Livinglies's Weblog

People and lawyers often say that the judge would not listen. That isn’t true. The judge is listening. He or she is just not hearing well founded objections raised in a timely manner. If you don’t put the nickle into the gumball machine, you get nothing. It doesn’t matter that you had a nickle in your pocket.

I see no reason why automated technologies should not be used. They do make things easier, faster, better and less prone to error. But with machines that create a signature, there is a legal problem of great significance. It creates a loophole through which the largest banking institutions in the world are driving 18 wheel trucks filled with cash.

For purposes of information, if you don’t have the original document or a copy of the original document, then you must account for why you don’t have the document and why you should be considered a party to it. That is basic black letter law. See procedures for lost notes etc.

But what we have been seeing is a fabrication passed off as an original — with no explanation or accounting.

Hundreds of thousands of foreclosure cases were originally filed as “lost note” cases because the original notes were destroyed contemporaneously with the “closing” of the transaction with the homeowner. As admitted by the Florida Bankers Association, it was custom and practice to destroy the promissory note even though it was a cash-equivalent document. Crazy at first blush but nonetheless true.

This was actually uncovered very early in the foreclosure mess that started around the year 2000. By 2007 it was very apparent that if you asked for the “loan file” before the foreclosure process began, nobody had it — and in particular, nobody had the original note. But after the foreclosure process begins the note pops up like magic. The reason became clear when the documents claiming to be original notes were signed with a different color ink than the homeowner used.

And we all know that all State attorney generals filed lawsuits against the securitization players for fabricating false documentation for exactly that reason. Apparently for political reasons the problem was never corrected and still remains. The players promised to mend their ways but did no such thing.

So what we are left with is a document that is not signed, as the word “Signature” is intended to convey. It is marked by machine and presented as the original that was signed by the homeowner. That means that the original is either destroyed (most likely) or lost (also likely). And that means that someone else might have the original or that someone else might be entitled to the enforcement of the note. Or it could mean that nobody is entitled to enforce the note because the obligation has been extinguished. It could mean almost anything.

see https://www.youtube.com/watch?v=N5VB8DuZMv8

https://www.youtube.com/watch?v=ZuIyTwFO5tY

And that is why the mechanical reproduction of signed documents is a hearsay declaration presented by the proponent of the evidence unless there is someone who can testify under oath (and subject to penalties of perjury) that they have personal knowledge of the transaction and the way that the original note was lost and why the proponent is entitled to enforce it.

The only reason why machines are used to fabricate documents as “originals” is to avoid the requirement of producing a real live witness with personal knowledge. Before the era of securitization, they had no problem with producing such witnesses. But now they not only avoid it; they also refuse to do it.

Remember that while it is presumed that possession of the original note means that the possessor is a holder with rights to enforce, the possession of mechanical reproduction does not carry such presumptions. The reason is obvious: it isn’t the original. This brings the claimant or plaintiff in a foreclosure case back to the very thing they wish to avoid: proving the existence and ownership of the underlying obligation.

People forget that the right to enforce must ultimately come from the person who has paid value for ownership of the underlying obligation. This is precisely the issue that has been dodged so successfully in foreclosure litigation resulting in foreclosure sales that inure to the benefit of companies that receive money in exchange for services instead of for the purpose of crediting a loan account.

The courts have all assumed and twisted judicial doctrine out of joint to prove their assumption that eventually the sale results in payment to someone who has paid value for the underlying obligation, owns the underlying obligation, and would otherwise suffer a financial loss if they did not get the monetary proceeds from the sale. That simply is not true.

It is the job of the defender to show (1) the basic black letter elements of a foreclosure case are not actually present or (2) that the opposition cannot prove that those elements are present; either one produces a win for homeowners. Homeowners make strategic errors when they attempt to prove that the elements do not exist. They should be concentrating on revealing that their opposition can not prove the elements —even if they did exist. 

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• But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Filed under: foreclosure |