2014 Dissent Spells Out reasons for Rejecting Presumptions and Assumptions

Justice Rubin correctly anticipates the birth of a new black market industry — stealing debts as part of a larger scheme of stealing money.

In the context of an industry already using dubious tactics to collect on debts they have acquired, the prevailing notions in the minds of most judges allows for the question “Why buy the debts when you can just steal them?”

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see Justice Rubin CA Dissent

Hat tip to Eric Mains

As a result of my articles on legal presumptions and the havoc they are causing in creating faulty precedent instead of following precedent, Eric Mains found the above Case decision in California. I agree with Eric. The dissent neatly explains why the assumptions and presumptions currently in use are not being applied properly and are resulting in a body of law that has opened the door to unlimited moral hazard. Justice Rubin correctly anticipates the birth of a new black market industry — stealing debts as part of a larger scheme of stealing money.

Indeed there is ample evidence of the spread of imposters who are, under existing law, issuing self serving proclamations that they own consumer debts. Consumers, having no information about what and who manages their debts, will often concede the debt and concede that the debt is owed to the party who proclaimed ownership. And it all comes from a notion that never should have been allowed into American jurisprudence in the first place, to wit: a debtor may not challenge a party who claims to be his/her creditor. Discovery need not be allowed and proof need not be offered as to the veracity of the claims by “strangers” to the debt.

The underlying assumption is that since the debtor owes someone, ANYONE can enforce it. The theory advanced by courts is that the debtor/borrower/consumer has no standing to challenge the self proclamation. The theory advanced by courts is based upon the assumption that even if the debtor is right, it makes no difference to the debtor. The harm, if any, is to someone else who is the real creditor. The remedy can be worked out between the claimant and the real creditor.

The underlying assumption is incredibly based upon the assumption and presumption that the claimants are still acting in good faith and not acting as thieves. This is odd in view of the dozens of cases in which the self proclaimed participants in the securitization of debt have been shown to have committed forgery, fabrication, back-dating, robo-signing in what appears to be a majority of alleged loans to alleged borrowers that are subject to what now is obviously false claims of securitization. None of it is true.

This underlying assumption of good faith is contrary to the facts. It is wrong. And what Justice Rubin seeks to present is simply that any such claimant should prove their status and not be presumed to be a creditor just because they said so. As he puts it, either they are the creditor or they are not. It is an easy task and always has been an easy task to prove ownership of a debt. The fact that the banks have fought so hard to get courts to accept their assertions of ownership and authority just because the bank said so, should in and of itself have raised multiple red flags.  Justice Rubin conceeds that, ” I suspect that creditor-beneficiaries and their trustees do not want to be forced to prove they own a homeowner’s debt and have authority to foreclose because it is now well understood that in too many cases they can’t prove their ownership and authority. I am not prejudging the facts in this case, for that is why we have discovery and a trial.”

And the other underlying assumption is that there is no harm to the debtor who is obviously faced with multiple liability on the same debt, an inability to seek reinstatement, modification or settlement with the real creditor, and a bar to the legitimate defenses in state court, Federal Court and bankruptcy court. The courts routinely order the false creditor and the debtor into mediation. The debtor is forced to either reject a settlement with an unauthorized party and thus lose his or her home or to execute modification agreements that are not worth the paper on which they are written.

Trial courts across the land are still statistically more likely than not to adopt this pattern of abuse of due process. Courts are created to provide a fair forum in which the parties can be heard without presumptions of guilt of those accused of criminal or civil acts that cause harm to society or specific victims. The burden has always been on the accuser or the claimant — until now. For the past 10 years the court system has evaded, avoided, and ignored the reality expressed by claims of the debtor, the proof in court that the self proclaimed enforcing parties were unauthorized strangers — all because the judges started off with the wrong premise when there should have been no premise at all.

The necessity perceived by court administrators was also an incorrect presumption. Had the judges continued processing foreclosures the way they always did it would have resulted in virtually all of the foreclosures being denied. Or, to be fair, it would have resulted in all of the foreclosures being granted because there was nothing wrong. All evidence clearly shows a pattern of conduct of illegal, fraudulent activities in virtually all foreclosures over the past 10 years.

Had the court administrators merely kept to their current systems one of two results would have been clear: (1) the claimants were perpetrating a fraud or (2) the homeowners were putting up false defenses  for the purposes of delay. Either way, there would not have been a glut of foreclosure litigation. Either it would have been obvious that the enforcement claims were bogus thus eliminating the claims, or the defenses would have been revealed as frivolous, thus eliminating the defenses.

Instead the defenses of homeowners were routinely ignored and their lawyers were reprimanded and threatened by judges who believed that their presumptions were proper and that the lawyers were merely hairsplitting to “get a free house.” Experience now shows that these defenses are being upheld in an increasing number of cases and that judges following the the rule of accepting self serving statements from banks and servicers are now being reversed in an increasing number of cases.”

The conclusion to be drawn from these decisions has yet to be enunciated by a majority on the bench with the clarity expressed in Justice Rubin’s dissent.  He admits that, ” The reason I point out the omission is to highlight the difficulty of learning from tangled paper trails “who, what, where, when, and how” in mortgage cases involving lender documents that are sometimes – take your pick – incomplete, lost, inaccurate, post-dated, altered, robosigned, or created after the fact….”  It doesn’t have to be this difficult.  Again, like the Judge opines, ” Chase either had the authority to act when it submitted a credit bid to foreclose on appellants’ home despite having sold appellants’ promissory note to Freddie Mac – and has the evidence to prove it – or it did not. (See Civ. Code, § 2924h, subd.(b) [the “present beneficiary” may credit bid at trustee’s sale].) It really is a simple matter. Is that too much to ask when people are losing their homes? ” 

The glut of claims on mortgage foreclosures caused the judicial system to switch into an emergency mode. In so doing they skipped over the elements of fraud, due process and moral hazard in favor of “processing” the claims as quickly as possible rather than determining if the claims had any validity.

In the context of an industry already using dubious tactics to collect on debts they have acquired, the prevailing notions in the minds of most judges allows for the question “Why buy the debts when you can just steal them?”

22 Responses

  1. […] 2014 Dissent Spells Out reasons for Rejecting Presumptions and Assumptions […]

  2. Reblogged this on California Freelance Paralegal.

  3. Yes, the “new” fraud will be collecting on debts multiple times from people who owe nothing. Actually, that scam has been around for quite a few years. It is called Debt Collection and is rotten through and through.

  4. “This is odd in view of the dozens of cases in which the self proclaimed participants in the securitization of debt have been shown to have committed forgery, fabrication, back-dating, robo-signing in what appears to be a majority of alleged loans to alleged borrowers that are subject to what now is obviously false claims of securitization.”

    No problem for the CA Appelles. Just file the ruling as ‘UNPUBLISHED’ like they did in Kalicki v JP Morgan. And rely on judicial immunity.

  5. If you wish to have my comment,. I wrote it but it did not print out on the comment section. It is three pages as I went into detail., you can email me and it will be sent out to you.

    I have written before which were printed and when I see Neil’s
    Livinglise’s Blog reports, it opens the door for my comments as I get so hipped up as I am the former US Government Agent for the Criminal
    Investigation Division and am very ashamed that our government has been so slow in proceeding against these crooked, evil bankers and
    their co-conspirator, greedy employees and lawyers who prepare and present the fictitious, fraudulent and forged documents to the courts all across America.

    What I have found in cases I have investigated against the giant, so-called major banks and loan servicing agencies and their criminal methods that can rock the financial market. Have you ever heard of the FDIC or any government sponsored or backed organization executing a power of attorney to a non-government agency so they can manipulate and execute notes, assignments, or any documents to create fraud that can be recorded so that homes and other properties can be separated from the legal owners? Yes it has happened , but I suggest said power of attorneys are fraudulent, fictitious forgeries perpetrated by Chase Bank with fictitious notaries.

    We have seen in the past how Senator Elizabeth Warren has accused Jamie Dimon, CEO and President of Chase, of multi-millions, if not
    billions or trillions of bank fraud, (see the Senate Sub-Committee hearings on You-Tube) and has questioned lawyers of the FDIC and
    Jamie Dimon as to the contracts and various agreements between the FDIC and Chase Bank regarding the take over of Washington Mutual

    As I have stated in my earlier comments, we need to pressure our law enforcement agencies, such as the Dept of Justice and the Consumer Financial Protective Bureau, the SEC. the US Treasury Dept and our
    Senators and Congressmen to take notice and act, which can be done
    if it is done through a large response by home and property owners
    all across the nation.

    Right now with the elections upon us, we need one or more of these
    persons who are seeking an elected office to stand up against these thieves who are driving our economic, financial and court system
    into the sewer, and if they do, they may just receive a few million more
    votes from the millions of home owners who are victims of the crimes
    committed by the wall street hoods, the bankers and their associates,
    including employees , lawyers and loan servicing agency thieves.
    (This may be difficult to expect if these politicians are receiving BIG
    political contributions from the above crooks, but if enough of our
    victimized citizens make a noise, it could awaken and open the eyes and ears of someone).

    If more of our citizens read and study the articles and writings of the many honest lawyers and those who write for Neil Garfield’s Livinglise’s
    Blog., and take the time and energy to firmly protest to law enforcement agencies, we can see more action.

    We know the FBI has their hands full and the agents are risking their lives tracking down the terrorists who are causing death and destruction, which is number one on the hit parade for them right now, but I believe the judges and juries can play havoc among the bankers and their co-conspirators involved in these crimes, by placing some of them on buses to long term prison sentences. The large bonuses and fees being paid to lawyers, loan servicing agency employees, Trustees,
    notaries, and others who are involved in this Ponzi scheme, will not be enough to keep them out of jail and they will soon spend all they have received to defend themselves.

    If you care to hear more from me, and truly wish to join forces that
    could assist in the elimination and destruction of what Neil Garfield has
    described in many articles, as the biggest criminal enterprise Ponzi scheme in the history of the world, then send comments and make some noise, write to your Senators, Congressmen, and local
    Representatives, let them know you have had enough.

    Load the courts up with law suits and appeals and file claims and complaints with the Dept of Justice in your states and with the US
    Dept of Justice, the Consumer Financial Protective Bureau, the SEC, the IRS and let them know you are demanding that action be taken,

    Thanks for listening or reading, but do the country a favor and get involved by shaking-up the system before it is too late and we all
    are controlled by these bandits.

    Thanks again.

    William Bennett

  6. A good Judge is a recused Judge. Also check the opposing Lawyers retainer agreement with junk trust.

    Otherwise we are running around like poisoned rats or chicken without heads

    Shame the Judges out of our community take it to social media. If enough of us do it success is ours They sanctioned attorneys etc. now it’s our turn

    Of course after doing your homework this is a layman a opinion

  7. I would like to send you proof through a granted motion to compel on subpoena that the BONY trust did not prove that they purchased the mortgage. They submitted 700 pages of digits showing nothing with no declaration.
    Bank of America continues to ROBO sign as attorney if fact for the trust.
    The trust could not produce a Power of Attorney allowing BofA to sign on its behalf. This was found through a Subpoena also.

  8. i’m an internet idiot in love with your site… i guess i can’t figure out how to set this up…

  9. Question for the experts…If a securitized trust files trust documents with the SEC stating that it was registered with a State like MN but the Secretary of State of MN confirms that no Declaration of Trust was never registered in their State, can they still do business selling securities as a trust.

  10. You know what ever happened to the concept ,” balance of harm”

  11. So who is named on your1099a snd why hs no 1099c beoong issued
    A forensic accountant will know this end of the deal but what about the other end of the deal and the bit in between like the credit bid
    Its si complex its like swiping candy from a baby to them
    I know i keep mentioning that movie
    ” The Big Short” people go what “the big shirt”
    Lol they dont even understand the word “short” as in ” shorting the housing market”
    When it comes to what they in fact did so pray tell how can you fight ( and vote) against what you dont understand and why should we even need to
    And how could it get so bad that our government allowed it to. Because the banks own the place and i am definitely not comfortable with that true as it is, so essential
    Watch “The big short” its not about a shirt

  12. Al murry your point is
    Yes they opened the flood gates
    You only need to read some of the stories posted on here and we are a mouthy crew

  13. They are called junk trusts or zombie trusts

    They used to be called junk bonds

  14. I’m not as Ignorant as I used to be!!!
    And Hell will Freeze over before I am seised of my Estate again and give full control and power over it to some trustee!!!!!!
    A Mortgage is a 2 party contract!!!!!

    Bad Trustee!!!!!
    I Take Back My Power given to You under misrepresentation, & Out RIGHT FRAUD!!!!!

    Just Say No!

  15. Don’t Forget they made the Trustors/ Settlors/ Grantors

    AND left BOTH borrowers and non borrowers on the hook!!!!

    Don’t get me started on Title!
    They know dag gone Well why the didn’t file the Note with the Mortgage like in the old days…where you actually owned something after you paid it off.
    And the MIA Deeds held in open escrow!!!

  16. Last weekend I went to a car show and saw a lot of beautiful cars being displayed to the public. To enter a car into the car show, the owner must fill out an application that includes his/hers name, address, year and make of the vehicle and serial number.

    The owners of these vehicles are very proud and spend a lot of money to make sure that their vehicle is all original and perfect. I had my eye on one vintage 1957 Chevrolet convertible that was perfect. Every detail of that car was painstakingly adhered to make the car look like it just left the showroom.

    I was so impressed with that car and I wanted it so I approached the owner. He was not interested in selling it. I still want that car so badly that I have an idea. I already have the address of the vehicle, the owners name and address and the identification number of the vehicle. I am confident my plan will work and I will become the proud new owner of an immaculate 1957 Chevrolet convertible.

    I managed to acquire the registration form the owner had to fill out to enter the vehicle into the car show. I had every thing I needed including the signature of the owner.

    How about I just make up a bill of sale, forged the owners name and create my own identical title, or even better, write to the State and order a duplicate title and forge the owners name to the request. Then all I need to do is make up a bill of sale, and forge the real owners signature on the duplicate title over to me.

    I think we all could do this and it would be perfectly legal and I am sure the police and courts will go along with this since all of the paperwork is in order.

    We should be able to do this with automobiles, yachts, airplanes, bank accounts and in rare occasions, their wives and children.

  17. Literally millions of people are in on the scam, realtors, brokers, mortgage brokers, attorneys, paralegals, notaries, judges, clerks of court, process servers, Fannie, Freddie, Department of Justice, Wall Street and many more. Bernie is right. Wall Street’s business model is fraud.

  18. Its deliberate, not even a presumption
    Time to call it what it actually is instead of pussyfooting around the problem
    They ALL know exactly and precisely what they do
    You have to live it to believe it


  20. The judges pension funds are all tied to REITS just like the teachers pensions

  21. Neil I really would like the opportunity to speak to you. I have filled out two request forms and left a msg. Please call me at 561-251-7506.

  22. This has already happened to me. A company called Land and Home in California sent me bogus bills for a second defaulted mortgage. I guess they were able to find information online to make up a false assignment sheet. It was signed by people who never existed and robosigned. I pointed this out to the BBB in California and Land and Home backed off. If I hadn’t known how to fight them, I would be fighting them in court in Maryland and probably losing.

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