Information vs. Evidence

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Editor’s Comment:

I’ll be appearing soon at one of Darrell Blomberg’s Strategy Meetings (which take place every Tuesday evening at Macayo Restaurant in Central Phoenix) to do a session on evidence. And in fact, I am thinking about a half-day seminar on evidence, with Darrell as a co-presenter, he may not be a lawyer but he gets it — there is a huge difference between information (data) and evidence. And there is a huge difference between evidence and admissible evidence. And in discovery, you have the right to pursue information in interrogatories, requests for admissions and requests to produce for INFORMATION that might lead to the “discovery” of admissible evidence.

I am adding this overview into the 2d edition Workbook, Treatise and Practice manual. I want to get this lesson out to lawyers and litigants as quickly as possible. And the reason is that these people have forgotten or never knew the difference and they certainly are confused about the procedure. Take a look at the appeals court decisions that slap down the borrower. There is almost always a statement in the opinion that appellant argues XYZ but we don’t see X or Y in the record. In the absence of X and Y being in the record, the appellate court has no authority to find Z and rule in favor of the appellant (borrower).

Every appellate case I have read that ruled against the homeowner falls into this category. Every one of them has a recitation of “facts”, “history” or “background” that is simply untrue but has been made part of the record and which is regarded as “evidence” because it is in the record.

Example: The primary recital in these appeals usually says something like, “The appellant is John Jones. John Jones applied for and received a loan from Mama’s Money Farm on October 16, 2008 in the amount of $869,000. Jones promised to repay the money in monthly installments as set in the promissory note and mortgage (or Deed of Trust) which he signed. Wells Fraudgo is the current holder of that note and seeks enforcement through the power of sale (or in judicial states, through a foreclosure lawsuit) seeking collection of the money due and sale of the home at auction to the extent that the borrower is unable to make the required payments. Jones defaulted on the note by failing to comply with the schedule of payments in the note he executed for the loan he received, to wit: he stopped making the payments that were due under the note on January 1, 2009.”

How did this recital get into the record so that the appellate court could include it in its opinion justifying the affirmation of the trial court’s decision throwing the borrower out of court and even telling the borrower they were “vexatious” etc (Madison v. MERS et al see previous blog post 6-6-2012 entitled “They Will Get You on Procedure Every time”)?  It got there without any evidentiary hearing or without any hearing in which the borrower’s claims and defenses could be given a fair hearing, with full rights of discovery etc.

This could only happen if the litigant was quiet while the lawyer for the pretender lender “proffered” these facts in his opening narrative of each hearing and the homeowner or his attorney failed to object immediately. “Wait your turn” is the polite way of saying let the other guy talk. But if you let the other guy talk and THEN bring up your defenses and claims, your procedural objections, the Judge has already formulated an opinion about the nature of this case. You might buy some time with procedural irregularities but you won’t win the case, force the other side into a settlement, mediation or modification and you certainly won’t get rid of the mortgage that is recorded in the county title registry.

You will be treated like a deadbeat because you have inadvertently confessed to being a dead beat. You have agreed, without realizing you agreed, that everything the lawyer for the pretender lender has said is true, which means that the statements (proffers) of the other lawyer are now evidence in the record, and the rest of the case was you saying “yes but….”

Trial note 101: Never let go of the narrative regardless of who is speaking but always be polite, courteous and respectful in your words even if you make various faces and expressions that the court reporter is missing. Oh yes — if you want a record on appeal you need a court reporter. Your statements about what the Judge said or what happened in court in your appellate brief is useless and will be properly disregarded by any court reviewing the actions in the court below.

So here is what you want the appellate court to see in the record. First a Notice of filing of everything you would offer into evidence that might be rejected by the court. This would include my expert declaration (although I think we found a couple more people with the right credentials to survive as experts located in Maryland) and all exhibits to the reports, opinions and affidavits that you have showing that that you have some reason (not necessarily proof) for denying the debt, denying the default, denying the note, denying the mortgage and denying that the pretender lender is either the lender or anyone who purchased the loan.

Second, a Motion to set discovery schedule together with a SHORT version of your discovery requests.

Third, a transcript showing continual interruptions with proper objections like “Objection your Honor, we demand proof of authority to represent. In cases all over the country this pretender lender and others are represented by lawyers who never speak with the client, don’t get retained by the client and who only know that someone gave them a file that was recently minted from the fabrication factory of fake, forged and fraudulent documents.”

“Objection your honor, counsel is attempting to proffer facts that are not in evidence and that are vehemently denied by the homeowner who is being improperly identified as the borrower.”

“Objection your honor, counsel is attempting to proffer facts or even testify as to matters that are not in the record. If counsel wants to testify then let’s get him sworn in and put in a witness chair where I can cross examine him as to the foundation for his pretender personal knowledge regarding this bogus loan and fraudulent foreclosure.”

Objection: “Counsel is attempting to get into the record that which he could never get into evidence were this an evidentiary hearing. The homeowner vehemently denies that the application on file was filled out by him or that he authorized it. My client denies the signature is valid either because it was forged or it was procured by fraud in the execution in which case he thought he was signing something else while hands covered the true nature of the document.”

“Objection your honor.  Counsel is trying to proffer information into the record that will be perceived as evidence. My client rejects that recital and denies that he ever received a loan from Mama’s Loan Kitchen, denies that the promissory note correctly recited the terms of the loan and therefore denies that the mortgage lien was properly perfected. He further denies that there was any default on any loan and therefore denies that any assignment from Mama to Fraudgo could have been valid. He further denies that the assignments stating “for value received” involved any transaction where any value was received and therefore failed for lack of consideration. He further denies that even if the documents relied upon by the Fraudgo were valid, there would still be no default because the creditor was being paid without interruption according to their very own Pooling and Servicing Agreement and he denies there ever was a meeting of the minds (although the Fraudgo agents from Mama’s Money Kitchen made it appear to the homeowner that the proper disclosures were made, that the lender agreed to these terms) when in fact the lender (the actual source of funds) agreed to an entirely different set of terms for repayment.”

“Your honor it is our position that the promissory note described a transaction that never occurred and that the mortgage was an encumbrance based upon the false representations of the note. This is like one lying and the other swearing to it. If they are not afraid of proving their allegations then by all means we don’t want to deprive the pretender lender of an opportunity to be heard in court. But the homeowner is entitled to the same consideration under the requirements of due process. The homeowner denies that he failed to make any payment that was due and he denies that the obligation to the real lenders (creditors) in this case is currently in default.”

Evidence is whatever the Court lets in as evidence in which case the court says it is letting the information in as evidence to prove that ABC happened. Or, as is usually the case in these foreclosure cases, evidence comes from silence of the lambs.

So if you want to box in the trial judge and the appellate court let there be a record that shows you followed the rules, there were genuine issues of material fact and the trial court still would not allow the homeowner to proceed. That’s enough to eventually get a ruling that allows discovery to proceed.   And Discovery is the magic key to the kingdom of settlement — but probably not until after 5-6 motions to compel answers or better answers to our discovery requests.

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22 Responses

  1. Hey there, I think your site might be having browser
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    Firefox, it looks fine but when opening in Internet Explorer, it has some overlapping.
    I just wanted to give you a quick heads up! Other then that, superb blog!

  2. […] Read more… Posted in Banks, MERS, News Around The Country, States « They Will Get You on Procedure Everytime Inside the Mind of JPMorgan Chase CEO, Jamie Dimon » You can leave a response, or trackback from your own site. […]

  3. @ Patrick – just what I needed – well said!

  4. How about “Yer onner, I object that the attorney for plaintiff has characterized its client as having experienced a default to its payment rights in the note. While it is tempting to listen to the opposition’s narrative in its entirety, I must resist as my client has reason to believe that the payment rights in the note were used as the capital backing a securities offering and have thus become a capital asset that cannot be transferred by endorsement and delivery of the note to the plaintiff. My client denies that plaintiff controls all of a debt owner ‘s equal rights and interests in the note via transfer and my client also denies that plaintiff reports the note as an asset on its balance sheet ledger. If counsel wants to proffer information into the record as if it were fact, I respectfully request his sworn testimony before the court so we can discover his personal knowledge of the facts that form the basis of his very interesting tale.

  5. To all! The entire globe has become such a mess! So sad! Yes the US Constitution gives us the right to bear arms to protect us and our property. Many states have this right by statute, Washington State included have Castle law statutes giving us the right to protect and defend our property bearing arms, however we will be D-E-A-D-R-I-G-H-T if we do. This is so hard to comprehend for most that this injustice could exhist, however it does. The entire globe is out of control. Just recently we have witnessed the government on main street of three cities looking like they are collasping from within in the news paper. Stated so by their councils. The mayor and Cheif of police and councils stating their governing is out of control. One mayor firing the cheif of police without talking it over with the council, that discovered it in the new release. Collaspe is coming soon. Sometimes it takes the drunks to fall into the gutter to see the light. The government and the banksters have been drunken with power and greed. They are headed to the gutter. They would have been there sooner if they had not stolen so much tax money.

  6. I learned this to late. This is true for every letter from fraudster foreclosers you recieve in the mail in non judicial and judicial states as well as the courts. I misunderstood that you argued your side of the case. I did not know untill to late and long before this article, that I should have immediately objected to all their claims, or it was considered your agreed to it and it is fact. This has caused a huge problem for me. I had no choice but to file my case. Could not find an attorney that would, due tyo the courts were judging by bank law and not the rule of law in Washington state. Hope the state of Washington turns its course with the MERS case to be ajudicated sometime within the next few months. Hopefully by September. Melissa Huelsman has aske the question is MERS unlawful in Washington and does the rule of law still stand in the state of Washington?

  7. Eviction shooting not an option for him: http://www.youtube.com/watch?v=TdoXJoJX_7c

  8. this was the kind of information that readers needed 4 years ago.

  9. evidence of trillion$ theft of Wachvoia washed with $11 million bribe: http://www.youtube.com/watch?v=AhFwpFa9KKY http://www.reuters.com/article/2011/04/05/us-sec-wachovia-idUSTRE73466O20110405

  10. i think it was fairly universal in application though, except that it was very “inside baseball” kind of stuff related to internal court administration. from page 18 to 22 was some pretty good insight.

    still, if you have questions regarding evidence, start with the Rules of Evidence. if you have questions regarding procedure, start with the Rules of Procedure, either federal or state. so much of the internet blog stuff won’t help you inside the courtroom. if the mortgage company atty and the judge know the rules and procedures and you don’t, then you just don’t stand a chance.

  11. @tnharry , that was re: California appeals only

  12. that “inside the appellate courts” link was kind of odd. maybe just look at the federal rules of evidence or your local state’s rules of evidence and procedure.

  13. good topic for discussion but not enough substance as to what constitutes evidence. I like the objection examples but believe that most of the judges I’ve been before would find the first objection made using those examples amusing and find any further taken from Neil’s list as argumentative. i would think that frequent use of speaking objections such as these would do more to harm one’s case than to help it

  14. Re: EVIDENCE…: see “Inside the Appellate Courts: Insights from Research Attorneys” p.14 http://html.documation.com/cds/SBC2011/HTML%20Files/PDFs/012.pdf

  15. foreclosure shooting probably constitutional: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426628

  16. […] View article: Information vs. Evidence […]

  17. WHOOPEE!

  18. Javagold, I’ll see your fraud and raise you systemic collapse!

  19. ^agree w/Javagold^

  20. Missouri Foreclosure Shooting: Man Shot After Opening Fire On Police

    http://www.huffingtonpost.com/2012/06/07/missouri-foreclosure-shooting-man-shot-police_n_1577877.html?ref=business

    These are getting so regular that they are now calling them “foreclosure shooting(s)”…

  21. I object to this entire fraud of a country

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