Livinglies's Weblog

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Charles Marshall, Esq.

Call in at (347) 850-1260, 6pm Eastern Thursdays

One of the things that irritates most homeowners and lawyers for foreclosure defense is how “evidence” is admitted that “proves” a fact that doesn’t exist. One of the tools for doing that is Judicial Notice or as we call it, “JN.” JN is used for documents that are inherently credible — not some document created by one of the litigants and uploaded to a quasi government site without any validation by any government entity. They are inherently credible because they were prepared by or taken from the records of a credible source — a party with not relationship to the parties in litigation and no stake in the outcome.

If you read the statute in your state you will see plenty of reasons why most documents proffered as being subject to Judicial Notice (JN) should be rejected as evidence without proper foundation and specific foundation for each issue addressed in the document. Foundation means testimony and maybe other documents for which there is a witness to provide the foundation.

In truth when the lawyers for the fictional claimant does this they are opening up the door as well as virtually admitting that they can’t prove the false fact without JN. By aggressively preserving and invoking objections and using motions to strike and motions in limine, as well as effective cross-examination, the truth of the matter asserted by the document can be eliminated.

Institutional litigants are misusing the court system throughout the dozens of state and Federal jurisdictions to get into evidence matters which are and should be barred from evidence or at least subject to dispute, and about which these same litigants often have no or little independent evidentiary support. One such major vehicle for advancing this practice is the use of Requests for Judicial Notice (RJN).

Documents uploaded to SEC.gov, for example, are proffered as subject to judicial notice, even though the SEC website acts merely as a platform for publication, and not a proper registry, and neither monitors nor validates any documents placed on their site.

In California, StorMedia,, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9, has long controlled among other Cal cases RJNs in California litigation.  This case holds that “When judicial notice is taken of a document…the truthfulness and proper interpretation of the document are disputable.”

Yet it is very common in California foreclosure litigation for courts to treat RJNs as if they do establish the truth of the matter asserted within the documents. This enables institutional defendants in Cal. borrower foreclosure litigation, to point as evidence to Plaintiff’s presenting recorded documents only to dispute their content, as if the documents so presented and disputed are not subject to dispute, because of the taking of judicial notice.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, evidence, foreclosure, foreclosure defenses, foreclosure mill, jurisdiction, legal standing, Mortgage, Motions, Pleading, prima facie case, STATUTES | Tagged: credibility, judicial notice |