Attacking Legal Presumptions

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The entire foreclosure mess can be summed up in one word: PRESUMPTIONS. Under the rules of evidence certain documents are presumed to be true and valid. The “Holder” of a negotiable instrument is often presumed to own it and have the right to enforce it. If the instrument is a promissory note, then it is presumed that the note is evidence of a valid debt. It is through this vehicle, that the banks and servicers have successfully conducted millions of foreclosures.


*The problem, as most people now realize, is that the presumed fact is not true, to wit: that the note is evidence of a valid debt. When forced to prove the debt, the banks and servicers usually offer some sort of settlement because they cannot prove the debt. They can only prove they have a document that they say is the original note; but the fact is that the notes themselves and other instruments of “transfer” of the notes refer to nonexistent transactions. If the note indeed is offered as evidence of a valid debt that in fact does not exist, then the note and all the presumptions that are usually attributed to the note become worthless.
*While we have won cases at trial based upon this fact pattern, it is far easier to get to the nub of the problem in discovery, where the scope of your requests is much broader — anything that might lead to the discovery of admissible evidence. The bottom line question is “If you are offering the note as evidence of an enforceable debt, name the parties to the transaction in which the you assert the transaction occurred, along with the date and time of the event.” [This obviously needs to be broken down into separate questions.]
*You will be met with either obscure answers or objections in which case you need to set a hearing date for the objections or file a motion to compel answers or better answers. In doing so you must establish real grounds for why you are asking and why you can’t get the information any other way. A memorandum of law is essential in foreclosures because the Judges are predisposed to take the presumptions arising in the complaint and then run with them as if they were true throughout the rest of the litigation.
 *All presumptions, except in rare instances, are rebuttable. Conclusive presumptions basically don’t exist in contract civil cases. Like if a man is married to a woman, it is conclusively presumed that the birth of a child makes him the daddy whether that is true or untrue. THAT is a conclusive presumption. So be careful with the word “conclusive” as ti will generally show lack of knowledge on the part of the person using it.

 *All rebuttable presumptions are subject to the same test before being applied — go research it — are there circumstances that give rise to reasonable doubt as to whether the presumed fact is true? If so, the presumption does not apply and the proponent of that fact must actually prove it rather than rely on a presumption.   Circumstances do not include mere information or reports. The facts relied upon the party challenging the presumption must be admissible as evidence that there is doubt as to the credibility or authenticity or correctness of the fact being presumed.

So if you want to say that the proponent “beneficiary” or “mortgagee” has engaged in a pattern of conduct that involves fabrication of documents, fraud, forgery, robo-signing etc. you need to do two things. First you must produce admissible evidence that the pattern of conduct exists. AND Second, you must show how that pattern of conduct has a nexus (connection) to the case at bar.

*It is a grey area as to whether news reports can establish that the pattern of conduct exists. It probably is better to have someone testify (corroborating the reports in public domain) that the pattern of conduct exists based upon his or her own experience. Showing examples of cases where this pattern exists would be pretty conclusive as to abuse of the court’s discretion in relying upon the presumption.


*Lastly you must show the court that the documents in the case at bar are similar to the ones used where the proponent was offering evidence that was found to be fraudulent, illegal, wrong etc.

3 Responses

  1. Reblogged this on California Freelance Paralegal.

  2. Good point, A Man, because as you know, many of the lawyers appearing in court do not even know who they actually represent.

  3. The first presumption is does the opposing attorney have a written relationship contract with the alleged trust creditor as required by law

    Not an attorney

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