Livinglies's Weblog

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Show resumes Thursday, October 22, 2020

I’m slightly under the weather today.

But I did want to tell you about something I realized today in speaking with clients. It is something that all trial lawyers take for granted. And it’s something nobody who isn’t trial lawyer could ever understand unless it is explained.

You have all heard me say that it isn’t enough to be right. But I never actually told you why.

S + P + C = J

That’s Substance plus Procedure plus Credibility yields a result that is usually a final Judgment.

Here is how it breaks down:

SUBSTANCE IS ABOUT WHAT IS TRUE.

PROCEDURE IS WHAT IS TRUE FOR THE CASE

CREDIBILITY IS WHAT PERSUADES THE JUDGE

JUDGEMENTS ARE FINAL (AND USUALLY PROCEDURALLY CORRECT) EVEN IF THEY ARE SUBSTANTIVELY WRONG.

The substance of most foreclosure cases is that there is no loan account, there is no legal claimant and very often there is no plaintiff in judicial actions nor a beneficiary and non-judicial foreclosures. The documents are all fabricated, forged and backdated. Every exhibit submitted to the court as part of the prima facie case is substantively invalid, a legal nullity.

So why do homeowners keep losing?

Procedure sets up what is true for the case even if it contradicts real world facts. Procedure is what investment banks use against homeowners to pursue a claim in a case in which they are not even a named party.  Legal inferences and presumptions are procedural. If you can convince a judge that a document is facially valid and get into evidence then that document raises the inference or presumption of validity even if it was manufactured for court and has no relation to real world facts and events.

How do investment banks get away with that?

First they insert the name of a well known financial institution that everyone (including unfortunately homeowners and many lawyers who represent them) believes is the plaintiff, beneficiary or claimant. Then they get a law firm that seems big to file a lawsuit or notice of sale on behalf of the named bank.

Because the financial institution i.e., a bank like BONY Mellon, Deutsch, US Bank etc) has a longstanding brand and reputation the prosecuting lawyers are generally accepted as credible even though the named bank has no idea how their name is being used in any specific case and has no relationship to the homeowner transaction, its administration, collection or enforcement. This is true even if the lawyers have no retainer or even contact with the named bank that was inserted as Plaintiff or Beneficiary.

The credibility of the named bank is presumed until the court is shown that they cannot believe or should not believe that named bank is connected to the case. The fact that the named bank is not really involved makes no difference. And the credibility of the named bank cloaks the lawyers with credibility.

The homeowner on the other hand must establish credibility. It is generally presumed that an individual borrower is more likely to make extravagant claims than a bank with a 150-year-old history.

And there’s the problem. That is how judgment is entered in favor of a name that doesn’t even identify an actual claimant. If you don’t understand the problem then you can’t solve it.

 

Filed under: foreclosure |