McDonough v Smith: High Court Open Door on Fabrication of Evidence

This decision is extremely important for 2 reasons.

1st, it reaffirms a right under federal law to bring an action for damages for fabrication of evidence.

2nd, and equally important, it establishes that the time to bring such a claim does not start until the conclusion of litigation, whether successful or unsuccessful.

see Article on McDonough v Smith McDonough v. Smith, No. 18-485 (U.S. Jun. 20, 2019)

See U.S. Supreme Court mcdonough-v-smith-5

see 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

I am uncertain at the time of writing this as to whether or not any attorney has thought to bring an action for damages based upon this statute. but it certainly seems applicable to foreclosure actions in which assignments, endorsements, notices, correspondence, and even deeds are fabricated for the purposes of obtaining a judgment in court.

[Additional Comments: after analyzing the cases, it would appear that this federal statute provides the basis for a cause of action for money damages and injunction.

However, close analysis of the cases involved strongly indicates that a homeowner will be able to use this statute only if he prevails in the prior foreclosure action.

While many attorneys are bringing wrongful foreclosure claims, and claims based upon fraud, this federal statute is probably an important addition for 2 reasons: (1) the statute of limitations does not begin to run until the case and foreclosure is over and is probably tolled by active concealment; (2) it appears as though the burden of proof might be a mere preponderance of the evidence that fabricated instruments and fabricated testimony were used in the pursuit of a wrongful foreclosure.]

If I am right about the SOL, that eliminates a primary defense of the potential defendants. If I am right about the burden of proof, it makes it far easier to prove a case against the defendants than using a cause of action for fraud.

This statute could be used in conjunction with virtually all foreclosure defenses and which claims of securitization are made and documents are fabricated, robo-signed and forged.

At this point, as any foreclosure Defense Attorney and most pro se litigants can tell you, virtually all foreclosures are based upon some chain of title that includes various alleged transfers or apparent transfers of the subject debt, note or mortgage.

Nearly all such alleged transfers do not exist except for the paper on which a reference is made to an assignment, endorsement, power of attorney or some other document that may or may not exist, and in all probability has been fabricated, backdated, forged and/or robosigned. all such documents are only valid if they refer to an actual event in real life. In connection with loans, the only relevant events are transfers of money. And in real life, in nearly all cases, no transfer of money ever occurred in connection with the execution of documents that were fabricated for the sole purpose of obtaining a foreclosure sale.

if I am correct in my interpretation, the statute could be used to include multiple defendants that might otherwise escape liability for actions alleged in a complaint for damages related to the fabrication of evidence and the use of fabricated evidence in furtherance of the scheme to obtain a wrongful foreclosure.

17 Responses

  1. Government official? Yes. But that official is not limited to the judges.

    Why do you think “bank” foreclosure mills are so cocky? They have the government backing – which translates to judicial backing. Title? Been corrupted across the county. Modifications? A front to continue cover up. GSEs? Government took control. Losers include the GSEs.

    This case of reference is a criminal case. Criminals, guilty or not, get more respect under the law than any homeowner. This case, on theory, is good. Fabricated evidence can be presented despite claimed statute of limitations. BUT you have to WIN to later claim that fabrication. In each and every one of these foreclosure cases fabricated evidence is produced on s daily basis, and the verdict is generally approved FORECLOSURE despite fabrication of documents.

    Also, in the case of reference, the “criminal” was found not guilty, and there was a claim of fabricated evidence during litigation, which was found to not be precluded by the statute of limitations for any further action for that fabrication.

    Bottom line is this — the fabricated documents in foreclosure are backed by those in authority. And, those in authority are NOT just the judges. All is, and has been, controlled. That control was to save a “financial system” from total collapse. Obviously, this was a system orchestrated by massive fraud for the benefit of those who would reap massive profits.

    Until the people stand up together and say – “ENOUGH” — we remain victims for the sake of undisclosed, unknown, and unregulated, so called debt buying “investors.” The GSEs — hate to say it – were defrauded. They are not debt buyers, and they do not foreclose. Government against government? Possibly. All in the name of saving a corrupt financial system for the benefit of others – who may, or may not be, even licensed in the U.S. .

    We need someone to not fear challenging a “system” that has GREATLY failed us. It will not happen on a case by case basis (though a few may win). It will happen by someone with courage to challenge it, and by the people who stand together.

    Neil knows this. We all know this. And, Democrats — you are failing again. I see nothing in your debates. This is what the American people care about – #1. Trump — you took the Democrats word of that all was “finished.” Not finished Mr. Trump. Wake up.. Neither Democrats nor Republicans is a good situation. It is not over until the truth is told.

    We will get there. Stand together. Dignity is at stake. No matter what. Truth will prevail.


  2. No. What are you going to do? Tell the judge he’s perpetrating a fraud upon his own court? Go read the statute and the cases that cite to it. If you have a problem with the judge, file a formal complaint against his with your state judiciary disciplinary committee.

  3. Ahhh, Bob G, aren’t JUDGES government actors colluding with the banksters for deprivation of our property???

  4. Thanks Neal for your as-always timely advice to us victims of Big Bank fraud.

  5. So, if I got evicted on Jan 3, 2019 am I still eligible to file suit and how long do I have to get some funds together? thanks to anyone who replies to

  6. @Brian Tracey…i’d like to know more about your situation. can you contact me via email ?

  7. Would you counter-sue for damages while you are still fighting the initial case as Defendant?
    Thank you in advance!

  8. StillFighting: You sue the actors, then invite the Jury to calculate the damages. Attorneys tend to be stiff-necked about this sort of thing, they have this idea that it is up to the plaintiff to prove damages, etc. Not so. In court, you do not have to “prove” anything at all. All you have to do is convince the jury.

    In your case, ask for $53 million and let the jury sort it out. Remember: typically, a jury cannot award you “more money” than what you asked, so take a broad view of your claims.

  9. Charles Reed: Right on. How about another gov agency: HUD and their “purchase” of reverse (HECM) mortgages. My mother-in-law’s reverse mortgage was originally with Freedom Financial, then subsequently “assigned” to HUD by the notorious Linda Green and of course Wells Fargo had their dirty little paw prints all over it. I have the documents. We had to pay the reverse off or get foreclosed on by none other than the government (HUD). This is just another example of how the government steals homes. At closing, Fidelity title didn’t blink an eye as to the fraudulent chain of title issue, even though I read somewhere that Old Republic Title Co quit insuring Linda Green’s fraudulent robo signatures if they showed up in the chain. I’m in another foreclosure issue on my own property so had to let this one go. Wish I had the time and money.

  10. If as Bob G is saying is true an it government officials fabricating of evidence does this not apply with as a result of the fabrication it profits that government agency as in Ginnie Mae, who is receiving foreclosure payout from illegal foreclosures?

    Ginnie is the records keeper of who the lender for each loan in every Ginnie MBS, so when Wells Fargo placed themselves in title for the WAMU loan it was servicing but could not purchase because of how the Notes have been endorsed in blank to create the securities.

    Wells has an outside law firm forge the Notice of Default and Assignment of the Deed of Trust and forecloses then transfers those dollars to Ginnie because their is not an actual debt holder as the bank is a defunct bank!

    Ginnie knows who the original issuer of the securities but play dumb as to the Theft by Deception. Wells is illegally seizing property for the Federal Government in violation of the 4th Amendment!

  11. Well, well well finally an attorney is speaking what I have been yelling for years! Congratulations!! Hopefully people will listen now.
    To be clear, when a right secured by the Constitution or laws of the United States (as apposed to “Constitutional rights”) the United States (a corporation “presumed to be for the benefit of the public”) is obligated and those in offices thereof are duty “bound by oath or affirmation to support this Constitution” (Art VI) “to secure these rights” and “to effect their (we the people) Safety and Happiness” so they are in breach of fiduciary obligation and sworn duty to perform and the corporation (United States) is in breach of its charter (the Constitution) by failing to correct and is fully liable for what its officers do as in any corporation.
    One has the right to “reasonably rely upon” the performance of such entities and its employees, officers and agents. Thus one had reliance damages among, actual damages, consequential damages, subsidiary damages and the real biggie “penalty damages”!!!! What “penalty” will cause or reasonably cause the activities to be halted, cease, stop and never happen again? In fact under FRCP one may make an non-frivolous case to have a corporations charter pulled and the legal entitity dissolved… which includes the “United States” and “The State of Alabama, Maryland, or as I call them collectively “The State of Corruption”, put your state in there. (Not to be misconstrued as “Alabama State”, “Maryland State” de jure non corporate entities of government of the people).
    In my mind and in many cases “treble damages” is appropriate and what that means is three times the harm done and … and three times the amount that was taken or they benefited as a result. Why? because if it is not sufficient to deter “when corruption is without profit it will cease” then it is a mere fine or (cost of doing business of corruption and the laws be damned).
    If you read the Trazavant case it worked out to be about $800.00 a minute that he was deprived of his rights and freedom. That is about a million a day and that is what I believe is just and proper that the deprivation of any right secured by the Constitution or laws of the Uited States or any of the “several States”, is a million a day because the deep pockets of the states and the United States which is brought to bear upon the people unlawfully must feel the pain of the act(s) sufficiently to “cause” it to insure it NEVER happens again! The penalty for treason is death… so how much is a life worth? In other words if we adhered strictly to the law there would be a lot of hangings, to the point that virtually everyone in government who are obligated and duty bound “to secure these rights” and “to effect their Safety and Happiness” (and for them ignorance of the laws is no excuse) would be hung for warring against the people, giving aid and comfort to the enemy of
    “”We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
    So what “Penalty damages” is sufficient to insure that a multi trillion dollar legal entity will alter its “business as usual” of fleecing the people and repent (STOP doing, turn away, make right and then give alms), insure every employee, agent and holder of position of public trust or profit is properly trained to such an extent that they will not even think of trespassing upon the right of any of the people??
    Or to put it another way, what is it willing to pay to prevent the people from simply “abolish(ing)” the entire “Form of Government” (Corporation instituted “To secure these rights” and “to effect their Safety and Happiness” and “benefit the public”)? That is the goal after all.
    Now this will be in the billions if not trillions but what would you do with all that money?? Perhaps it makes sense to cause the funds to be used in some way to institute “Continued Competency Training” in which is three separate testing of every person holding any office of public trust or profit, as to their Knowledge, Understanding and Accurate Use of the “principles” upon which the laws are founded, namely “That to secure these rights governments are instituted” “and organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.”

    BTW, there is sufficient evidence of the increase of health issues, suicides, depression, degradation of the neighborhood, its security and happiness and value of property, community etc. to include these in the damages (consequential, reliance, (resulting), subsidiary Damages).
    When they decry that it is “too much” remind them that we the people will always throw a “thing” (including “mere legal entities, existing only in the minds of man”) under the bus, over a cliff (sacrifice) to save even one of the people and their rights!! So if the penalty causes the corporate mere legal entity to go bankrupt and be dissolved, then so be it. One man Trumps a thousand corporations created to serve man, including governments! “Any Thing in this Constitution or laws of any State to the contrary notwithstanding.”
    So to me and all “Americans” as apposed to “Americant’s” is not just about “just compensation” or even justice under the law, but what will “effect” cause, bring about a change in “this it the way we have always done it” and turn it into “this is what we are charged to “effect””.
    When we insure the protections of our neighbors rights we inherently secure our own rights. Blessings to all who come in Kindness.

  12. @StillFighting ,

    Find a personal injury ambulance chaser… I’m in your situation. For me the foreclosure suit itself denies me the ability to work in financial services,, where I once earned about $200k/yr… that’s a cool 2MM before all the pain/suffering.

  13. So, how are damages determined? If Defendant wins a 10 year foreclosure case for Lack of Standing, with dozens of fabricated fraudulent documents recorded by the Plaintiffs in the case, how do you determine the amount of damages?
    We have been terrorized for 10 years and are still fighting the good fight, while still in our home. We know we will win this case, and have talked about suing for damages. However, attorneys can’t seem to determine how to calculate damages for financial ruin, stress and damaged health, crushed marriage, etc.
    Any thoughts?

  14. Well, IF “Fraud upon the court” makes void the orders and judgments of that court. It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding.(except foreclosures and cases where judges have personal interests)

    When WHY we still have these issues with fraud upon the Court committed several times every day?

    IF we all know about banks fraud – judges as professionals must be aware of it, too.

    But for some reason they don’t care and continue to rule in favor of fake Plaintiffs – which created a huge new housing bubble since millions of illegally foreclosed properties lack any legit Title and their owners merely in possession of unsecured line of credit – which was once again based on the same fraud….

    So, is fraud upon the Court illegal or its depend who commits it?

  15. Bob, you need to research the statute in question. 1983 cases involve any entity that acts under color of state laws to illegally deprive ANYONE of their rights guaranteed by the Constitution. This does NOT require the defendant to be a government official–in the case you cited the defendant happens to be one, but the statute actually says EVERY person who, under color of state laws, deprives any citizen of those guaranteed rights is subject.

  16. “Here, the claimed right is an assumed due process right not to be deprived of liberty as a result of a government official’s fabrication of evidence. Pp. 4-5.” McDonough v. Smith, No. 18-485, at *2 (U.S. Jun. 20, 2019).

    No application to us whatsoever, in my opinion. Applies solely to govt actors acting under color of law. This is strictly a civil rights case.

  17. This case is amazing. I was victimized by a financial institution in Green Bay WI. This Bank not only knowingly allowed my signature to be forged but covered it up with falsifying foreclosure filing and got away with it. I am now hopeful that this case will be the grounds to bring justice and right the wrong.

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