What to do about Court bias

Bias is a state of mind. Everone has a mind and if they are living they have a state of mind. So every judge has some biases. In our system of court procedure, bias is ONLY important to impeach a witness or to ask the trial judge to recuse themselves — or beyond that, file a motion to remove for cause which would be heard by a fellow memeber of the bench. Shouting bias after the case is over is useless because any such objection must be raised at the commencement of the proceding or else it is waived. And that is just one more reason why going into court without a strategic plan and tactics is a recipe for disaster.
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I am in constant “conflict” with my supporters who continue to rail about bias from the bench. They are right, it is there, but their insistence that any judge who has investments that could be affected by the decision of the court in a foreclosure case is probably wrong — for both procedural and substantive reasons. I might add that I know a lot of judges and not one of them takes any joy in entering orders that permit a foreclosure proceeding to go forward to the forced sale of homestead property.
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First, I agree that a judge with financial interests in the outcome of litigation should recuse themselves or be removed for cause. So that much I agree. And I agree that in some cases judges are acutely aware that they have direct interests in both the stocks of investment banks and their “mortgage bonds” through their retirement programs. But without actually being able to inquire about these issues the leap toward disqualification seems to be unfounded in terms of the legal process. Unlike the #MeToo movement, an accusation is not enough. The fact that the investment exists is not proof that the investment is in the mind of the judge, is material to them or will defect their decision. You need to do more if you really want to challenge them.
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There are two challenges. One is a motion to recuse which is heard by the same trial judge who is hearing the motion and the other is a motion to remove for cause which is heard by another judge. In both cases, presentation of evidence is required in order to survive denial or dismissal of the claim. I probably don’t need to remind anyone that getting one judge to agree that a fellow member of the bench should e removed from a case is an extremely high bar. We have a system and that is how it works.
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I don’t think (comments invited) that there is any impediment to questioning a judge about his financial holdings and whether he can be fair and impartial in the case at hand. It just isn’t done. I think it is time we start, and just the act of asking will awaken the judge to the potential problem which I can assure you, none of them see. But it is a bold move and doing your homework and being prepared to argue the issue is vital. But don’t do it without specifics in the form of evidence that is admissible. The system does not tolerate such motions on any case, civil or criminal.
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The interesting thing is that if the judge refuses to allow the hearing to proceed, you could argue that the refusal is the equivalent of taking the 5th amendment as a shield. In a civil action, like foreclosure, that could raise negative inferences. You will find yourself in plenty of hot water but it might be worth it.  It is a rare judge who won’t take it personally. BUT, if you don’t do it timely — at the very start of legal proceedings, you have waived it I think in all U.S. jurisdictions — unless you promptly bring it to the court’s attention after the discovery of evidence that you could not have obtained before. Like many such motions, timing is everything.
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Second, I think that very few judges actually make the connection between their retirement account and the case of foreclosure. I have spoken with many of them and the ones that have any reasonable degree of financial sophistication basically think that one foreclosure is not going to make any difference to their financial condition.
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Third, with a couple of very rare historical exceptions, no judge accepts the premise that any of the foreclosures are illegal, immoral or criminal. Hence no judge actually sees a defense narrative in one case as potentially destroying the entire infrastructure that investment banks falsely claim as a securitization scheme. Any perceived variation from any rule is perceived as damnum absque injuria — an injury with no harm. And that is why I have been harping on the same point since 2006 — do not admit anything, including the idea that the proceeding invoked is a foreclosure. It isn’t a foreclosure if there is no debt being enforced.
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Thus the way to win a case is not to attack securitization in general but rather to show that the claimant that is named as Plaintiff in judicial actions or beneficiary in nonjudicial actions does not have or will not show confirmation that the debt exists, and that it is owned by the claimant who has full authority to administer, collect and enforce it. Knowledge of the reality of the pan of creation, issuance and selling securities is helpful in deciding on a strategy for a case but it rarely is the deciding factor in any of the cases won by homeowners.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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7 Responses

  1. The problem is not that Judges think that Big Guys from top law firms are always right.

    The problem is that these Judges are often family members, friends of former employees of these Big Guys from top law Firms who appear for the Banks who give Judges handsome “donations” to keep their seats.

    Illinois Court is a family business, it even has a nickname “Family and Friends Club”

    In 90% of cases a little guy will be dealing with a judge’s relative or a friend if their opponents are represented by Big law Firm.

    I have tons of examples. Judge Senechalle, who criminally concealed fake “originals” is a brother in law to Juklian D’Esposito, a top partner for Mayer Brown LLP who regularly represents Big Banks in various cases.

    Top lawyer Mike DeMetrio from Corboy and Demetrio is a husband of Appeal Justice Katherine Rochford, whose cousin is also a Judge.

    Fillip Corboy’s daughter was married to Appeal Court Justice Epstein.

    And so on. I am just wondering why corruption is still considered as some crime. It is one of main credentials to be a Judge.

  2. Neil lives on Utopia Island about judges.

    Maybe in some States Motions to Remove Judges for a Cause would be heard by another Judge. At least this is that the law says.

    But Chicago Court Judges and the law are two parallel universes.

    I did submitted Motion to remove Judge Senechalle due to his criminal concealment of key evidence from my case records and other illegal conduct like lies and threats from he bench and inviting an impersonator who wanted to be a judge from AG office to scare and intimidate me.

    This Motion was presented before Chancery Presiding Judge Jacobius, (aka another Judge, as the law requires) who verbally denied it and send me…back to Judge Senechalle to decide if he wants to recuse himself.

    Jacobius also had his own pre-printed (!) Order which said that my Motion is stricken from the hearing (meaning not heard) – even though it was a full hearing on it.

    So, it someone would look at the docket – it appears that my Motion to Remove Judge for a Cause was not heard.

    Of course Senechalle did not recused himself and sent me several sheriffs to bang in my door at 7am to deliver his bogus “Rule to Show Cause” – all while I filed an Appeal at this time.

    If Judges have no fun to award homes to banks’ crime victims, why they break all laws all the time and reward fraud upon the Court?

    I think they have a lot of fun to abuse people and hide behind total immunity from all crimes.

  3. Lesson from CFPB case — Be careful what you settle for. Be very careful.

  4. There is a much bigger picture. And, it cannot be downsized. It is massive.

  5. Using the arguments promoted by the owner of this blog and securitization/chain-of-title/forensic audit scammers has proven to be wishful thinking at best, that’s why everyone loses making these specious claims. And, it has nothing to do with the courts or big law firms. It has to do with making the right arguments, and that is attacking the contract–PERIOD!! Those that do win or settle almost 100% of the time. This isn’t high math just too many clowns throwing mud in clear water.

  6. I believe there is a directive…from the Feds. Constantly heard about “the floodgates” opening if one wins and word gets out, it will be catastrophic for the economy. I call BS on that, to a degree. Many of us deserve disclosure-relief. There is ample evidence to support the shenanigans of the faux lenders…once they converted my note and yours, the game changed, they changed it. IMHO, when suing as the REMIC, follow your contract with it, not the UCC Rules. Even under the Holder status, not Holder in Due Course there are remedies for us in the FTC Rules. Liars, the lot…including the judges, in my non-legal capacity.

  7. One of the biggest problems in courts is that the Banksters will hire top law firms to whom the little guy must go against. Even if the little guy has an attorney, that attorney is not likely powerful enough to take on the big guys. In many judges minds, the big guys can’t be wrong. Thus, they don’t even read what the little guy has to say. Little guys are disposable.

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