RULES OF COURT: Judges Are Not Overlooking Anything

Sure there are some judges that don’t care what evidence is before them and make decisions based upon their own political bias. But nearly all judges are NOT doing that when it relates to foreclosure. They are just following the rules.

And homeowners who lose basically fall into one category: people who are unconvincing and fail to bring admissible facts to the judge that are inconsistent with the position taken by a a party claiming the right to foreclose.

Rule#1: You are not persuasive if you only say something once.

In defense of judges, they are not “overlooking” anything. They are following established judicial doctrine and practice. It is true that 20 years ago judges would scrutinize foreclosure filings to make sure there was nothing amiss but that was unusual practice compared to other areas of the law. In the face of volume they had to drop that and go back to normal practice. That means that if you have an issue you must state it. If you have a claim you must prove it. If you have a defense you must prove it.
It’s all legal procedure which hardly anyone outside the courtroom understands. We have rules or “elements” for every type of claim. Once stated, if you allege the elements, then the burden is on the defendant to answer. If the Defendant files affirmative defenses the Plaintiff can file a response but is not required to do so.
A facially valid document, for purposes of judicial economy — especially in the context of high volume — MUST be considered valid for all purposes and further that everything written on it is true. Judges don’t have any choices about that even if they harbor grave doubts. It’s their job. So there is your legal presumption. The difference between an assumption and a presumption is that a presumption is legally binding. That’s the rule.
So that is what enables and in fact requires judges to enter final judgment or summary judgments if the Defendants fails to respond or does nothing but whine about the presumption. The whole point of the court system is to move disputes through a process where there is a final decision, for better or for worse.
We know that the presumption leads to erroneous conclusions of fact and law. But the judge is required to assume we are wrong. That is why I have emphasized how opposition to illegal foreclosures MUST be persuasive — and not merely correct. One of the fundamental doctrines that judges are required to follow is called “preservation of contract.” Once presented with a contract, the court is required to honor it. If you want the judge to say there is no contract or that the Plaintiff is not party to it, you must present the court with very convincing facts that undermine these presumptions and doctrines.
So merely alleging that they are thieves and crooks and that they fabricated, forged, backdated and robosigned documents is not enough. You must put facts in front of the judge that makes the judge stand back and consider that the foreclosure might be defective or even a ruse. We do that in discovery. And in discovery, knowing that the documents are not valid, we ask questions and demand answers and document production that we know they can’t answer or produce.
But the system is more elaborate than that. No claim simply gets denied because of clerical mistakes or even willful avoidance of discovery demands. We need to aggressively and repeatedly demand hearings on objections and file motions to compel, motions for sanctions and motions in limine — because the judge, all in accordance with established court doctrine — is going to give the claimant in foreclosure multiple chances to comply with court orders before the judge brings the hammer down.
And lawyers need to be mindful of what they are getting once they  make their point and have convinced the judge that the opposing counsel is playing with the court. They should seek judgments, not dismissals, but that is not always easy to get.
PRACTICE HINT: No fact is admissible without a predicate. So, for example, if you want the judge to believe that the traffic light was red, then you need a witness who say that. But the witness can’t say that unless the witness is competent — capable of taking an oath, perceived the red light at the time and place you are seeking to prove, can remember the situation  and context, and is able to communicate their memory of their perception in a credible manner.
The only exception are situations where legal presumptions are in play. Facially valid documents require no predicate other than that they are facially valid. But watch that too — many documents admitted as facially valid are not facially valid. failure to perceive that fact and allowing such a document into evidence may in effect concede the whole case.
For example, the fact that it appears to be signed does not necessarily make it facially valid. If the signature leaves the reader in doubt as to the authority of the signor it is not longer facially valid. A clear example of this is when the signor claims to be signing for a company that is claiming to be attorney in fact for a legal entity that is inadequately described.
In such situations there are two problems with declaring such a document facially valid. The common thread in the necessity of parole evidence in order to establish validity of the signature. In the example I provided two such instances exist:
(1) without a power of attorney having been recorded in public records and a specific reference to it in the signature block, the reader can only know if the signature was valid by asking for the power of attorney from a person whom he might not be able to find — the “authorized signor.”

(2) the naming of an entity without sufficient description may be grounds for objection too.  So if the signature  block says something like “US Bank as trustee for the certificate holders of SASCO Trust series 2006-1A Certificates,” I think a proper objection can be made that could defeat the document being accepted as facially valid — thus avoiding legal presumptions. As grounds therefor I would state:

  • US Bank is not being specifically stated as trustee for an identified trust
  • The trust is implied not stated
  • If there is an implied trust it has not been sufficiently identified as to the jurisdiction in which it was organized or is currently doing business
  • Either US bank is trustee for the trust or it is trustee for the certificate holders.
  • If the certificate holders were beneficiaries of the implied trust then mentioning them is irrelevant. The fact that they were mentioned means on its face  (“facially valid”) that US Bank represents the certificate holders separate and apart from the trust but it doesn’t say how US bank represents the certificate holders.

The point to be argued to the judge is that this is not facially valid even if it is true. And if it is not facially valid then all you are asking is that no legal presumptions be applied and that the Plaintiff be required to prove the facts sought to be presumed including the legal validity and authenticity of the document or pleading.

This must be done artfully and persuasively. What you are really saying is that you have no idea who is actually suing or claiming foreclosure therefore cannot frame a proper defense. Your further point, driving it home, is that it is unfair to place the burden of proving the existence or nonexistence of a Plaintiff on the Defendant who obviously must go by whatever the claimant has asserted.

For example, who are you supposed to ask questions to — the party who signed or the vague entity on whose behalf the document was executed by some remote sgnor for a remote company who is not a party.

A convincing point might be telling the judge that if opposing counsel cannot identify a claimant with sufficient specificity, that there is no claimant and that opposing counsel should be sent packing to get his documents in order. Judges actually like that argument.


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8 Responses

  1. Susan — I know about New Jersey. There is no way anyone can win in New Jersey. New Jersey is well known as the most corrupt state in the Union. The governor’s goal is to convert foreclosures into affordable housing. Oxymoron?

  2. Nothing but a land grab and transfer of wealth, IMHO. I too, could go on and on about the clerks, with no legal background signing anything that crosses their desk, judges with 6 months experience in administrative law, breaking all the Rules of Civil Procedure (cause they don’t know it)…judges having ex-parte conversations, signing paperwork when the time frame for such, is long past expired, witness testimony with no notice, etc…the list is so long. Only a few judges question the lawyers. Just ask the lawyers for their retainer contract….there is none. They have never met or spoken to anyone who is claiming rights to act….ever. Sickening

  3. The entire State of NJ has fraud down to a Science. No foreclosure filings are filed in the County they must be filed in Trenton with the Clerk of the NJ Superior Courts. No homeowners are notified. The Complaint with Mortgage, Note & any Assignments. No homeowners were contacted and to save their homes and 99% of foreclosures obviously went uncontested. Attorneys must inform you about the Foreclosure Complaint. Homeowners were never provided their rights to fight back and nothing proffered to any Judges. They have people in Trenton acting as Judges stamping Judges names on Final Judgments. There is no JUSTICE in New Jersey. The Judges are following the United Nations Agenda 21plan which makes owning land obsolete and in the near future criminal. Because the UN states that Americans obtain to much wealth from owning land. America must get stronger on the world being overpopulated. Eliminating borders does not reduce the population that is true. Eliminating Borders takes away all of your Sovereign Rights and Freedoms. We can come up with a more friendly plan then erasing 1,000 of years of Borders and Constitutional rights. Due to our fake Press the entire world knows about Agenda 21plan for America but Americans. You want to see real fraud come to New Jersey Foreclosure cases. In my foreclosure SorceCorp a Default document company filed the Complaint and all Motions and Final Judgement. I found out 2 years later. Foreclosures have picked up not slowed down . Tell me where there are good Judges so I can move my case. The best Judge died from NY. Hon. Judge Schack. Judge Grossman is still there but he is a bankruptcy judge. He ruled years ago that Mers has no rights in anyone Mortgage. He said he didn’t care if they were involved in 60 million mortgages. Mers Inc had no legal skin in the game. The game being the Shadow Banking System or the Banking cartel. TIME TO END THE FORECLOSURES and save land ownership in America. All that agree please share your opinions and share.

  4. Repeating comment on other post here –

    Any private loan claimed “TRUST” is not federally backed. So if the fed steps in — who are they going to allow servicer advances on behalf of??? A predicament for Mr. Mnunchin – NO??? . Who is Mr. Mnunchin going to call – his own Ghost Busters?

  5. I’m sorry… but if I agree with the statement “Judges Are Not Overlooking Anything” then what that tells me is that we have the most obvious and definitive PROOF that the judicial system is positively illegally colluding with the Banks to steal the wealth of American citizens…. and that’s even worse than I think of them now.

  6. Not seeing it either…

  7. Well – you made me smile Java. Not easy these days.

    I know Neil is trying hard, but it just doesn’t work that way in Courts.

    I would like to ask Neil — to define “certificate holders”

    By certificate holder — do they (or Neil) mean Securitized certificate holder? That is – pass-through of cash flows to many investors? I mean, one can call anything a “certificate” — I love gift certificates. But what does it mean? I do find this part very interesting in Neil’s analysis. I do notice there has been a shift from using “security investors” to “certificate holders.” I think there is an important distinction. Thanks.

  8. Bullsh*t !!!!

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