How This Homeowner is Winning

Hat tip for Scott Staffne, Esq. for uploading an “Outline of Oral Argument Re Motion for Sanctions.” First, I commend the preparation, which is notoriously absent from most homeowner arguments and motions. In addition, both Homeowners proceeding pro se and frequently their attorneys are completely unprepared to raise objections to hearsay, business records, judicial notice, leading questions, and the absence of any foundation of personal knowledge. This is how homeowners lose so consistently. Anyone can lose any case that way.

Here is ane example of using the rules to win the case without getting to the issue of whether any debt is unpaid or due.

The second note is that the homeowner took up on appeal an interim ruling regarding the judgment entered despite a lack of evidence to support it. The assumption was that the evidence would be forthcoming at the retrial, but the homeowner knew otherwise. Like most Chase cases, there was no evidence. They were bluffing.

And my third note relates to a standard practice I have, which is NOT to take a deposition unless it will serve a specific purpose. The purpose of the Discovery rules (which are specifically set forth in statutory law in each state and in the Federal system) is to lead to the disclosure and production of information that might tend to reveal admissible evidence relevant to the case. Of course, you must ask for it, or you are not entitled to complaint about it.

Most pro litigants and many lawyers forget )or never knew) that discovery was NOT limited to evidence. It is wide-ranging as a fishing expedition as long as it seeks information that is plainly relevant to the facts and issues of the case — even if the relevance is to the theory of defense with which the opposition disagrees.

Lastly, note that this is despite obvious resistance by the judge who probably was voting on consensus with other judges who think there is no valid defense to a foreclosure action. I don’t know how the case turned out, but the homeowner here is clearly headed for another case in the win column for homeowners.

see Pierce_County_Washington_Superior_Court

Here are some quotes from the “outline” referenced above:

Division Two reversed the previous decision of this Court foreclosing on David Morton’s home because Douglas Theener, a Chase VP had not supported his assertion that Chase possessed Morton’s Note when it was lost, with business records taking that statement outside of the parameters of the hearsay rule.

In order to obtain that evidence Theener asserted existed (which included the collateral file he had inspected) Morton noted the 30(b)(6) deposition of Chase’s designees to testify about the evidence Chase had in this regard. [EDITOR’S NOTE: THE COLATEREAL FILEIS THE LOAN ACCOUNT RECEIVABLE, WHICH DOES NOT EXIST. WITHOUT IT THERE IS NO CLAIM OR REMEDY]

Judge Aschraft at the second scheduled trial of this foreclosure case following remand ultimately acknowledged that Chase had refused to comply with this 30(b)(6) deposition notice when on the first day of trial he struck the trial to give Morton the opportunity to take Chase designee’s deposition a second time.

Now we are back again for trial and the evidence before this Court clearly shows that Chase’s designee still has not been prepared by Chase to testify about that evidence related to those topics which Judge Ashcraft ordered the Chase designee to testify about at his second deposition. Those deficiencies in the designee’s compliance with Judge Ashcraft’s order and the 30(b)(6) notice are well stated in Morton’s five page reply brief.

Because Chase cannot argue that it has complied with CR 30(b)(6) this Court must determine what is the “least severe sanction adequate to serve the sanction’s particular purpose but is not so minimal as to undermine the purposes of discovery.”

No sanction other than exclusion of the designee’s testimony is adequate because Morton was entitled to obtain discovery from a corporate designee who had been adequately prepared to testify about these matters. [e.s.]

SOME EXAMPLES OF AREAS WHERE CHASE’S DESIGNEE

WAS NOT PROPERLY PREPARED:

Collateral file – Designee never reviewed the collateral file so

couldn’t testify with regard to “the meaning of the assertions

previously made in this case by Douglas Theener” about that

file.

Assignment – Had no idea what assignment was being referred to in the comment section of the Bank One compliance record, which he testified showed that Bank One received the original note from First Franklin.

Corporate entities – Doesn’t know which Chase entity acquired Morton’s loan.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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2 Responses

  1. Love Neil’s work, but agree with Anon. Soup with no noodles or chicken . . .

  2. Geez. Just when giving credit on last post Neil – this comes up. Possession of note. In 99.999999% of cases, they will claim possession of note. Unusual case here – possession questioned at time of foreclosure. That is a “no-no.” Those cases will go forward and then disintegrate. That “note” was never a real “note” at origination for all crisis “account” cases. Thus, all other cases claiming possession of “note” are not valid as no “note” as to a valid “mortgage” ever existed. Sorry – not strong enough case. These cases claiming no possession of “note” at foreclosure DO pass muster. Unfortunately, they will come back and “Fix it.” It is not the issue as to possession. It is the issue as to a valid mortgage, funding, and valid note. Thanks anyway.

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