If it is their case, then THEY must prove it

As I have said since 2006, the burden of proof should not shift to homeowners until the pretenders have made their case. To get rid of legal presumptions homeowners need only prove a credible narrative (like probable cause) that the documents are fabricated or falsely executed. After that, what is the harm of making the pretenders actually prove their case?

The lawyers who flee from foreclosure defense cases are missing out on a golden opportunity. If this were a golf game the ball would have left the tee in a perfect shot. The fundamental aspect is that nobody can actually prove a claim on a debt, note or mortgage by proving actual facts because those facts are not present.

Defense lawyers spend too much time worrying that maybe the facts will show that they have filed a frivolous defense and not enough time researching objections to claims and proof of claim. It’s time to roll back the burden of proof where it belongs.

It is not the fault of the homeowner that the debt and the owner of the debt is lost. Homeowners had nothing to do with it.

The Franklin decision (see below) from 2016 is an exquisite exposition of the law as it was written, as it is understood by jurists and as it is opposed by Wall Street banks whose very survival is completely dependent upon maintenance of lies that were propagated long before the 2008 crash.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

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see franklin-appellate-decision-tirelli-2016

The 2016 Franklin case is, point by point, an independent corroboration of what I have been saying for years about presumptions and burden of proof. Unprepared lawyers for homeowners are the greatest contributors to bad law.
The documents carry a presumption of validity. The signatures carry a presumption of authenticity. Both presumptions are weak and do NOT provide cover for the proponent of the document to step over a legitimate challenge. The homeowner does not need to prove the invalidity or inauthenticity such that judgment would be in favor of the homeowner BECAUSE the homeowner is not proponent of the document or the signatures.
It is here that that lawyers for the nonexistent foreclosing party step over the real issue only because foreclosure defense lawyers don’t stop them. The presumption stands if not contested. But if it is contested, then the homeowner must only show enough evidence of inconsistency such that a court COULD reasonably infer that the document might have been fabricated and that the signatures were without authority.
At that point nothing is decided. AND the burden of proof falls on the proponent of the document to prove its validity and authenticity step by step — something that neither the mill lawyers nor their “clients” could ever do.
Bottom Line: Homeowners do not need to prove “their case.” They only need to prove enough to cast doubt on validity and authenticity that the would-be foreclosers must prove their case without the use of legal presumptions presumptions. In the end it is their case not the homeowner’s case. When you bring a case to court, it is your case to prove — not the other guy’s case to disprove. Remember that legal presumptions are strictly for judicial economy and not to actually prove a contested fact, especially where there is a credible narrative that is opposite to the presumed facts.
I think judges around the country are now ready to hear and accept this message. Lawyers who are fleeing retainers to represent homeowners are missing the boat to both fame and fortune.

7 Responses

  1. @ Greg a/k/a “CementBoots”

    In support of the preceding comment:

    The MAKER of the NOTE (homeowner) is the BAILOR of his/her PERSONAL PROPERTY (the NOTE).

    Irreconcilably, by operation of law, ALL BENEFITS derived from the BAILMENT of the NOTE inure to the benefit of the BAILOR (homeowner).

    That means the financial gains from REMIC securitization inure to the benefit of the homeowner.

  2. JaDonnia B-

    1st – let’s get some terminology correct. Mortgages are not granted to borrowers. Borrowers (or the person/entity who holds recorded title to the property) grants a mortgage to a lender as a “backstop” lien in the event of default. – So a) the borrower receives a Loan b) memorialized by a Note that c) is secured by a Mortgage or DOT.

    Now to your question: the entity(ies) (homeowner or trustee of land trust) whoever holds recorded legal/equitable title to the property MUST be named on and sign the mortgage/DOT for it to have any legal effect. Alternately, if the property is held by a trustee of a land trust created by the homeowner (now a mere beneficiary with only personal property rights – not legal or equitable title), the lender can also get the beneficiary to provide an Assignment of Beneficial Interest (ABI) so that the lender can step in and replace the beneficiary in the event of default.

    If the Loan/Note are in the name of a borrower with no legal/equitable rights of recorded title and the lender has the borrower sign the Mortgage/DOT, as an individual and is not on title, the Mortgage is a nullity, defective and unenforceable.

    If the lender did their job, they would have conducted a simple title search and known the paperwork must be crafted to include the proper parties. If they failed to do that, then the error is fatal to foreclosure against the property as collateral.

    This means no foreclosure is available in Equity/Chancery, but allows the lender to sue in Law for recovery for an unsecured debt. That debt of course is then dischargeable in bankruptcy.

    see: BANKCHAMPAIGN v WELLS FARGO BANK 2012 IL App (4th) 110588-U 4110588_R23

    Hope that helps…

  3. The debt was just debt to begin with – in the case of these private label trusts. That is why everything is unglued. Restructured debt titled a “mortgage” at closing. You can’t put humpty dumpty back together again. But, the courts won’t let you prove that with discovery. And, even if you get discovery — they lie. .

  4. I believe it’s a one-two-knockout-punch really, because [both] the [debt] and its [security] must have unbroken corresponding chains of ownership (perfection of secured status) running to the claimant … or, the debt could become unsecured, (and therefore disallowed) with as little as a single motion hearing.

  5. Question. Can a mortgage be granted to someone without their ownership interest in that property? If deed is in someone else’s name, how is property then assoc. with debt/mortgage? There is no collateral, nothing to attach or secure debt. Do banks do that?

  6. That is interesting, and makes sense!

    Since the banks assert that it[the debt] belongs to the [borrower] to whom they bring forth claims, then the burden of proof should fall on them..at their feet. So, in the case of signatures, the bank should, beyond reasonable doubt and with certainty, be held to the task of proving that this person signed the docs they present as evidence in their cases. Aren’t both the note and mortgage signatures absolute proof of ownership of debt? If not, then why bother claiming fraud?…..

    Other than on the bank’s behalf, of course.

  7. I’ve never have understood how the bankruptcy attorneys haven’t hit the hole in one shots. It’s UNSECURED debt !!!

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