Don’t allow judicial notice to be an end run around the rules of evidence

One of the tricks played by lawyers who work for foreclosure mills is to use a motion for the court to take judicial notice of a certain document. While it is usually technically construed only as the document exists, it is practically construed as a memorialization of true facts.

Mohanna v. Wilmington Sav. Fund Soc’y FSB, 4:21-cv-03557-KAW, at *1 (N.D. Cal. Dec. 13, 2021) (“Request for Judicial Notice As a general rule, a district court may not consider any material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). A district court may take notice of facts not subject to reasonable dispute that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). “[A] court may take judicial notice of ‘matters of public record, ‘” Lee250 F.3d at 689 (citing Mack v. S. Bay Beer Distrib.798 F.2d 1279, 1282 (9th Cir. 1986)), and may also consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading” without converting a motion to dismiss under Rule 12(b)(6) into a motion for summary judgment. Branch v. Tunnell14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara307 F.3d 1119 (9th Cir. 2002). The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankruptcy Ct.828 F.2d 1385, 1388 (9th Cir. 1987).”)

In particular, note the language “facts not subject to reasonable dispute that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Foreclosure mills love to play with this using the SEC.gov website because nobody understands the rules except securities lawyers.

Everything asserted in every document is hearsay. That means it is not admissible evidence. It is simply potential information like what you might retrieve in the process of making discovery demands and receiving responses.

But lawyers for the foreclosure mills will often receive documents via electronic transmission from an unknown source. Some documents contain a header at the top of the page that identifies the source of the document as a folder on sec.gov. That part is not a lie. It is a copy of a document that was downloaded from that website. But now you need to know the rest of the story.

When the lawyer for the foreclosure mill introduces the document as a government document, as though the documents and its contents are not in dispute, he is perpetuating a lie even if he or she does not know it. In a process known as “shelf registration,”

It gives the filer access to UPLOAD documents on the sec.gov website. But a shelf registration is not reviewed or approved by the SEC because no securities were offered and sold. That is the definition of shelf registration.

So first, if the document asserts or implies the existence of an unpaid debt due from the homeowner as being owned as an asset of the “issuer” named in the shelf registration, then that is an assertion of the persons who uploaded the document. It is not an assertion of the filer, the issuer, or the SEC. And it is not filed under penalty of perjury or anything else.

So “judicial notice” in this context means that the banks have found a way to use the shelf registration rules to gain access to sec.gov to upload their own fabricated documents solely so they can download them from the sec.gov website with the sec.gov header. This successfully misleads and misdirects the homeowner, the lawyer for the homeowner, and the judge.

The defense consists of an objection to the lack of foundation and proof of authenticity and accuracy of the document. This is often the case with a “pooling and Servicing Agreement” this is usually incomplete, unsigned, and framed for future reference, not past events or events that are asserted to be happening with and by virtue of the execution of the PSA.

The only foundation for any document is the testimony of a live witness who swears under oath that the document is authentic, that it is the original (not a copy, unless the parties have agreed to accept copies) and that the witness is the author or the authorized person as custodian of documents for the party or parties named therein.

Homeowners who object to the lack of foundation usually win. Homeowners who know nothing about this usually lose. 98.5% of all homeowners threatened with foreclosure fail to challenge anything. Under our system, anyone can claim anything until someone opposes the claim. If nobody opposes the claim, it becomes true, and judgment is entered, making it legally true for all purposes.

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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).

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