Bill Paatalo published his analysis and frustration with the way that lawyers create “shades of gray” when there is nothing to be seen. See attacking-the-powerless-and-deceptive-limited-power-of-attorney-documents-in-foreclosure-litigation/
My instruction to lawyers is (a) stop being lazy, (b) read each word carefully and (c) think about what you have read. The answers are all right there in front of you if you just read, comprehend and accept.
If the proposed governing document is offered as a foundation for evidence proving the existence of the unpaid “loan account,” then the first thing to do is to look at the back and see whether it is signed. If it is not, read no further. The document is a decoy. The second thing to do is to look at the attachments. If they are there, then are they complete?
For example, if the attachment purports to be a mortgage loan schedule, then is there any indication on the pages that follow as to where that list came from, when it was created, by whom, and for what purpose?
Then read the document to see if it is a proposal for an agreement that has been executed or whether the promised actions are all future actions. The standard Pooling and Servicing Agreement is a comic book depicting future scenes that never occurred and never will occur, nor are they intended to occur. If the document is not self-executing — i.e., bearing the language that something is hereby transferred, sold, bargained or sold then the entire document is irrelevant. Hint: OBJECTION: RELEVANCE, LACK OF FOUNDATION).
Then you have wording like this:
“[m]ay only be executed and delivered by such Attorney-In-Fact if such documents are required or permitted under the terms of the related servicing or management agreement[s.”]
I am not kind, even perhaps harsh, to attorneys who skip over that wording. If the document is such that the powers and obligations can only be resolved by finding other documents that may or may not be in the public domain, the objection is FOUNDATION. Without those other documents, the proposed document cannot be introduced into evidence. The document lacks any probative value and is not the foundation for arguing or expecting the court to apply any legal presumption.
Such documents are not even facially valid. If you need to consult other documents to figure out whether anything happened, the document is not facially valid. This especially includes assignments of mortgage or beneficial interest under a deed of trust. But it also includes an undated endorsement on a note for which there is no alleged delivery date and no date of endorsement.
The proponent of such documents can still prove their case by bringing in the records custodian for the creditor, but they can’t win just because they said so — unless the homeowner and then lawyer for the homeowner are sleeping.
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Neil F Garfield, MBA, JD, 76, 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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