Livinglies's Weblog

Where is the prejudice in requiring the foreclosing party to prove its case with facts raather than presumptions?

There are two big takeaways: (1) Courts are getting more curious about what really happened in the mortgage meltdown and (2) this is one more example of how the TBTF banks are not entitled to any legal presumptions regarding their documents.

Research always shows that a fact is presumed in certain cases — but only in the absence of questions about the credibility of the party who proffers a document from which the legal presumption arises.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see https://www.reuters.com/article/citimortgage-foreclosures/9th-circuit-revives-lawsuit-over-citimortgage-foreclosure-records-idUSL2N1MD245

What the banks have done is (1) create self-serving documents and then (2) fabricate other documents that rely upon the facts stated or implied in prior fabricated documents. The “greater weight” (piles of false documents) of the evidence falsely leads judges to presume that all that paper must mean something even when it is all trash.

Like other objections or motions in limine practicitioners should strive for a ruling that the foreclosing party must actually prove the facts that they want to be presumed. That includes the funding of the loan, the payment for the loan, and whether any so-called “transfers” were anything more than some words scratched on a piece of paper. They must prove facts not receive the benefit of a legal presumption or factual assumption.

Transfer documents (e.g., assignment of mortgage) and endorsements imply that a purchase took place. Whether such a purchase took place or not, the documents read the same. The error is in assuming the transaction took place when the source of the document has at least questionable credibility. Credibility questions arise whether it is Wells Fargo in creating fake financial accounts and then charging fees for them, Citi fabricating signatures and notarization, BofA or US Bank appearing as the injured party, or Chase claiming to own WAMU loans that not even WAMU had on its books. It’s obvious that the players are

Credibility questions arise whether it is Wells Fargo in creating fake financial accounts and then charging fees for them, Citi fabricating signatures and notarization, BofA or US Bank appearing as the injured party, or Chase claiming to own WAMU loans that not even WAMU had on its books. It’s obvious that the players are allin on the same “game,” to wit: keeping ivnestors and homeowners in the dark while the banks trade “paper.”

That includes the funding of the loan, the payment for the loan, and whether any so-called “transfers” were anything more than some words scratched on a piece of paper. They must prove facts not presume them. Transfer documents and endorsements imply that a purchase took place

Transfer documents and endorsements imply that a purchase took place because it is obvious that nobody goes around giving mortgage loans away. The “presumption” that the foreclosing parties want to use is that there must have been a purchase transaction in real life — facts — as opposed to the presumption that a transaction occurred in which one party purchased a loan from another party.

The presumption to the contrary in the context of hundreds of thousands (perhaps millions) of cases in which documents were fabricated, forged, robo-signed,  and falsely notarized leads the courts to a false conclusion and the denial of the homeowner’s basic defense: this foreclosing party has no right, title or interest in my loan and doesn’t represent anyone who does have a right, title or interest in the debt, note or mortgage.

It is wrong for a court to ignore the 50 state settlement, the consent orders and the many cases in which borrowers were successful in undercutting the claim that the foreclosing party had legal standing.

Consider this: if the foreclosing parties really were acting legally, why wouldn’t they want to prove it? That would certainly discredit borrower defenses and send a message to foreclosure defense lawyers that these loans are real and the transfers were in fact purchases. Where is the prejudice in requiring the foreclosing party to prove its case with facts raather than presumptions?

Filed under: foreclosure |