Frustrated with Your Lawyer’s Attitude?

PRESUMPTIONS VERSUS FACTS

The bottom line is that lawyers want to do the best possible job for their client and get the best possible result. They like winning. But sometimes they must protect clients against themselves. It’s true there are lazy lawyers out there who take money and don’t do the work. But most of them want to win because their livelihood depends upon a good reputation in the courtroom which includes respect as a winner.

There is a  huge difference between what is written in statutes and case decisions and how and when they are applied. The fact that a court fails to apply the law that you think or even know should have been applied is not a failure of the lawyer so much as it is a failure of the courts to escape their bias. The simple fact is that I agree that most foreclosure cases should be decided in favor of the borrower but getting a court to agree is a daunting challenge to the skills of the lawyer representing a client who is largely seen as food for the system.

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So in a recent email exchange here is what I said some things about legal presumptions. I should have added the following:

Another legal presumption or factual assumption employed by the courts and often overlooked by foreclosure defense lawyers arises from the naming of the alleged claimant. A typical naming convention used by lawyers for the “claimant” is “ABC Bank, as trustee for the certificate holders of the DEF, Inc. Trust pass through certificates series XYZ-YY-Z.

Several things are happening here.

  1. The case is being styled with the name of a bank creating a misleading impression that the bank has any involvement with the foreclosure.
  2. The reference to the bank as trustee is never supported by any assertion or allegation that it is indeed a trustee and under what trust agreement. The court erroneously presumes that the bank is a trustee for a valid trust who owns the claim.
  3. The reference to the certificate holders makes the certificate holders the claimant. But the pleading does not state the nature of the claim possessed by the certificate holders nor does it identify the certificate holder. In fact, the certificate holders have no right, title or interest to the debt, note or mortgage and are due nothing from the borrower. The court erroneously presumes that the reference to certificate holders is just a long way of referencing the trust.
  4. The reference to the corporation creates ambiguity as to the name of the trust or the party whom the lawyers are saying is represented in the foreclosure proceedings. The court presumes that the naming of the corporation is irrelevant.
  5. The reference to the certificate series falsely implies the certificates convey an interest in the subject debt, note or mortgage. By erroneously presuming this to be a fact the court is not only wrong factually but it is also accepting a presumption that i factually in conflict with the presumption that the claimant is a trust.

 

Here is what I wrote to the client:

I have no doubt that existing law, if properly applied, would be on your side. The problem is that the courts are bending over backwards to find false presumptions that create the illusion of applying existing law.

For example, the only claimant that can bring a foreclosure action as one who owns the debt and who has paid for it. Article 9 § 203 of the Uniform Commercial Code as adopted by state statute.

But the banks have convinced many courts that they comply with that statute. The way they do it is through the use of legal presumptions leading to false conclusions of fact.

So even though the named claimant has not paid value for the debt and doesn’t own the debt the courts end up concluding that the claimant does own the debt and has paid value for it. This is done through a circuitous application of legal presumptions.
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By merely alleging that they have possession of the original note, it raises the assumption or presumption that they have the original note. This is probably false because most notes were destroyed and the banks were relying upon images.
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By arriving at the conclusion of fact that the claimant is in possession of the original note (even though it is only a representative of the claimant that asserts possession) the courts then apply a legal presumption that the possessor of the original note has the authority to enforce it. There may be circumstances under which that is true, but that doesn’t mean that have the authority to enforce the mortgage.
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By arriving at the conclusion that the claimant has the authority to enforce the note and has possession of the note, courts then take the leap that the claimant owns the note because they have alleged it. This is improper but it is nevertheless done because the court is looking for ways to justify a decision for the claimant.
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By arriving at the conclusion that the claimant owns the note, and is not acting in a representative capacity (which is barred by Article 9 § 203 is of the Uniform Commercial Code) the court applies a legal presumption that the claimant has paid for the note (why else would they own it?). [NOTE: Many times the lawyers will say that the claimant is the holder of the note without saying that the claimant is the owner of the note. In such cases it could be argued that they are admitting to not owning the note but are merely claiming the right to enforce the note; by doing that they are admitting to not having paid value for the debt thus undermining their compliance with Article 9 §203 UCC as adopted by state statute. Hence while they might be able to enforce the note they cannot enforce the mortgage. The courts often erroneously presume that enforcement of the note (Article 3 UCC) is the same as enforcement of the mortgage (Article 9 UCC) — which should be addressed early and frequently by the defender of foreclosures.] 
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By arriving at the conclusion that the claimant has paid for the note, the court applies a legal presumption that this is equivalent to payment of value for the debt. In this case the note is treated as a title document for the debt. This would only be true if the original payee on the note was also the source of funds for the debt.( In most cases the source of funding for the debt is an investment bank acting on its own behalf. But the investment bank never appears in the title chain nor as claimant in foreclosure).
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Without the above assumptions and presumptions the claimant could never win at trial. The simple reason for that is that there’s never been a transaction in which the claimant paid value for the debt. It is only through the use of commonplace assumptions and legal presumptions that the court can arrive at the conclusion that the statutory condition precedent to initiating foreclosure has been satisfied.
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In truth neither the court nor most lawyers actually go through the process of analysis that I have described above. If they did they would find multiple instances in which the presumptions should not be applied to a contested fact.
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But the truth is that there is a bias to preserve the sanctity of contract and a belief that if the claimant is not allowed to succeed in foreclosure, the homeowner will receive a windfall benefit through the application of technical legal Doctrine.
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The truth is that the court is granting Revenue to a fake party with a fake claim. The court is not preserving contract, since the contract has already been destroyed through securitization. There was no contract for revenue. There was only a contract for debt. 
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And while the borrower might appear to be getting a windfall, the success of the borrower merely reflects the larger implied contract that included securitization and should have included payment to the borrower for use of the borrower’s name reputation and collateral. The windfall already occurred when the Investment Bank sold the parts of the debt for 12 times the amount of the actual debt.
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So I mention all of this because I think it applies to your case. However you have an attorney and I don’t believe that a telephone conference with me is necessary or even appropriate. There is nothing in this email that your lawyer does not fully understand.
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But the practice of law involves much more than written statutes or case decisions. The practical realities are that the courts are not inclined to give borrowers relief despite the fact that they are clearly entitled to it by any objective standard. The trial lawyer or appellate lawyer must make practical decisions on tactics and strategy based upon knowledge of local practice and the specific judges that will hear evidence or argument.
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I understand your frustration. The situation seems clear to you and objectively speaking it is clear. but it has always been a daunting challenge to get the courts to agree. If your attorney wants a telephone conference with me, she can call me. But my knowledge of your attorney is that she has full command of the procedural options to oppose eviction or do anything else that might assist you. The only reason she might resist doing so is her belief that the action would be futile or potentially even result in adverse consequences to you.

9 Responses

  1. @ Anon ,,

    Been there , done that ,, and NOW I’m back… and now I have the funds to fight properly. The pltf can give up any hope to settle with me until I’m satisfied that I have gotten every shred of discovery I want.

  2. Brian — exactly right — —

    One attorney I had told me — “Don’t worry I know the judge. He will be so happy I am now in the case — because I get cases settled.”

    Well — the proposed “settlement” resolved nothing, and even put me in further liability. They told me I can come back to court – “later.” . You can guess what happened to that attorney.

  3. “But most of them want to win because their livelihood depends upon a good reputation in the courtroom which includes respect as a winner.”

    Neil , that’s a nice sentiment but more than that they don’t want to p’o a judge they will see again next week by properly representing their clients case … they KNOW the judge has orders to find for the pltf and they don’t want to upset the judge by backing them into a corner…. they could end up like Stopa if they do that too often.

  4. Have to say Poppy is right here — “Most holders use “assignments” not a bona-fide purchase.” Foreclosure attorneys simply use the assignment – whether it is legally valid or just plain bogus.

    The question remains — WHO IS THE CLAIMANT? It will not be on an assignment. And who is really being represented in courts?

    Many of these so-called trusts were not even compliant with securities law. Most were dissolved because of that reason.

  5. Then don’t repeat yourself, Bob…just don’t respond. And no, I don’t know of anyone. As I stated in my comment: [not owning the debt] possession, standing have to do with “owner’s of the debt” and “rights to enforce/collect”…there are quite a few cases, where non-owners-lose. Holders are not entitled to a thing, without liability, not innocent buyers and subject to claims, FTC Rule 16. Most holders use “assignments” not a bona-fide purchase. And further, legal title is not transferred to a holder, granting rights to collect, when always using the servicer to manifest a default. My opinion: I would not fool with UCC Articles, too many presumptions and lots of losers, using it.

    Right or wrong, my opinion. Headed toward the Circuit court with this argument and others…and we will prevail.

  6. Also, a local attorney, who practices law ONLY in the county where the case is being heard, doesn’t want to ruffle any feathers. That’s why the defendant homeowner is left swinging in the breeze, a day or two before the hearing. That’s how I see it in many cases here.

  7. Poppy … that’s not what i’m asking. i’m asking if anyone knows of any cases where not owning the debt or the UCC Art. 9-203 issue came into play and resulted in a win for the homeowner. (I really hate having to repeat myself. It’s a colossal waste of time and energy. In the future, folks should try to have their posts responsive to the issues raised by the poster to whom they are responding. Thanx.)

  8. You have the advantage of being in NY. They are better than most non-judicial states, trust me. We have plenty of cases that have won, for non-possession, using a POA and a lack of transfer to the proper party, to enforce. Off the top of my head, I am not up to snuff on UCC Article 9-203 specifically. All of the wins are at the appellate level or Circuit Court. None at the state level. Curiously…

  9. does anyone know of any cases that the UCC Art. 9-203 or non-owner of the debt has won a case or otherwise carried the day? it would seem that if there were such cases, that the entire securitized foreclosure system would be rife with such legal arguments and a plethora of decisions would be being rendered in favor of the homeowners. and then we would be reading about it in the NYTimes or the WSJ.

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