Texas Two Step: Wishing won’t make it so…. and neither will relitigating the same points over and over again.

lawyers and pro se litigants have littered the judicial landscape by a Texas two step: first they admit that they have a loan contract and second they try to get out of it. First they admit a breach and then they try to deny the breach. First they admit a loan and then they deny the loan. First they admit an an enforceable contract and then they deny its enforceability.

Every time they do that, they are falling through a trapdoor built just for them. Every time they do that they are making it worse for anyone who has a valid defense.

So there is a law against murder. Everyone knows that. And if you see someone shoot a person in the head in cold blood after thinking it over for a few days that is capital murder, warranting the death penalty in states that permit the death penalty. All of that is true.

Here is what else is true. Once the matter has gone to court the decision is final unless there are very exigent circumstances. So if the killer is acquitted they are not guilty even though you saw him or her do it. If the killer is convicted, they are guilty even if they didn’t do it. It doesn’t matter. It’s final.

Most people come to me with complaints about judges, lawyers, banks, servicers and sheriffs after something has already happened. Spoiler alert! Once something has happened in a law case, it is the law or fact of that case unless overturned by proper notice and procedure. It is the law of that case even if it isn’t the law or fact in another case with the same facts that was presented and decided differently. What is done is done.

It is mostly lawyers who understand one fundamental truth about our judicial system. It is an institution to resolve disputes with finality so the dispute doesn’t go on forever. So if you forget to say something in court and the decision has been entered, it doesn’t matter what you have to say. It’s done in the eyes of the law. It’s over. Justice often takes a second seat to finality.

Lay people want to file motions to say something they should have said before or to say something better than they did before. Lawyers do this too. The judge always turns them down. The judge is required by law to turn down such pleas.

New evidence is not admissible either unless you can show (1) you had no practical way of having received it at the time of the hearing and (2) it helps A LOT if the reason you couldn’t have received it before is that your opposition was violating a court order requiring them to turn over documents and answer questions in the discovery phase of litigation.

So that is why DNA evidence — after conviction and sentencing — showing the accused was not the person who committed the crime, is still not allowed absent some other showing of innocence and even then, it takes years you overturn the conviction and sentence even while everyone knows of the actual innocence of the accused — and even with  concurrence from the prosecutor.

Bedrock doctrine in the courts is to prevent people from coming back and relitigating stuff. If it’s done, it’s done.

People who dislike the investment bank securitization schemes, like I do, often make the mistake of calling out the judge as biased. He or she isn’t biased for making a final decision based upon what was presented at the time of the hearing. And they are not biased for rejecting new submissions afterwards. If you want a different system take it up with the legislature, not the judge.

BUT, all that said, there are reasons for filing a motion to vacate, motion for reconsideration, notice of appeal and a new lawsuit seeking declaratory, injunctive and supplemental relief based upon the fact that there was fundamental mistake, error, or unfairness arising from the fact that your opposition actively mislead the judge into thinking that the creditor was present when it wasn’t.

That could be a void a judgement.

Or the judge might have misapplied the law such that you were unable to present your defense. That is appealable error. But a decision that you think is wrong will NEVER be overturned on appeal if there is any basis in the court record upon which a reasonable judge could have been arguably justified in ruling the way they did. The fact that appellate judges would have decided it differently is not reason for reversing the trial judge.

Constitutional arguments are avoided by judicial doctrine. So if they CAN reach a decision without deciding a constitutional issue, that is what they are required to do. If you want something different take it up with the legislature. Find a candidate running for office that wants to see a change in the law.

As a general rule if you are arguing the same points you have always been arguing then if you have already lost, you are barking up an imaginary tree.

BUT one point that is jurisdictional, constitutional, factual and legal that has not been argued properly except in a few cases is that the creditor was never present in court despite opposing counsel’s representation and assurances to the contrary.  Ooops! That is a case where the court granted relief to a foreclosure mill who didn’t have a client in court.

AND YET, here is the problem. If you could have brought up the issue before and you didn’t you’re still stuck unless the issue is of such manifest importance such that the entire case was unjustly concluded. BUT that is not a subjective term. Not liking the decision is not the same as saying the court had no power to make that decision. And that is different from saying that the court SHOULD NOT have power to enter a decision the way it did.

It is not enough to go after the foreclosure mill on technicalities although sometimes that can and does work, at least temporarily.

Going back the murder at the beginning of this article. If you say “I don’t think he pulled the trigger in the right way” you are being virtually irrelevant in a murder trial. Either he did it or he didn’t.

So as a homeowner the sole question of interest to the judge is either you breached a loan agreement or you didn’t. Either you have set off against the amount demanded or you don’t. Either they followed procedure or they didn’t. Either you followed procedure or you didn’t.

Everything I have written on this blog has been directed at one simple fact, to wit: you can’t be sued,  subject to judicial or nonjudicial foreclosure, or even be given notice of anything or a statement of anything from someone with whom you have no contract. Period. End of story. And if you happen to pay such an unauthorized person you are entitled to receive the money you paid as disgorgement possibly with interest and maybe sanctions or punitive damages depending upon the case. There is a good chance on some claims on recovering attorney fees.

But lawyers and pro se litigants have littered the judicial landscape by a Texas two step: first they admit that they have a loan contract and second they try to get out of it. First they admit a breach and then they try to deny the breach. First they admit a loan and then they deny the loan.

So if you are looking for advice from me or any lawyer, the first rule is listen. Don’t tell a lawyer how to think about your case. If they can’t figure it out themselves you are in the wrong office. Stop arguing with the lawyer. Just move on.

And second either you get it or you don’t. If you are not willing to believe there is no creditor and you’re just trying to get out of what you believe is a real debt that you really owe to the people trying to collect it, you have already lost.


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6 Responses

  1. And Java — I know many more in the same position. Judges ignore what is presented. That is the way it is.

    And, maybe, somewhere else in this big country, will be a judge who does differently — but it is not HERE.,

  2. I get it Java!!!!!

  3. How could the little homeowner who lives it 24/7 know more than the debt collector attorney who just looked at the file 24 minutes and 7 seconds ago ????
    Nothing I objected to nor any of my valid points were even mentioned in the judges ridiculous MSJ decision. She actually said I needed to pay someone and even if the balance quoted was incorrect , I should have paid some figure. It’s all corrupt and fraudulent. True story.

  4. John Reed — that’s why we need more.

  5. But if I just keep saying it over and over and over again nobody’ll notice and then they’ll finally think it’s true and I’ll win! Right?

  6. Like the Texas Two Step analogy and story with this post.

    But judges ARE biased to start. First, the media, and government have pounded the idea that if you don’t pay – you are a deadbeat. One attorney told me it does not matter what you give the judge – they will ignore it — they will not even address it. This is because judges are of the mindset that that “you owe someone,” and “who cares if it is not the right party?”. That mindset has to be changed, and we need more to do it. Further, judges accept representation without question. They think
    – How could the big law firm be wrong, and the little homeowner be right? Judges will grant motions to dismiss before there is even any discovery. And, this is despite the fact that information is controlled by a powerful party, and unavailable to the homeowner without discovery.

    Agree. Knowing something was done wrong is not enough to have a judge listen. Need proof before any challenge can be done. And getting that proof is extremely difficult when controlled by another party.

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