Evidence: No Magic Bullet

Information is not the same as Evidence. It’s only evidence if the Judge (1) rules it is evidence and (2) admits it into evidence into the court record. Once admitted, the Judge is free to consider the information with as much or as little weight as it chooses.

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Nearly all pro se litigants and too many lawyers combine a shotgun approach on legal argument and a single focus on unprovable facts. More than judicial bias, the presentation of information in court lies at the heart of “bad” decisions by the the courts. Combining presentation deficiencies with bad pleading and an utter failure to control the narrative, such litigants and their lawyers are doomed to failure.
This is a summary of the subject of evidence at trial, as I see it. Information, testimony, documents and the public domain are the sources of information from which litigants and their lawyers draw conclusions and develop a narrative of the case. None of these constitute “evidence” and will therefore be ignored or ruled irrelevant by a court of law unless a court rules that the data or information is somehow connected to the case at hand. Even allegations of patterns of conduct are insufficient to support the proffer of such information unless the information is coupled with direct evidence (testimony, documents) connecting the behavior of the bank or servicer with the case at hand.
Nothing is evidence that can be considered by the trier of fact (Judge, jury) unless the judge rules that it is evidence AND that it is admissible in the case at hand. Unless the homeowner can show that the preferred evidence is relevant to a defense or avoidance, the Judge has no choice but to exclude the information from evidence and thus from the Court record.
My observation is that there are four levels of “EVIDENCE:”
  • General information not directly related to the case at hand
  • Specific information that is relevant to the defenses raised.
  • Persuasive evidence supporting either defenses or avoidance
  • Conclusory evidence that inescapably leads to a result either by logic or rule of law.
INFORMATION AND BELIEF: Pro se litigants understandably don’t understand the difference between general information and the rules of evidence. They come to court with information from the media or other sources showing what they think is evidence of wrong-doing and they are frequently right. But information about wrong-doing in OTHER cases is not evidence of wrongdoing in your case.
RELEVANT INFORMATION and EVIDENCE: Testimony, such as those cases where the bank or servicer mislead the homeowner by steering them into default through assertions that a workout or modification is only possible if they are 90 days behind is information. It is also evidence that the court will generally allow in evidence. But allowing it into evidence doesn’t mean that the trier of fact will give it any weight when coming to a decision. The well-versed lawyer will ask for the recordings of the conversations in which such misleading representations were made. More often than not the recordings are said not to exist. Their alleged nonexistence can be challenged by information, ruled as evidence by the court, that all other conversations had been recorded. The absence of conversations regarding the modification MIGHT be used as evidence of concealment and corroboration of the homeowner’s testimony that he/she was mislead into stopping payments and thus going into default.
PERSUASIVE EVIDENCE: Just because information is allowed into the record as evidence doesn’t mean the trier of fact will use it in making a decision. As related in the preceding paragraph you can see how raw information becomes relevant evidence and then evolves into persuasive evidence. You are always working against the beginning supposition that no bank would want a loan to become non-performing. And you probably can’t prove that policy, although there have been occasions where testimony or recordings were admitted into evidence showing that the purpose of the alleged servicing company was to obtain a foreclosure judgment and foreclosure sale. Even then, the Judge is left wondering why such a policy would exist, using the reasonable man foundation for believing that the rational thing to do as a lender is to collect on a debt, not to waste the collateral or the debt. Thus the level of persuasion in order to win is much higher in that context.
CONCLUSORY EVIDENCE: This falls into two categories — legal presumptions that are outside the judge’s scope of discretion and “weight of the evidence”that remains within the scope of the judge’s discretion. It is rare that you can introduce anything that requires the judge to rule in favor of the homeowner. But the reason why “greater weight of the evidence” is the rule is that the trier of fact is receiving evidence that cumulatively leads inescapably to the conclusion that the foreclosure is defective. Evidence does not rise to this level unless the robo-witness on the witness stand acts or says irrational things. I call this the “Perry Mason moment.” This is eminently possible in a proper cross examination because the robo-witness’ knowledge is intentionally limited and usually nonexistent as to the workings of the REMIC Trust, the distribution of income from servicer to the “creditor”, and the agreements in which servicing has been created or changed.
Actual Example from My Recent Trial in Orlando:
Q: Here is the Power of Attorney you introduced as evidence that is signed by Chase. And here is the Pooling and Servicing Agreement. Can you show me where Chase is mentioned as being in the chain of ownership or authority?
A: NO.
Q: NO?
A: NO.
Q: Don’t you want to look?
A: NO.
At that moment the court was left with the inescapable conclusion that Chase had no authority to execute the POA and that the Plaintiff’s case had failed.

5 Responses

  1. I had a letter from the originator of my loan from their legal department informing me they sold my loan to Lehman Brothers in 2003. Along comes U.S. Bank to foreclose and submitted paperwork (fraudulent) that the originator sold my loan to them in 2010. I lost my appeal for summary judgment anyway. My argument was that if the originator sold my loan to Lehman in 2003, they could not sell it again to U.S. Bank in 2010. When the originator sold my loan to Lehman they relinquished all rights/interest in my loan so the paperwork U.S. Bank submitted to the bank with “authorized” signatures were invalid. Judges don’t care.

  2. Dear GM,
    Please contact us at info@lendinglies.com with your contact information. Maybe we can help point you in the right direction.
    Best Regards, The Lending Lies Team

  3. I HAVE evidence. Tangible, paper undeniable evidence that I was smart enough to capture very early on. Anyone who has looked at it has told me my evidence clearly shows Bank of America’s fraudulent behaviour. One literally does not need to be smarter than a 5th Grader to figure this one out. Yet I can’t get a single lawyer to help me here in Seattle. NOT ONE!

    My case is unique and I believe could be a game changer. I already received a rare decision in my favor because of my evidence and proof of legal theory. I have $10,000.00 cash money and the means to pay ongoing fees and court costs. I mean, compared to other people in my situation I would think I’m a lawyer’s dream. I have evidence and money. Still…I stand alone.

    Meanwhile Bank of America is taking full advantage of my situation. I’m on the verge of a serious Injustice taking place. At this point they stand to get away with everything meaning all of their fraud, my home and equity which is now double what I paid for it, their stupid lis pendens is a violation of my civil rights to sell and prosper and they’ve crippled my credit having fraudulently reported me delinquent when they have absolutely zero secured interest to begin with.

    I’m scared and angry! I feel alone. This is not a situation one can navigate on their own. I made the mistake of sitting here waiting for the law of work for me with my upcoming jury of 12 trial that most likely won’t ever come to fruition. I was naive and that’s what they were counting on. What they weren’t counting on is my tenacity. That, my faith, my evidence and the strive for justice are the only things that keep me driving forward.

    I need help.

  4. Reblogged this on California Freelance Paralegal and commented:
    Great blog post that more pro se plaintiffs need to read. Trying to admit evidence of bank wrongdoing in another case will almost surely not work. They need to submit admissible evidence of wrongdoing in their case.

  5. Isn’t the court allowed broad discretion in determining whether a bank committed an unfair or deceptive act in violation of consumer protection laws.
    A pro se litigant can submit documents showing they applied for a loan modification. The judge agrees to accept that as evidence and also the HAMP document showing the trial payment offered by the bank. The judge also accepts evidence of a mortgage calculation to show that an affordable payment is mathematically possible. The bank submits a letter of denial stating “we are unable to create a payment you can afford “. The math seems to disprove the letter’s boilerplate claim. This is all evidence the judge accepts into the record. Documents. The bank argues that the defendant has not identified what HAMP regulation the bank violated therefore summary judgement should be granted. The defendant claims the bank did not follow the federal guidelines to create a an affordable payment that is within 31 percent of the verified income and refused to lower the interest rate as HAMP allows. The borrowers get the HAMP rules online and the bank controls the information the borrower has to TRUST the bank to follow the rules . The end result is that the bank violated HAMP for years and generated a benefit for the bank and a loss to the defendant by chosing to never lower interest and make a payment that’s affordable and simply Denys a modification. The court accepted testony and documents of an in-house modification that did not disclose the true amount of the monthly payment and a document of fees the bank added after the fraud mod was signed. The court accepted testimony that the bank sent a notary to the borrowers home to get her signature and misled her to believe it was a HAMP. It seems like it would help the judge decide the case by introducing into evidence the George vs BofA ruling that determined that wrongfully denying modifications and charging higher interest on in-house mods were sufficient claims to proceed on racketeering charges. I’m very interested in how the court determines evidence and it appears that courts make mistakes when appeals reverse court decisions. Banks are getting away with massive crime and if we make a system too complicated
    To stop it, there is not much point
    To supporting such an unjust bureaucracy. I am amazed
    That most of the charges against the banks rely on a flimsy arguement of mail and wire fraud!!! They are clearly misleading borrowers and profiting fr unfair and deceptive business practices Kind of like charging them with speeding after they drove off from
    a mugging. Going for the low hanging fruit is not in the public interest.

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