WEIDNER: SHARP LAWYERING = NO FORECLOSURE CASE

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OBJECTIONS TIMELY MADE TURN THE TIDE

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Editorial Comment: Hat tip to Weidner: The bottom line is that the pretender lender was prevented from introducing evidence of “default” and was further prevented from introducing evidence establishing the pretender’s right to foreclose.

The reason was a series of objections in which the shell game became apparent to the Judge and the Judge refused to play. In the end proffers of counsel for the pretenders are no substitute for the admission of evidence. Facts are different from evidence. Facts may exist, but unless they are accepted into evidence, the court may not consider it. So this Judge entered an order of involuntary dismissal (directed verdict, as the term is sometimes used, usually in a jury trial) and the homeowner won the case.

This is a precise example of why I say that there are no cases in which the facts in dispute are heard all the way through to a verdict. Once it gets to the point where the pretender can no longer fake their way around the judge, the truth is left lying on the floor — that the pretender has no idea whether there is a default, has no idea of the balance due under the mortgage, does not represent any real creditor and seeks to foreclose in its own name merely as the “holder” without ever disclosing any principal (because in most cases there is no principal).

When I say there is no principal I mean one of two things. Either the principal creditor has already received a a settlement and therefore has been been fully satisfied or the principal wants no part of any litigation in which it could be named as a counter-defendant for predatory or deceptive lending practices. Either way, the real creditor is never in the room.

It is at this point that cases go into the mode of what Matt Weidner correctly coined the term “cash register justice.” When it look like they have run out of options they dismiss the case and then hit the investor with a bill that is, like in a case recently reported, 140% of the actual loss. Where does the other 40% come from? Well of course it comes from any place the servicer can get it which is out of the payments received from borrowers whose notes specifically state that their payments should only be booked as payments to reduce their debt, and not for any other purpose.

And need we add that the request for modification would have left the investor with approximately 50% of the loan intact — which means the investor took a bath for 90% while the servicer got paid in full, the banks were always paid in full because they only used investor money to fund mortgages, and of course the banks also got to keep the bailout money, insurance money, and proceeds of credit default swaps and cross collateralization.

With the banks owning the service companies and the trustees and other “foreclosure specialist” companies, the banks get all the money coming in PLUS the house, leaving the investor with net losses far in excess of their initial investment.

Somehow Eric Holder, our Attorney General has arrived at the conclusion that this might not be illegal. Ask the investor how legal this is. Ask this homeowner who now has a clear shot at clear title through a quiet title action, with no mortgage, no note and no obligation.

As an add-on to what this very good lawyer did at “trial” I would say that the lawyer should have conducted a voir dire examination of the witness proffered by the pretender. The witness admitted only 18 months experience with PHH and no experience or knowledge as to the actual trail of payments. He further admitted that he had no direct knowledge as to how or why payments were posted in this case and implied that he had no knowledge as to whether the accounting was complete, which we all know means that the payments the actual unidentified creditor received was never shown nor intended to be shown in a court of law. The best the witness could pretend to know were the business procedures AFTER declaration of default with no knowledge of what happened before that or outside of the relationship between the borrower and the servicer.

The lawyer made his point but almost missed it when he showed that the paper presented did not have the name of PHH anywhere on it and instead had a name that was neither in the pleading nor the exhibits: a mistake often made by lawyers (but not by this one) was that once you get the pleadings and exhibits from the would-be forecloser and the chance to amend has expired, they have no right to introduce evidence contrary to their own allegations and exhibits. This lawyer correctly held the pretender to stay within the four  corners of the complaint and the exhibits attached.

A Foreclosure Trial Transcript, Evidentiary Objections Made and SUSTAINED, Judgment for Defendant!

February 23rd, 2012 | Author:

mortgage-civil-action

I want to share with the class a transcript of a foreclosure trial where defense counsel rattles off the evidentiary objections, many of which were properly sustained by the judge.

Servicers have a very real problem proving their cases over proper and clear evidence objections….they just cannot link up their evidence from one servicer to another without real effort…and in some cases they will not be able to do it.

So this is a roadmap that shows how to do it correctly….bone up folks, work hard.

Fight like every single case represents the very fate and future of the entire American judicial system.

because every case does

PARRISTRANSCRIPT

14 Responses

  1. CHERYL,

    YOUR COMMENT ABOUT THE JUDGES INTERESTING.
    JUDGES ISSUES ORDERS CLEARING TITLE FOR BROKERS OF TITLES OF CORRESPONDENTS REAL ESTATE OWNERS/BENEFICIARIES WHO ARE ALSO THE SUCCESSOR BENEFICIARY! AND ISSUE ORDERS AS REAL ESTATE LAWYERS, SELECTIVELY. DO YOU KNOW HOW AND WHY A JUDGE WOULD NOT COPY THE DEFENDANT ON ORDERS AFTER SHERIFF/TRUSTEE SALE RELATED TO SETTLEMENT FUNDS, AND WHY ANOTHER ORDER THAT DOES NOT COPY DEFENDANT AND CERTAIN PARTY THAT WAS COPIED ON SETTLEMENT FUNDS ISSUED ANOTHER ORDER AND SO ON? WHY IN NEW JERSEY ‘SETTLEMENT DEEDS’ REVEAL SETTLEMENT PERIODS OF TWO YEARS FINANCING! ETC.
    HOW DO YOU KNOW IF THE JUDGE AND ASSOCIATE JUDGES AS REAL ESTATE LAWYERS, HAVE CONFLICT OF INTEREST IN THE SECONDARY MARKETS?

    DO THEY HAVE TO SIGN A CERTIFICATE LIKE THE COURT REPORTER WHO AFFIRMS THERE IS / ARE / HAVE NOT BEEN ANY INCESTOUS RELATOINSHIPS? JUST WONDERING FOR WE HAVE SEEN CLEARLY IN MARYLAND PUBLIC RECORDS INCLUDING CLERKS HAVE LOTS OF REAL ESTATE DOCUMENTS IN THEIR NAMES. IS THIS BECAUSE THE ‘TRUSTEE/SHERIFF SALE’ ORDERED BY JUDGE WHO IS A REAL ESTATE LAWYER WHO IS PURCHASING PROPERTY FOR $100 PENDING ‘SETTLEMENT’

  2. AMY.R. AND NANCY DREWE REVEAL SIGNIFICANT FACTS TO CONSIDER

    LOOK AT TESTIMONY ATTACHED
    PHH MORTGAGE CORP ‘PRIVATE LABEL SERVICER’
    MULTIPLE VENDOR LIENS
    MULTIPLER SUPERIOR TITLES OF BROKERS’ AND CORRESPONDENTS
    CORRESPONDENTS OF SERVICERS….

    TWO ALLONGES

    LOOK BACK AT TRANSACTIONS
    AND YOU WOUL DHAVE MORE QUESTIONS
    SIGNIFICANT QUESTIONS I HAVE BUT WOULD A LEGAL MIND ASK?

    TWO ALLONGES REPRESENT

    1 CLOSED END LOAN SERVICED BY SELECT PORTFOLIO SERVICES FOR $XXX, XXX.XX
    AND
    1 FORECLOSURE LOAN SERVICED BY SELECT PORTFOLIO SERVICES FOR $XXX,XXX.XX

    BOTH CREATED ON SAME DATE
    BOTH FOR SAME AMOUNT!

    IN ADDITION,
    DOES THE WITNESS AND COURT REALIZE THE PAYMENT HISTORY IS ‘GENERATED’ BY INSTRUCTIONS CREATED TO ‘SELECTIVELY DISPLAY DATA’ BACK ON SCREEN UTILIZING A PRE-DEFINED STRUCTURED QUERY ?

    ‘GENERATED’
    ALL COMPUTER DISPLAYS ARE ‘REPORTS’ OF INFORMATION
    FIXED AND VARIABLE.

    ARE THERE 2 DIFFERENT LOAN #’S
    WE KNOW THAT THERE ARE ONE FOR THE REMIC AND ONE FOR THE REAL LOAN BEING SERVICED

  3. MORTGAGE LOAN FLIP TO ‘REMIC’
    MORTGAGE LOAN NOTE SALE AFFIXED TO INSURANCE RIDER ATTACHED, TREATED AS INDIVIDUAL VARIABLE RIDER/NOTE, CORRESPONDENT’S ANNUNITY (SETTLEMENT AGENT BROKER OF TITLE) BENEFICIARY HOLDS ASSIGNMENT WHICH WILL NOT BE RECORDED ‘TAKEN OUT OF IRC 1031 EXCHANGE’ THE DELAYED EXCHANGE’ UNTIL ‘SETTLEMENT’ SHORT-SALE

    PENDING
    PENDING
    PENDING
    PENDING
    PENDING
    EXCHANGE FOR LIKE KIND PROPERTY,
    EARLY PAYOFF OR DEFAULT
    JUDGE ORDERS EXECUTIVE ‘SHERIFF SALE’ IS ‘SETTLEMENT’ IS TREATED AS A SHORTSALE!

    H O W – DOES THE JUDGE – AS REAL ESTATE LAWYER, ORDERS – HOW DOES THE JUDGE KNOW WHICH ORDERS TO ISSUE TO WHO DURING A SHERIFF SALE -?
    ORDERS FOR RELEASE OF FUNDING HELD BY ‘SUCCESSORY BENEFICIARY’ WHO IS ACTING AS BENEFICIARY?
    HOW DO THE JUDGE KNOW? WHO TO COPY AND WHO TO NOT COPY?
    HOW DO THE JUDGE KNOW NOT TO COPY THE DEFENDANT ABOUT THE RELEASE OF A 2-YEAR SETTLEMENT FOR SHORT-SALE?

    WHEN IS AN AUCTION BID ACCEPTED WITH 2-YEAR FINANCING? I’VE SEEN THE ORDERS, I’VE SEEN THE SHERIFF SALE/TRUSTEE SALE ORDERS, DEED, ETC. HAVE YOU?
    ARE YOU LOOKING BACK?

  4. SHERIFF SALE ‘SETTLEMENT’ BETWEEN PARTIES ‘SHORT SALE’ BETWEEN BENEFICIARIES OF TITLE CURRENT AND SUCCESSOR BENEFICIARY

  5. TRUSTEE IS QUALIFIED INTERMEDIARY BROKER OF TITLE WHO WILL FACILIATE THE MORTGAGE LOAN FLIP IN THE DELAYED EXCHANGE – YOU PAY UNTIL (EARLY PAYOFF OR DEFAULT)

  6. REAL ESTATE LAWYERS’ QUALIFIED INTERMEDIARY CLOSES WITH CORRESPONDENT WHO WILL TAKE POSSESSION OF TITLE

    This checklist is intended to provide a brief overview of the steps involved in an IRC §1031 tax deferred exchange.
    Review: Review the entire transaction with tax and/or legal advisors.

    Sale Contract: Enter into an “assignable” contract to sell the relinquished property.

    Execute contract with the exchanger’s name and/or assigns.

    Contact a Qualified Intermediary:
    Before closing, contact a qualified intermediary to initiate the exchange transaction.

    Exchange Set-Up:
    The qualified intermediary will prepare the exchange documents for the relinquished property sale.

    A) The original documents will be forwarded to the closing officer who will coordinate the signatures.
    B) Copies of documents are forwarded to the exchanger.
    Relinquished Property Closes:
    The qualified intermediary is assigned into the transaction as the seller and sale closes.
    A) Pursuant to the assignment agreement and exchange documents, the qualified intermediary instructs the closing officer to directly deed the relinquished property to the buyer.
    B) Exchange proceeds are transferred directly to qualified intermediary via wire transfer.
    Identification Period: Both the 45-day identification period and exchange period begin.
    Although it is the sole responsibility of the exchanger to meet all identification rules, the qualified intermediary will forward confirmation of the exchange proceeds received, the timelines for the 45-day identification period and 180-day (or the date the tax return is due, whichever is earlier) exchange period, the identification requirements and the identification rules.

    Property Identified: Exchanger properly identifies replacement property by midnight of the 45th day.
    A) Specific written identification, signed by the taxpayer, is forwarded to the qualified intermediary.
    B) Written identification can also be made to a party involved in the exchange transaction who is not a disqualified person. See the Treasury Regulations for more details on the identification requirements.
    Purchase Contract: Enter into an “assignable” contract to purchase replacement property.
    Execute contract with the exchanger’s name and/or assigns.
    Contact the Qualified Intermediary: After signing the replacement property contract, contact the Qualified Intermediary.
    Exchange Paperwork Drawn: The Qualified Intermediary will prepare the exchange documents for purchase.
    A) The original documents will be forwarded to the closing officer, who will coordinate the signatures.
    B) Copies of documents are forwarded to the exchanger.
    Replacement Property Closes: The Qualified Intermediary is assigned into the transaction and purchase closes.
    A) Pursuant to the assignment agreement and exchange documents, the qualified intermediary instructs the closing officer to directly deed the replacement property from the seller.
    B) The Qualified Intermediary wires transfers exchange proceeds to the closing officer.
    Completion: If all exchange funds are used to acquire the replacement property or properties and all the exchange requirements are met, the exchange is complete.
    Provided by Stewart’s 1031 Exchange Subsidiary, Asset Preservation.
    For more information, contact:
    Mike Brady, Esq.
    Vice President and Eastern Region Manager, Asset Preservation
    866-394-1031, #504
    mbrady@apiexchange.com
    http://www.apiexchange.com

  7. TO: Jan van Eck – Excellent point! And this is the whole problem, if the judge in a certain state, city are really trying to protect the banks, (and their own investments, if they have any) they will rule against the homeowner. It’s unfortunate that that’s the way it is, but it is.

  8. Ken: A TRO/OSC Injunction is a “mini” trial of the merits of your case and you have to convince the judge that your case contains enough factual allegations (and early evidence…) to support the issuance of a TRO. Your attorney should know this. Basically, your argument has to be that there are serious questions of law and that the foreclosing entity is acting without authority and unlawfully. Good luck.

  9. I have seen similar cases in FL. In the end the bank will appeal but I guess the small victory is that they probably get another 6 months in the house and live on to fight another day.

  10. While this trial was illuminating, I have seen the exact set of events end up with a Plaintiff’s verdict of foreclosure, so be forewarned: in the final analysis, the result is whatever the Judge decides it is going to be. The court room is the last vestige of feudal privilege, “droit du roi” written large.

  11. To Ken: To obtain a TRO, you do have to demonstrate three prongs: imminent loss, irreparable harm, and no other adequate remedy at law.

    Classic case: the dog warden has picked up your dog and refuses to return him because you failed to renew his dog-tag, and has scheduled execution of your dog for tomorrow. Absent a TRO, your pet will be dead. Obviously, that is an irreparable harm. The Loss is also imminent, and you obviously have no other adequate remedy at law; filing a lawsuit and asking for relief in the suit by way of return of the dog will come far too late to stop the madman warden.

    In real estate, it is long established that “all real estate is unique,” so if you are deprived of it, you are deprived of something that is irreplaceable. You cannot replace anything that is unique.

    Structure your TRO in this way and you have a shot.

  12. HERE WE GO GUYS… BIG APPEALS CASE IN TENNESSEE MARCH 6TH. PRAY FOR ATTORNEY ENSIGN AND GET THE WORD OUT. SHOW POSITIVE SUPPORT IF YOU SHOW UP TO ENCOURAGE THE JUDGES TO DO THE RIGHT THING.

    FOR IMMEDIATE RELEASE:

    Contact: Jay Mace
    Law Office of Peter Ensign
    (423) 510-0410
    (423) 510-1395
    Jay.Mace@SaveAmericaHomes.com
    http://www.SaveAmericaHomes.com

    Are Tennessee Homeowners Getting Foreclosed On When They Shouldn’t Be

    Chattanooga, Tennessee, February 23, 2012 — On March 6, 2012 at 9:30 am in a Knoxville Appeals Courtroom, Tennessee homeowners will see how their State Judges feel about them getting the raw end of the stick when it comes to loan modifications from President Obama’s Making Home Affordable Program (HAMP). The banks received hundreds of Billions of dollars from American taxpayers to help homeowners avoid foreclosure and instead they have done little to help homeowners. Congress wrote the two inch thick set of guidelines which left out one small detail, to give American homeowners the right to hold the banks accountable for not following the guidelines.

    Attorney Peter Ensign from Chattanooga has been standing up for homeowners for almost 3 years now, fighting to save their homes from being foreclosed on and thrown out in the street. Mr. Ensign recently won a case in Hamilton County’s Chancery Court. Judge Atherton’s ruling, on behalf of the homeowner, has been appealed by the bank. Atherton denied the banks motion to dismiss the case, stating that homeowners do have a right of action against the banks who received the money from taxpayers to help homeowners.

    Mr. Ensign has another victory being appealed in Georgia that when Judge Blackmon’s ruling was announced it immediately went viral on the Internet. Judge Blackmon adamantly stated “Sometimes, only the courts of law stand to protect the taxpayer. Somewhere, someone has to stand up. Well, sometimes is now, and the place is the Great State of Georgia. The bank’s motion to dismiss is hereby denied”.

    Homeowners have found themselves up against the banks unfair practices including telling homeowners they must be 90 days late before they can submit a loan modification request, or the banks didn’t receive the documents, so please send again and again and again. Banks are also saying they won’t foreclose on homeowners while the account is in review, but doing so, or banks say you don’t qualify for a loan modification but you qualify for a forbearance, which is more money than the original mortgage payment.

    “With all the settlements coming out about the banks scamming our military, forging documents to foreclose and, most recently, Citimortgage frauding Fannie Mae guidelines, how can we trust the banks at all? Homeowners & taxpayers are one in the same, with both being intentionally deceived by the big banks for more than 13 trillion dollars of devaluation to the American economy, so homeowners should have a right to fight back”, says Kathy Williamson, one of Mr. Ensign’s clients.

    Mr. Ensign is inviting homeowners, families and anyone concerned to join him in Knoxville on March 6, 2012 at 9:30 at the Tennessee Court of Appeals in Knoxville, 505 W. Main St. Knoxville, Tn 37902. If you would like to join the fight and ride to Knoxville on a chartered bus, please call 423-800-0385. Seats are $20 and will be leaving at 6am from the office at 6139 Preservation Drive, Chattanooga, Tn 37416. Please RSVP to secure your seats now.
    # # #

  13. “…because they only used investor money to fund mortgages,…”

    There he goes again…:(

  14. How can my attorney be successful getting Judge to approve his second try at getting a tro?

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