Livinglies's Weblog

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Use this email as a guide and it will all fall into place — with the help of a good litigator.

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The purpose of a court is to hear and resolve real disputes between real litigants with real claims and defenses. Once decided by any court of competent jurisdiction the matter is litigated — res judicata. While we would all like to see justice done, the express purpose of the court is to end disputes with finality. So once it is decided the courts will make it as difficult as possible to keep on litigating. And they will make it practically impossible to litigate the same issue again. The fact that some collateral vertical or horizontal court might have decided the case differently, allowed more discovery etc., is completely irrelevant in virtually all cases. The doctrines supporting finality are almost impossible to overturn.

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So let’s take your example about fraud upon the court.

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The first step in the analysis is whether this matter was in fact raised in a case before a court of competent jurisdiction and where the issue was decided already. That means that we must be able to prove with certified copies from the court file that the court had or had not (a) issued specific findings of facts (b) issued conclusions of law and (c) rendered a final order or judgment that included a decision on whether there was fraud in the presentation of the claim to the court.

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The next step is whether that final order has become final and whether a motion for rehearing was filed and whether the time for appeal has expired. One fatal error committed by inexperienced lawyers and pro se litigants is that they fail to identify the specific order they want overturned. They usually center in on the final judgment.

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But in actuality the failure of the court to grant a motion to compel discovery might be the real issue. That order denying the motion to compel became a final order when the final judgment was entered.

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Without asking the appellate court to reverse the order denying the motion to compel the appellant has failed to establish grounds for appeal of the final judgment. That order, incidentally might be grounds for interlocutory appeal (during ligation) saying that you were being denied due process and maybe equal protection.

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And depending upon which jurisdiction you are in, if you failed to identify the right order in your notice of appeal, you probably waived the appeal altogether — something that requires appellate analysis within days after the final judgment becomes a final rendition of the decision of the trial court.

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The motion to vacate and motion for reconsideration will meet with the same resistance based upon the same doctrines. Perhaps you can begin to see why appeals are so expensive. It requires a very high level of analysis — much higher than trial work — and many hours of work drafting and redrafting and reviewing and analyzing the issues on appeal. As appellate lawyers our job is to find the winning path — not merely to give voice to our client’s frustrations.

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The issues on appeal are simple and direct. And they have the effect of Twitter. In one sentence the clerk for the panel judge either gets interested or not. If not, the judge will either not see it at all or will give it a short shrift. If the clerk (a lawyer) sees some interesting stuff that should be decided — or some error that should not be left standing — then the panel judge looks at it. And then a summary is prepared for other judges on the panel who may or may not read the briefs.

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And if your issue on appeal, motion to vacate or motion for reconsideration is itself an error confusing substance with procedure it is immediately discarded regardless of how “right” the position of the Appellant.

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Any successful appeal is always predicated upon intense review, analysis, research and peer consults.

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So back to your fraud example.

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We all know that the Bank of New York Mellon has no financial interest in the subject loan, does not receive payments from borrowers, does not receive payments on behalf of borrowers, and has no trustee powers over a trust. But here it is. The bank’s name is being used by lawyers for a foreclosure mill. Those lawyers are hiding behind litigation immunity which shields them from any consequences relating to untrue statements made in court. And with the help of plausible deniability, all the fraudulent players seeking to support the foreclosure are also able to hide behind litigation immunity.

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Knowing something to be true and proving it to be true are two entirely different things because of court procedure. Besides credibility (which must be earned). Talented use of court procedure is the primary reason why one side wins and the other loses. Court process is not random, allowing any party to bring up any issue in any order at any time.

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Court process requires absolute adherence to the rules. Failure to comply means you waived your point which often means you just concede victory to your opponent even though your opponent does not have an existing client in the case, and there is no claim for restitution for a bad debt, because there is no loan account held as receivable asset on the books of any company. Judgment will be entered  for Donald Duck as long as court procedure is followed by the foreclosure mill.

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Screaming “fraud!” may sound good to you but there are many drawbacks to doing that. The first thing is that fraud must be pleaded with greater specificity than other causes of action (lawsuits). What was the statement? Who made it? When did they make it? How did they make it? Why did they make it? Was there reasonable reliance on that statement to the detriment of the listener. Was the listener the current owner of the property or someone else? How did the listener act to his/her detriment? What difference does it make? The list goes on and on.

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The second thing is that making a claim of fraud either as a claim or as a defense requires a level of proof that is far higher than other types of civil cases. It is called clear and convincing evidence. That is something almost at the level of beyond a reasonable doubt. Most civil cases turn on the much lower level of “preponderance of the evidence” or “more likely than not.”

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The third thing about fraud is that you must show an intent to defraud and generally it requires proof of a pattern of conduct in order to be taken seriously. So while we know that Bank of New York Mellon is never, ever going to see one penny of any payment from an alleged borrower nor one penny from the sale of foreclosed property, you can’t and you won’t prove that ever.

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But you don’t need to prove all that. You need to be informed by all those things so you know how to conduct discovery — basically ask for things that are essential to the prima facie case for foreclosure and specifically those things that you know they can’t or won’t answer or produce. And if you have not mastered this analysis then it won’t even occur to you to object for lack of foundation or best evidence, much less make a timely objection and motion to strike once your motion is granted.

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Asking for discovery means nothing at trial unless you have pursued it after they have raised objections or filed evasive answers. That’s motion practice and that is where the meat of the case lies. What the judge does with your motion to compel motion for sanctions and motion in limine will most likely decide your case.

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And as predicate for all the above you need to file thoughtful answers to the complaint (or allegations in Petition for TRO) that will often split into a yes that Bank of New York Mellon is a chartered bank but no it doesn’t have anything to do with this case. Failure to do that results in waiver of the issue.

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So then the next issues are whether you are pressing a claim that is subject to statute of limitations or a defense which is ordinarily not subject to statute of limitations — and whether a tolling of the statute has occurred in which the true nature of the transaction with homeowner has been tolled by active and even malicious concealment. Remember statutes of limitation are not defenses to defenses but statutes of repose block all claims because of the aforesaid doctrine of finality.

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So the problem you are facing is that the judge has already heard the case, ignored your defenses, assumed you were deadbeat, and allowed “relief” to someone who didn’t need it. And you have no uncovered data, information and analyses that have convinced you that you made a mistake in even allowing them to send correspondence, much less notices and a foreclosure summons and complaint. And you are clearly of the opinion that the court doesn’t care — a perception that is most probably true.

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The judge is going to look for any hook he or she can hang their hat on to avoid overturning a case that has already been decided. And the judge will find that hook in the form of deciding that the  previous orders essentially covered your new claims of fraud or error. Or, in the alternative the judge will say that you could have learned of this information before and that any reasonable person would have or should have and therefore your claim or defense is barred.

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And part of the reason that virtually all judges do this is because of one simple basic fact: they all believe the debt or obligation is real and that you breached the term of the agreement. And the cherry on top is that they believe that if homeowners win these cases the whole economy will fail. So one immediate thing you must do is emphasize how your defensive strategies are about this case and no others — although it is prudent to ask in discovery for evidence that Bank of New York Mellon ever received one cent of payment in other cases where foreclosure was rendered as final judgment resulting in a foreclosure sale.

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But the main thing you need to dance around is to raise the spectacle that not only are these claimants not entitled to anything, but that they are cheating someone else who will never see the money and whose path to recovery will be blocked by this foreclosure proceeding. Such creditors are unaware of even the existence of the pending action and therefore have no way to appear to protect their interests.

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You must raise the possibility (notice I didn’t say prove it) that this foreclosure is being done for fun and profit and not for restitution of an unpaid debt which frankly doesn’t even exist since it was written off contemporaneously with origination of the homeowner transaction —a transaction whose true nature was the launch of a series of securities created, issued and traded by an investment bank who wanted to enter the residential lending marketplace without the requirement of complying with any rule of law regarding lending practices.

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In other words give up the thread of your argument about being right and start working on a new thread that gives the judge motivation  to want to do something unusual.