Don’t Take on the Burden of Persuasion

I keep getting the same feedback. I tried the Garfield method but the Judge wasn’t buying it. From many others, I am getting feedback that they prevailed on the motion to lift stay, they prevailed on the motion to dismiss and they prevailed on the motion for summary judgment. So what is the difference?

The reason is that the methods and strategies I am suggesting are not being followed. Homeowners are coming into court with or without counsel land diving into the chain of documentation which is a way in which you drown in paperwork covering up the fact that no financial transaction ever took place supporting the paperwork.

Deny and Discover means just that. By denying a fact that is implicitly or explicitly alleged by the other side the burden of persuasion is shifted to them. If you use the information you have as the basis for alleging the REAL story then you are alleging facts as the movant or pleader and therefore must prove them. If the burden of proof falls on you then the only thing you can do is to establish a good record for appeal.

Secondarily, stop trying to win the whole case in a single hearing. Realize that motion practice is a chess game and the goal is not to win the whole case but to get to the next hearing where you can inch your way closer and closer to discovery wherein you can ask for what you know the other side doesn’t have, never had, and can’t get — a proof of the money trail which would corroborate the documents upon which they are relying. The documents are only shown to be fabrications with false signatures etc if they recite facts that are untrue.

Your job, as lawyer for the homeowner, is to get to the point where you can demonstrate to the court during motions to compel in discovery that there is something wrong with this picture, that the borrower/debtor had nothing to do with what is wrong, and that if there is a problem, it is up to the other side to clean it up — a job not for the court based upon presumptions of liability and damages by the Judge nor by the borrower/debtor.

It is all in the way that you present it. By denying the existence of the trust, the funding of the trust, the obligation to the trust, the note as evidence of the obligation, and the mortgage as guaranteeing a defective, worthless note, you mean to convey that the various interests in the trust are a matter for others to sort out, but that if the trust itself never received nor accepted the loan, because it was was impossible for even a valid, funded trust to accept to a non-performing loan outside of the 90 day window required by the PSA, which merely re-state the requirements of the Internal Revenue Code allowing REMIC entities, you are attacking the ownership of your loan transaction.

What we need to bridge this gap is less argument and more action. We need to come up with a hedge fund (Which I am working on) wherein the offer is made to buyout the loan if the creditor can prove it owns the loan, which means they must show that they actually had transactions in which the funded the origination of the loan, and/or paid for the transfer of the,loan. No such proof exists, because the transactions never took place — but they created the paperwork to make it appear as though those transactions existed.

If you go back and read some of  my more recent posts over the last week, you will see how I arrive at this.

The other part is that you are affirmatively alleging facts instead of denying that the facts supporting the foreclosers position exist. By affirmative alleging facts, you take on the burden of proof, thus placing a burden of persuasion to come up with the real evidence to show what really happened when those facts are exclusively in the hands of the chain of entities claiming that REAL securitization of this loan occurred when it did not.

Your answer should be simply, then that you are seeking for them to establish evidence of actual transactions, which is what is required in any foreclosure, wherein a complete accounting for the loan, the receipts and disbursements are set forth and where the actual bank accounts have the required evidence of wire transfers, checks or other indicia of the actual movement of money, which there wasn’t.

While at this point you probably can’t deny that there was ANY movement of money, you can deny that any movement of money was unrelated to this transaction and therefore deny that the “originator” was never the proper payee on the note, lender or beneficiary, directly or as nominee.

7 Responses

  1. responsive to Seeking Remedy:
    If your counsel filed suit in the USDC than you must have had an Original Jurisdiction issue against the defendant Bank. I am not clear on the tactic of going into the USDC instead of State Court, unless your counsel felt that the judges in the state court system are biased against homeowners. The federal court can be a difficult place to practice (as you found out). To stay in the State Court, stick to State Law claims and do not place a money demand over $75,000. There are other tacitcs you can incorporate to avoid “Removal” and to keep venue where you want it.

    In the Federal Court, the idea is that it is “notice pleading,” where your Complaint is a vehicle to put the other side on fair notice as to the nature of the claims being brought against it. In State Court, the basis is “fact pleading,” where you plead distinct facts with particularity. If facts are not exactly pled then you can only recover what was pled, and sometimes be barred entirely. Unfortunately, what happens is that a number of the old federal judges are recruited from the state courts and bring their familiarity with fact pleading with them, so they start demanding fact pleading, forgetting that they are in a different court setting as the new USDC Judge. Not much you can do about the general state of judicial incompetence and mendacity, so suck it up and adapt. Looks like you got sucked into the Black Hole of a sticky fact-pleading Judge. It happens.

    Go re-file your case in the State Curt and stick to tort claims for damages and injuries, and stay away from TILA and RESPA which likely got bombed in your federal Complaint. The other approach is to structure your Complaint with new flavors and file it in the district court venue of the defendant, in the state of incorporation or principal place of their business (not possible with an LP, so watch out), and fight them by remote control. The problem with this approach is that they will be using in-house lawyers, so you don’t bleed them with lawyer costs from outside counsel. That is a big concern to these bums, as it was not factored into their busness model. For example, Chase paid out $1 billion in legal fees in the last Quarter (3 months). Bleeding the bums is a perfectly valid technique to force settlements (just don’t admit that to the judge or he will dismiss you again!). Remember, you are engaged in Total War. So buckle down and start shooting.

  2. Jan…..Thanks for the reply.

    It was Federal Court which the complaint was filed. It was initially started as a question of standing. We had solid evidence that the loan never made it into the pool. We also had a known robosigned Assignment of DOT which was filed at the county which was added as an amendment. Three years of gathering on my part and the attorneys that in my opinion, did not know what they were doing in the pleading. They cut and pasted parts of the amended complaint from another client and had all kinds of wrong references in it. Even though there were amendments after that, the Judge finally dismissed without leave to amend. In questioning my councel, they said my evidence was now dead since it was added to the amendment via exhibits. I am dumbfounded that clear cut evidence can be forever barred without so much as an oral argument because of attorneys more interested in collecting retainer money than properly pleading a case.

    Funny thing is I got thru to a special line at the Bank for polititions needing an express mod (I am not a politition, but got the number and called anyway). This was a year and a half ago. The helpful lady at the banks executive level told me “If you were my brother, I would tell you to file suit. You have well founded concerns!”.

    My warning to anyone trying to find competent councel………MAKE SURE THEY KNOW WHAT THEY ARE DOING AND DON’T LISTEN TO A SALES PITCH!

  3. I can foresee one problem with a strategy of ONLY denial, in the effort to shift all burdens onto the Plaintiff (pretender bank). That is: if ew”affirmative defenses,” or Special Defenses, are not raised in the beginning, then they may not be available at later stages in the proceedings. Incorporating Special Defenses in the Answer as a separate section then sets up the possibility of defeating the suit, either at trial or in the initial Pleading stages.

    For example, one such Special Defense might be that of the Jurisdiction of the Court to hear the matter. Take the case where one Note Obligor has died and the bank proceeds to sue the widow. An obvious special defense is that the court has no jurisdiction; the plaintiff has to bring his claims in the Court of Probate, where Probate is operative (even where there is no active probate yet). This type of defense is important in those States where the costs of foreclosure litigation can be added onto the debt, to erode the homeowner’s equity and make the litigation assault cost-free to the pretender banker. You have to watch out taht you don’t get sucked into these traps; the idea is to defeat them prior to trial, so that you don’t places yourself at risk in trial. Special Defenses are a mechanism to get to that point.

  4. to Seeking Remedy:
    If I understand your case, you were Plaintiff and your case was dismissed, aparently on a Motion to Dismiss in the very beginning.

    In that case, there has been no “hearing of the merits” and no Decision has been rendered on the merits of your claims. Whatever factual matters you were to present, as evidence, that you alleged in your claims, can cedrtainly be placed before the Court again, or before any Court you end up with. For example: you have a document, say a Letter, that you maintain is evidence of a fact (which in turn supports a damages claim). The Letter, including the authenticity of the Letter, has not been established, because it never got that far. It remains, fresh and ready to be used.

    Most likely your actual “claims” still remain. What the Court has done is say that the way your claims were set up, or “pled,” did not amount to a claim in which you could collect money damages. that is not a bar to re-setting the claim in a different fashion so that it would lead to money damages. Hope this is helpful.

  5. Maybe folks are not asking for the right things. I found alot of good info at this link ….

  6. Can somebody answer this?

    If I took evidence to councel and they filed suit for me based upon this evidence, and they were incompetent at best, pleaded poorly, and my case was thrown out with prejudice without even so much as an oral argument, is there anything I can do to have this evidence usable in court in the future or are all not dust in the wind?

    Thanks in advance…..

  7. Or the Burden of Proof ….. just wanted to add to that ..sorry Neil.

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