Objections and Preserving Your Rights on Appeal: From, Whose Lien Is It Anyway? by Neil F Garfield

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Editor’s Comment:

Foreclosure cases are won or lost on procedure more than on the merits of the case offered by either side. Lawyer and especially pro se litigants tend to use the right of appeal, as though it was a vehicle for entertaining evidence, objections or motions that should have been made. These make up a large percentage of the 85% of cases that are affirmed on appeal.[1]

The appellate court rarely has even the power to consider affidavits or other evidence that was not proffered and which does not show up on the record on appeal sent by the clerk of the court on the “trial” level. The appellate court is limited to what DID happen and not what SHOULD have happened. If the matter was properly raised in the lower court, then the matter may be considered by the appellate court. If not, then they must simply state that the grounds for appeal were not properly preserved for appeal and affirm the decision of the lower court Judge.

In foreclosure cases, most of the objections that should be made are known in advance and quite probably should be brought or offered as a motion in limine before the actual hearing, so that the complete focus of the court is on the issue that  would be presented by opposing counsel  and the objections raised by the borrower homeowner. In those cases, where the objections are known in advance, you should not only state that you have an objection, but the state the reasons for your objection and include a memorandum of law on the point, complete with copies of the most relevant cases.

Most of the errors that I see on the trial court level amounts to denial of due process in that the Court refuses to hear the merits or to allow the parties to conduct discovery. If that is the case in your case, you should mention it even though it is “fundamental error” that the appellate court could hear even without raising the objection contemporaneously with the subject of your objection.

This assures (along with the transcription from a court reporter) that everything about that objection was stated, presented and denied, if such is the case. It might also alert the Judge that you are ready to make such an appeal. If the objection is procedural relating to whether a proper foundation has been laid for the introduction of evidence, or whether the Court is accepting the proffer of counsel without any evidence in the record to support it, then you must make that point clearly and with support from citations in your own state. If the court refuses to hear the objections in limine then you still have the matters raised as part of the court record but you must raise the objection in the hearing or you might well have waived them unless your main point (ill advised) is that the court abused its discretion in denying the motion in limine without hearing it on the merits.

In every case I have seen reversed on appeal, there was something in the record that contradicted or nothing in the record that supported the position taken on appeal.

There are no magic words or bullets on objections. What is necessary is that you state it, without rambling on tangent subjects, with sufficient specificity so that the appellate court will understand in a flash what your objection related to, and what grounds and what law upon which you were relying. Do not combine objections. If you have more than one then state that you have 2 or more objections and proceed with the first.

The mistake I see in appeals and trial proceedings is that the attorney for the homeowner borrower remains silent while opposing counsel states facts that are not in the record (because there has not been an adversary proceeding and that you deny those facts, as they are in issue between the two sides). In many cases the Judge takes silence as a concession that the facts are true as stated and that your defense relates to something other than contesting the facts being proffered by opposing counsel.

The appellate court might agree, particularly if you are not clear in immediately identifying the fact that there was a real transaction in which money exchanged hands and then another event which involved the signing of papers but in which there was no actual transaction. The fact that the borrower believed the papers to be true while everyone else knew they were not, cannot now be used to further the fraud upon your client.


[1] It has been pointed out by some bankruptcy court judges that out of the three possibilities for appeal of a bankruptcy court ruling, petitioners and their counsel usually bypass the appeal laterally to the sitting District Court Judge charged with hearing civil cases with Federal jurisdiction and with hearing appeals from decisions made in the bankruptcy court. Sources tell us that the percentage of reversals and remand is possibly as high as 50% when brought to the District Judge rather than the BAP or Circuit Court of Appeals.

23 Responses

  1. @Cheryl,

    Big banks have been gambling for 30 years. With investors’ money (meaning yours and mine plus money from other governments, retirement pensions, etc. And because it is getting harder to come by, they want to be able to gamble with our SSI. Hence the push on privatizsing it. They’ve been telling us for years and years that SSI was insolvent. Bigggest lie ever told.).

    When you gamble, you win and you lose… on a dime (pardon the pun). When they win, they want to keep it. When they lose, they want us to give them more, more, more so that they can gamble some more. JPM gambled. Instead of calling it like it is (gambling), they called it “hedging”. JPM lost 2 billions (some say more like $20 billions)on one hand… but won $19 billion on the other. Makes no difference where it is or went. Dimon will still get his $20 million bonus. Look how sharholders rewarded him for such a job well done by keeping him at the Federal Reserve AND as CEO of JPM. If Dimon didn’t make money for the shareholders, they wouldn’t have kept him.

    Except that the books have been cooked so deeply and for so long that not one shareholder has a pot to piss in left. They think they do. On paper, they do. In reality, the system collapsed long ago. We haven’t yet seen how badly but it’s coming.

  2. Has anyone here ever thought about JP Morgan did not lose any money – that it is in the Caymans but this is just a ploy. Media is always stating big banks are losing money and we know that is not true.

  3. @NANCY


    Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities (Issued 6/96)


  4. @las vegas

    RIGHT…and that’s why the foreclosures are ILLEGAL—because there was NO “lender’s money”—only “collection rights”. They are stealing houses based on “collection rights”…oh, what a tangled web we weave…

  5. http://www.thedailybeast.com/articles/2012/05/15/michael-tomasky-why-jamie-dimon-should-resign-from-j-p-morgan.html

    Michael Tomasky: Why Jamie Dimon Should Resign From J.P. Morgan
    by Michael Tomasky May 15, 2012 4:45 AM EDT

    Critics say the J.P. Morgan fiasco proves that greed in the U.S. is out of control. But America’s deeper problem is the death of civic morality and responsibility.
    PrintEmailComments (14)
    It’s nice to see a human take actual responsibility for something every once in a great while, so kudos, Ina Drew, for resigning from J.P. Morgan. It’s even said that the firm may come after some of the $14 million she made last year—earning, or “earning,” the median U.S. yearly wage of $50,000 in about one working day—as she was letting this fiasco unfold under her. But here’s another question. How about Jamie Dimon take responsibility and resign? No? Ridiculous? I’m well aware that the suggestion will strike most people as ridiculous. And I am here to say that the very fact that it sounds ridiculous demonstrates the sickness that we have come to accept as normal. We live in a society whose elites do everything they can to take no responsibility for anything. And that—not gay people who want to get married, not big government, and not even Wall Street greedheads per se—is what’s really wrong with this country. We really must diagnose this properly and precisely before we can fix anything.

    Eric Piermont, AFP / Getty Images

    What J.P. Morgan did is called portfolio hedging, a hedge tied not to a specific Morgan investment but to a “portfolio” of its business. Portfolio hedging is something that the Volcker Rule originally was designed to prevent, and it’s something that authors like Senator Carl Levin specifically wanted the rule to block. Dimon and other bankers did whatever it is they do—hire the right lobbyists, call the right people at the SEC—to make sure portfolio hedging was able to sneak through the cracks.

    But the issue isn’t how he and J.P. Morgan gamed the system to get this little wrinkle ironed out in their favor. The issue is this question: Whatever Morgan was up to, what good was it? This is the question that too rarely gets explored. Michael Hiltzik asked it Monday in the Los Angeles Times: “If J.P. Morgan had $350 billion sitting around idle [roughly the amount caught up in this hedging], why not use it to do something that helps the economy—such as, you know, lending it to businesses? Instead, J.P. Morgan used the money to buy chips to play in the derivatives casino, which doesn’t help the economy one bit.”

    I’m no expert on J.P. Morgan’s business, but I’ll hazard an educated guess that maybe there was more money to be made gambling in the derivatives casino than straightforwardly and boringly lending money to businesses. And this is our problem. The incentives for destructive behavior are far too great, and the penalties paid by those who engaged in that behavior and lost billions are far too small. Too often, not only is there no penalty at all, but in fact further reward, as in the case of CEOs who destroy American jobs or are found to have bent the law but who float away on multimillion-dollar parachutes, with written agreements with regulators in which they admit no official wrongdoing so they’re indemnified against lawsuits. And there is nothing that can be done about it—unless our elites start thinking more broadly about their responsibilities.

    From banks to Bain Capital to who knows what else, whenever something happens that tears apart a community or sends some mortgages underwater, the refrain is: “Hey, their only responsibility is to their shareholders.” Well, that should not be their only responsibility. They do have responsibilities to their cities, communities, and country. It’s difficult to codify or enshrine those in law, and any slight attempt to do so today would be written off as radical. But they were once enshrined in custom, at least to a much greater degree than they are today.

    We hear it all the time about banks and corporations: “Hey, their only responsibility is to their shareholders.” But that isn’t true. They also have responsibilities to their country.
    We’re so many light years away from that America. No one even talks very much anymore about civic obligation or civic morality. But I think that many, even most, Americans miss it and wish we still had it. Everyone’s heart soars, liberal or conservative (at least, I hope), when we read the very occasional story about a company that could have made a lot more money sending the jobs down to Mexico but did not because the owners felt an obligation to the place where their grandfathers started the company. Those owners seem to come from another time, and in fact they do. They have somehow managed to stay rooted in a time when greed was tempered by civic morality.

    But for the past 30 years or so, it’s all economics in this country, and in economics there isn’t any morality. Actually that’s not exactly right. There’s the morality of self-interest. And classical economics holds that if everyone pursues his self-interest properly, the common interest will inevitably result. Two problems: one, everyone doesn’t pursue his self-interest properly; and two, even if everyone did, the common interest would no longer result. That may have been true of the relatively simple society Adam Smith was describing, but it’s not true of today’s world by a long shot.

    Politicians can’t really fix this. Yes, by all means, more regulations. They’re the only tool we the public have. But the political class can’t really tell the financial class what to do. The Republicans won’t of course, and the Democrats can try, but the financial class won’t listen. And the Democrats don’t really get it quite right anyway. The point is not to have a politician inveigh against this class, welcoming its hatred as FDR did. The point is to say that all of us, from workers to corporate titans, have to think about a sense of national purpose. I’m well aware that this sounds a little like a 1940s movie, and that the idea of corporate elites taking broader responsibility for their actions is a long shot. Well, you tell me what shorter shot exists if we want to change our culture. None. I know Dimon isn’t resigning. But maybe someday someone in his position will. And maybe they’ll actually say, “What I did wasn’t good for America.” And maybe, eventually, we’ll become a society again, not just an amalgamation of consumers.

  6. […] Filed under: foreclosure Tagged: affidavits, appellate court, bankruptcy court, bankruptcy court judges, BAP, cases affirmed on appeal, Circuit Court of Appeals, citations, clerk of the court, court abused its discretion, court reporter, denial of due process, district court judge, evidence, federal jurisdiction, fighting foreclosure, foreclosure, foreclosure cases, foreclosure defense, foreclosure fraud, foreclosure offense, fraud upon your client, fundamental error, in limine, judge, lower court, memorandum of law, Motion IN Limine, OBJECTIONS, objections in limine, objections known in advance, opposing counsel, predatory lending, Preserving your rights on appeal, pro se litigants, procedure, record on appeal, reversed on appeal, silence as concession, transcription, TRIAL, trial proceedings, Whose Lien is it anyway? Livinglies’s Weblog […]

  7. From Black’s Law dictionary:

    “A security interest that is created when a buyer uses the lenders money to make the purchase and immediately gives the lender security ([See the Uniform Commercial Code]); a security interest that is either (1) taken or retained by the seller of the collateral to secure all or part of its price or (2) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if that value is in fact so used. *** If a buyer’s purchase of a boat, for example, is financed by a bank that loans the amount of the purchase price, the bank’s security interest in the boat that secures the loan is a purchase-money security interest…”

  8. ARRRRRGH! Obama still doesn’t get it. Still protecting his chum. Just for that, I can’t vote for him. Just can’t!


    U.S: President says JPMorgan Chase loss ‘will be investigated’
    Posted date: May 15, 2012 In: North America

    President Barack Obama said Monday that a $2 billion trading loss suffered by JPMorgan Chase is “why Wall Street reform is so important.”

    “We don’t know all the details,” Obama said, but “it’s going to be investigated.”

    The bank’s loss, which resulted from a massive bet on derivatives, has sent shockwaves through financial markets and caused JPMorgan shares to drop 12% over the past two trading sessions.

    Earlier on Monday, the bank announced the retirement of Ina Drew, the firm’s chief investment officer and the supervisor of the bank’s chief investment office.

    That office, which makes trades designed to hedge against risk, had amassed a large position in credit-default swaps that began to sour in recent weeks.

    Net losses, after factoring in other securities gains, are expected to exceed $800 million by the end of the second quarter. And losses could increase depending on market conditions and the bank’s actions moving forward.

    Obama said that the loss is an example of why financial reform is needed.

    “JPMorgan is one of the best managed banks there is,” Obama said during a taped interview that will air on ABC’s The View. ”Jamie Dimon, the head of it, is one of the smartest bankers we got, and they still lost $2 billion and counting.”

    Advocates for more government regulation of banks have cited the trades as evidence that JPMorgan (JPM, Fortune 500) was making an end-around the Volcker Rule.

    That rule, a part of the Dodd-Frank Wall Street reform law passed in response to the financial crisis, aims to ban risky trading by banks for their own profit, sometimes referred to as proprietary trading.

    The rule has not yet been implemented, and banks have spent millions of dollars lobbying against it, which they view as cumbersome and excessive.

    Dimon, JPMorgan’s CEO and chairman, said on a conference call last Thursday that the trades “didn’t violate the Volcker rule.”

    But he added that “it’s very unfortunate … it plays right into the hands of pundits out there, but that’s life.”

    The Senate Banking Committee on Monday announced future oversight hearings, including one that will look into the trading losses at JPMorgan from a regulatory angle.

    And on Friday, lawmakers who helped craft the Volcker Rule denounced JPMorgan’s trades.

    “The law very clearly already excludes this activity,” Sen. Carl Levin of Michigan said in a call with the media.

    “It specifically says that every single position that you take as a hedge has got to be tied to a specific risk arising from another specific position. Now, that’s about as clear as you can write. So the regulators are now hopefully going to implement the law as written.”
    Source: CNN

  9. Research reveals …
    ‘Title Commitment’ and Good Faith Estimate Originator & Servicer …

    Title Company inclusionary language and exclusionary language related to particular deal(s) governs ‘who’, and ‘what’. You pay immediately and for 90 days depository trust can invest cash deposited – cash withdrawn from pension fund for example, and the purchase money lien takes on a life of its own – robo-documents allow for appearance satisfaction of existing liens – since there is no loan to pay off – the money taking out is suspect….to be part of money laundering scheme out of pension funds back to pension fund investor, for example.

    Not every transaction the same – just the majority – the majority through a particular pipeline, credit facility, notes traded, secondary market

  10. @ NANCY

    When loans close on a warehouse line, there is generally a waiting period before the investor can purchase them from the line. That time frame can range from 72 hours to 45 days.

    Question: So whose note is it in the interim?

  11. @davies: NOT SO: (Marshall) 600 F.3d 1037 had not gone to BAP. ONLY PUBLISHED OPINIONS OF APPEAL COURTS count as CASE LAW, including those of BAP, which is a panel of several bankruptcy judges.

  12. Just when you think your heart can’t break anymore…another horrible story—my God, when will we see justice?


  13. From the “So…What Else Is New?’ file:


    Wells Fargo Accused Of Offering Deceptive Mortgage Modifications

  14. Guest the BAP appeal was non published Opinion. Also the 9th Circuit. ignores BAP and reviews the trial court. So BAP is worthless. They rubber stamp. My Judge Donovan who ruled against Deutsche Bank and Onewest, was replaced by the newly appointed Judge Clarkson. He thinks he knows it all. Ironically he just sat on the BAP panel. How does a new judge suck up to be part of BAP before he is off probation. Such a buddy club. The district courts look at BAP as a bunch of amateurs and overturn them accordingly. See In re: Marshall (“Marshall vs. Stern”) 600 F.3d 1037 (9th Cir. 2010) [2010 BL 59371]. BAP and the BK Courts had no jurisdiction to hear and make a decision. I have found that the BK judges are weak compared to the real judges of the District Courts.

  15. @Nancy: answer to Q: by fraud, forgery, robo-signing and the like….

    All CORRESPONDENTS’ BUSINESS must be recorded inside electronic book entry system for any ‘real estate receivable’ acquired by Wells Fargo, Chase, BOA, Citi, Fannie, Freddie, …

    Therefore, “How does ‘Security Agreemen’
    Mortgage Electronic Registration Systems, Inc.
    operating under laws of the Commonwealth of Virginia as BORROWER conveying to the BANK ‘Nationsbank N,A.

    How does this agreement ‘copy on Scribd’ affect ‘security interests’?

    You don’t have to have a MERS MIN# to be in the electronic book entry system.

    Fannie Mae has instructions, for example, how to move out of MERS …etc.

    http : //www.scribd.com/doc/93538677/Mers-Nations-Bank-Contract-Assignment-Tm-1773-0949


    July 20, 2010

    UCC Article 9 amendment series – #1

    Welcome to the first installment of our UCC Article 9 amendment series. We’ll be updating the blog daily for the remainder of the week with more information on the 2013 RA9 amendment package!

    Contributed by Tim Hall, Managing Attorney, CT Corporation

    Last week, the National Conference of Commissioners for Uniform State Laws (NCCUSL) held its annual meeting in Chicago. On Tuesday, July 13, the Joint Review Committee on UCC Article 9 conducted the final reading of its proposed amendments to Article 9, and on Thursday, July 15, the full NCCUSL membership voted to adopt the proposed changes. As a result, over the next few years, state legislatures will likely be adopting these amendments, in whole or in part.

    NCCUSL has proposed changes to both the statutory text of Article 9 and the Official Comments found throughout Article 9. In this post and those to appear over the next several days, we provide a short summary of those amendments we believe may have the greatest impact. However, in order to gain greater insight into how the proposals will affect you and your current/future practices, we strongly encourage you to review the full-text of the amendments here.

    Effective Date for the Amendments

    Per section 9-801, the goal of the drafters is to have uniform adoption of the amendments in each state, with a uniform effective date of July 1, 2013. Having a uniform effective date reduces the risk potentially created by various choices of law rules, different UCC forms, different debtor name standards, etc. In addition, it allows each state legislature sufficient time to review the amendments and solicit feedback from constituents. It also provides a sufficient period of time for the lending industry, legal counsel, state filing offices and other interested parties to conduct sufficient training and prepare their internal systems as needed. The revisions also specify a five year transition period, from 2013-2018, to allow for a gradual and methodical implementation.

    Check in tomorrow for details on changes to definitions found in section 9-102, and continued perfection of security interest following change of governing law!

    Tim Hall has been with CT Corporation for more than 13 years. He spent his first three years as a Team Leader for a UCC Service team, and has been with the Government Relations Team for the past ten years. He is a graduate of The Ohio State University and the Northern Illinois University College of Law, and is a frequent speaker on Article 9 of the UCC.




    UCC basics series #4: Purchase money security interest (PMSI)

    Back-to-school with UCC basics!

    Welcome back! We’ve got one final lesson for you: the purchase money security interest (PMSI).

    The PMSI holds a favored position under UCC Article 9. If a transaction qualifies as a PMSI, the secured party can achieve a superior position even in relation to other secured parties that have perfected before it. A PMSI is generally a two-party transaction; the supplier or seller of goods retains a security interest for the purchase price.

    When perfecting a PMSI, there are additional requirements pertaining to notification of prior secured parties and filing deadlines. In particular, these sections specify the requirements for PMSIs in inventory collateral and in non-inventory collateral:
    •Inventory – Security interest taken on goods that are being resold to another party for resale. (e.g., Sony sells stereos to Circuit City, who then resells to the general public; Black & Decker sells circular saws to Home Depot, who then resells to customers)
    •Non-Inventory (Equipment/Machinery) – Security interest taken on a specific piece of collateral and the debtor retains the equipment. (e.g., copier, refrigerator, forklift, printing press)

    When inventory is used as collateral, the UCC requires four conditions to be met before a security interest can qualify as a PMSI:
    1.The PMSI must be perfected at the time the debtor receives possession of the inventory.
    2.The filer must give written notification to the holder of the conflicting perfected security interest in the debtor’s inventory.
    3.The holder of the conflicting security interest must receive the notification no more than five years before the debtor receives the inventory.
    4.The notification must state “that the person giving the notice has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type.”

    PMSI’s for non-inventory collateral can be achieved with less effort. The notification requirements do not apply.

    And that concludes our UCC basics series! We hope you joined us throughout the week, and were able to discover some useful information from our series. To suggest topics for future posts, or to pose a question regarding anything you’ve read, post a comment here, or e-mail CT Lien Solutions.

  19. @davies910- Great petition- But, re: BAP v. District Court: as far as I know no District Courts opinions are considered precedents, or laws, for citation especially in bankruptcy cases, which requires nationally uniform laws & that only BAP cased and the appeal circus published opinions are laws and are citable. Also, if your case has already been to BAP, may be in caption of your brief BAP is inadvertently omitted!!!

  20. O yeah and my specific loan number listed in fwp (MLPS “intentionally ommited” – quote from psa) leverage for discovery of that and other trust accounting or loan level discovery. And other evidence in title co docs re straw man funding. I also have access to investor reports showing empty tranches ect. I have cusip no. and more. I really don’t care if attorney thinks it is hopeless and respect his point of view. Wish to have my day in court anyway. Tried and lost is better than not having tried. And at the end of the day no one should have to go to court. Those who get this need to do it for everyone else.

  21. Try my attorney number on the pleadings.

  22. Thanks Brian you are the expert now….you have been there and done that pro se and with rep…….Hero.

    Need attorney in central district ca willing to file on contingency (can have all statatory penalties plus fees already a done deal approx $10,000 plus whateve they wish to throw into the bargain), I have no money. Not a lost cause to recover….yet. No right to due process???? Also file pendency of action in local courthouse (I can do the legwork if wished – they don’t do electronic and pro se needs an attorney to sign off on pendancy of action that stating the pro se case filed in federal involves a title issue in ca or not accepted at least that is what I understand).

    Auction 9 days away. Have statement fof facts written, detailed, with specificity and evidence. Have all title docs, all recorded docs, all trust docs and and correspondence – and they fry themselves in writing. Evidence. Can’t even afford the gas to go three hours away to file pro se and only the pendency of action has a fighting chance to delay the sale and perhaps not even that. Even if the jack booted thugs arrive I wish there will be a record in court that I called the bluff and they did not show their cards and the judge said that was ok.

  23. It has been pointed out by some bankruptcy court judges that out of the three possibilities for appeal of a bankruptcy court ruling, petitioners and their counsel usually bypass the appeal laterally to the sitting District Court Judge charged with hearing civil cases with Federal jurisdiction and with hearing appeals from decisions made in the bankruptcy court. Sources tell us that the percentage of reversals and remand is possibly as high as 50% when brought to the District Judge rather than the BAP or Circuit Court of Appeals.

    I agree with Neil, that the preferred choice is to go to the District Court. The BAP is the bankruptcy court in drag. They stand up for each other. Their rulings are weak compared to the district court. I have lived it.

    See 9th circ appeal filed May 8, 2012.


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