How and Why to File Motion for Reconsideration or Rehearing

Once a trial has been conducted, there can never be another trial with the same parties disputing the same facts and issues. The only exception is a court order vacating the judgment AND ordering further proceedings to determine all or some of the facts.

The bottom line is that the rules permitting the filing of a motion for rehearing or motion for reconsideration — or even a motion to vacate — are not intended to allow a party to redo their closing argument. The fact that you disagree with the ruling is irrelevant. Case law strongly suggests a standard that is close to the rules used on appeal — clear error.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.


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



see Hinrichsen wins on FDCPA Claim

The above link will take you to a Southern California case in Federal District Court. The issue was whether a party was a debt collector and thus subject to regulation or private suits as debt collector. In this case the trial court used the wrong standard thus entering summary judgment for the debt collector. On motion for reconsideration the same judge found he had made an error, probably created by poor presentation by the borrower. The Judge reversed himself and ordered the case to trial.

The fact that the borrower had not presented the issue well enough in the trial court at the hearing on Defendant ‘s Motion for Summary Judgment was insufficient for “finality” to bar further argument about it. Note that courts are much more likely to reverse themselves on motions for summary judgment than they are to reverse a final judgment after a trial on the merits.

Discovery Changes and Broadens After Hawaii Supreme Court Decision

Based on questions that greeted me when I got to my desk this morning, here are just some of the thoughts that apply — a case review and analysis for each case being necessary to actually draft the right questions and to close any trap doors.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.


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



NOTE: Procedural questions should be posed to local counsel who knows local discovery rules and court procedure. My answer is based upon general knowledge and not based upon any experience in litigating discovery issues in your state.
The effect of the new decision in the link above is most probably (a) a broadening of existing discovery requests (b) rehearings on recent decisions denying discovery and (c) an opportunity and a reason to ask the questions you really want to ask.
The first question is whether the questions you would ask now are already within the scope of the questions you have already asked. If so, generally speaking, there is nothing to do. In this scenario you could send a letter, I think, that clarifies your questions in view of the new Supreme Court ruling. The letter would specifically address certain issues that were raised in questions already asked and tells them the details you expect. This could be done in a supplemental request for discovery citing the new Supreme Court decision. Check with local counsel.
Second, and this is more likely, your case should be analyzed within the context of the new decision. It seems to me that the decision opens up some broader scope of discovery than had previously been submitted. Your opposition will fight this tooth and nail. Pointing to the Hawaii Supreme Court decision is not going to be enough even if the property is in Hawaii. You need to have a very clear narrative that explains why you are asking for the answers to questions and the production of documents and answers to request for admissions. Without a clear defense narrative your first Motion to Compel them to respond will likely fail. The general rule is that discovery, with certain exceptions, can be any request that could lead to the discovery of admissible evidence. By “admissible” the meaning is evidence that is relevant and “probative” to the truth of the matter asserted. It isn’t relevant unless it ties into either the case against you or the defense narrative. Lack of clarity can be fatal.
The opposition is going to claim privilege, privacy, and proprietary information. You should force them to be more specific as to how the identification of the creditor is proprietary, or an invasion of privacy or some privilege. Tactically I would let them paint themselves into a corner, so you need someone who knows how to litigate. Once it is established that they can’t or won’t disclose the matters into which you have inquired, then the question becomes how they will prove authority from the creditor without identification of the creditor from whom all authority flows.
That could lead to a motion for summary judgment wherein you allege that they have failed and refused to make disclosure as to the most fundamental aspect of pleading a case. Since their authorization to initiate and maintain a foreclosure action must relate back to the authorization of the creditor (owner of the debt) and they now have not or will not identify that party(ies), the presumption of authority must be considered rebutted, thus requiring them to prove their case with facts and not with the benefit of legal presumptions.
Since they have admitted on record that they cannot prove they are acting on behalf of the creditor, it follows that they cannot prove authority to initiate or maintain a foreclosure action. Hence, the outcome is certain. They will not be able to prove standing although they might have made certain assertions or allegations that might pass for standing such that they can withstand a motion to dismiss or demurrer. The essential assertion of standing is either rebutted or barred from proof. Hence judgment should be entered for the homeowner.
Some of this might come out in a motion for sanctions which is virtually certain to come from you when they fail to properly respond to your requests for discovery. This is intricate litigation that should be handled by a local attorney.
Again don’t start a second front in the battle if you have already covered it in your previously submitted requests for discovery. I think you have asked most of the right questions, although now with this decision it becomes more refined.Among the questions I would ask in view of the new decision from the Supreme Court of Hawaii are the following presented only as narrative draft, subject to improvement by local counsel:
  1. Does the trust exist under the laws of any jurisdiction? If yes, describe the jurisdiction in which the trust is recognized as existing.
  2. Was the trust organized under the laws of any jurisdiction? If yes, when and where?
  3. Does the trust own the subject debt? If yes, please explain why the trust is not claimed as a holder in due course.
  4. Does the trust allow the beneficiaries an interest in the assets of the trust?
  5. Please describe the manner in which the certificate holders are beneficiaries of a trust.
  6. Does the named Trustee of the Trust have any rights or obligations to monitor trust assets?
  7. Does the named Trustee of the Trust engage in any activities in which it is administering the assets of the Trust.
  8. Describe the assets of the Trust.
  9. Please identify the Trustor or Settlor of the Trust.
  10. Please identify the date, place and parties involved in any transaction in which assets were entrusted to the named trustee for the benefit of named or described beneficiaries.
  11. Please identify the date, place and parties involved in any transaction in which assets were purchased by the Trust or in which a Trustor or Settlor purchased assets that were then entrusted to the named trustee of the Trust for the benefit of named or described beneficiaries.
  12. Is the named Trust a fictitious name being used by one or more other entities?
  13. Do the certificates contain provisions in which the holder of the certificate disclaims any right, title or interest to assets of the Trust or any right, title or interest to the subject loan? If yes, please describe the provision, in what document it is located, the date of the document, and where that document currently exists in the care, custody and/or control of the Trust or any party doing business as or on behalf of the named Trust.
  14. Please describe the owner of the debt, to wit: describe the party currently carrying a receivable on its books that includes the subject loan, wherein no other party is ultimately entitled to proceeds of payments, proceeds or recovery on the subject loan.
  15. Is it your contention that residential foreclosure is legally allowed without ownership of the underlying debt from the borrower? If so, describe the elements of a party who would be legally allowed to foreclose on a residential mortgage without ownership of the underlying debt.
  16. Does the Trust have a bank account in the name of the Trust?
  17. Does the Trust have a bank account in the name of the named Trustee as Trustee for the Trust.
  18. If the answer to either of the two preceding question is yes, please describe the account, its location and identify the signatories on said account.
  19. Please describe the retainer agreement between the named Trust and current counsel of record including all the parties thereto, the date(s) of execution and date that the agreement became effective, the names of the signatories, and their authority to execute the instrument.
  20. With respect to loans attributed to or allegedly owned by the Trust please describe the parties who make decisions, along with a description of their authority, with respect to the following relating to the subject loan:
    1. Whether to foreclose
    2. When to foreclose
    3. What documents are needed for foreclosure
    4. Applications for modification
    5. Terms of modification
    6. Terms for settlement of the debt

The Notice Letters and Legal Strategies

Now that I am actively practicing law I see the reasons for the anger and recriminations regarding the conduct of proceedings involving foreclosure. But whether the judge likes it or not the law is very clear regarding a condition precedent to the filing of foreclosure action. The borrower must receive notice. The notice must state that the borrower is in default and must also state the conditions for reinstatement to cure the default. The law is very clear that failure to give proper notice is reason enough to deny the foreclosure. It doesn’t stop the bank from coming back later after giving proper notice, but it does stop the current foreclosure proceeding.

Generally speaking you’ll find the required language in the mortgage in paragraph 22. There are other paragraphs that speak to default have the right to reinstatement —  usually in the preceding paragraphs to the paragraph 22.

Notwithstanding the law, I am finding that there are many judges who consider it to be their political mandate to push the foreclosures through to sale. They may be right as to the political mandate but they are wrong to use it in a court of law. Failure to give proper notice or any other material fact that might be in issue is sufficient to defeat a motion for summary judgment as long as it is clearly in the record at the time the order on summary judgment is entered. In Florida at least I detect an attitude from the bench which disregards the facts of the case in favor of entering judgment for the banks.

Having the facts and law on your side does not mean that you will be able to stop the foreclosure. This does not stop judges from blaming borrowers for delays in the proceedings despite the fact that it is the obligation of the foreclosing party to prosecute the action. And yesterday I saw a judge enter an order granting summary judgment despite the fact that there were dozens of facts in dispute. His reason appeared to be that the case had been hanging around for four or five years —  during which time the homeowner could have filed a motion to dismiss for failure to prosecute the action at least twice.

Of course homeowners do not know the Rules of Civil Procedure which is why I have stated so strongly and so often why they should retain counsel if they really want to keep their home.

In the course of my research on a related topic I uncovered the information shown below. It is obvious that under federal and Florida law the notice must contain information concerning the right to reinstate the loan and a demand for a specific amount of money required for reinstatement. Some banks have chosen to ignore the right to reinstatement because of their enthusiasm for obtaining a foreclosure judgment. And there are judges that will ignore the issue of notice and enter judgment for the bank. But on appeal there seems to be little doubt that the judges order will be reversed, the sale will be reversed, and the foreclosure action will be dismissed (without prejudice to refile).

Most judges appeared to approach a foreclosure case as a fairly simple matter that is very annoying to them. Instead of asking the attorney for the bank to present his/her case there are several judges who are announcing that everything seems to be in order and so judgment will be entered. While this is wrong I would caution the reader not to draw the  further conclusion that the judge is corrupt or has an agenda designed to hurt homeowners. In the eyes of the judge, based upon actual experience for several years, most defenses that have been presented to judges have been for the purposes of delay. In part this was allowed and even encouraged by the banks who were unready to fully prosecute the foreclosure action because of the potential liability for taxes, insurance and maintenance.

In my firm we generally refer clients who are simply looking for delays to other attorneys whose down payment and monthly payment is far less than what we charge. After years of writing about it I have reentered the practice of law and I am attempting to set a standard of vigorous and aggressive prosecution of the case against the bank. This of course is only possible if the bank has done something wrong. But you are not going to know that without someone going through the entire process starting with the application for mortgage and going through the present time. It also requires discovery in the form of interrogatories, requests for admission, requests to produce, and subpoenas issued to appropriate witnesses requiring them to bring documents with them.

In my opinion the more lawyers that aggressively pursue the case, the more judges will start questioning why the bank is backpedaling. Once you get a judge thinking that you are the aggressor, you have succeeded in taking control of the narrative. Once you have taken control of the narrative you can raise questions in the judge’s mind as to whether or not there might actually be something wrong with this particular foreclosure action.

I don’t deny that there is a value to any homeowner in getting free rent or no mortgage payment and that an attorney might be useful in maximizing the length of time in which the homeowner is not required to pay anything. It might be the only way that the homeowner can recover part of his or her investment. But delay tactics seem to dominate the litigation landscape. So it should come as no surprise that any judge would approach a foreclosure case with the assumption that the debt is valid and that the documents are in order; the only question left is when will the sale take place.

My mission, as I conceive it, is to make some changes in the litigation landscape. Specifically, I think that with proper pleading and discovery, it may be revealed that the party seeking the foreclosure lacks any ownership interest in the loan and lacks any authority to represent anyone with an ownership interest in the loan. I also think that the amount demanded for reinstatement or redemption is also misstated in that the borrower is not getting the benefit of offset from third-party payments that should be credited to the account in which the loan receivable is held. In short, I still believe what I said six years ago, to wit: as crazy as it might seem, the loan was prepaid at the time of origination and then repaid several times over after which it was then sold to the Federal Reserve probably multiple times  and sold two government-sponsored entities multiple times. If the loan is paid (several times over, no less) then there can be action to collect on it, least of all foreclosure.

While the presumption is on preventing a homeowner from getting a free ride, courts have been giving the financial industry the equivalent of corporate welfare with each  foreclosure sale. And in doing so they have actually stripped the true creditor from any collateralized claim and further stripped the true creditor from making any claim at all. The beneficiaries of this idiotic system are obviously the banks. The victims include everyone else including the investors, insurers, taxpayers, borrowers, and the Federal Reserve. Of course in the case of the Federal Reserve, it knows that it is a victim and that it is buying completely worthless paper from the banks who have previously sold the same paper to others. That doesn’t seem to matter to the federal reserve and so far it doesn’t seem to matter to any of the judges sitting on the bench.

Dirty Tricks Playbook from the Foreclosure Mills


Here is an example of one of the procedural dirty tricks that these firms play and they say they “made a mistake” and apologize when they are caught, but it a threat to a hearing that you have already won, lurking so that you are not prepared to argue against what they try to present in what amounts to a fake venue for a motion for rehearing. Pro Se litigants are especially likely to fall victim to these dirty tricks because they don’t know what to do.

I received in the mail yesterday a package that had been prepared earlier but which seems to have been sent out NOW and if the Judge is not looking carefully he might well sign it. It is a Final Summary Judgment. I know this trick.

Despite the ruling denying the Motion for Summary Judgment they “mistakenly” send the package to the Judge as though they had won. The Judge signs everything put in front of him and then it is up to us to undo the mess. By doing that we must make a motion to void the judgment and perhaps move for sanctions, but the trick is that they then come in and re argue the motion for summary judgment.

The cure is simple: call the Clerk’s office, Call the Judge’s office (making sure you hit every Judge who might sign this trash, and tell them the package was sent in error and that the Judge Denied the motion for Summary Judgment.

Send a letter to the Judge (or Judges if they are on rotation) with a copy of the order denying motion for summary judgment. At the Clerk’s office you get a supervisor and tell them that the error is happening as we speak and that the Final Judgment should not be put in the record and if it was, it should be expunged and cite them to the Order denying Summary Judgment.

Then Clerk might contact the Judge’s office and ask what they want to do with the clerk explaining that the Motion for Summary Judgment was denied. Why was the Final  Judgment entered without hearing or motion?

AFTER you have done all that, THEN you put in a call to the opposing counsel and threaten them.

If the Judge DOES sign the Final Judgment, then you must immediately do all of the above and file a motion to vacate on the basis that the Motion to Dismiss was denied, not granted and therefore the case should be set for trial which many orders denying motions for summary judgment explicitly state.

But be prepared to argue the whole motion over again and lead with an objection to anything the other side wants to argue, asking for sanctions because they tried to game the system. If the Judge is so inclined he might say that he is treating this as a motion for rehearing or motion for reconsideration. At that point, you should object to the hearing going forward and ask for a continuance.

Some thought should be given to an immediate interlocutory appeal on procedure because nothing could be clearer than a denial of the motion and then entry of a Final Judgment contrary to the ruling on the motion.

The moral of the story is read everything, check the docket regularly, and make sure your mail is being delivered properly.

I will not stop until Justice Prevails!!

by Tracey T. Wilson

The Wells Fargo Bank, N.A. vs. Sandra A. Ford was NOT a Pro Se case. Sandra A. Ford was defended by Legal Services of New Jersey, Inc., attorneys; Ms. Jurow and Rebecca Schore and the case was decided January 28th 2011. The case in New Jersey that WAS defended and won Pro Se was Deutsche Bank vs. Tracey T. Wilson. Tracey T. Wilson was the Pro Se defendant and the case was decided ninedays earlier on January 19th 2011 in favor of the Pro Se defendant.
To ignore the case Deutsche Bank vs. Tracey T. Wilson allows concealment of the following facts and truths in the case not disclosed to the public:
• Tracey T. Wilson et al, Pro Se defendant was the first Appellate case decided in the State of NJ in a foreclosure matter in favor of the Defendant. The appellate decision was on January 19th, 2011 and was not approved for publication since defendant was Pro Se and not an attorney.
• Defendant was Pro Se due to the fact that upon the onset of the initial foreclosure action in October 2007 every attorney she contacted in the State of NJ refused to take the case to defend the foreclosure action and told her that there was nothing she could do. Defendants did not qualify for free Legal Services of New Jersey due to family incomes being over the Legal Aid Services guidelines. Finally, an attorney who actually accepted the case in August of 2008 was never heard in the court when his Motion to Reconsider Summary Judgment was not granted by the court. Judge quoted that “defendant did not deserve a second “bite at the apple” simply because they now have an attorney.
• Defendants owned the property with her husband of 25 years since 1994 and had previously paid over $370k in mortgage payments through the years.
• Plaintiff’s counsel submitted a Certification with a signature from the plaintiff’s attorney. This submission / signed document was not based upon personal knowledge, but was based upon incompetent hearsay by the plaintiff’s attorney.
• Attorneys’ for plaintiff never proved that they were the lawful holder to the note and mortgage prior to their commencement of foreclosure action. As of today Plaintiff has still not proved that they were a holder in due course.
• The court did not dismiss foreclosure complaint filed by plaintiff, but however within the next six months from March 2008 through August 2008 were allowed several adjournments for plaintiff to produce assignment of mortgage and original mortgage note. As the months progressed awaiting the plaintiff to produce valid documentation, within those six months plaintiff produced an assignment that was signed by Laura Hescott, alleged AVP of Washington Mutual and notarized by Bethany Hood, in the State of MN; A certification from Ann Garbis; and a final certification from Janine Timmons on August 29th 2008. Laura Hescott and Bethany Hood were at that time employees of LPS and are now known to the public as Robo-signers who have admitted fraud and not having any personal knowledge. The certification from Janine Timmons was accepted by the court on August 29th 2008, without allowing defendant discovery. The court granted Summary Judgment to the Plaintiff. Defendant was denied due process.
• Defendant obtained attorney to file a Motion to Reconsider, however, as mentioned in earlier bullet points this motion was denied in October 2009.
• Defendant asked her attorney to Appeal the Final decision and attorney told her he would NOT write appeal and then provided incorrect dates of final decision, documentation, due dates, etc.
• With no other choice defendant Tracey T. Wilson filed her own appeal Pro Se in December 2009.
• Plaintiff never responded to Appeal.
• The case was placed on the calendar for the Appellate Judges on November 3rd, 2010.
• The Appellate Court rendered their decision on January 19th 2011 in favor of Pro Se Defendant and the case was REVERSED AND REMANDED back to the lower court. Same Judge who presided over the case since 2007.
• Unfortunately, within the thirteen month time period when the appeal was submitted December 2009 and Appellate Court decision on January 19th 2011, a Sheriffs sale notice was placed on my home December 16th 2009 less than two weeks after my appeal was submitted with a sale date of January 6, 2010.
• Findings reveal that my home was sold to the bank at sheriffs’ sale in February 17th 2010 for $100.00.
• The home was sold to a third party (believed to be an investor) in June 2010 for $262,000.00 to cure the debt to prevent the sheriff sale, the plaintiff was asked to pay in excess of $550,000.00 which included tagged on erroneous fees b y the bank.
• Other illegal tactics such as the mortgage never being filed in the County Clerk’s office and altered files of tax record lot and block numbers exist.
• As of today, there is no property and I have been told there is nothing I can do to ever get my home back. The case should be dismissed since my home was foreclosed upon illegally and there is no property however the Judge has now requested a trail for June 2011 for the “Discovery” that was never granted to me in the first place. The court no longer has jurisdiction since there is no equitable property, however plaintiff will once again be given the chance to produce documents he was not able to produce to the Appellate Court nor during the four years this case has gone on for.
• The banks want a pass on the law and want to skirt the law; there are no laws currently on the books that have allowed for the injustice done to our society. – Standing is a major issue.
• The Republic has to be for the people and by the people. The banks are attacking a main component of the constitution which is protection of its citizen’s property rights. They did not take care of their due diligence. The whole premise of home ownership has been eroded.
• This is why they want to conceal my case and not hear the truth.
• I will not stop until Justice Prevails!!

Tracey T. Wilson

Judges Rising to the Rules

Editor’s Comment: Without inventing anything, an increasing number of Judges are coming to the same conclusion. If they apply the rules and deny the pretender lender the benefit of presumptions to which they were not entitled in the first place, the case can be heard on the merits. They don’t need to decide who is right or who is wrong. They need to call balls and strikes.

In this submission from the Judge simply states the obvious — an affidavit from some stranger who says that he looked at some papers and arrived at some conclusions in his or her own mind is not evidence or even a proffer of evidence. It is nonsense. Summary Judgment denied. Motion to lift stay should similarly be denied. Any motion based upon such an affidavit from EITHER side should be denied. AND NOW THEY ARE…..

I SHOULD ADD THAT THE NAME “ICE” ESQ. IS COMING UP MORE FREQUENTLY. I’D LIKE TO SEE MORE FROM THIS LAWYER. He seems to be talking the same tack as Gator Bradshaw in Central Florida (Ocala et al) , Jon Lindemen (S. Fla and Orlando), George Gingo (Northern Florida) and others, to wit: we are out to win these cases not just “mix it up” to justify the fees. Very gratifying to me. 3 years ago, nobody would listen. Now they are taking the ideas developed here, by Max Gardner and April Charney and taking it to the next level. I hope they leave us in the dust.

Full Hearing Transcript attached . Courtesy of T. Ice Esq. Palm Beach Florida

Florida – June 2010 – MSJ denied. Affidavits Hearsay Insufficient

What we are starting to see here is a pattern of Judges not excepting these affidavits from these robo-signers.

I can tell you that, if properly challenged, they will pull the affidavits across the board.

Don,t let that stop you from deposing these people, because once you do it will clearly show that they DO NOT have the authority to produce them. It will also show you they know absolutely nothing about the documents that they are signing even though they state it is of their personal knowledge.

Below is a transcript of how one Judge, in Palm Beach County, DENIED a motion for summary judgment on pending issues, including the insufficient affidavit.

Another key issue was an affidavit presented by the defense from Expert Witness Lynn Szymoniak regarding the fraudulent assignment presented in the case.

Lynn’s expert testimony has stopped many foreclosures in its tracks.

If you are interested in talking to Lynn about her services she can be reached at and just tell her 4closureFraud sent ya…

Some excerpts from the transcript…



THE COURT: Okay. Without going into
anything else, I’m not about to enter a motion –
granting a motion for summary judgement based onan affidavit of Mr. Reardon.
MR. CHANE: Your Honor, there is simply no — there’s no basis to –
THE COURT: I’m sorry. It’s just — it
basically just says he looked at some records. I
don’t know what he looked at and he plugged some
numbers in.
MR. CHANE: Your Honor, it’s based on his
personal knowledge. That’s all he needs to do
according to the Rule.
THE COURT: Well, motion denied.
MR CHANE: On what basis, Judge?
THE COURT: On the basis that the Court
fears that there are many issues of fact to be
determined. This is not a matter in which
everything is undisputed.
MR. CHANE: What issues of fact?
THE DEPUTY: Sir, the Judge ruled. The
hearing is over.



GMAC v Visicaro Case No 07013084CI: florida judge reverses himself: applies basic rules of evidence and overturns his own order granting motion for summary judgment

Having just received the transcript on this case, I find that what the Judge said could be very persuasive to other Judges. I am renewing the post because there are several quotes you should be using from the transcript. Note the intimidation tactic that Plaintiff’s Counsel tried on the Judge. A word to the wise, if you are going to use that tactic you better have the goods hands down and you better have a good reason for doing it that way.

Fla Judge rehearing of summary judgement 4 04 10

5035SCAN4838_000 vesicaro Briefs

Vesicaro transcript

Posted originally in April, 2010


I appeared as expert witness in a case yesterday where the Judge had trouble getting off the idea that it was an accepted fact that the note was in default and that ANY of the participants in the securitization chain should be considered collectively “creditors” or a creditor. Despite the fact that the only witness was a person who admitted she had no knowledge except what was on the documents given to her, the Judge let them in as evidence.

The witness was and is incompetent because she lacked personal knowledge and could not provide any foundation for any records or document. This is the predominant error of Judges today in most cases. Thus the prima facie case is considered “assumed” and the burden to prove a negative falls unfairly on the homeowner.

The Judge, in a familiar refrain, had trouble with the idea of giving the homeowner a free house when the only issue before him was whether the motion to lift stay should be granted. Besides the fact that the effect of granting the motion to lift stay was the gift of a free house to ASC who admits in their promotional website that they have in interest nor involvement in the origination of the loans, and despite the obviously fabricated assignment a few days before the hearing which violated the terms of the securitization document cutoff date, the Judge seems to completely missed the point of the issue before him: whether there was a reason to believe that the movant lacked standing or that the foreclosure would prejudice the debtor or other creditors (since the house would become an important asset of the bankruptcy estate if it was unencumbered).

If you carry over the arguments here, the motion for lift stay is the equivalent motion for summary judgment.

This transcript, citing cases, shows that the prima facie burden of the Movant is even higher than beyond a reasonable doubt. It also shows that the way the movants are using business records violates all standards of hearsay evidence and due process. Read the transcript carefully. You might want to use it for a motion for rehearing or motion for reconsideration to get your arguments on record, clear up the issue of whether you objected on the basis of competence of the witness, and then take it up on appeal with a cleaned up record.

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