GLARUM CASE: COURTS NOW WANT EVIDENCE — NOT REPRESENTATIONS OF COUNSEL

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If you want to save your home, you’ve got to get a good lawyer who knows how to take a deposition—no exceptions.”

COMPETENT EVIDENCE REQUIRED — FOR BOTH SIDES

EDITOR’S NOTE: Be careful before you celebrate over this. Yes, it is now more difficult for the banks to lie their way through foreclosure. The word is “difficult” not “impossible.”

They can still lie their way through foreclosure if you don’t know how to challenge or object to affidavits, business records, testimony that is not from a COMPETENT (that has a technical definition) witness, etc. And you must also satisfy the same requirements if YOU want to put evidence in the record and have the Judge hear it. Getting it in the record is not usually half as hard as having the Judge actually consider it — that is a matter of ease of presentation and style.

LAWYERS: I RECOMMEND YOU ALWAYS HAVE A  COPY OF THE FEDERAL AND STATE RULES OF EVIDENCE IN YOUR POSSESSION — ESPECIALLY THE PARTS ON HEARSAY AND COMPETENCY OF WITNESS. I ALSO STRONGLY RECOMMEND THAT YOU CARRY WITH YOU TRIAL OBJECTIONS 2D BY MARK A DOMBROFF.

http://floridaforeclosurefraud.com/2011/09/oh-no-we-have-to-actually-prove-our-cases-bank-lawyers-respond-to-the-glarum-case/

Oh, no, we have to actually prove our cases!” Bank lawyers respond to the Glarum case
by Mike Wasylik Esq. on September 16, 2011

Glarum has the banks running scared.
The biggest challenge banks face in today’s foreclosure crisis is that they still haven’t come to grips with the need to tell the truth when they testify. The recent case of Glarum v. LaSalle [PDF] http://floridaforeclosurefraud.com/wp-content/uploads/2011/09/4D10-1372.op_.pdf has put even more pressure on the banks to tell the truth in foreclosure court, and now the banks and their lawyers are in a blind panic.

Banks have to provide admissible evidence in foreclosure cases

In the Glarum case, the trial judge had granted a summary judgment in favor of the bank, and ordered the Glarum home to be sold at auction. In support of its motion for that summary judgment, the bank offered the sworn affidavit of Ralph Orsini, who swore that the Glarums had defaulted on their loan and that they owed the bank a particular amount of money. Unfortunately, Orsini didn’t know these things were true, so he relied on the computer database to tell him these things. And according to the appellate court, that’s where the problem began:

Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. He relied on data supplied by Litton Loan Servicing, with whose procedures he was even less familiar. Orsini could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system. Despite Orsini’s intimate knowledge of how his company’s computer system works, he had no knowledge of how that data was produced, and he was not competent to authenticate that data.

(Emphasis mine.) The appellate court threw out the affidavit, and the resulting judgment, because Orsini’s statements were mere hearsay. They didn’t prove anything.

Applying long-held evidentiary principles to foreclosure cases

Bank lawyers, instead of recognizing this case as reaffirming long-understood principles of basic evidence, have sounded the alarm. Here’s what one “client alert” from Greenberg Traurig had to say:
http://www.gtlaw.com/NewsEvents/Publications/Alerts?find=152634

The Fourth District Court of Appeals has sent a strong statement that more generic affidavits currently utilized in some cases will no longer be sufficient where they do not include specific and detailed factual information regarding the compilation of the loan and payment data into a computer system. In doing so, the appellate court may have achieved the unintended result of dramatically changing the foreclosure landscape in Florida.

Again, emphasis mine. Changing the landscape? Hardly. Here are some of the things that Greenberg Traurig recommends banks will need to do in future foreclosure cases:

  • The affiant should be familiar with and have a specific understanding as to how the records are kept by the company and about the company’s recordkeeping practices in general.
  • The affidavit may need to include factual information establishing that the records relied upon were kept in the ordinary course of the company’s regularly conducted business activity, with specific reference to each record that is relied upon.
  • …the affidavit may need to contain language addressing the procedures that the company takes to ensure that the information input into its computer system is accurate.
  • …the information included in the affidavit will need to be sufficient to show that the records were made by or from information transmitted by a person with knowledge.
  • The courts may even require the affidavit to provide information regarding the procedures used by the prior loan servicer to ensure that the information is kept within the normal course of its business…
  • Particular care should be given to who the company selects as the affiant…

None of this is revolutionary, or even surprising, to anyone who’s ever litigated a commercial case before—it’s “Business Records 101.” Business records are never admissible, because they are hearsay, unless you do all those things. Why? Because business records are hearsay, so you have to lay the groundwork to get them admitted.

Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence
may be admitted into evidence as business records if the proponent of
the evidence demonstrates the following through a record’s custodian:

(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person
with knowledge; (3) was kept in the ordinary course of a
regularly conducted business activity; and (4) that it was a
regular practice of that business to make such a record.

That’s always been the law in every case, and the Glarum court has now ruled that the same law that applies to everyone else now applies to banks, too. And that’s just fair.

If you want to save your home, you’ve got to take depositions.
What lessons can be learned from Glarum? first, that banks are terrified of having their affiants’ depositions taken, and will fight even harder to prevent that from happening. They are terrified of what “borrower’s counsel” like us can do when we have the opportunity to ask them questions under oath. And when we do get the chance to ask those questions, we can blow a foreclosure case right out of the water, just like in Glarum.

Finally, borrowers, homeowners, and other foreclosure defendants should know this: taking depositions in your foreclosure case is a critical step in protecting your home—one that our law firm has long viewed as essential in almost every foreclosure case. And it’s a step that almost no foreclosure defendant is competent to handle on their own. If you want to save your home, you’ve got to get a good lawyer who knows how to take a deposition—no exceptions.

21 Responses

  1. […] Like this: Like Be the first to like this post. Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | 926 N.Y.S.2d 532 (2d Dep’t 2011), assignment, bank of new york, Bank of New York v. Silverberg, bankruptcy, borrower, CHADBOURNE & PARKE LLP,CONSOLIDATION AGREEMENT, countrywide, disclosure, foreclosure, foreclosure defense,foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, MERS, modification, Obligation,quiet title, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND « GLARUM CASE: COURTS NOW WANT EVIDENCE — NOT REPRESENTATIONS OF COUNSEL […]

  2. Nora,

    No offense, but you and I have the same name on this blog. I was reading the posts and so my name but I knew I did not write it, LOL; nice name.

  3. Lasalle v. Glarum- Team Ice- The Insider’s Briefs Submitted to The Appellate Court!
    http://mattweidnerlaw.com/blog/2011/09/lasalle-v-glarum-team-ice-the-insiders-briefs-submitted-to-the-appellate-court/
    September 19th, 2011 | Author: Matthew D. Weidner, Esq.
    There is a very real and a very profound battle raging across this country. Actually there are many wars and they are not just limited to this country. All around the world in fact, real people are rising up against the overreaching and the abuses of the banks and the power systems that have destroyed our economy, enslaved people and laid waste to our naive notions of due process and justice.

    One of the battlefronts in this country are foreclosure courtrooms where dedicated advocates stand up for consumers and fight against the banks and all the power and influence they bring to bear. Every battle is an epic struggle not unlike David taking on several Goliaths all at once. These advocates fight the banks with their armies of lawyers (paid at $600/hour with taxpayer funded bailout money.) and they often fight an entire system predisposed to strike anyone who dares to challenge the awesome power bent on crushing any resistance that dares to stand in the way.

    Without a doubt some of the true superheros in this battle are the warriors at Ice Legal in Palm Beach, Florida. The national news has repeated sung their praises, but I daresay not many have actually read the work that lies at the heart of the battle. But today, you can have an insider’s look.

    Now, the Glarum case should not have been all that extraordinary. As a good local judge reminded me recently, “That’s always been the law in this state!” But the banks have responded as if the Glarum opinion will mean THE END OF THE WORLD AS WE KNOW IT! The banks have already begun an all out, full stops campaign to attack this decision…and I’m guessing they will bring every single power they can to bear in an effort to attack this plain and clear restatement of the existing law.

    I encourage you to read each brief carefully, but before you get there, have a read of a few of my favorite highlights:

    In short, appellants argue that it may look like a duck, and quack like a duck, but the court would need a zoologist to testify that it is in fact a duck before it could make that finding.

    To adapt the BANK‟s own metaphor: the bare, unsworn statement of its attorney that something looks like a duck and quacks like
    a duck is not evidence of a duck.

    In Florida, all averments to fraud must be pled with particularity. Rule 1.120(b), Fla.R.Civ.P. (2009). In this case the Appellants amended their answer twice (R.VoI.Three pp.566-567) and never alleged fraud as an affirmative defense. See Supp.R.pp.553-555. They have, however, thrown it around the court room quite a bit.

    Section 90.902(8), Florida Statutes (2009), provides that “[ c ]ommercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code” are self-authenticating. While the Assignment is not commercial paper it is related to the Note and is self authenticating pursuant to 90.902(8). HUH?

    The BANK takes the sanctionably irresponsible position that the trial court‟s “factual determinations” in entering summary judgment are to be reviewed for “an abuse of discretion.”1 It is elementary that, if the trial court made factual determinations, it erred in entering summary judgment. Coquina Ridge Properties v. E. W. Co., 255 So. 2d 279, 280 (Fla. 4th DCA 1971) (Summary judgment
    reversed because “[t]he trial court may not try or determine factual issues in [summary judgment] proceedings; … substitute itself for the trier of fact and determine controverted issues of fact.”) Not surprisingly, all the cases cited by the BANK for this standard of review
    having nothing to do with summary judgment.

    Worse than merely misstating the standard of review, the BANK actually employed this incorrect standard throughout its brief. One glaring instance is the BANK‟s contention that summary judgment should be affirmed because “there was not enough evidence to allow Judge Sasser to rule in [“the OWNERS‟] favor at the summary judgment hearing.” Another example is its statement that “[i]t cannot seriously be argued that what the Appellants have identified as evidence…was enough to allow Judge Sasser to make a finding in their favor.” While the BANK‟s stunningly frivolous assertion regarding the summary judgment standard of review would never have misled this Court, it is nevertheless emphasized here because it is indicative of the BANK‟s lack of concern for accuracy and candor when addressing both this Court and the court below.

    Correction to the BANK’s Statement of Facts: The BANK tells this Court that the promissory note, mortgage and assignment were “all…duly recorded in the public records.” There is nothing in the record to suggest that the promissory note was ever recorded.

    As often occurs when a proffered assignment of mortgage encounters evidentiary snags, the BANK now claims that it “does not need the Assignment to prevail in this case.”

    Having failed to adduce evidence to support its allegations of standing, the BANK cannot now change to a different allegation of
    standing during the appeal.

    The BANK ridicules the OWNERS insistence that the original mortgage be authenticated as “bizarre” because “if it is not the document they executed, they should feel free to say so.” Quoting the trial court judge during an evidentiary hearing, the BANK suggests that the OWNERS should know if the BANK‟s documents are authentic, simply by looking to see if its terms match the copy they received at closing.

    Glarum+Initial+Brief+FINAL
    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Initial+Brief+FINAL.pdf

    Glarum+Appeal_Answer+Brief
    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Appeal_Answer+Brief.pdf

    Glarum+Reply+Brief
    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Reply+Brief.pdf

    glarumopinion
    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/glarumopinion.pdf

  4. @luana – it sounds like your house wasn’t sold at auction at all though if the loan docs on which they rely had been paid off. or at least that should be your argument in defense of eviction

  5. This book is only $29 , cheaper in ebay. It is written by a lawyer. It helps both those who represent themselves in Court or represented by lawyer to understand the legal process.
    http://www.nolo.com/products/represent-yourself-in-court-RYC.html

  6. Believe me I can feel your pain! My house was sold at auction 9/14. Not only am I dealing the robosigner Codilis, but I also have Judge Rubberstamp too!

    A few nights ago I was reading Bible passages and I came across God explaining that before something happens God already has the answer.

    USB is foreclosing on loan “A”, which is secured by note/deed and assignment recorded in county records. However, I have closing documents (signed and dated by USB) that loan “A” was refinanced 6 months later for a lower interest rate and paid off loan “A” . Now loan “B” is the correct loan. However, as I see it USB never recorded loan “B” to a note or deed and therefore there is really nothing securing the loan. I’ve had the closing documents for loan “B” all the time but I didn’t put two and two together until 2 days ago.

    But being in the same boat as you I feel like I’m the tree in the forest that falls but no one can hear! Have faith in God, pray and ask for his help. If nothing else it does help to relieve some of the stress.

  7. i don’t understand that sentiment carie. if you’re not making the mortgage payments, why isn’t there money for an attorney?

  8. “He could not state if the records were made in the regular course of business”

    This is a foundation question that every accounts manager is supposed to be able to attest. The mere fact that an accounts manager could not simply state the seemingly obvious is indicative that he either really knew nothing about the job activity—-filling in for somebody else and therefore “not competent” to testify as to the “business records” exception to the hearsay rule or as seems to be implied, the particular records in question were generated specifically for the case in a one-time special instance and the witness knew it. It suggests an intentional fraud was occurring and the witness was aware of it and was afraid of committing perjury.

    truly the facts and disposition suggest that this witness should be testifying before a grand jury as to why he could not attest that these were legitimate business records–if not then what were they?

  9. That’s what I’m talking about.
    New servicer has data in computer stating you owe it money. Deed of Trust lists a totally different name and there is no assignment. Sometime in the course of the year, someone traded accounts or handed over computer data of open accounts, but they back date payments to the beginning of the year to the new entity.

    True example. National City Mortgage servicing division was handed to PNC Mortgage on 11/2009, but if you got a copy of the account info, PNC’s name is listed starting with the first payment of the year in 2009. But you paid National City so how can PNC claim you were making payments to them when they didn’t even take over until latter 2009, so they say. BUT, per your Deed of Trust, the trust agreement is between you and the party named as the Lender, and without an assignment that doesn’t change, so regardless of what paperwork occurred between National City Mortgage and PNC with the SEC, unless there is an assignment the SEC stuff has ‘nothing’ to do with you…nothing.

    Without that assignment PNC is not on the hook to satisfy the terms of the Deed, which includes ‘if you pay me the amount owed, I’ll give you full title to your property.’ So if PNC can’t provide full title to the property, AND aren’t assigned the right to be the Lender of the Deed of Trust, then they aren’t owed a thing. They have no right nor power to substitute the trustee and many other things.

    It’s about time.

    The part I don’t like. I’m in the private. I step into the public to purchase a home and go back into the private.
    Some CEO of a bank has employees that claim I owe them money and they pull me into the public with notices of sale and claims that I am on their property and need to be evicted, and someone thinks I need to jump into the fray and fight them when I should have the right to say I owe them no money, they lie, this is my home and the judge should make them prove their claim, but no..the judge says something like, I believe them, get off their property, and sends a man with a gun (aka a Sheriff) to make you leave your property.

    That’s the part I don’t like. Now I’m in the public which is a total violation of my right to a peaceful existence.

    When One declares war on the peaceful inhabitants, they should be removed, and if a Judge who acts as a God allows war to be declared and takes side because there is ‘no fight’, they should be removed as well.

    Peaceful inhabitants should always be protected even in a financial war, and especially protected from unconscionable acts and actions while under the “Lieber Code”.

    Trespass Unwanted, corporeal, life, free, jure divino, in jure proprio

  10. […] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, […]

  11. To, Nora; Can you give me some info on navigating the SEC…I have found my PSA & FWP etc…but, it sounds like you have found more.
    can you contact me choctawexpress@aol.com. I have a case & work for a law firm. Not only will this help me but, clients as well. I am the one who looks for the fraud in the docs on a case by case basis.

    I want to be extreamlly knowlegable as to; giving client the best service.
    I keep the Attys up to date on all the latest rulings and usefull decisions.
    Thank you
    “L”

  12. so sorry about the double post—accident!!

  13. Nora—try sending a cease and desist/dispute of debt letter (certified)—siting TILA amendment—ask for proof of conveyance to “trust” and copy of balance sheet showing all payments you made to servicer actually went to an actual mortgage “loan”…DEMAND PROOF OF OWNERSHIP OF ACTUAL LOAN WITH CONVEYANCE OF YOUR PAYMENTS—only collection rights were sold—so they will not be able to come up with this. Tell them you are on to their lies.

  14. Nora—try sending a cease and desist/dispute of debt letter (certified)—siting TILA amendment—ask for proof of conveyance to “trust” and copy of balance sheet showing all payments you made to servicer actually went to an actual mortgage “loan”…DEMAND PROOF OF OWNERSHIP OF ACTUAL LOAN WITH CONVEYANCE OF YOUR PAYMENTS—only collection rights were sold—so they will not be able to come up with this.

  15. yeah. Chase sent me seven photocopies of the Note we signed at closing with WaMu, and claimed the other info I requested was proprietary and would not be furnished. Guess they didn’t realize I knew how to navigate the Edgar database…and here’s the kicker; their copies differed! One had a blank assignment and came from the Colorado office, another had no assignments and came from the FLA office, and three were different sizes with a different number of pages! I had to laugh when their attached letter stated that they felt they had satisfied my request to view the original “wet ink Note” by sending some old photocopies from the loan closing and nothing else. It’s just amazing how dumb they think we are. I have to admit, I was pretty dumb to think they acted in good faith and were a reputable bank!
    I still haven’t found an attorney, and I have six days left to file anything before they demand summary judgement, so I guess I’ll have to go it alone and file a complaint. I’m not letting them steal another house without a fight, even if I lose in court.

  16. Damn guys I won’t have a vid ready until tomorrow but the stills are quite compelling and the Occupy Wall Street movement is a beautiful thing to watch, even if mainstream press gives it lukewarm interest.

    http://mortgagemovies.blogspot.com/2011/09/kingcast-and-mortgage-movies-return-to.html

    A good night to all.

  17. .

    Carie, Before you do a deposition, have you really exhausted other options? (Request for Production, Admissions and Interrogatories).

    You will never get a truthful answer – Neil tells us why. Then move the court to compel proper answers to your discovery! That’s when the fun really starts.

    Ensure that counsel does not testify for the pretender lenders!

    There is a course on how to do this. http://www.jurisdictionary.com/?REFERCODE=GI0001 Disclosure: I know the producer and might get a reward for referring you to him.

    Good luck.

    .

  18. Obama and the Oligarch Warren Buffet are behind this

  19. WE CAN’T AFFORD A “GOOD LAWYER” WHO “KNOWS HOW TO TAKE A DEPOSITION”…because we don’t have any frickin’ jobs because of all this bullsh**.

  20. The banks are terrified of discovery. They do not have a case. They are full of S^&t. They are dragging their feet so they do not have to produce discovery.

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