Now You See Them, Now You Don’t

Posted on September 6, 2016 by Neil Garfield

ARE LAW FIRMS CROSSING THE LINE FOR BANKS WHO WILL THROW THEM UNDER THE BUS?

It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

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

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I can’t help thinking about whether there is a motion in California and other nonjudicial states that allows you to challenge the right of the attorney to be the attorney of record when the law firm is a fact witness on issues that are central to the case. Having signed the proof of claim, being the trustee (who supposedly represents the party who signs a proof of claim), etc., the question is whether they are acting on their own behalf or on behalf of a third party who might indeed have some objections against the law firm representing the interests of parties whose interests might be antithetical to their own.

In a deed of trust you have the trustor (homeowner) and the Trustee in the middle between the trustor and the beneficiary who presumably is the creditor. By now we know that original beneficiary probably did not make the loan and that the alleged new beneficiary didn’t buy it. The beneficiaries’ claims are only as good as the words on the fabricated paper on which they are written and certain legal presumptions that are routinely misapplied.

So the first sign of trouble is the “Substitution of Trustee” wherein a “New” beneficiary executes a document appointing a new Trustee on the Deed of Trust. Why? What was wrong with the old one if everything was on the up and up? They substitute because they know the original Trustee won’t accept the instructions from the new party because the original Trustee has no objective reason to believe that the new “party” is a “beneficiary”. Who signs that “substitution of Trustee”?

It is usually someone who has been given instructions to sign it on the promise and premise that they have been appointed attorney in fact for the “new beneficiary.” In fact, in many cases their only job is signing documents that they have received instructions to sign. But the actual person signing knows absolutely nothing about the deal and has no knowledge about the facts behind the business of signing such documents — assuming their signature was not forged or robo-signed.

So in this and many if not nearly all cases, the actual signature is supplied by a third party who will then fabricate a power of attorney to do it — still without any facts about why the Trustee needs to be replaced. In most cases it is an employee of the law firm who by definition (?) has no actual interest in the loan, the debt, the note or the mortgage (Deed of Trust). This makes the person who signed it a fact witness and watch how the law firm fights to prevent that person from testifying at deposition or trial. In many cases they will assert that the person is no longer employed and they don’t know where he or she is now located.

And then you have the new Trustee who often turns out to be the same law firm who signed the Substitution of Trustee, making it a double self-serving document for which no legal presumptions should apply since there is no foundation in evidence that establishes the law firm as a real party in interest — and if such evidence existed the law firm would be disqualified from representing the allegedly new beneficiary and from being the Trustee AND advocate against the Trustor. If the legislature meant to allow that sort of thing they would have been violating the due process clause of the U.S. Constitution making the entire nonjudicial statutory scheme unconstitutional.

Who signs the power of attorney once it is fabricated? It is either the law firm employee or an employee who works for a “servicer” who in most cases is not named in any document as servicer. Who signs the validation of the foreclosure? Same person. It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

That is what they are talking about when they refer to “remote” vehicles. It is a situation where actions are taken and the people for whom the action was taken cannot be tied into the transaction in case someone needs to go to jail, or pay a fine or sanctions. But somehow the Courts have twisted this into meaning that what is good for the goose is not good for the gander. The banks can distance themselves from liability for a fabricated transaction but they also can receive the benefits of the fabrication as though they were present.

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

Filed under: foreclosure | Tagged: , , , , , , , , | 5 Comments »

Evidence: Produce the Witness

Posted on January 11, 2010 by Neil Garfield

In practice, this surfaces as a demand letter, affidavit or assignment or other document used by the pretender lender to establish its case. The path to defeat of the homeowner is paved when they fail to object to the introduction of these documents as anything other than an allegation that raises a question of fact. If you make the objection then you are conforming to the rules of evidence and enforcing your rights under the the U.S. Constitution. By directing the Judge’s attention to the question of fact, you then open the door to discovery and an evidentiary hearing. Without that, the allegations of the pretender lender will be taken as true and you are just about done.
The 6th Amendment, part of the Bill of Rights, guarantees people the right to confront witnesses who are offering “evidence” against them. This basic right has often been eroded by bad decisions by Judges who do not understand the rules of evidence — but more often affidavits, reports and other documents are often admitted into evidence because of the failure of the opposing party to object. In a great many cases, “evidence” becomes what is allowed by the failure of the party to understand their right to cross examine a witness in live testimony.
RELEVANCE: Neither the computer generated reports nor the affidavits or correspondence of the pretender lender is evidence unless you fail to object to it for (a) lack of foundation and (b) violation of your right to confront the PERSON who entered the data or information written or the PERSON who prepared the document. The same holds true for your forensic report. You can use it to raise a question of fact, but when it comes down to actually proving your case the report is useless without the live testimony of the forensic analyst and the live testimony of an expert who explains what it means.

In practice, this surfaces as a demand letter, affidavit or assignment or other document used by the pretender lender to establish its case. The path to defeat of the homeowner is paved when they fail to object to the introduction of these documents as anything other than an allegation that raises a question of fact. If you make the objection then you are conforming to the rules of evidence and enforcing your rights under the the U.S. Constitution. By directing the Judge’s attention to the question of fact, you then open the door to discovery and an evidentiary hearing. Without that, the allegations of the pretender lender will be taken as true and you are just about done.
There are exceptions to allowing a document in as evidence to prove the truth of the matter asserted but they are limited exceptions and contain numerous conditions, mostly in the form of providing a foundation for the introduction of the document, the reason for the absence of the witness and whether the witness is actually available to testify and if not, why not.
The parallel tactic used by pretender lenders is to produce a witness that is a shill for the real thing. This comes down to the conventional definition of competency of a witness to testify. In nearly all cases, the witness the pretender lenders offers has no direct personal knowledge of anything contained in the written document, has been recently hired, is not in the department that would have any knowledge and/or is not the true custodian of records who could identify where the data came from, who provided it, when it was created, and the method by which the document is created. In nearly all cases, these documents are fabricated in “service mills” which might actually be in the office of the attorney for the pretender lender where an employee of the law firm or service mill executes the affidavit or document as “limited signing officer,” “assistant secretary,” etc. MERS documents are virtually always executed by people with no connection with MERS and where MERS has no knowledge of the existence of the person nor that they executed a document in the name of MERS.
A competent witness is ONLY a live person in court who has PERSONAL KNOWLEDGE and personally remembers the transaction(s) about which they are offering testimony. The pretender lenders merely grab someone and tell them what to say in court like “I am an authorized representative of Pretender Lender and I am familiar with the facts regarding this loan.” Your objection should be accompanied by a request to voir dire the witness. Who is your employer. what is your job? where do you work? When were you employed? Did you get information about this transaction from documents you were given or that you found? Did you get your information from another person?
Test them on conflicts of the numbers shown in different documents. Ask them if they have personal knowledge of the two documents. You probably will find that they have no personal knowledge of one of them. Ask them to explain the difference if they manage to qualify the witness, as it lessens their credibility to have conflicting demands from the same party.
Establish that the witness doesn’t really know anything on their own because they had nothing to do with the origination or servicing of the loan and nothing to do with the securitization of the loan.
On the securitization of the loan sometimes they will bring in a person who has some connection with the loan from the servicing company. Establish that the servicing company is a bookkeeper and conduit for payments and not the creditor (the obligation, as evidenced by the note is not owed to the witness or their employer).
After establishing that they otherwise do have personal knowledge not gleaned from someone else (hearsay), you ask them if they have any access to the the records of the other parties involved in the securitization of this loan.
Then you establish that therefore they only have the records of a specific period of time involving transactions between the borrower and a particular servicer and NOT the full record of all transactions that occurred as credit or debits to the obligation created when the loan was originated. So they don’t know whether the obligation was transferred or sold or paid by federal bailout or insurance. They don’t know the identity of the creditor.
As soon as they admit lack of knowledge you object to the witness as not having the required personal knowledge and personal recollection of the entire transaction or even parts of it. You therefore object to the the document or report or affidavit they are offering as lacking proper foudnation and as violating your right to cross examine witnesses offering to testify against you.
While the 6th Amendment is often cited just in criminal cases, it is the basis for the rules of evidence in every state in the union. The purpose is not some legal trick. It is to provide the court with some assurance that the information being offered to the court has the required amount of credibility to be useful in finding the facts of the case.
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New York Times
January 11, 2010
Editorial

The Right to Confront Witnesses

Just last June, the Supreme Court decided that when prosecutors rely on lab reports they must call the experts who prepared them to testify. It was an important ruling, based on a defendant’s right to be confronted with witnesses against him, but the court is about to revisit it. The justices should reaffirm that the Sixth Amendment requires prosecutors to call the lab analysts whose work they rely on.

On Monday, the court hears arguments in Briscoe v. Virginia, in which a man was convicted on drug charges. The prosecutors relied on certificates prepared by forensic analysts to prove that the substance seized was cocaine. They did not call the analysts as witnesses.

The defendant should be able to get his conviction overturned based on Melendez-Diaz v. Massachusetts, the ruling from last June, which held, by a 5-to-4 vote, that using lab reports without calling the analysts violates the Sixth Amendment.

The amendment’s confrontation clause guarantees defendants the right to see prosecution witnesses in person and to cross-examine them, unless they are truly unavailable. In cases that involve drugs, and many that do not, lab analysts’ work can be a critical part of the prosecution’s case. If the prosecutors want to use the reports, they should be required to call the analysts as witnesses.

Critics of the ruling last June argue that it imposes too great a burden and excessive costs on prosecutors. But in states where analysts have to testify, the burden is easily manageable. Ohio’s 14 forensic scientists appeared in 123 drug cases in 2008, less than one appearance each per month.

It is not clear why the Supreme Court is rushing to reconsider this issue. There are some differences in the rules on witnesses between Virginia and Massachusetts. But it may be that with Justice Sonia Sotomayor having replaced Justice David Souter, the dissenters believe they have a fifth vote to erode or undo last June’s ruling.

As a former assistant district attorney, some court analysts argue, she may be more sympathetic to the burden on prosecutors. As a circuit court judge, Justice Sotomayor did often rule for the government in criminal cases, but making predictions of this sort is perilous. Justice Antonin Scalia, one of the court’s most conservative members, wrote the majority opinion in Melendez-Diaz.

If the court changes the rule, it would be a significant setback for civil liberties, and not just in cases involving lab evidence. Prosecutors might use the decision to justify offering all sorts of affidavits, videotaped statements and other evidence from absent witnesses.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , | 10 Comments »

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