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What areas should you target when you litigate?

In foreclosure litigation there are many pointless rabbit-holes an attorney or homeowner can attempt to go down, but they serve only to confuse and distract.  Instead, litigants should focus on areas where actual leverage can be obtained.  Neil Garfield has warned litigants not to focus on the lender’s vulnerabilities that are not provable.

Recently Neil Garfield held a consultation with an attorney who requested advice on how to deal with two defective instruments.  His advice to the attorney was to cancel two instruments:

(1) as assignment allegedly signed by an authorized person from MERS as nominee for BNC Mortgage which had ceased to exist 3 years earlier. (2) appointment of substitute trustee by the assignee of the void assignment. The lender was handicapped by the cancellation of these instruments.

Despite all of the fraud and fabrication that continues, it is the bias of the courts which has created an uneven playing field that prejudices homeowners.  Therefore homeowners must obtain meaningful discovery related to standing and questionable transfers.  This should be done by examining the chain of title, a forensic examination of the note, trust closing date, and other violations of law by the servicers.  We also recommend that you hire an experienced investigator upfront to root out any major discrepancies that will be beneficial later in litigation (we recommend Bill Paatalo at http://www.bpinvestigativeagency.com).

In order to get something tangible that can be used to leverage your case consider strategic depositions of the pawns the servicer uses to verify ownership. The person signing off on the certification of note possession who files an affidavit claiming the servicer has standing to foreclose is vulnerable because they possess limited knowledge about the actual creditor, movement of the note and have no personal knowledge.

If you spoke with the Master Servicer or Trustee of a mortgage-backed trust they would tell you they don’t own anything and they are only a reporting agent.  They would direct you to the loan servicer for anything related to the loan.  The Servicer actually hired the foreclosure mill law firm to file the foreclosure – and is engaged in camouflaged equitable subrogation.

Foreclosure occurs because fraudster servicers routinely create a MERS assignment of mortgage coupled with a fraudulent note, add an undated stamp on a blank page of a note or allonge and create standing where none exists.  Add a corporate witness who knows nothing about the loan’s movement and boarding process, and the fact they are trained to parrot words like, “normal course of business” or “policy and procedure”– and the court will rule in their favor if not challenged.

Even worse, there is a new foreclosure platform that has morphed into a business model where new servicing companies who have nothing to do with the loan are being created out of thin air (think SPS or Ocwen) claiming they are the servicer for a bogus trust and the court requires NO INQUIRY INTO THE PURPORTED TRUST AT ALL!  The court accepts the validity of the trust without proof despite state requirements for a trust to conduct business in the state and be registered.

In order to gain traction you should depose:

• The Complaint Verifier
• Certification of Possession of Note Witness
• Affidavit in Support of Summary Judgment Signers
• Asset Manager/Trustee/Master Servicer of a Plaintiff Named Trust

Depose the corporate witnesses for trial and subpoena dues tecum the “policy and procedure” manuals, loan transfer histories and any deposition they intend to rely on.  Anticipate heavy resistance but remember if they don’t turn over the necessary documents those claims must be excluded from testimony.

Southern California attorney Charles Marshall advises homeowners to remember that in judicial foreclosure states where typically the borrower is the defendant, counterclaims or cross-complaints can sometimes be used to bring the legal pleading approach described.

In order to prevail in discovery, motions to compel discovery, summary judgment and at trial, you will need an attorney who can litigate like a mad dog and who is not afraid to become a Country Club pariah.  At the end of the day this is about verbal and evidential combat.

This article and the radio show are for educational purposes only and are not legal advice.

Charles Marshall, Esq.

Law Office of Charles T. Marshall

415 Laurel St., #405

San Diego, CA 92101

cmarshall@marshallestatelaw.com

Phone 619.807.2628

Filed under: foreclosure | Tagged: attorney charles marshall, california foreclosure law, foreclosure discovery, fraud, servicer fraud, the neil garfield show |