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Start with the Federal Rules of Evidence. This is an act of congress signed into law by the President of the United States. You can’t get much higher than that for authority. At issue in this article are Rule 901 and 902. Judge Charles G Case issued his own local rules regarding motions to lift stay. These rules are revealing not only because they say, in part, what borrowers want to hear, but because they  contain a warning for both Borrowers and the pretender lenders.

The essence of what Judge Case is saying is that we have rules of evidence — follow them. And the next person who tries to use a buzz word without knowing what they are talking about will receive sanctions. In all probability that next person will be a pro se litigant and they may be fined literally out of court.

Judge Case’ “New Rules” say as follows, citing In Re VEAL: “A party seeking stay relief in order to enforce a secured obligation against real property has the burden of making a colorable showing that it has standing to enforce the note and deed of trust or mortgage. To meet this burden, Movant must provide evidence, in the form of assignments, endorsements or otherwise, demonstrating that it is a person entitled to enforce the note under the Uniform Commercial Code as well as a complete chain of title of the beneficial interest under the deed of trust or mortgage. Such evidence shall either be self authenticated under FRE 902 or accompanied by a declaration of a person with knowledge authenticating each document in a form sufficient under FRE 901. If the Movant is proceeding as a servicer or agent, evidence of the servicing or agency agreement must be provided, authenticated as indicated above. Absent such a showing, a hearing on the motion may be vacated and sanctions may be imposed.”

So the good news is that pretender lenders will be sanctioned if they attempt, without proper grounds, to come into court and state that they are entitled to a relief from the automatic stay order that issues in every bankruptcy proceeding. And Judge Case is very specific as to what is proper and what is not, so we can expect some orders levying sanctions against the pretender lenders as they try to get past Judge Case with their usual arguments of spin. It remains to be seen how strictly Judge Case will adhere to his own rules. But if he is trying to penetrate the fog of securitization, and if he really wants to know whether the party seeking to lift stay was the lender or actually acquired the loan, then the Banks are in for tough going at higher and higher levels.

On the other hand, a challenge to standing will not stand on its own. Just saying it doesn’t make it so and Judge Case is making it clear that he ie quite tired of hearing accusations without the foundation of fact and law required to challenge standing. “Any objection to standing must be made with particularity. If an objection to standing is made without an adequate basis in law or fact, the party making the objection may be subject to sanctions.” It appears that Judge Case is saying that he is going to enforce the rulers of evidence and pleading, very strictly against anyone who comes to court and presents either a claim or a defense. If you want to challenge standing, it must be either apparent from the face of the pretender’s own documents and pleadings, or backed up by information that is actually offered into evidence and which therefore is admissible evidence.

I don’t agree with Judge Case in that he continues to place the burden on the borrower to establish the case for the opposition and then establish a defense. It puts the burden on the borrower to come up with information that is admissible evidence when it is the borrower who has the least amount of information and the party with the least access to that information. In any other setting Judge Case would require any party seeking affirmative relief to satisfy its burden of pleading and proving a prima facie case in support of the relief requested. Somehow, borrowers still remain different.

17 Responses

  1. I’m private. A pretender pulled me into the public. It’s not my job to learn law to protect my house from an illegal theft and it’s not in my interest to pay for an attorney to represent me in a fight I should not have.

    If I give you enough documents that are certified and filed in the county and I give you an answer that tells you the ‘facts’ of the situation and shows you where all the defects and violations of law and code are, then it doesn’t make sense that I need to speak and enter into a verbal contract to get you to read what has been deposited as evidence. It doesn’t make sense that One who is peaceful has to enter into an argument that for an unjust cause against them.

    That entire system is fraud. Judge, lawyers, the whole shebang.
    To think that we can be pulled into a foreign world and speak their language to defend a basic right is just ludicrous.

    That’s why judges get their own judgment.
    They sit there as a God and decide whether the ‘Creator within’ gets to keep the fruits of the labor of life? To expect the Creator to re-venue from divine jurisdiction to their venue so they can judge the outcome of fraud?

    No…and Heck no.

    I can see the outcome and when it’s all said and done. I will get my inheritance and they can go to Hades or something like it.

    Light and Love,
    Trespass Unwanted, corporeal, life, in jure proprio, jure divino

  2. If there is an escrow account and there are advances for taxes and ins, who advances the money and does the entity which advances the money become a creditor and have standing to foreclose?



  4. then it would be an objection to claim if they file one. if it starts to get close to discharge date without them filing a claim, then you’ll have to file the adversary yourself to force the issue.

  5. it would be bk court.

  6. @carie – in what court are you trying to plead it and in what context? these things would be an objection to a claim in BK court. they may comprise quiet title in other courts.

  7. The PSA must be followed to the t—how do you “plead” that?

  8. see re. brian davies—no creditor/mortgagee can be identified.

  9. but the “complete chain of title” is a forged fraudulent farce…
    What about the ledger—the money trail—hello?

  10. @carie – in what court are you trying to plead it and in what context?

  11. @carie – the crazy rage isn’t helping you or anyone else. the person filing the motion for relief has to provide a complete chain of title demonstrating that they have the right to enforce. if they can’t then they lose under these rules. if they do, then the burden shifts to the party defending the motion. that’s how everything has always worked despite Neil’s little editorial bias there at the end of the article. once the moving party establishes a prima facie case, the burden shifts to the non-moving party. that’s life…that’s law. really if you slow down a little and think about it, the judge is asking the movant to do exactly what you want them to do, isn’t he…what’s the problem?

  12. tn—how do I “plead” PROOF OF LEDGER—or something to that effect???

  13. Make the foreclosure victims prove it—not the corrupt attorneys/pretender lenders replete with fake/forged documents. That’s a good one. The party least knowledgeable and without any money for defense—is one that must come up with the proof. And the greedy bastard A**holes KNEW this would happen…and they KNEW they could pull the wool over the judges…and they keep on kicking out defenseless, ignorant, “unknowing” homeowners…blatantly stealing houses and destroying lives. What an effing racket…I want to throw up all over them—then make them wallow in crap in solitary confinement for the rest of their human existence…and then have God deal with them after they pass…

    “If the actual party does not come forward claiming that the debt is owed to them, and the actual party cannot prove how they came to own the collection rights—borrower does not owe the debt to anyone.”

    ANONYMOUS, on September 19, 2011 at 6:20 am said:

    You are correct -with any debt collection — if the creditor is not identified (original to current) — you do not owe the debt to anyone. . Cannot pay anyone you do not owe. Cannot not emphasize enough — if wrong party is identified– you are never credited for paying — money just goes into a “Rabbit Hole.” And, with subprime refinanceand jumbo new purchases— these were just mods of already classified (default) debt — thus, not Notes at all— unsecured. In fact, with any charge-off — unsecured debt.
    Reading testimony from former default service processor in NJ — in Re Mortgage Foreclosures (March testimony) — as soon as “loan” goes into default — the servicer outsources to a default servicer. Thus, no servicer can even testify to information — hearsay — and, default servicer testimony is also hearsay — because where did they get info from? Do you really think default servicer advanced any payments?? NO.
    The most you get from any debt collection is who THEY think is the original creditor — (not necessarily the original creditor – as you state) — but, you will get no where near as to identify of the current creditor. Fannie does not operate as a trustee — Fannie may have been an “investor” — but questionable — as to current creditor. Although Fannie/Freddie may currently be having trouble disposing of charge-off collection rights — due to volume and market crisis — F/F easily did so in past.”

    “…did servicer advance payments or not? Only ledgers will tell — and both servicers and securities trustees MUST have those ledgers. Because if they did not advance as required by PSA — then the “security investor” argument as creditor is immediately quashed — even without application of TILA Amendment as to defined Creditor.”

  14. How would you argue before Judge Case regarding lack of standing when the pretender lender has stonewalled the borrower and refused repeatedly to provide info requested under multiple QWRs? Could you argue that standing MAY be an issue but that absent the banks compliance with federal law, the borrower is hindered in presenting his case. Could you not ask the judge to COMPEL the bank to comply with the QWR and or discovery?

  15. frankly it’s a step in the right direction for both sides. another step to keep the banks in line and it polices the borrower side a little more as well. if you are actually able to assert defenses based on fraud or standing, but 25 people have gone before you trying the same and screwed it completely in the process, it just a fact of life that the judge isn’t going to listen to you 100%. too much noise drowns out the good arguments.

  16. There you go! This is exactly what I have been trumpetting for several weeks: judges don’t accept generalities and what I refer to as “sweeping statements”, especially without specifics relevant to the case at hand. Inother words, hollering fraud, empty trusts, securitization or the lack thereof without serious documentation to back it up ain’t gona cut it in court.

    The thing is, it opens the door for much more intense scrutiny of lenders’ docs as well. I’m telling you: I see progress…

  17. Neil, it seems that if the movant has satisfied the Judge’s new rules regarding pleading standing and chain of title, they have established a prima facie case for relief. The burden would naturally shift to the borrower then. Your dissatisfaction with the burden on the borrower would seem misplaced if they have established their case per the rules. It seems the the judge is trying to discourage the pro se defenses that lack proof, and that’s not a bad thing. You can’t just mumble “standing”, “fraud”, “robosigning”, and the like without proof of same.

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