Attacking Legal Presumptions:”False in One, False in All”

Anyone defending a foreclosure these days should start with the assumption that the entire infrastructure of “loans” and foreclosures consists of lies. This assists in planning objections and cross examination. More importantly it provides the narrative that casts doubt on the trustworthiness of testimony and documentary evidence — which in turn can deprive the the foreclosing party of the essential ingredient to its case: legal presumptions.

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Dan Edstrom, senior forensic analyst does a lot of legal research in addition to his work as a forensic analyst. He has reminded me of a concept that is neither a statute nor a legal doctrine, as such, but which is nonetheless applied in many different kinds of cases, I think he is right in his assertion that it ought to be utilized in foreclosure litigation.
The basic premise of the case for foreclosure is that the homeowner received a loan from the originator and that the current party has purchased the loan. Neither assertion is true in most instances. So the foreclosing party relies on legal presumptions attached to facially valid documents and robo-witnesses that testify to the virtually nonexistent “boarding process.”
Those legal presumptions are liberally applied in favor of the banks and servicers, who often bring the case in the name of a party who is a complete stranger to the alleged loan. But if the presentation of evidence is interrupted by appropriate objections and followed up with appropriate cross examination it is not uncommon that the witness is lying about the source and authenticity of business records and other documents that are used to “prove” the case for foreclosure.
The next step, often missed, is to raise the issue of trustworthiness of the testimony and the documents such that the legal presumptions should not apply. Those presumptions, by all accounts, are to be applied in certain circumstances UNLESS there are indications of a lack of trustworthiness.
Thus the case that should be made is to prove lack of trustworthiness, rather than the virtually futile attempt to prove facts that are almost certainly within the sole care, custody and control of the banks and servicers and who withhold that information because it would show that they are pretenders in their alleged roles. Exposing the lies requires cross examination revealing inconsistencies in the documents or the testimony or both.
Hence the material necessary for victory could be in the evidence proffered by the the foreclosing party at trial. The more lies you expose, the less relevant are the legal presumptions. And there should be no prejudice to the the opposing side to being required to prove their case without legal presumptions — i.e., proving the loan and the subsequent sales of the loan.
After exposing these lies then, the defender could move to strike the documents that were admitted based upon legal presumptions, thus requiring the foreclosing party to prove its case without legal presumptions. The motion also serves as a signal to the trier of fact that the evidence admitted over objection from the homeowner should be given little or no weight.
Here is what Dan sent me, which provoked my writing this article:

The concept of false in one, false in all is frequently used across the country in jury instructions in regards to witness testimony. See California Civil Jury Instructions (“CACI”) 107. Witnesses; see also Book of Approved Jury Instructions (“BAJI”) 2.22; See Bandana Trading Co., Inc. v. Quality Infusion Care, Inc., 164 Cal. App. 4th 1440, 80 Cal. Rptr. 3d 495 (Ct. App. 2008). See also in a criminal case: State v. Ernst, 32 N.J. 567 (1960). More Civil cases: See Lawnton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 581 (App. Div. 1958), Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E.&A. 1941), Coleman v. Public Service Coordinated Transport, 120 N.J.L. 384, 387 (Sup. Ct. 1938). For a full discussion of the use and application of the maxim, see, Vol. 3A Wigmore on Evidence (1970) Sec. 1008 et. seq. “It should certainly not be of importance to tell the ordinary man of the world that he should distrust the statements of a witness whom he believes to be a liar.” (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 671 [288 P. 834].)

BAJI 2.22: “A witness, who is willfully false in one material part of is or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”

When the conduct of [Plaintiff] in this proceeding is viewed in its entirety, it compels the Court to invoke the ancient and venerable principle of “Falsus in uno, falsus in omni” (Latin; “false in one, false in all”) upon [Defendant] which, after review, is wholly appropriate in the context presented, Deering v. Metcalf 74 NY 501 (1878).

Here is footnote 35 from In re Telfair, 745 F. Supp. 2d 536 – Dist. Court, D. New Jersey 2010
Latin maxim “falsus in uno, falsus in omnibus” is neither a provision adopted by means of any United States statute, regulation, etc., nor a legal canon of any kind. Literally translated into English as “false in one thing, false in everything,” the maxim: (a) prompts logical caution as to the entirety of the position taken by the speaker who, as part of his/her position, misrepresents a certain fact; and, as such, (b) has been adopted into the panoply of policies of American jurisprudence related to the propriety of findings made by the trier of fact. See Kanawha & M.R. Co. v. Kerse, 239 U.S. 576, 581, 36 S.Ct. 174, 60 L.Ed. 448 (1916); Telephone Cases, 126 U.S. 1, 8 S.Ct. 778, 31 L.Ed. 863 (1888) (“[The falsus in uno, falsus in omnibus] rule does not necessarily mean that the man who falsifies once is a liar; but it means that justice will not rest on testimony a substantial part of which is proved to be false”); Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820 (N.J. (Ct.E. & App.) 1941) (explaining that the maxim is not a rule of law but a guidance that – if testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jurors may disregard the entirety of that witness’ testimony).
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4 Responses

  1. Great article as always Neil. Still fighting like crazy with crooked ole Fannie Mae (GSE) as they are definitely in on all the racketeering that has been taking place and still is!!
    Seterus is really something else and little wonder that FNMA and nasty old Bank of America use them to try and take off some of the heat against all these crooks and co-conspirators!! Let’s hope getting rid of Loretta Lynch will be a start in the right direction, but don’t hold your breath. After all Bank of America is a long time tenant of DT and he as done a lot of business with ALL these various lenders. Have a Happy and Blessed Thanksgiving and subsequent holiday season. SEMPER FI

  2. Wow. This is epic advise. Now that my foreclosure was denied I may be going to trial if the bank predator Wells Fargo continues to spend money on more lying. Calling their trustworthiness into question is a key strategy to win. Just about every thing they do or claim is a lie and it’s important to recognize this and attack full force!!! THAT’A A LIE will be my new platform!!! Of course there are documents but I have to magnify all the lies they contain. Thank you for this post. I’m feeling like a warrior now.

  3. Neil,

    That post is very revealing. I have been wondering how to go about my case. Thank you to both you and Dan Estrom.

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