To Appeal or Not To Appeal — What was the Question?

Making a mistake is not appealable unto itself. You must show that the error caused an improper decision. And by “improper” I mean that there is no way under existing law that the decision was based upon the law or, if you wish to pursue a still higher standard of review, that the law as applied violates constitutional protections.

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So the judge is quite certain that she has no sympathy for your position. Nonetheless, if you plan to appeal, and the rules of Court permit it, it may be to your advantage to file a motion for rehearing which focuses in on one or two points that could be right for appeal. This focuses the attention of the clerk for the appellate judge who orders the case to be put in one pile (affirmed) or another (review). That one decision — usually made by a clerk — either gives air to your appeal or kills it.

Remember that an appeal is solely directed at the question of whether or not there was any basis upon which the trial court could have entered the final judgement. it is not a retrial of the case. It is an entirely different inquiry looking for “fundamental error.” As long as the court record has anything in it that supports the ultimate decision it is extremely likely that the judgement, even if disliked, will be affirmed.

FAST FACTS: 1 in 6 appeals are successful to any degree. Of those more than half are in criminal cases where the stakes are perceived as much higher than civil cases. That means that less than 1 in 12 civil appeals will accomplish anything. And of the ones that accomplish something only a fraction are actually reversed with judgment for the losing side in the trial court.

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The fact that nobody else would have decided the case that way is not a basis for appeal. Bias is not a basis for appeal either unless the record clearly shows that the judge had a direct interest in the outcome of the case.
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An appeal is about whether anyone sitting as Judge could have decided the case as written in the findings of fact and law. That is different from the case at the trial level, which is about who should win. Appeals are about who could win. If the party who won at trial is party who could win under existing law, the decision will almost always be affirmed.

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The question in your case is whether or not the trial court appropriately applied legal presumptions to arrive at the conclusion that the plaintiff actually owns the loan, and was therefore an injured party, and was therefore entitled to foreclosure. The first such question focuses on whether there were any legal presumptions to be applied, and if so, for whose benefit they should be applied.
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The presence of facially valid documents definitely triggers the court discretion on whether to apply legal presumptions of fact. So the remaining questions relate to whether or not there are fatal inconsistencies in the facially valid documents or whether evidence is in the court record that requires rejection of the legal presumption of fact. A rejection of the legal presumption of fact means that the party relying on such presumptions must actually introduce evidence of the facts that had previously been presumed.
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If argued well in trial court, the judge can be educated as to the effect of legal presumptions and might slow the inevitable outcome once the presumptions are applied.
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As Dean Wigmore has explained, ” the peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of compelling the (trier of Fact) to reach a conclusion in the absence of evidence to the contrary from the opponent. If the opponent offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the (factfinder’s) hands free from any rule.” As more poetically the explanation has been put, “(p)resumtions… may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.”
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In the absence of either legally permissible presumptions or real evidence, the plaintiff fails on the proof, to wit: it fails to satisfy the requirements for a prima facie case.
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So the question here needs to focus on the Essential Elements of the Prima facie case. And the essential element above all others is whether the case has produced a judgement that will be used to satisfy a just debt owed to a party who paid value for it.
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While there are plenty of good strong legal and logical arguments to challenge the existence of the debt, I know of no instance In which court has been the least bit receptive to that narrative. It leaves open the unanswered question about what happened to the debt and does that absolve the borrower of all liability to pay anything.
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You don’t need to prove where the money is going. You only need to raise sufficient questions about the evidence such that the legal presumptions should have been discarded.
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In your case, with the legal presumptions discarded, the Plaintiff would have had to introduce credible evidence that it was the owner of the debt in order to establish ownership of the mortgage, which in turn is needed to prove authority to foreclose. The Plaintiff is allowed to rely completely on legal presumptions if the case is based on facially valid documents — although a complete absence of actual evidence is frequently the excuse for an appellate court to question and then reverse the trial court’s decision.
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In your case the reliance on legal presumptions has led to an attenuated conclusion of fact that could be challenged on appeal. As per the Court’s finding of fact, the mortgage was transferred several times. At one point it was transferred to U.S. Bank as trustee for a trust and then, after that transferred to Bank of America.
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An instrument purporting to transfer a mortgage without a contemporaneous transfer of the debt is a legal nullity in all U.S. jurisdictions. The transfer of a debt occurs ONLY upon satisfaction of one condition — that value has been paid  by the transferee to the transferor who had in turn paid value for the debt. That is universally true. It requires proof of payment OR it requires sufficient evidence to raise the presumption that payment was made.
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In your case the Judge has expressly ruled that value was paid. Since there was no evidence of any proof of payment there can only be one possible explanation for such a finding — i.e., that the court was relying upon presumptions of fact arising from facially valid documents.
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Transfer of the debt is presumed when the original note is transferred because it is presumed that the original note is evidence of the debt and should be accorded the effect of title to the debt. Since promissory notes are cash-equivalent instruments, there is no rational reason why a note would be transferred without payment; hence payment is presumed.
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This presumption is defeated only if the court record demonstrates that there either was no financial transaction in which the debt was acquired or where the record raises sufficient questions such that the presumption should not have been applied. This is exactly where the courts frequently commit error but not necessarily reversible error.
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In most loans that were ever subject to claims of securitization, the origination of the loan took place between an “originator” and the borrower, not the actual lender and the borrower. In plain language that means that the since the originator had never paid any value for the debt, they never owned it and therefore the mortgage naming the originator was void, which in turn means that any assignments of the void mortgage were also void.
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This precisely why the Truth in Lending Act says that table funded (third party funded) loans are against public policy. But the Truth in Lending Act does not expressly state that such loans are void, meaning that acting in a representative capacity at a loan closing without the knowledge of the borrower is frowned upon but not explicitly outlawed.
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So we must accept the idea that somehow the mortgage is valid but that does not address the question of who can enforce it or transfer it. The answer to that question in all jurisdictions is that it is only the party who has suffered a financial injury resulting from nonpayment. That is both a constitutional and statutory requirement.
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In order to suffer financial injury from non payment you must have paid value for the loan. Payment of value is established upon proof of payment or a presumption that such payment was made.
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The problem in your case is that the Judge presumed that such payment was made not just because she thinks she was allowed to do so, but because she actually believes it. She is assuming that even if there were “technical” irregularities or mistakes, that the foreclosure will result in payment to the party (ies) who paid value for the debt. And the problem with that, as we all know or at least suspect, is that she is wrong.
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The money will go to players who were angling for revenue and the parties who actually advanced the money for the origination or acquisition of the loan are long gone. They won’t see one cent from the sale of the home.
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The problem for you is therefore whether the judge was rightfully exercising her authority, jurisdiction and discretion to use legal presumptions in lieu of legal proof by proof of payment. You can’t introduce new evidence on appeal. So you must rely entirely upon what is in the court record or absent from it. And it is not enough to be correct; you must be convincing to a panel of judges who at best don’t care whether you win or lose. 

One Response

  1. Problem is – judges ignore evidence or twist it. And, then when they finally make a decision, will often be on “pleadings not good enough.” — and not the merits.

    Look — if it is their pension investment against your home — who are they going to choose? Answer should be obvious to you –

    “Frankly my dear” – “I don’t give a damn.”

    Neil right on appeals. But, how they came to claim ownership of debt — was by loopholes in a preliminary asset-backed target program. By the time it was caught onto – it was too late. THIS – “My dear” was cause for shut-down, and no other reason.

    I give “a damn.”

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