JUDICIAL NOTICE IS BEING USED AS A SUBSTITUTE FOR PROOF OF FACTS THAT ARE CONTESTED

Posted on April 24, 2018 by Neil Garfield

The entire playbook of the banks and servicers consists of one underlying theme: to obtain foreclosures based upon presumptions that are contrary to the facts.

GO TO LENDINGLIES to order forms and services

Let us help you plan your answers, affirmative defenses, discovery requests and defense narrative:

954-451-1230 or 202-838-6345. Ask for a Consult. You will make things a lot easier on us and yourself if you fill out the registration form. It’s free without any obligation. No advertisements, no restrictions.

Purchase now Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar including 3.5 hours of lecture, questions and answers, plus course materials that include PowerPoint Presentations. Presenters: Attorney and Expert Neil Garfield, Forensic Auditor Dan Edstrom, Attorney Charles Marshall and and Private Investigator Bill Paatalo. The webinar and materials are all downloadable.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230 or 202-838-6345. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

GO TO WWW.LENDINGLIES.COM OR https://www.vcita.com/v/lendinglies toschedule CONSULT, leave message or make payments. It’s better than calling!

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

====================================

see Judicial Notice in Florida 90.202

and notice these provisions that are common to most if not all Judicial Notice statutes specifically state that judicial notice is ONLY for facts not subject to dispute.

Get up to speed on judicial notice. It is a ruse in the context of foreclosures and especially evictions or unlawful detainer actions filed after a supposed sale. They are seeking to avoid the requirement of proving that which they cannot prove unless the court not only accepts the document has having been judicially noticed but also that what is written on the document is presumptively true.

This is one place where the burden does not shift so easily. As I read the law, once you make the assertion contained in the document a question of fact, then the burden does not shift to you unless and until they introduce testimony (not legal argument) that is the foundation for introducing the document into evidence.   It seems crystal clear that they cannot do this because the facts point in an entirely different direction.

You might want to consider filing your own motion for summary judgment on the premise that if all they have is a plea for judicial notice and  they can’t otherwise prove the truth of the matters asserted in the documents submitted for judicial notice, then they have nothing and there are no issues of fact left to be tried, the burden does not shift to you, and judgment should be entered against the party seeking possession through eviction.

In your argument you should cite specific case law and statutes on judicial notice. Judicial notice is not meant to be a vehicle for skating around the truth. It is meant to streamline admission of evidence that comes from an independent third party with no interest in the outcome of litigation and is therefore presumptively true — because it is 100% credible.

First judicial notice is only good for proving the fact that the document exists. Second, what is written on the document is presumed true UNLESS you deny or object — so they must still prove that what is written on the document is true with other evidence. Third, judicial notice mostly applies to government generated documents — not self serving documents that are recorded or uploaded somewhere for the sole purpose of invoking judicial notice.

The entire reason why judicial notice exists is judicial economy — why require someone to prove something that everyone already knows is true or is contained in government agency files or website wherein the information is generated by an independent third party with no interest in the outcome of the litigation? Such documents are inherently credible.

They will try to say that they took title by virtue of the deed that was issued. The fact that they are seeking the court to admit into evidence as true is that the deed was valid. You contest that the deed was valid. Therefore it is up to them, apart from the deed, to show facts that the deed was valid and that means that the property was sold by a properly authorized trustee on behalf of an actual beneficiary who was either the obligee of the contested debt or the authorized agent for the obligee.

If the property was “sold” on behalf of a party who was not an obligee on the debt then it was sold by a non-beneficiary. And the filing of a substitution of trustee was void. And the “credit bid” was a false statement equivalent to perjury.

Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, evidence, Fabrication of documents, foreclosure, Motions | Tagged: , , , , , | 2 Comments »

non-judicial sale is NOT an available election for a securitized loan

Posted on May 28, 2010 by Neil Garfield

NON-JUDICIAL STATES: THE DIFFERENCE BETWEEN FORECLOSURE AND SALE:

FORECLOSURE is a judicial process herein the “lender” files a lawsuit seeking to (a) enforce the note and get a judgment in the amount owed to them (b) asking the court to order the sale of the property to satisfy the Judgment. If the sale price is lower than the Judgment, then they will ask for a deficiency Judgment and the Judge will enter that Judgment. If the proceeds of sale is over the amount of the judgment, the borrower is entitled to the overage. Of course they usually tack on a number of fees and costs that may or may not be allowable. It is very rare that there is an overage. THE POINT IS that when they sue to foreclose they must make allegations which state a cause of action for enforcement of the note and for an order setting a date for sale. Those allegations include a description of the transaction with copies attached, and a claim of non-payment, together with allegations that the payments are owed to the Plaintiff BECAUSE they would suffer financial damage as a result of the non-payment. IN THE PROOF of the case the Plaintiff would be required to prove each and EVERY element of their claim which means proof that each allegation they made and each exhibit they rely upon is proven with live witnesses who are competent — i.e., they take an oath, they have PERSONAL KNOWLEDGE (not what someone else told them),personal recall and the ability to communicate what they know. This applies to documents they wish to use as well. That is called authentication and foundation.

SALE: Means what it says. In non-judicial sale they just want to sell your property without showing any court that they can credibly make the necessary allegations for a judicial foreclosure and without showing the court proof of the allegations they would be required to make if they filed a judicial foreclosure. In a non-judicial state what they want is to SELL and what they don’t want is to foreclose. Keep in mind that every state that allows non-judicial sale treats the sale as private and NOT a judicial event by definition. In Arizona and many other states there is no election for non-judicial sale of commercial property because of the usual complexity of commercial transactions. THE POINT is that a securitized loan presents as much or more complexity than commercial real property loan transactions. Thus your argument might be that the non-judicial sale is NOT an available election for a securitized loan.

When you bring a lawsuit challenging the non-judicial sale, it would probably be a good idea to allege that the other party has ELECTED NON-JUDICIAL sale when the required elements of such an election do not exist. Your prima facie case is simply to establish that the borrower objects the sale, denies that they pretender lender has any right to sell the property, denies the default and that the securitization documents show a complexity far beyond the complexity of even highly complex commercial real estate transactions which the legislature has mandated be resolved ONLY by judicial foreclosure.

THEREFORE in my opinion I think in your argument you do NOT want to concede that they wish to foreclose. What they want to do is execute on the power of sale in the deed of trust WITHOUT going through the judicial foreclosure process as provided in State statutes. You must understand and argue that the opposition is seeking to go around normal legal process which requires a foreclosure lawsuit.

THAT would require them to make allegations about the obligation, note and mortgage that they cannot make (we are the lender, the defendant owes us money, we are the holder of the note, the note is payable to us, he hasn’t paid, the unpaid balance of the note is xxx etc.) and they would have to prove those allegations before you had to say anything. In addition they would be subject to discovery in which you could test their assertions before an evidentiary hearing. That is how lawsuits work.

The power of sale given to the trustee is a hail Mary pass over the requirements of due process. But it allows for you to object. The question which nobody has asked and nobody has answered, is on the burden of proof, once you object to the sale, why shouldn’t the would-be forecloser be required to plead and prove its case? If the court takes the position that in non-judicial states the private power of sale is to be treated as a judicial event, then that is a denial of due process required by Federal and state constitutions. The only reason it is allowed, is because it is private and “non-judicial.” The quirk comes in because in practice the homeowner must file suit. Usually the party filing suit must allege facts and prove a prima facie case before the burden shifts to the other side. So the Judge is looking at you to do that when you file to prevent the sale.

Legally, though, your case should be limited to proving that they are trying to sell your property, that you object, that you deny what would be the allegations in a judicial foreclosure and that you have meritorious defenses. That SHOULD trigger the requirement of re-orienting the parties and making the would-be forecloser file a complaint (lawsuit) for foreclosure. Then the burden of proof would be properly aligned with the party seeking affirmative relief (i.e., the party who wants to enforce the deed of trust (mortgage), note and obligation) required to file the complaint with all the necessary elements of an action for foreclosure and attach the necessary exhibits. They don’t want to do that because they don’t have the exhibits and the note is not payable to them and they cannot actually prove standing (which is a jurisdictional question). The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home. This is not being addressed yet but it will be addressed soon.

Filed under: CASES, CORRUPTION, Eviction, expert witness, Fannie MAe, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , , , , , , , | 7 Comments »

The Importance of Discovery and Motion Practice

Posted on May 5, 2010 by Neil Garfield

Practically all the questions I get relate to how to prove the case that the loan was securitized. This is the wrong question. While it is good to have as much information about the pool a loan MIGHT BE INCLUDED, that doesn’t really answer the real question.

The real question is what is the identity of the creditor(s). The secondary question is what is owed on my obligation — not how much did I pay the servicer.

It might seem like a subtle distinction but it runs to the heart of the burden of proof. You can do all the research in the world and come up with the exact pool name that lists your property in the assets as a secured loan supporting the mortgage backed security that was issued and sold for real money to real investors.  But that will not tell you whether the loan was ever really accepted into the pool, whether it is still in the pool, or whether it is paid in whole or in part by third parties through various credit enhancement (insurance) contracts or federal bailout.

You must assume that everything is untrue. That includes the filings with the SEC. They may claim the loan is in the pool and even show an assignment. But as any first year law student will tell you there is no contract unless you have an offer AND an acceptance. If the terms of the pooling and service agreement say that the cutoff date is April 30 and the assignment is dated June 10, then by definition the loan is not in the pool unless there is some other documentation that overrides that very clear provision of the pooling and service agreement.

Even if it made it into the pool there are questions about the authenticity of the assignment, forgery and whether the pool structure was broken up (trust dissolved, or LLC dissolved) only to be broken up further into one or more new resecuritized pools. And even if that didn’t happen, someone related to this transaction most probably received payments from third parties. Were those allocated to your loan yet? Probably not. I haven’t heard about any borrower getting a letter with a new amortization schedule showing credits from insurance allocated to the principal originally due on the loan.

The pretender lenders want to direct the court’s attention to whether YOU paid your monthly payments, ignoring the fact that others have most likely made payments on your obligation. Remember every one of these isntruments derives its value from your loan. Therefore every payment on it needs to be credited to your loan whether the payment came from you or someone else. [You know all that talk about $20 billion from AIG going to Goldman Sachs? They are talking about YOUR LOAN!]

The error common to pro se litigants, lawyers and judges is that this is not a matter of proof from the borrower. The party sitting there at the other table in the courtroom with a file full of this information is the one who has it — and the burden of proof. Your case is all about the fact that the information was withheld and you want it now. That is called discovery. And it is in motion practice that you’ll either win the point or lose it. If you win the point about proceeding with discovery you have won the case.

You still need as much information as possible about the probability of securitization and the meaning it has in the context of the subject mortgage. But just because you don’t have it doesn’t mean the pretender lender has proved anything. What they have done, if they prevailed, is they blocked you from getting the information.

By rights you shouldn’t have to prove a thing about securitization where there is a foreclosure in process. By rights you should be able to demand proof they are the right people with the full accounting of all payments including receipts from insurance and credit default swaps. The confusion here emanating from Judges is that particularly in non-judicial states, since the borrower must bring the case to court in the first instance, the assumption is made that the borrower must prove a prima facie case that they don’t owe the money or that the foreclosing pretender lender is an impostor. That’s what you get when you convert a judicial issue into a non-judicial one on the basis of “judicial economy.”

In reality, the ONLY way that non-judicial statutes can be constitutionally applied is that if the borrower goes to the trouble of raising an objection by bringing the matter to court, the burden of proof MUST shift immediately to the pretender lender to show that in a judicial proceeding they can establish a prima facie case to enforce the obligation, the note and the mortgage (deed of trust). ANY OTHER INTERPRETATION WOULD UNCONSTITUTIONALLY DENY THE BORROWER THE RIGHT TO A HEARING ON THE MERITS WHEREIN THE PARTY SEEKING AFFIRMATIVE RELIEF (THAT IS THE FORECLOSING PARTY, NOT THE BORROWER) MUST PROVE THEIR CASE.

Filed under: CASES, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, interest rates, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 24 Comments »

Rally in Tally: Homeowner Relief and Housing Recovery Act is a Sham and Shame

Posted on April 20, 2010 by Neil Garfield

Editor’s Note: Due process requires that nobody be deprived of life, liberty or property without a judicial determination on the merits of claims against them. Non-judicial procedure runs a thin line that has not actually been tested constitutionally. Assuming it is valid by virtue of the “freedom of contract” doctrine, it still cannot be used to abuse and trick people into losing their homes when in fact the trickster has no interest in the loan, the property or the originating transaction. The attempt in Florida to increase the number of states using non-judicial procedure is abhorrent to anybody who conceives this country as a nation of laws. Non-judicial procedure is in my opinion, inapplicable to most, if not all, securitized loans.

The reason is simple: non-judicial foreclosure sales are meant to achieve judicial economy without prejudice to anyone. In securitized loans there are so many potential stakeholders that non-judicial sale prevents notice and due process and even encourages tricksters to use it against the interests of those who might have an interest. It not only increases moral hazard, it assures a growing cloud on the title of all properties that have been or will be the subject of foreclosure sales.

The pandemic effect on an already unstable marketplace is being amplified by these legislative attempts to legalize unjust enrichment of intermediaries who have no financial interest and who who are not subject to any financial loss for a loan, with it is performing or non-performing.

Posted by Malcolm Doney

The following letter was sent to all 14 members of the House Criminal & Civil Justice Council the day before the Bill was killed. We have reason to believe that it was instrumental in causing the death of that Bill and of the Senate Bill. It was authored by me assisted by three other founding members of Mortgage Justice an activist and educational not for profit. It is now widely circulated to many of the people going to the Rally in Tally. Any of your readers is free to use it as a tool to fight the fraudsters.
1. The Florida Bankers Association is attempting to use the power of the Florida State Legislature as an instrument to commit fraud upon its citizens and House Bill 1523 is inappropriately named The Homeowner Relief and Housing Recovery Act.
2. This Bill and its sister Bill in the Senate SB 2270 will not relieve any Homeowners and neither will it aid any Housing Recovery. On the contrary these Bills, if enacted, will add to the personal burdens of this States’ citizens, deepen the recession, add to the destabilization of communities, the breakup of families, an increase in blue collar crime and hundreds of millions of Dollars in lost Court revenue to the State.
3. HB 1523 adds to the deception in its introduction by adding to the ‘deadbeat borrowers myths’ [whereas it was deliberately planned and executed by Wall Street Investment Banks, Main Street Banks, mortgage lenders and their cohorts], falsely suggests that the cure is to expedite foreclosures to bottom out the market and that somehow this unsupportable economic theory will revitalize the economy, allow citizens to pay their taxes and Housing Associations to maintain communities.
4. If enacted, the passage of these Bills would shift the burden of proof to foreclose from the foreclosing parties to the homeowner, thus denying those homeowners their existing rights of due process and simultaneously, circumvent the recently imposed Supreme Court of Florida’s requirement placed upon foreclosing parties to substantiate under penalty of perjury that they have the legal authority to foreclose on real property given as security in a Mortgage to the true Owner of a Promissory Note and to engage in mandatory mediation. These requirements are the real reason for these proposed laws, because they can no longer hide their crimes from our Courts.
5. Because all members of the legislature are unaware of the fraudulent intent behind the Florida Bankers lobbyists who proposed this draft legislation we have concentrated most of our detailed efforts upon exposing the frauds rather than pointing out the serious deficiencies of the Bills as we know that other groups and individuals are adequately bringing such reviews to the attention of the legislature.
6. However, of paramount importance is the fact that lines 216 to 225 of the original draft clearly backdates the effect of these proposed laws to time immemorial. By the clever use of the words “agreed in substance in the security instrument” the drafters are seeking to remove the requirement contained in Florida Mortgages in clause 22 that all foreclosures must be conducted through the Judicial system by obliquely [but not specifically] referring to clause 16 in which the signor has acknowledged that the whole document is subject to Federal and State Law. The intent of the signing parties of all such Mortgages was that clause 22 of that unilateral contract would apply for the life of that instrument and that imprecise words such as “agreed in substance” would not be used in future laws to imply that they had agreed to a major change in the terms of those Mortgages and if enacted it will negatively impact basic human, property and contractual rights guaranteed under the Federal and State constitutions.
7. Mortgage Justice wishes to reveal that the truth behind the mortgage meltdown is:-
(a) The Housing Bubble was deliberately planned and implemented by Wall Street entities and the Main Street Banks.
(b) Mortgage and other loans were deliberately set up to fail.
(c) The lenders shown on Promissory Notes and Mortgages were not the Lenders, but were misappropriating the use of their licenses to transact mortgage business in the various states and were funded by Wall Street Brokers from the proceeds of the sale of Derivatives in wrongly described AAA rated Mortgage Backed Securities, for which they were paid excessive ‘yield spread premiums’ as a commission.
(d) Notes and Mortgages were not sold in the secondary market, neither were they transferred into securitized mortgage pools. It was impossible for pretend lenders to sell what they did not own.
(e) Contrived sales in the secondary market were documented in the Securities and Exchange Commission’s public records to entitle these pretend lenders to avoid paying federal taxes upon their profits by appearing to comply with IRC 860 and ‘selling’ loans into Real Estate Mortgage Investment Conduits (REMIC). Documents filed in the SEC provide proof that all these mortgages failed to comply with IRC 860.
(f) SEC documents establish that none of the mortgage loans that they say were put into REMIC Trusts, ever reached those Trusts and that the majority of the ‘so-called’ Trusts were not Trusts but a form of perpetual LLC with zero reporting requirements filed in the State of Delaware for the benefit of those major Banks and/or GSEs, as the true beneficiaries of all the frauds. These ‘Trusts’ are named Delaware Statutory Trusts, they are neither Statutory, nor are they Trusts.
(g) The true beneficiaries of the frauds also sold undisclosed and unregulated multiple default insurances and credit default swaps sold through the International Swaps and Derivatives Association on every new mortgage created to guarantee receipt of multiples of sums they had pretended to lend as and when the planned defaults occurred.
(h) It is therefore a fact that in almost every mortgage foreclosure action the foreclosing entity is not the owner of the Note or the Mortgage, never lent any money, is an integral part of a criminally motivated group has already reaped criminal profits, will share in multiple proceeds from insurances, all the Notes have been deliberately eliminated as admitted to the Supreme Court of Florida by the Florida Bankers Association and all Notes are already paid in full.
8. Mortgage Justice understands that the above text contains major allegations of fraud levied against some of the biggest and most powerful institutions in the land and does not make these accusations lightly. We are fully prepared upon request given adequate notice to furnish irrefutable documentary evidence supporting those accusations and if required to justify them with documentary evidence are willing so to do in order to demonstrate why this proposed legislation must be unanimously rejected by the Florida Legislature for the benefit of its present and future citizens.
9. We also request Public Hearings be scheduled prior to any passage of these proposals and we suggest inviting all interested parties, including representatives of finance and banking who are apparently promoting these Bills, consumers and their advocates.
10. Finally, we refer you to informative videos that can be accessed via the Internet. In our opinion the most reliably informative and professional presentations of the truth behind the housing bubble are those involving the eminent Academic, Criminologist, Economist, Lawyer, Accountant, author of the book entitled ‘The Best Way to Rob a Bank is to Own One’ and a former lead regulator during the savings and loans crisis. Professor William [Bill] Black. To authenticate what we have revealed, please watch Bill Moyers’ PBS interview of Bill. WE BELIEVE this interview OFFERS AN EXCEPTIONAL OVERVIEW OF THE CAUSE OF THE ECONOMIC MELTDOWN AND FRAUD PERPETRATED BY THE BANKING INDUSTRY ON THE AMERICAN CITIZEN AND WE BELIEVE IT IS IMPERATIVE THAT YOU WATCH AND HEAR THIS VIDEO.
11. Bill Black submitted himself to further questioning in a recent five-part interview on an Internet news channel, Real News. Please watch and listen to these questions and answers also. Political rhetoric, spin and sound bites are no answer to the serious crimes exposed in these interviews. He speaks openly, with a sincere honesty and integrity, almost extinct in our country today. His interview makes us starkly aware that the Banks are striking at the heart of our Republic and government, in all of its branches, but especially the judicial branch. Now that Courts are more closely examining foreclosure cases filed against homeowners in Florida and other jurisdictions the truth is beginning to emerge. Courts in Florida and in many states are finding that the banks lack standing, are filing frivolous lawsuits and are unable to prevail when a homeowner enters a properly pled defense. Mortgage justice strongly believes that the preservation of citizen rights to defend these actions is as vital to the Citizens of Florida as it is to the banks to destroy it. Preserving those rights will establish the truth, disclose extensive violations of state and federal laws by the banking industry, put an end to the power of the banking industry in our state legislature and the resultant backlash of public opinion will reverberate throughout our nation and the world. After nearly destroying the Global Economy, after lowering by twenty percent the net worth of our citizens, and after borrowing billions from them and reaping record profits without any legislative reform or inquiry they now attempt to make it even easier to take the homes of the citizens and deprive them of their legal rights. We urge you to carefully consider, investigate and reject this proposed legislation on behalf of the homeowners and citizens of Florida.
Sincerely,

MORTGAGE JUSTICE,
for our members and the Citizens of the United States, April 12, 2010.

P.S. Internet links – Please copy and paste the following links into your browser:- http://www.pbs.org/moyers/journal/04032009/watch.html

Then listen to – To rob a country, own a bank Pt5 – put this into Google and follow the links to 5 part video of Black on Real News.

Also essential viewing and listening to the latest on MSNBC,
http://www.rumormillnews.com/cgi-bin/forum.cgi?read=170712

Filed under: bubble, CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , , | 17 Comments »

%d bloggers like this: