw a Pro Se beat up a mill lawyer today, and she was in her 70`s, the mills lawyer was as mad as hell, but the judge, followed the law and did the right thing.

    The homeowner must have a lawyer, the lawyers understand how to move the system and they understand the law, the lawyers have to do better as well, some of them still do not get it and others have an attitude problem, us litigants have been pounding away at the system for years and the system is getting soft, its fluid now folks, very fluid.

    My lawyer has the key, he knows how to run the foreclosure defense firm with success, I have seen this. He has the cohones to fight the Plaintiff, and he also understands the claims we have been learning about all these years. To get all the ducks in one row is really hard.

    These cases have to be fought fast and hard, bringing whatever you have to the court, the fight is more than worth it. Everyone needs to fight the banksters and fight them hard, pay a lawyer, and help the lawyer, and learn what rights you have and how to defend them, never give up, the ball is rolling now, this I believe, now is the time to fight, we have begun to route the bankster from the grip the banksters have on our lives. Thank you Neil for your dedication and years of help to the foreclosure fighters, this blog has proven an indispensible part of our lives, in this particular respect and for this I am also very grateful.

  9. Franklie,

    I think you are FOS. I think you are on the other side. Prove your CASE. What court did you sit in, what are your specifics?

  10. Mario, CONGRATULATIONS! You were one of the first.

  11. ANONYMOUS,
    THANKS, I also wish to thank Neil, he started me off and I owe him a great thanks.

  12. Congrats from me too – Mario!!

  13. ConGRATS MARIO!!!!!!!!! You make US proud.

  14. “The banks attorney (MILL) most likely watches this blog.”

    Really?!.. ah GOOD
    HEY… you…The banks attorney (MILL) . How about dinner? I would like to bye you a stake,a dash of garlic ,sprinkle of holy water & drive it thru your chest & cold lifeless heart. ; ]
    have a niiiiice day… u f-wordin vampire ; ] !

    sorry i lost my composure, i’m better now

  15. Mario Kenney I am extremely happy for you.

  16. Woman Facing Foreclosure Eviction takes her sons life and then commits suicide in Ontario, California.

    http://latimesblogs.latimes.com/lanow/2011/02/mother-bludgeons-son-hammer.html

  17. IAN ,,

    AFAIK the yellow dots simply identify the manufacturer and the s/n of the printer ,,, it is not a mandatory requirement that they are produced,, some color lasers do and some don’t … The dots cannot be decoded outside of the FBI/Treasury ,, the codes were originally an anti-counterfeiting device and are undisclosed ,, HOWEVER you can easily tell in a side by side comparison if the pages of a note for instance all came off of the same printer ,, or if the signature page came off another one … if the note (or any doc) was scanned and then reprinted on a color laser you would have conflicting info with multiple manufacturers and s/n’s encoded …

    Because of the greatly increased cost of a color laser you never have an original printed on one ,, always a mono laser… the color laser is needed to reproduce blue ink signatures from a scanned image… and that is why Wells Fargo instructed all the closing agents to only allow black ink….

  18. Mario Kenny- good news on your long battle. I have followed alot of your posts for about 2 years. Could you further explain how the yellow dots on copies are analyzed or decoded and what to do with the results? I was never quite clear on that. thanks

  19. HKCON,

    yep call Brian Korte 561 228 6200 tell him I sent you

  20. Mario!!!!!!!!!!!!!!!!!!!!!!!!!!! Great news I have followed your posts for a long time I am so happy for you way to go and I take it your are saying call Mr. Korte????

  21. The banks attorney (MILL) most likely watches this blog.

  22. DEUTSCHE BANK vs Mario Kenny a miami Florida Case.

    The case went on for 4 yrs, second lawyer on the case was Brian Korte esq. the case was dismissed today, the Judge dismissed the case, I am not in foreclosure any more now, they can come back but they will not.

  23. I was in court a while back when the bank’s attorney said,” Your honor, this is a classic case of produce the note….”

    “I object!” said the pro se.

    “Would you mind!” yelled the judge to the pro se.

    “As I was saying your honor, this is a classic case of produce the note, when in reality, the facts of the case are that the homeowner is in serious default, and….”

    “I object! Your honor, this is not about….”

    “Jesus Christ, would you shut up with that objection crap!” screamed the judge.

    I came close to yelling my own objection from the back of the courtroom.

    How does one confront an unruly judge, without getting tossed onto the courtroom steps?

  24. GREAT ADVISE!! THANKS NEIL

  25. Mary, not sure where you are. But they are suppose to respond within a certain time frame, if they don’t you send a meet and confer letter, call them. If they still don’t file a Motion to Compel. Two years..they are not answering. Check out the Federal Rules of Procedure, along with your state laws on discovery. Rule 37(c) is a good one.

  26. For 2 years I have not received the answers to admissions or interrogatories. Very Vague if answered and documents requested never produced.

    Ordered to answer in 09. Still nothing, They skate around it with BS answers and no information.

    I just sent a letter to Attorney, as a final courtesy to comply, so we will see what happens, if not I will schedule a hearing.

  27. Very good information for my arguments ahead. I thank you for this it helps in ways I don’t have words for now.

  28. OK Folks,

    Neil does a lot of emoting on this blog. I’m frequently pulling my hair out over it. But this post is the REAL DEAL. This is dynamite material. I don’t imaging many bank attorneys see these kinds of objections.

    Way to go, Neil! Thanx.

  29. Great arguments!

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