In an article published by Rajesh Khanna, he absolutely understands and perfectly articulates the requirements of law concerning standing to bring a claim. But he does not understand and does not properly articulate the burden of proof or the burden of persuasion concerning that issue.
Despite that deficiency, I recommend that both lawyers and pro se litigants read his article.
Khanna incorrectly states that the burden is on the judge to perform an investigation and then insert his findings into the evidence record without anything being done by either side. He further suggests that the foreclosure mill has a burden of proof beyond pleading when the claim first appears.
Neither statement is true. The Judge’s “Burden” is to rule on the admission of evidence into the record and then rule on the weight of evidence presented. The burden on the lawyer for the foreclosure mill is merely to state a recognizable claim at law as prescribed by statute, custom, and practice. The law is that all statements within the initial claim must be taken as true to determine whether the claim should be dismissed or rejected.
So the article is an excellent source of both understanding and wording concerning the law on standing but the conclusions expressed in it should not be used.
The burden is on the homeowner to attack the facial v validity of documents and the ability of the lawyer from the foreclosure mill to produce, upon appropriate and timely legal demand, corroboration for the truth of the matters asserted in those documents. If he or she can’t or won’t do that, then the presumptions to the truth of the matters asserted vanishes.
But the underlying theme of the article is also true: that the idea is to cut off the ability of the foreclosure mill to present its case. Please notice that I keep referring to the “lawyer from the foreclosure mill.”
That is because I am 100% certain that the foreclosure mill brings the case on behalf of a regional law firm that answers to a national law firm governed partly by in-house counsel for the investment banks. A mistake commonly encountered when the lawyer from the foreclosure mill is pushed to disclose the identity of the client being represented is that it is representing the r regional law firm. Likewise, the regional law firm will identify its client as a national law firm.
Nobody claims to represent US Bank, Bank of New York Mellon or Deutsch Bank National Trust Company. But if the homeowner doesn’t raise the issue, the presumption remains that the “REMIC’ Trustee” is indeed acting as trustee — i.e., that it has trust officers managing the affairs of a trust account that is receiving and distributing funds that it is legally entitled to receive.
Further, the trust account contains an unpaid loan account receivable due from a particular homeowner as an asset held and managed for beneficiaries pursuant to a trust agreement (not the PSA).
None of those statements is true. And no foreclosure mill represents the designated “trustee” or even has any contact with them. This is only true because there is no creditor to represent, as has been seen in trial and appellate cases for the last 16 years.
And homeowners who proceed on the assumption that no such trust accounts and no such loan accounts exist are more likely than not to win the case — i.e., judgment for the homeowner.
Filed under: foreclosure |
Interesting article. Quote – “If an act of fraud is working here, then by definition the act was meant to be kept hidden. How would the Borrower prove or disprove something he was not privy to.” Proof of fraud has high standards – the who, what, when, where, why and how. If we are not privy to the chain of law firms as Neil describes, and the internal documents that are concealed and controlled by others, proving fraud according to standards is not easy. The government settlements blocked investigation. We may never be privy to what really went on and who really controls court cases.
Folks read this article, it is as Neil rightly states, very informative – especially those of us who raised the court not having subject matter jurisdiction over the case and the court ignoring it as if it didn’t matter. Thanks for posting this Neil!!