OBJECTIONS | Livinglies's Weblog

TPS — Third Party Strangers in Mortgage Cases

Posted on October 24, 2018 by Neil Garfield

I’m sharing the wording I use in my TERA and Case Analysis reports now. I think the benefit of this wording is that it fills in the blank on who is the real creditor (owner of the debt). Hopefully it answers the following informal question lurking in the context of mortgage litigation: “If the parties claiming enforcement rights are not the owners or representatives of the owners then who is?”

Those who have that question in mind are asking the wrong party when they pose it to the homeowner as if the homeowner had an obligation to present a credible narrative of what actually happened to their loan. And the strategy of the foreclosure mills is to keep the questions directed at homeowners instead of themselves so that their prima facie case is presumed and never proven.

Just to be clear — and to avoid confusion sewn by foreclosure mill lawyers — the owner of the debt would have the following characteristics:

Paid value for the debt
Expecting payment arising from the debt itself (i.e., in accounting terms the subject debt is carried as an asset that falls under the category of a receivable, in this case a loan receivable.
Unencumbered authority to transact any business affecting the subject debt .

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.

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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).

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

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Here is the current wording I use in my analysis and reports:

Standards and customary practices in commercial banking, lending, investment banking and auditing require, at a minimum, a reference to the date and parties to a transaction so that the data can be confirmed. This is also required in courts of law under the category of “foundation.” No such references are made in the entire paper chain relied upon by the current claimant. The wording of each document appears to side-step the issue of an actual financial transaction and skips to memorializing the proffered transaction.

Our conclusion is that the payee on the note is almost certainly part of a failed securitization scheme. It follows then that the alleged loan transaction is a table-funded loan, and described as both against public policy and predatory under REG Z of the Federal Truth in Lending Act. We consider it certain that all actual funds came from a third party stranger (TPS) in a transaction predating the loan itself and/or predating the erroneously implied purchase of the loan or both. Hence in this case the TPS is the party who paid value for the debt and is therefore the owner of the debt.

Standards and customary practices in commercial banking, lending, investment banking and auditing require, at a minimum, a reference to the TPS and any successors to TPS with sufficient descriptive certainty to confirm the authority of those persons or entities claiming ownership, rights to enforce, or rights to service the subject loan on behalf of the TPS or its successors, if any.

In the absence of any reference or proof of payment, payment is not presumed under generally accepted accounting principles as published by the Financial Accounting Standards Board. The failure to reference actual monetary payment causes a rebuttable presumption in auditing that there is an absence of an actual monetary payment and therefore that the documents memorializing a transaction are fabricated, entitled to no legal presumption of authenticity or validity.

An alternative explanation is that the documents were not fabricated but prepared in anticipation of an actual transaction that failed to occur. Either way the conclusion is the same, i.e., that the documents refer to a nonexistent transaction and should be discarded.

The normal and reasonable presumption is that the “predecessor” would only have transferred a valuable ownership interest in the subject debt upon payment of money or the equivalent; the lack of payment creates a presumption that there was nothing upon which a claim for payment could be made. Therefore the transfer of a promissory note as “title” to the debt from a party who had no right, title or interest in the debt conveys nothing, and a transfer of a mortgage or beneficial interest in a deed of trust would also convey nothing.

Presumptions are intended ONLY as a convenience — not to alter a result. If they would alter the result then they should be discarded. If there are two different results — one based upon legal presumptions and the other based on facts both the auditor and the court should discard the presumptions and go with the facts.

The only thing I would add is that the title confusion and the convoluted schematics of failed securitization are not the result or fault of any action undertaken by homeowners —- ever. The burden of proving a prima facie case is and always has been on the party making the claim or initiating action for relief through foreclosure of a security interest. In our system of justice that is black letter bedrock of all legal matters in dispute.

Such a party has not proven a prima facie case if the entire body of evidence is based upon various presumptions — unless the homeowner fails to object. The objection does not change the homeowner’s burden of proof; it changes the would-be forecloser’s burden of proof. Upon timely and reasonable objection the presumptions falls away and the foreclosure mill must actually prove the facts they previously sought to be presumed. Theoretically there is no prejudice to the foreclosure mill; but we all know that most foreclosures would fail if actual proof was required.

As for the cataclysmic end of the financial system feared by judges, lawyers and regulators, blind justice requires that the chips fall where the evidence points. Anything less allows the system to punish homeowners for the errors and misdeeds of the banks.

Filed under: foreclosure | Tagged: assignment, BURDEN OF PROOF, indorsement, OBJECTIONS, owner of the debt, presumptions, third party strangers, TPS, transfer | 11 Comments »

“Resecuritization”

Posted on March 7, 2017 by Neil Garfield

the basic thrust of the defense is to point out what is absent rather than attack what is not absent.

Get a consult! 202-838-6345

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

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

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As predicted on my blog back in 2008, we are seeing new names of Trusts emerge in foreclosure cases — involving old loans that were declared in default years ago by parties asserting they represent the alleged servicer of either a named bank or servicer or an old trust. What happened? As our sources had revealed, the alleged trusts had nothing in them and were the source of extreme liability of the Master Servicer acting as underwriter to the investors and third parties who traded in securities based upon the representation that the Trust actually owned the debts of millions of homeowners.

We have not seen the agreements, but we are told, and our analysis confirms, that the old trusts were “retired” and that new trusts, also empty, are now being used wherein the paperwork for the new “Trusts” is far more complete than what we have previously seen.

As far as we have determined thus far the mechanics of the change of trust name are along the following lines:

There is probably a purchase and sale agreement between the old trust and the new trust. Like previous documentation there are no warranties of ownership but ownership of the debts is implied.
Like the old Trusts, foreclosures are brought in the name of the new trusts, using US Bank or other major institution as the “Trustee.”
Investors in the old trusts are given certificates in the new trust as settlement of claims brought by investors for malfeasance in the handling of their money — namely the origination of loans instead of the acquisition of loans and the granting of loans that were far lower in quality than agreed and far higher risks than allowed for stable managed funds.
This “resecuritization” process is a sham just like the original old trust. But it follows the playbook the banks have been using for over a decade. By adding another level of paper to fabricated documents based upon nonexistent transactions, it promotes the illusion of valid transactions and valid documents.
Like all other trusts and hybrid situations in which trusts were involved but not named, the entire scheme is based upon a simple premise. The banks have managed information and data such that there remains a false sense of security that they are still credible sources of information — despite all evidence to the contrary. The additional layer of documents then adds to the illusion because it is counterintuitive to believe that these high level complex documents represent transactions in the real world that don’t exist.

Defense strategies remain the same, however. The issues in evidence laws and rules are foundation, and hearsay.The basic defects in the bank’s credibility must be revealed even if it does not get to the point where everything is revealed. The rent-a-name practice for appointment of trustees that have no obligations or duties continues. The “apparent authority” of the servicers is based upon a trust document of an entity in which there is no asset. But the website of US Bank and others suggest that they have business records — which in actuality do not exist. Hence, the basic thrust of the defense is to point out what is absent rather than attack what is not absent.

This takes strict logical analysis by the attorney representing the homeowner — an exercise that in most cases cannot be accomplished by a pro se litigant. It may be beyond the confidence of the lawyer too, but there are many people in the country who provide services that assist with the logical analysis and factual analysis — including but not limited to the team at LivingLies and LendingLies. The analyst should be well-steeped in the three classes of securitization — concept, written documents and actual practice in order to come to conclusions that are not only correct but are likely to give traction in court.

While tempting, attacking the existing documentation on the basis of authenticity or validity is a rabbit hole. The only parties that actually have the proof as to the fabrication of any one particular transaction are the parties with whom you are in litigation and the parties who created them and use them as sham conduits. They resist by all means available any attempt to provide access tot he real information and the real monetary transactions which look very different from the ones portrayed in court.

By making an allegation you are now required to prove what you have said by evidence that the other side simply will not give up. This is not to say that there is no value in sending a QWR (Qualified Written Request), (DVL) Debt Validation Letter, or a complaint to the state AG or the CFPB. Much of the inconsistent statements come from those responses and can be used in court. And there is also considerable value in seeking discovery even if we know that in most cases, while it should be allowed, the judge will issue protective orders or sustain objections to requests seeking the identity of the owner of the debt.

The value of those apparently futile endeavors can be that at trial the foreclosing party will almost certainly rely on legal presumptions that depend upon information contained in your discovery request.

OBJECTIONS AT TRIAL: This requires research and analysis of potential objections and how they should be used. While a motion in limine before trial would seem to be the better practice, the real traction seems to come at trial when the homeowner raises objections and moves to exclude evidence that relies upon data contained in discovery they refused to answer and which the court ruled was irrelevant. It is of utmost importance, however, that in order to use the discovery exchanges, you must file a motion to compel and set it for hearing and get it heard. The risk of a motion in limine is that the court is more likely to deny it and then when raised at trial in an objection will regard your objection as a second bite an apple that has already been the subject of a dispositive ruling.

Cross examination of the robo-witness should be aggressive and relentless pointing to the actual lack of knowledge of the witness about anything other than the script from which he was trained to testify.

Filed under: foreclosure | Tagged: CFPB, cross examination, DVL, evidence, lendinglies, Master Servicer, OBJECTIONS, QWR, REMIC trusts, servicer, strategy, TRUTH | 2 Comments »

“Participants” in False Claims of Securitization

Posted on November 28, 2016 by Neil Garfield

What do you think the average homeowner would have said if he was told “Look, the actual lender is someone else but we want you to name us as the lender.”

Get a consult! 202-838-6345

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

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

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see http://bpinvestigativeagency.com/beware-the-lsf9-master-participation-trust-is-operating-as-a-secret-agent/

Bill Paatalo has uncovered another layer of onion skin revealing the emptiness of the claims of participants who say they were involved in either the lending of money to homeowners or involved in the transfer of the obligation to repay the alleged loan. As he points out, some refer to “participants” who are ill-defined and essentially unknown quantities. There are many such entities lurking behind the curtain. The one thing they have in common is that they are all making pornographic amounts of money that ultimately comes out of the pockets of investors who were deceived into buying, hedging or insuring bogus and worthless MBS.

The essential fact is that those mortgage backed securities are (a) not backed by anything (b) issued by an empty SPV (Trust) entity existing only on paper (c) completely unrelated to any actual transaction and (d) completely unrelated to the documentation that was fabricated and executed at the “loan” closing.

GASLIGHT: None of the “participants” are who they appear or claim. What is emerging is that in addition to playing musical chairs with actual entities, the banks have created musical terms to the multiple players who are in constant motion switching roles on paper. Several judges have either mused from the bench or confided their discomfort as to why the servicers keep changing and the ownership goes through so many iterations.

The good news is that this is leading to inconsistencies between their correspondence with the borrower, their pleading in court and their proof — often with last minute Powers of Attorney. It appears that all of them are sham conduits for the the ultimate sham entities — the underwriter (“Master Servicer”) of MBS issued by the empty trust and the Seller of those securities. Revealing those inconsistencies often leads to victory (successful defense) in court. And it often can lead to large cash awards for damages arising from violations of FDCPA, FCCPA, RESPA and common law doctrines like wrongful foreclosure — with aggravating circumstances permitting the award of punitive damages.

The reason for all of this chicanery is simple: the party who gave the homeowner money didn’t even know it was their money on the “closing” table. But the moral and legal view on this is that he who gave the money is owed the money in return (unless it is a gift). This is true regardless of what documents are drafted or even executed by homeowners whose signature was obtained by fraud in the inducement.

What do you think the average homeowner would have said if he was told “Look the actual lender is someone else but we want you to name us as the lender.” THAT is a cause of action for common law rescission and cancellation of the instrument — once the homeowner finds out that he made the “check” out to the wrong person. Since the designated “lender” gave no money of its own and assumed no risk of loss the homeowner cannot be required to give “back” what he or she never received from the fake lender.

Adam Levitin might be right in calling it “Securitization Fail” because the securitization never happened; but it assumes that the intent was to have securitization succeed. This is not the case. The entire business model of the banks, as confirmed by industry insiders, was to take the money out of the securitization chain that had been created on paper. Actual securitization of debt in residential “transactions” was never intended to happen. It was always supposed to be an illusion to cover criminal and civil theft.

PRACTICE HINT: Assume none of the transactions that are represented, assumed or presumed ever happened. Aim your discovery, motions, trial objections and cross examination at that and you will have the best shot at hitting the bulls-eye. That is exactly how Patrick Giunta and I won our cases.

Filed under: foreclosure | Tagged: cross examination, discovery, Master Servicer, motions, OBJECTIONS, Paatalo, participant, Patrick Giunta | 12 Comments »

Attacking Legal Presumptions:”False in One, False in All”

Posted on November 16, 2016 by Neil Garfield

Anyone defending a foreclosure these days should start with the assumption that the entire infrastructure of “loans” and foreclosures consists of lies. This assists in planning objections and cross examination. More importantly it provides the narrative that casts doubt on the trustworthiness of testimony and documentary evidence — which in turn can deprive the the foreclosing party of the essential ingredient to its case: legal presumptions.

Get a consult! 202-838-6345

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

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

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Dan Edstrom, senior forensic analyst does a lot of legal research in addition to his work as a forensic analyst. He has reminded me of a concept that is neither a statute nor a legal doctrine, as such, but which is nonetheless applied in many different kinds of cases, I think he is right in his assertion that it ought to be utilized in foreclosure litigation.

The basic premise of the case for foreclosure is that the homeowner received a loan from the originator and that the current party has purchased the loan. Neither assertion is true in most instances. So the foreclosing party relies on legal presumptions attached to facially valid documents and robo-witnesses that testify to the virtually nonexistent “boarding process.”

Those legal presumptions are liberally applied in favor of the banks and servicers, who often bring the case in the name of a party who is a complete stranger to the alleged loan. But if the presentation of evidence is interrupted by appropriate objections and followed up with appropriate cross examination it is not uncommon that the witness is lying about the source and authenticity of business records and other documents that are used to “prove” the case for foreclosure.

The next step, often missed, is to raise the issue of trustworthiness of the testimony and the documents such that the legal presumptions should not apply. Those presumptions, by all accounts, are to be applied in certain circumstances UNLESS there are indications of a lack of trustworthiness.

Thus the case that should be made is to prove lack of trustworthiness, rather than the virtually futile attempt to prove facts that are almost certainly within the sole care, custody and control of the banks and servicers and who withhold that information because it would show that they are pretenders in their alleged roles. Exposing the lies requires cross examination revealing inconsistencies in the documents or the testimony or both.

Hence the material necessary for victory could be in the evidence proffered by the the foreclosing party at trial. The more lies you expose, the less relevant are the legal presumptions. And there should be no prejudice to the the opposing side to being required to prove their case without legal presumptions — i.e., proving the loan and the subsequent sales of the loan.

After exposing these lies then, the defender could move to strike the documents that were admitted based upon legal presumptions, thus requiring the foreclosing party to prove its case without legal presumptions. The motion also serves as a signal to the trier of fact that the evidence admitted over objection from the homeowner should be given little or no weight.

Here is what Dan sent me, which provoked my writing this article:

The concept of false in one, false in all is frequently used across the country in jury instructions in regards to witness testimony. See California Civil Jury Instructions (“CACI”) 107. Witnesses; see also Book of Approved Jury Instructions (“BAJI”) 2.22; See Bandana Trading Co., Inc. v. Quality Infusion Care, Inc., 164 Cal. App. 4th 1440, 80 Cal. Rptr. 3d 495 (Ct. App. 2008). See also in a criminal case: State v. Ernst, 32 N.J. 567 (1960). More Civil cases: See Lawnton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 581 (App. Div. 1958), Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E.&A. 1941), Coleman v. Public Service Coordinated Transport, 120 N.J.L. 384, 387 (Sup. Ct. 1938). For a full discussion of the use and application of the maxim, see, Vol. 3A Wigmore on Evidence (1970) Sec. 1008 et. seq. “It should certainly not be of importance to tell the ordinary man of the world that he should distrust the statements of a witness whom he believes to be a liar.” (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 671 [288 P. 834].)

BAJI 2.22: “A witness, who is willfully false in one material part of is or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”

When the conduct of [Plaintiff] in this proceeding is viewed in its entirety, it compels the Court to invoke the ancient and venerable principle of “Falsus in uno, falsus in omni” (Latin; “false in one, false in all”) upon [Defendant] which, after review, is wholly appropriate in the context presented, Deering v. Metcalf 74 NY 501 (1878).

Here is footnote 35 from In re Telfair, 745 F. Supp. 2d 536 – Dist. Court, D. New Jersey 2010

Latin maxim “falsus in uno, falsus in omnibus” is neither a provision adopted by means of any United States statute, regulation, etc., nor a legal canon of any kind. Literally translated into English as “false in one thing, false in everything,” the maxim: (a) prompts logical caution as to the entirety of the position taken by the speaker who, as part of his/her position, misrepresents a certain fact; and, as such, (b) has been adopted into the panoply of policies of American jurisprudence related to the propriety of findings made by the trier of fact. See Kanawha & M.R. Co. v. Kerse, 239 U.S. 576, 581, 36 S.Ct. 174, 60 L.Ed. 448 (1916); Telephone Cases, 126 U.S. 1, 8 S.Ct. 778, 31 L.Ed. 863 (1888) (“[The falsus in uno, falsus in omnibus] rule does not necessarily mean that the man who falsifies once is a liar; but it means that justice will not rest on testimony a substantial part of which is proved to be false”); Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820 (N.J. (Ct.E. & App.) 1941) (explaining that the maxim is not a rule of law but a guidance that – if testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jurors may disregard the entirety of that witness’ testimony).

Thx,

Dan Edstrom
dmedstrom@dtc-systems.com
www.dtc-systems.net

Office: 916.207.6706

Filed under: foreclosure | Tagged: cross examination, False testimony, legal presumptions, OBJECTIONS, robo-witness | 4 Comments »

Bank Media Blitz: End of Foreclosure Era: FALSE

Posted on October 26, 2016 by Neil Garfield

The false pronouncements that the mortgage crisis is over have led many attorneys and homeowners to give up on winning cases.

Get a consult! 202-838-6345

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

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

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For years the banks having been gradually ramping up a PR campaign that carries the message: the foreclosure crisis is over. “Institutions” like Black Knight (formerly known as the infamous Lender Processing Services —LPS) have been issuing statements that foreclosures are essentially over. The newest round of these false pronouncements is that foreclosures have sunk to a 9 year low.

The truth is more nuanced and “counter-intuitive” as Reynaldo Reyes, VP of Deutsch Bank “asset management” said many years ago. What the banks have done (using LPS/Black Knight) is play Wackamo with the states and counties. They ramp up foreclosures to an all time high and then switch to another county. Then the report is that the county with the all time high is now declining — because the banks have moved on to another county or state.

After the decline, they come back again and ramp it back up, sometimes stopping short of another all time high.

The facts are that there have been some 9 million foreclosures since the mortgage crisis began and there will be at least another 6 million foreclosures under cover of what is being reported as a crisis that is over. There are hundreds of thousands of foreclosures that were put on hold in cases where the homeowner put up a fight. Some of them are over ten years old — and courts, rather than dismissing them for lack of prosecution or adequate prosecution have (a) let them continue and (b) blamed the homeowner for the delays. Those cases are also coming to a head now and the banks are starting to show losses in court that were never reported before because they were only pursuing cases that were uncontested.

The truth is that the banks were playing the odds. The number of homeowners who put up a fight is only around 4-6%. By putting the contested foreclosures on hold, the banks were able to get millions of fraudulent foreclosures completed at a rate of 100%. Out of the contested ones, they still have the advantage much there record of success is much lower and getting lower every day as courts wake up to the fact that the banks are not being truthful in court nor with borrowers.

The soft underbelly is that the banks were not truthful with investors, from whom they essentially stole the money that was advanced for the purchase of mortgage backed securities that were issued by empty trusts.

PRACTICE HINT: There are three basic classifications of foreclosures into which every foreclosure falls.

Foreclosures without “issues.”
Foreclosures with factual issues
Foreclosures with procedural issues.

The first two can be won and should be won 100% of the time (speaking of loans in which multiple “transfers” and claims of securitization were made). The third one can be more challenging because either the pro se litigant or an attorney made admissions or already missed deadlines or otherwise failed to raise and press appropriate defenses.

The result of winning is an involuntary or voluntary dismissal when you win, but then you have the statute of limitations to deal with when they come back and sue again on more fraudulent paperwork. Attorney fees are generally awarded as long as you included the demand in the filings for the homeowner.

By foreclosures without issues I mean an apparent “default:” that the homeowner did stop making payments before the delinquency or default letter. These cases can only be won by good trial practice: timely proper objections, watching what evidence comes in and well-planned cross examination (which means good trial preparation). If you do the work your chances of winning at trial level or appeal, if necessary are very good.

By foreclosures with factual issues I mean situations in which the “servicer” created the illusion of a default by negligently or intentionally posting payments to the wrong ledger. This includes lump sum payments for reinstatement, insurance and other matters. The “borrower” never defaulted even if the note and mortgage were valid and even if the assignments were valid. The result is dismissal usually without prejudice. But if you also show that they were lying about the transfer to the trust or other foreclosing party, the case could be dismissed with prejudice and even with sanctions.

By foreclosures with procedural issues I mean situations in which procedural errors are present that require leniency of the court to correct them in order to properly defend. This usually occurs when pro se (aka pro per) litigants attempt to represent themselves because they think they have found some magic bullet. 95% of such cases are lost thus skewing the overall percentage of wins and losses for homeowners who put up a fight.

No case falls 100% into any specific category but each case can be generally categorized using the above analysis.

In all cases the homeowners’ attorney should make every effort to destroy the case asserted by the foreclosing party through vigorous and timely objections and brutal cross examination. Depending upon the rulings on objections and motions to strike testimony or documentary evidence, the defense should rest if there are no factual issues to present. This is especially true in cases without issues. If you don’t have the defense of payment or that the demand for reinstatement was inaccurate, there is nothing to present by the homeowner except for attempts at prejudicial comments about the lawyers and the servicers etc.

In a recent (August, 2016) case I had “without issues”, Patrick Giunta and I surprised the opposition by resting at the conclusion of the bank’s case. In nonjudicial states this is not so easy to do procedurally although it is possible in isolated instances. By resting at the conclusion of the bank’s case in a judicial foreclosure, the judge is forced to consider whether the evidence on the record supports a judgment for the plaintiff. Some judges will rule for the bank by the seat of their pants.

But by using objections vigorously, we had preserved multiple issues on appeal — namely we had excluded many pieces of evidence that were vital to the Plaintiff’s case. We were fortunate to have a judge that was serious about his job of being a judge. Like a jury would do, the judge took the case, the filings and the evidence into Chambers and read every page. He concluded that there were fatally defective elements and missing elements in the Plaintiff’s case and announced judgment for the homeowner.

In the final analysis the issue is always tacitly or explicitly legal and procedural standing. And one thing to keep in mind is that trial judges are not entirely persuaded by legal argument. But they ARE persuaded by facts admitted into evidence and facts excluded from evidence.

On a final note, I want remind practitioners that the admission of an objectionable document into evidence does two things: (1) it raises an issue for appeal and (2) it opens the door to challenge the probity of the evidence admitted. Once a document is admitted into evidence, it is in — in its entirety and for all purposes and for all parties.

For example when the PSA is admitted into evidence, make sure you have examined it and raise issues on cross examination as to whether it was signed, whether the exhibits were complete etc. Of course the main exhibit is the Mortgage Loan Schedule (MLS) which never contained real loans even where the PSA was complete and in many cases has no actual MLS exhibit, thus defeating the assertion that the Trust ever acquired any loan much less the loan of your client.

Filed under: foreclosure | Tagged: admission of evidence, Black Knight, cross examination, default, factual issues, Foreclosrues on the rise, LPS, OBJECTIONS, procedural issues | 4 Comments »

The Art of Objections at Trial: A Success Story

Posted on August 22, 2014 by Neil Garfield

For more information on foreclosure offense, expert witness consultations and foreclosure defense please call 954-495-9867 or 520-405-1688. We offer litigation support in all 50 states to attorneys. We refer new clients without a referral fee or co-counsel fee unless we are retained for litigation support. Bankruptcy lawyers take note: Don’t be too quick admit the loan exists nor that a default occurred and especially don’t admit the loan is secured. FREE INFORMATION, ARTICLES AND FORMS CAN BE FOUND ON LEFT SIDE OF THE BLOG. Consultations available by appointment in person, by Skype and by phone.

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This story is good. It corroborates my articles on the needed skills to go to trial. Evan Rosen describes in brief what he did. It would be nice if he would expand on why these objections were right and how much more he could have said if he was challenged by opposing counsel. But it also shows another important thing.

While the Courts have yet to rule or express opinions on their doubts about the bogus loans, notes and mortgages, bogus bonds and bogus foreclosures, we are seeing a radical shift in their rulings at trial and an increasing shift in Discovery. Rulings against the Plaintiff foreclosing party are becoming increasingly common. Discovery is being allowed and many cases are thrown off the rocket docket and into general civil litigation. And a properly framed objection to evidence is taken seriously and frequently sustained leaving the foreclosing party with nothing.

These developments are especially important because many suits are being filed for deficiency judgments on foreclosures that were wrongful in the first place. 110 such actions were filed in Palm Beach County in the last month. Interestingly, the foreclosing party is NOT going back to the same Court in the same suit that was the foreclosure. They are filing separate actions. The Banks are afraid of providing a forum for the homeowner to challenge the assumptions that resulted in the foreclosure. Their fear is based in reality. The same Judges that were rubber stamping foreclosures are slowly changing their rulings as described by Rosen.

Trial practice is an art. There is no such thing as perfection. The trial lawyer must constantly make calculations as to what objections to raise and how to stick to his or her narrative of the case. Rosen here took control of the narrative by laying the foundation that the witness was legally incompetent to testify on the most important elements of the case filed for foreclosure. His objections flowed from that foundation. He threaded his case based upon feedback from the Judge. And he took a calculated risk when it came time for cross examination.

The lesson here is that there is a time to object and a time not to object regardless of whether you have grounds. There is a time to cross examine and there is a time to take the risk and close the case based upon the insufficiency of the Plaintiff’s case. The objective is to win. And this case described by Evan Rosen describes procedures that are far outside the knowledge of any pro se litigant. Trial practice is like surgery. Nobody should do it without specialized training, license and experience.

http://4closurefraud.org/2014/08/20/total-annihilation-of-a-bank-lawyer-and-their-witness-another-trial-win-for-the-law-offices-of-evan-m-rosen-p-a/

Filed under: AMGAR, CASES, CORRUPTION, evidence, foreclosure, foreclosure defenses, foreclosure mill, GTC | Honor, investment banking, Mortgage, Motions, originator, Pleading, Servicer, Title | Tagged: deficiency judgments, Evan Rosen, motion for involuntary dismissal, OBJECTIONS | 18 Comments »

Using the Best Evidence Rule As You Follow the Money

Posted on May 12, 2014 by Neil Garfield

The Best Evidence Rule in Florida and Federal Courts Applied to Notes, Mortgages and Assignments

The problem with foreclosure litigation is that the homeowner is dealing with rebuttable presumptions about the testimony and the documents admitted into evidence. They are admitted into evidence because there is no timely objection from the homeowner or the foreclosure defense attorney.

The note, mortgage and assignment are presumed to be valid instruments if they conform to the requirements of law as to form and content. In that case they are facially valid. That means there is a rebuttable presumption that there was a valid underlying transaction. Therefore. as a matter of law, the paper presented is not just facially valid but also presumptive evidence that the transaction existed. This gets tricky in application and is one of the many reasons why lawyers should study up on courtroom procedures, evidence and objections.

On the note, the underlying transaction is the debt. The debt exists not because of the note, but because Party A put money into the hands of Party B who accepted it. The debt arises regardless of whether or not a note was executed. The note is evidence of the debt and it is presumptive evidence that there was an underlying transaction in the amount of the note. The underlying transaction is therefore the payee putting money into the hands of the homeowner, who is the payor.

On the mortgage, the underlying transaction is still the debt and the existence of the note, because a valid mortgage does not exist except if it is based upon an instrument in writing. The mortgage is not presumptive evidence of the existence of the underlying transaction (the actual loan of money from Party A to Party B). Under normal circumstances the existence of a properly executed mortgage would corroborate the evidence supplied by the note.

On the assignment, the underlying transaction is a payment of money from Assignee to the Assignor. The assignment itself might be accepted by the court as presumptive evidence that such an underlying transaction exists (in the absence of an objection). If a proper objection is raised, the presumption vanishes.

So what is a proper objection under these circumstances? Remember if you fail to raise the objection then the burden of proving the transaction did not happen falls on the homeowner. The objective here is to hold the bank’s feet to the fire and make them prove their case. And the reason for this is not to exercise your vocal chords. It is to show that the underlying transaction between the parties stated in the document proffered by the bank never took place. And the reason you are doing that is because those transactions in fact, never occurred.

The hearsay rule is an appropriate objection because the document is being used to establish the truth of the matter implied — i.e., that there was an underlying transaction. But the better objection,in my opinion, is that the existence of the underlying transaction be subject to (1) lack of foundation and (2) best evidence. They are related in this instance.

Under the rules of evidence, the note, mortgage and assignment are secondary documents that imply that a transaction took place but do not show facts to verify that the transaction actually occurred. Hence, the BEST EVIDENCE of the underlying transaction is the canceled check or wire transfer receipt showing the payment and implied acceptance of the money used to fund the loan or purchase the mortgage. Anything less than that is not admissible evidence — unless the objection is overlooked or waived. It would therefore be true that the debt from the homeowner allegedly owed to the payee on the note (and mortgage) or the assignee on the assignment is not supported by foundation in the usual circumstances.

Special note here: I have seen in reported cases that it DOES occur that litigants, including banks, have doctored up copies of wire transfer receipts. Thus any effort to introduce the copy would be met by your objection on the basis of best evidence and the argument, if applicable, that the failure to disclose the document prior to trial deprived you of your ability to confirm the authenticity of the document. Verification is possible but he banks, Federal reserve etc., will not make it easy on you so a court order will be helpful.

Normally the corporate representative of the servicer is the witness. It will usually be established on voir dire or cross examination that the witness neither had access to nor ever personally viewed any records of the actual transaction and in fact never even saw the secondary evidence (the note, mortgage and assignment) until a few days before trial. Thus no testimony will be elicited, in the ordinary course of things, that the transaction took place (i.e., an ACTUAL transaction in which money from the payee was loaned to the homeowner or money from the Assignee was paid to the Assignor). Hence no foundation exists for any testimony or any document that the debt exists or that the loan was actually sold for consideration and then assigned.

This is not a technical matter. If I agree to pay you $100 for your toaster oven, I can’t demand the appliance until I have paid it. If that was the agreement, then the underlying transaction is the payment of money. The evidence — the best evidence — of the payment is a canceled check or wire transfer receipt. The exceptions to the best evidence rule do not seem to apply and there is no adequate explanation for why anything other than direct primary evidence of the transaction itself should be admitted.

In searching the internet I found that a lawyer in West palm beach wrote a pretty good article on the subject although he was concentrating on the use of the best evidence rule in connection with duplicates. see http://www.avvo.com/legal-guides/ugc/what-is-the-best-evidence-rule-in-florida for the article by Mark R. Osherow, Esq.

Here are some excerpts from that article.

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

The best evidence rule, set forth in Fla. R. Evid.’90.952 and Fed. Rules Evid. 1001, provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Fla. R. Evid. ‘90.9520-90.958; Fed. Rules Evid. 1002-1008….
Public records authentication is provided for by section 90.955 and Rule 1005. Under section 90.956 and Rule 1006 voluminous writings, recordings, or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation. Of course, admissibility of a summary depends upon the admissibility of the underlying documents. In order to use a summary, timely written notice is required with proof filed in court. Adverse parties must have sufficient time to investigate and inspect underlying records and summaries….
Fla. R. Evid. Section 90.957. Section 90.958 and Rule 1008 set forth the situations where the court determines admissibility and where the jury determines factual issues such as the existence of a document, its content, and the contents accuracy.
The best evidence rule arose during the days when a copy was usually made by a clerk or, worse, a party to the lawsuit. Courts generally assumed that, if the original was not produced, there was a good chance of either a scrivener’s error or fraud.
… there is always a danger of a party questioning a document, so it is important to remember that, unless you have a stipulation to the contrary, or your document fits one of the exceptions listed in the statute, you must be ready to produce originals of any documents involved in your case or to produce evidence of why you cannot.

Filed under: AMGAR, CORRUPTION, discovery, evidence, expert witness, foreclosure, foreclosure defenses, GTC | Honor, MODIFICATION, Mortgage, Pleading, Servicer, STATUTES | Tagged: assignment, best evidence, evidence, FOUNDATION, hearsay, Mortgage, note as evidence of the debt, OBJECTIONS | 9 Comments »

Trial Objections in Foreclosures

Posted on February 4, 2014 by Neil Garfield

NOTE: This post is for attorneys only. Pro se litigants even if they are highly sophisticated are not likely to be able to apply the content of this article without knowledge and experience in trial law. Nothing in this article should be construed as an acceptable substitute for consultation with a licensed knowledgeable trial lawyer.

If you need help with objections, then you probably need our litigation support, so please call my office at 850-765-1236.

It is of course impossible for me to predict how the Plaintiff will attempt to present their case. The main rule is that objections are better raised prematurely than late. The earliest time the objection can be raised it should be raised. In these cases the primary objections are lack of foundation and hearsay.

As to lack of foundation, the real issue is whether the witness is really competent to testify. The rules, as you know, consist of four elements — oath, personal perception, independent recall, and the ability to communicate. The corporate representative should be nailed on lack of personal knowledge — if they had nothing to do with the closing, the funding of the loan, the execution of the documents, delivery of the note, delivery of the mortgage etc., or processing of payments or even the production of the reports or the program that presents the data from which the report populates the information the bank is attempting to present. Generally they fail on any personal knowledge.

The only thing that could enable them to be there is whether they can testify using hearsay, which is generally barred from evidence. If that is all they have, then the witness is not competent to testify. The objection should be made at the moment the attorney has elicited from the witness the necessary admissions to establish the lack of personal perception, personal knowledge.

On hearsay, their information is usually obtained from what they were told by others and what is on the computers of the forecloser like BofA which based on the transcript from cases run on at least 2 server systems and probably a third, if you include BAC/Countrywide. All of such testimony and any documents printed off the computers are hearsay and therefore are barred — unless the bank can establish that the information is credible because it satisfies the elements of an exception to hearsay. The only exception to hearsay that usually comes up is the business records exception. Any other testimony about what others told the witness is hearsay and is still barred.

The business records exception can only be satisfied if they satisfy the elements of the exception. First the point needs to be made that these records are from a party to litigation and are therefore subject to closer scrutiny because they would be motivated to change their documents to be self serving. If you have any documentation to show that they omitted payments received in their demand or that there are other financial anomalies already known it could be used to bolster your argument as an example of how they have manipulated the documents and created or fabricated “reports” strictly for trial and therefore are not regular business records created at the or close to the time of an event or payment.

The business records exception requires the records custodian, first and foremost. Since the bank never brings their records custodian to court, they are now two steps removed from credibility — the first being that they are not some uninterested third party and the second that they are not even bringing their records custodian to court to state under oath that the report being presented is simply a printout of regular business records kept by bank of America.

So the exception to business records under which they will attempt to get the testimony of their witness in will be that the witness has personal knowledge of the record keeping at Bank of America and this is where lawyers are winning their cases and barring the evidence from coming in. Because the witnesses are most often professional witnesses who actually know nothing about anything and frequently have reviewed the file minutes before they entered the courtroom.

The usual way the evidence gets in is by counsel for the homeowner failing to object. That is because failure to object allows the evidence in and once in it generally can’t be removed. It is considered credible simply because the opposing side didn’t object.

TRAPDOOR: Waking up at the end of a long stream of questions that are all objectionable for lack of foundation (showing that the witness has any personal knowledge related to the question) or because of hearsay, the objection will then be denied as late. So the objection must be raised with each question before the witness answers, and if the witness answers anyway, the response should be subject to a motion to strike.

THE USUAL SCENARIO: The lawyer will ask or the witness will say they are “familiar” with the practices for record keeping. That is insufficient. On voir dire, you could establish that the witness has no knowledge and nothing to recall and that their intention is to testify what the documents in front of him say. That is “hearsay on hearsay.” That establishes, if you object, that the witness is not competent to testify.

The bottom line is that the witness must be able to establish that they personally know that the records and everything on them are true. In order for the records to be admitted there must be a foundation where the witness says they actually know that the printouts being submitted are the same as what is on the BofA computers and what is on the BofA computers was put there in the regular course of business and not just in preparation for trial. And they must testify that these records are permanent and not subject to change. If they are subject to change by anyone with access they lack credibility because they may have been changed for the express purpose of proving a point in trial rather than a mere reflection of regular business transactions.

There is plenty of law nationwide on these subjects. Personal knowledge, “familiarity with the records,” and testifying about what the records say are all resolved in favor of the objector. The witness cannot read from or testify from memory of what the records say. The witness must know that the facts shown in those records are true. This they usually cannot do.

Filed under: evidence, foreclosure, foreclosure defenses, foreclosure mill, GARFIELD KELLEY AND WHITE, MODIFICATION, Mortgage, Pleading, trustee | Tagged: BofA, business records exception to hearsay rule, competency of witness, credibility, exception to hearsay rule, FOUNDATION, hearsay, OBJECTIONS, records custodian, TRIAL OBJECTIONS | 12 Comments »

Hearsay Practice Hints: Meeting Intimidation with Facts

Posted on October 17, 2013 by Neil Garfield

I went to a hearing yesterday on the Bank’s Motion for Summary Judgment. The Motion had the usual deficiencies and the affidavit was, as usual, worthless because the witness failed to state any basis for personal knowledge. The attachments to the motion were absent. The Bank avoided the allegation that it ever made a loan and avoided any allegations that there was financial injury and if so, to whom. The Foreclosure Mill was rotating coverage attorneys who knew little about the case. We quickly agreed to drop the motion for summary judgment and move forward to a status conference in 120 days, allowing time to explore modification and discovery.

The interesting thing is that the Bank’s attorney actually said to me that we should not conduct discovery because it would only add to the attorneys fees that the homeowner would owe. This rolled out of his mouth in a manner that indicated to me that it was a standard ruse to get the homeowner to give up rather than fight. Of course I didn’t take his suggestion seriously and I told him so. But I could see how pro se litigants and even inexperienced lawyers have their confidence undermined by that “suggestion.” The ruse is that the Bank is going to win anyway. The facts are that the Bank in that case has potentially insurmountable proof problems. And the tactic is also used because the foreclosure mills are paid a flat fee for all cases, usually $1200 or $1400 and the law firm therefore wants as little work as possible on each case.

Practice Hint: always check the State Statutes (or the Federal Rules) on evidence, especially here say and hearsay exceptions before you open your mouth or file any discovery. There are some juicy morsels in there. Like how you can use business records as an exception to hearsay and how the fundamental issue is the trustworthiness of the records. Simply stated, if the records are those of a non-party who has no interest in the outcome, then the Court should lean toward allowing the business records into evidence upon the proffer of an appropriate witness and compliance with other rules of procedure requiring notice to the opposing party. Those rules should be carefully reviewed and used against the Bank if they don’t comply. REMEMBER ANY INSTRUMENT IS PROBABLY HEARSAY BECAUSE IT ISN’T A WITNESS. the issue is whether the records qualify for an exception to the hearsay rule. If the records come from a party, then they are inherently suspect because they are self-serving even if they are true or could be true. The rules should be strictly applied and you should preserve the issue not only with motions in limine but also by objecting at trial should the issue come up again even after the Court has entered an order barring the introduction of the business records.

As far as I can tell the Banks make no attempt to comply with the law and rules regarding business records, as an exception to the basic rule that hearsay is not admissible in evidence. If you read and study the applicable laws of evidence, rules of civil procedure and hold their feet to the fire, you just might have punctured their case. Failure to comply with those laws and rules is fatal to the foreclosure case, even if they right. It is potentially fatal to the homeowner if there is a Failure to object to hearsay on the basis that the Bank failed to comply with the laws and rules governing introduction of business records.

Practice Hint: lawyers for the foreclosure mill really know very little about securitization. In fact, few foreclosure defense lawyers have mastered it, which is why my law firm is providing litigation support across the country. The proof of that is that when I ask lawyers to informally comply with our request of proving the money trail with cancelled checks, wire transfer receipts, wire transfer instructions, the lawyers say “no problem” only to later nervously evade the issue after they ask the Bank that is foreclosing.

The lawyers for the Banks honestly believe that the homeowner’s closing was largely in compliance with Federal and state laws. They don’t understand that the securitization was an illusion. They don’t understand why a closing agent would take money from a third party and apply it to the closing and then have the homeowner sign a note and mortgage in favor of a party who was not loaning any money at closing, directly or indirectly. They don’t understand that the original note is fatally defective in those circumstances and that the mortgage is a non-perfected encumbrance that is not enforceable. They don’t understand that recording the mortgage doesn’t correct deficiencies in the closing process.

As always, check with an attorney licensed in your jurisdiction before you apply anything contained in this article. And always remember that just because you are right it doesn’t automatically follow that you win. The Judge must also be convinced that you SHOULD win, which is why I counsel pro se litigants to get lawyers or at least legal advice. Remember that the devil is in the details.

Filed under: CORRUPTION, evidence, foreclosure, foreclosure mill, GARFIELD GWALTNEY KELLEY AND WHITE, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer | Tagged: business records exception to hearsay rules, exceptions to hearsay, foreclosure, hearsay, motions in limine, OBJECTIONS, required notice on business records | 28 Comments »

Matt Weidner Shows Lawyers How to Do Good Lawyering

Posted on September 4, 2013 by Neil Garfield

The difference between Weidner and many other attorneys is that he goes into a case believing he can win it — and he’s right. Other attorneys believe their position is hopeless and seek only delays or modification — and they are wrong. Weidner has resisted the knee jerk reaction to these cases to believe that if the borrower ceases payment that all elements of a foreclosure are presumed met. He understands that the Banks are playing a shell game to conceal the fact that neither the named plaintiff nor the alleged creditor are in fact the real servicer and real creditor.

Matt Weidner has published his summary of essential issues raised in a hearing in which he was the attorney of record for the homeowner. He shows that knowledge of securitization, good preparation and articulate objections that are logically consistent with the proffer of evidence results in a good record and a good result. This transcript — shown on the link below — should be studied, not merely read. Then read it again. Weidner skills are formidable but they can be learned.

Editor’s Note: The background issue here is the conflict between the law permitting the servicer to commence the action and reality. The Servicer might be able to start a foreclosure but they cannot finish it. They can claim they have authority or power of attorney but the fact is they are not a creditor. And only a creditor can submit a credit bid.

So why is this case being brought this way? Is the creditor aware that their right to the title of the house and their right to sue for collection is being stripped from them. Does the creditor have notice? How do we know? Even if the pleading is not required, the proof demands the evidence that the Trustee of the REMIC testify that they have notice, they own the mortgage, they have not resold it, they have received no augments, directly or indirectly to reduce the balance of the account receivable, and that the investor approves of the Servicer/bookkeeper taking title with a credit bid and getting a judgment in its own name despite the obvious fact that the creditor is entitled to judgment. What authority does the Trustee have to let anyone take away property and assets? What reasonable purpose would be served? Doesn’t this show or at least suggest that the Trust does not own the loan? Maybe it never did, but the investors in the “Trust” know it was their money that funded mortgages — they just don’t actually know which loans they funded.

And as this case suggests, the intervention of the investment banks caused a fatal defect in the chain of title. If they wanted to stay out of trouble all they had to do was name the Trust on the note and mortgage or the assignment and record it as such. But they didn’t because they were playing with OPM (Other people’s money) and they still are playing the same game.

Residential funding gets into trouble. This is a very worthwhile read.

Foreclosure Defense Trial SECRETS EXPOSED! A WEIDNER Transcript of a Foreclosure Trial That Shows How A Homeowner Wins Foreclosure!
http://mattweidnerlaw.com/foreclosure-defense-trial-secrets-exposed-a-transcript-of-a-foreclosure-trial-that-shows-how-a-homeowner-wins-foreclosure/

“Materially Less”: The Foreclosure Deficiency Standard in Tennessee
http://www.jdsupra.com/legalnews/materially-less-the-foreclosure-defic-21465/

How the Bank Lobby Loosened U.S. Reins on Derivatives
http://www.bloomberg.com/news/2013-09-04/how-the-bank-lobby-loosened-u-s-reins-on-derivatives.html

Lending Giant Offers Short Sale Webinar
http://realtormag.realtor.org/daily-news/2013/09/03/lending-giant-offers-short-sale-webinar

Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Aurora Bank FSB f/k/a Lehman Brothers Bank, Aurora Loan Services, business records exception, foreclosure defense, hearsay, Matt Weidner, OBJECTIONS, Residential Funding, trial practice | 31 Comments »

Keystone Fraud by Banks: Business Records Exception to Hearsay Rule

Posted on May 1, 2013 by Neil Garfield

Practice Note: Hearsay is not evidence and should not be used as the basis for any conclusion of facts that would support any conclusion of law. While the banks are extremely vulnerable to having all testimony and documents barred by the hearsay rule, this is ONLY true if the proper objection is made at the proper time — and objections should be made when opposing counsel makes reference to the content of those records as though they were already established. Although representations by counsel are not evidence, the attorney’s failure to object to the representation is a failure to bring to the Judge’s attention the fact that you contest those assertions. The objection could be phrased that counsel is attempting to get his own representations on record based upon facts that are in dispute and not in the record. A good record of those objections — including the use of a court reporter — is the basis for appeal. Without that record the Judge is inclined to do whatever he or she wants and while it is possible to re-establish the record in the absence of a court reporter it is very difficult and time-consuming. The reviewing court looks only to the record. If the objection does not appear, then the reviewing court has no choice but to affirm the lower court decision. An appeal is NOT an opportunity to retry the case. on substantive grounds. It is primarily a vehicle to contest the procedures and rulings in the court below as to procedure and the admissibility of evidence.

see http://livinglies.me/2013/04/29/hawaii-federal-district-court-applies-rules-of-evidence-bonymellon-us-bank-jp-morgan-chase-failed-to-prove-sale-of-note/

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Analysis: Business records are ALWAYS hearsay and barred by the hearsay rule in state and Federal courts. The question is not whether the business records are hearsay but rather whether the records are deemed reliable enough to waive the requirement of testimony from those with knowledge of the facts offered to prove the case of the proponent of those records. If they are deemed reliable by the Judge then they are allowed to be admitted as evidence to prove the truth of the matters asserted in those records. The tests for reliability are in the statutes of each state and the Federal rules of evidence that allow for exceptions to hearsay in order to allow the business records into evidence, which ARE hearsay and otherwise barred as evidence, under the “business records exception.”

The general rule is that evidence consists of testimony from a knowledgeable witness competent to testify as to the matters asserted. Competency of witnesses is determined by oath, personal perception of events, memory and the ability to communicate the facts as personally experienced, viewed, or heard by the witness. The business records exception requires the custodian of records to provide the foundation for asserting the business records exception. This is the starting point.

The custodian of records must be established by foundation testimony and should not be allowed without testimony that demonstrates the witness’ scope of employment, knowledge and authority. Objection should be made when the leading question is asked “Are you the custodian of the records?” An objection is required that the question is leading and lacks foundation — showing the facts and circumstances under which the witness should be accepted by the court as the custodian of the records.

The records must be from a source that is relevant to the proceedings. If the party seeking foreclosure is an asset pool, represented by a trustee, then the business records of the trustee are the only thing that is relevant unless the foundation is laid by opposing counsel to show that the records of the servicer matches the records of the trustee.

TESTIMONY OF THE SERVICER: Without the custodian of records for the trustee, it seems impossible to establish the proper foundation showing that the trustee asserts that the records of the trustee are the same as the servicer. And if that is true, there may be no reason for the servicer to testify as to the business records since it is only the trustee who can account for all money paid out and all money received, directly or indirectly on account of the subject loan.

[NOTE: THE TRUSTEE SHOULD BE ABLE TO TESTIFY THAT IT IS THE TRUSTEE OF THE TRUST THAT OWNS THE SUBJECT LOAN AND TO PRODUCE DOCUMENTS SHOWING THE SALE OF THE LOAN TO THE TRUST OR ASSET POOL. REMEMBER THAT A SALE REQUIRES CONSIDERATION AND THUS THE RECORDS SHOULD INCLUDE A RECORD OF THAT SALE, THE AMOUNT PAID, AND THE DOCUMENTS MEMORIALIZING THAT TRANSACTION.]

The witness who testifies for the proponent of the documents sought to be admitted into evidence must be competent to testify as records custodian that the trust has been and still is the owner of the loan. The banks will vigorously oppose your effort to hold their feet to the fire because all indications are that the trustee has no records and doesn’t even have a bank account for the “trust’ or asset pool, much less evidence of the amount paid for the loan, and the documents memorializing the “transaction.”

In many cases, the case for ownership or foreclosure collapses completely because in fact the trust or pool never did acquire ownership because there was no sale and the trustee never had any records showing the money paid by the homeowner or other parties who may have paid down the loan under non-subrogated obligations to payoff the debt. The creditor only being entitled to recover once on the debt, must show that there were no mitigating payments received by the trustee or anyone on its behalf as agent, servant or employee or affiliate.

In truth the relevant records are either wholly within the records of the MASTER SERVICER and neither the subservicer that the proponent wishes to offer nor the trustee has a complete record who who funded the origination or purchase of the loan. Thus while the business records of the sub-servicer might eventually be admitted over objection of the homeowner, it can and should be argued that this is only a partial picture; this accomplished on cross examination or if possible voir dire, where the witness is questioned as to what they don’t know, to wit” the details of the origination, purchase or funding of the loan together with all receipts relating to the loan account directly or indirectly.

Having started with the question of whether the witness is in fact a records custodian, the question then becomes whether the proffered witness is the only records custodian. At one trial recently conducted the witness was (a) not a custodian, (b) declared that the records came from numerous “clients” and other departments, the identity of the custodian of those records never being mentioned.

[Practice Note: When the witness is from the “loss mitigation department” or some similar division or department, they are by virtual definition not the records custodian, and cannot be a competent witness to testify as to the records. On voir dire conclusion the objection should be made that the witness is not the records custodian for any or all of the records sought to be introduced and is therefore not competent to provide the foundation for the business records exception to the hearsay rule.]

The first requirement (see Florida statutes below for example) to test the reliability of the records is that the the record entry be made at or near the time of the event.

If the servicer is testifying, then the servicer cannot testify as to the either the origination or sale of the loan, both having preceded the involvement of the servicer virtually by definition. While the impulse of the court is going to be presume that the closing was completed, this is overcome by the denial of the homeowner that the closing was in fact completed because the named payee on the note and mortgage never fulfilled their obligations — to fund the loan. It is not enough to be the party who caused the loan to be made —- that is a mortgage broker who obviously has not rights to ownership or foreclosure. This leaves the proponent with the requirement of proving up the completion of the initial transaction showing the funding by testimony of a competent witness (custodian of records of the relevant parties) to show payment and receipt of the funding of the origination or sale of the loan.

The second test relates to competency of the witness which is that the person offering the testimony or even the affidavit must show that they are a person with personal knowledge sufficient to be either the records custodian or a witness to the event.

The banks in Florida will attempt to get around this problem by offering a certification, but the certification must contain sworn statements as to the personal knowledge of the person who executes such certification. The requirements of testimony on the stand are NOT waived by virtue of submitting a certification. Without establishing the competency of the person to be admitted as a witness custodian of the records, the certification is a sham. And such certification should be determined before trial in a motion in limine before trial begins or objection to certification (see below).

The “certification” must contain the same required statements of fact that would otherwise be required on the stand as a live witness. Timeliness of objections is the key to trial practice. Failure to object and take the offensive on this issue will result in documents being admitted into evidence that establish a prima facie case when no such case exists.

If a certification is intended to be used, the homeowner must receive notice of such intent, the identity and contact information for the person signing the certification and an opportunity to challenge the veracity of the statements contained in the certification and the authenticity of the documents itself given the constant practice of robo-signing and surrogate signing.

Discovery is appropriate to require the proponent of the certification to show the employment record and other indicia that the person is indeed a custodian of all the records and that all the records sought to be introduced at trial are within the custody of the witness. A trick often used in court is that the witness will testify as to custody of one document and without an alert objection from the homeowner, the rest of the documents, which are hearsay, are then admitted into evidence without the certification or the foundation because the homeowner failed to object.

Failure to give notice of the intent to use certification in lieu of live testimony is fatal at trial — if the homeowner objects. Certification should ALWAYS be met with a well written objection — and fee free to plagiarize anything in this article. In most cases in an abundance of caution, the Judge will require live testimony in lieu of certification.

Conversely, failure to object to the certification may well leave the homeowner in the cold, because by the time the trial begins all acts necessary to the prima facie case of the proponent of foreclosure or ownership of the loan will have already been established.

Florida Statutes 90.803 et seq: in pertinent abstract is as follows:

(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.–

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(b) Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.

(c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

(7) ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY.–Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.

(8) PUBLIC RECORDS AND REPORTS.–Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

Filed under: Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: business records exception, certification, competent witness, custodian of records, hearsay, Master Servicer, Motion IN Limine, OBJECTIONS, relevance, servicer, sub servicer, trustee, witness | 48 Comments »

Objections and Preserving Your Rights on Appeal: From, Whose Lien Is It Anyway? by Neil F Garfield

Posted on May 14, 2012 by Neil Garfield

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Editor’s Comment:

Foreclosure cases are won or lost on procedure more than on the merits of the case offered by either side. Lawyer and especially pro se litigants tend to use the right of appeal, as though it was a vehicle for entertaining evidence, objections or motions that should have been made. These make up a large percentage of the 85% of cases that are affirmed on appeal.[1]

The appellate court rarely has even the power to consider affidavits or other evidence that was not proffered and which does not show up on the record on appeal sent by the clerk of the court on the “trial” level. The appellate court is limited to what DID happen and not what SHOULD have happened. If the matter was properly raised in the lower court, then the matter may be considered by the appellate court. If not, then they must simply state that the grounds for appeal were not properly preserved for appeal and affirm the decision of the lower court Judge.

In foreclosure cases, most of the objections that should be made are known in advance and quite probably should be brought or offered as a motion in limine before the actual hearing, so that the complete focus of the court is on the issue that would be presented by opposing counsel and the objections raised by the borrower homeowner. In those cases, where the objections are known in advance, you should not only state that you have an objection, but the state the reasons for your objection and include a memorandum of law on the point, complete with copies of the most relevant cases.

Most of the errors that I see on the trial court level amounts to denial of due process in that the Court refuses to hear the merits or to allow the parties to conduct discovery. If that is the case in your case, you should mention it even though it is “fundamental error” that the appellate court could hear even without raising the objection contemporaneously with the subject of your objection.

This assures (along with the transcription from a court reporter) that everything about that objection was stated, presented and denied, if such is the case. It might also alert the Judge that you are ready to make such an appeal. If the objection is procedural relating to whether a proper foundation has been laid for the introduction of evidence, or whether the Court is accepting the proffer of counsel without any evidence in the record to support it, then you must make that point clearly and with support from citations in your own state. If the court refuses to hear the objections in limine then you still have the matters raised as part of the court record but you must raise the objection in the hearing or you might well have waived them unless your main point (ill advised) is that the court abused its discretion in denying the motion in limine without hearing it on the merits.

In every case I have seen reversed on appeal, there was something in the record that contradicted or nothing in the record that supported the position taken on appeal.

There are no magic words or bullets on objections. What is necessary is that you state it, without rambling on tangent subjects, with sufficient specificity so that the appellate court will understand in a flash what your objection related to, and what grounds and what law upon which you were relying. Do not combine objections. If you have more than one then state that you have 2 or more objections and proceed with the first.

The mistake I see in appeals and trial proceedings is that the attorney for the homeowner borrower remains silent while opposing counsel states facts that are not in the record (because there has not been an adversary proceeding and that you deny those facts, as they are in issue between the two sides). In many cases the Judge takes silence as a concession that the facts are true as stated and that your defense relates to something other than contesting the facts being proffered by opposing counsel.

The appellate court might agree, particularly if you are not clear in immediately identifying the fact that there was a real transaction in which money exchanged hands and then another event which involved the signing of papers but in which there was no actual transaction. The fact that the borrower believed the papers to be true while everyone else knew they were not, cannot now be used to further the fraud upon your client.

____________________

[1] It has been pointed out by some bankruptcy court judges that out of the three possibilities for appeal of a bankruptcy court ruling, petitioners and their counsel usually bypass the appeal laterally to the sitting District Court Judge charged with hearing civil cases with Federal jurisdiction and with hearing appeals from decisions made in the bankruptcy court. Sources tell us that the percentage of reversals and remand is possibly as high as 50% when brought to the District Judge rather than the BAP or Circuit Court of Appeals.

Filed under: foreclosure | Tagged: affidavits, appellate court, bankruptcy court, bankruptcy court judges, BAP, cases affirmed on appeal, Circuit Court of Appeals, citations, clerk of the court, court abused its discretion, court reporter, denial of due process, district court judge, evidence, federal jurisdiction, fighting foreclosure, foreclosure, foreclosure cases, foreclosure defense, foreclosure fraud, foreclosure offense, fraud upon your client, fundamental error, in limine, judge, lower court, memorandum of law, Motion IN Limine, OBJECTIONS, objections in limine, objections known in advance, opposing counsel, predatory lending, Preserving your rights on appeal, pro se litigants, procedure, record on appeal, reversed on appeal, silence as concession, transcription, TRIAL, trial proceedings, Whose Lien is it anyway? | 23 Comments »

WEIDNER: SHARP LAWYERING = NO FORECLOSURE CASE

Posted on February 24, 2012 by Neil Garfield

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OBJECTIONS TIMELY MADE TURN THE TIDE

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Editorial Comment: Hat tip to Weidner: The bottom line is that the pretender lender was prevented from introducing evidence of “default” and was further prevented from introducing evidence establishing the pretender’s right to foreclose.

The reason was a series of objections in which the shell game became apparent to the Judge and the Judge refused to play. In the end proffers of counsel for the pretenders are no substitute for the admission of evidence. Facts are different from evidence. Facts may exist, but unless they are accepted into evidence, the court may not consider it. So this Judge entered an order of involuntary dismissal (directed verdict, as the term is sometimes used, usually in a jury trial) and the homeowner won the case.

This is a precise example of why I say that there are no cases in which the facts in dispute are heard all the way through to a verdict. Once it gets to the point where the pretender can no longer fake their way around the judge, the truth is left lying on the floor — that the pretender has no idea whether there is a default, has no idea of the balance due under the mortgage, does not represent any real creditor and seeks to foreclose in its own name merely as the “holder” without ever disclosing any principal (because in most cases there is no principal).

When I say there is no principal I mean one of two things. Either the principal creditor has already received a a settlement and therefore has been been fully satisfied or the principal wants no part of any litigation in which it could be named as a counter-defendant for predatory or deceptive lending practices. Either way, the real creditor is never in the room.

It is at this point that cases go into the mode of what Matt Weidner correctly coined the term “cash register justice.” When it look like they have run out of options they dismiss the case and then hit the investor with a bill that is, like in a case recently reported, 140% of the actual loss. Where does the other 40% come from? Well of course it comes from any place the servicer can get it which is out of the payments received from borrowers whose notes specifically state that their payments should only be booked as payments to reduce their debt, and not for any other purpose.

And need we add that the request for modification would have left the investor with approximately 50% of the loan intact — which means the investor took a bath for 90% while the servicer got paid in full, the banks were always paid in full because they only used investor money to fund mortgages, and of course the banks also got to keep the bailout money, insurance money, and proceeds of credit default swaps and cross collateralization.

With the banks owning the service companies and the trustees and other “foreclosure specialist” companies, the banks get all the money coming in PLUS the house, leaving the investor with net losses far in excess of their initial investment.

Somehow Eric Holder, our Attorney General has arrived at the conclusion that this might not be illegal. Ask the investor how legal this is. Ask this homeowner who now has a clear shot at clear title through a quiet title action, with no mortgage, no note and no obligation.

As an add-on to what this very good lawyer did at “trial” I would say that the lawyer should have conducted a voir dire examination of the witness proffered by the pretender. The witness admitted only 18 months experience with PHH and no experience or knowledge as to the actual trail of payments. He further admitted that he had no direct knowledge as to how or why payments were posted in this case and implied that he had no knowledge as to whether the accounting was complete, which we all know means that the payments the actual unidentified creditor received was never shown nor intended to be shown in a court of law. The best the witness could pretend to know were the business procedures AFTER declaration of default with no knowledge of what happened before that or outside of the relationship between the borrower and the servicer.

The lawyer made his point but almost missed it when he showed that the paper presented did not have the name of PHH anywhere on it and instead had a name that was neither in the pleading nor the exhibits: a mistake often made by lawyers (but not by this one) was that once you get the pleadings and exhibits from the would-be forecloser and the chance to amend has expired, they have no right to introduce evidence contrary to their own allegations and exhibits. This lawyer correctly held the pretender to stay within the four corners of the complaint and the exhibits attached.

A Foreclosure Trial Transcript, Evidentiary Objections Made and SUSTAINED, Judgment for Defendant!

February 23rd, 2012 |

Author: Matthew D. Weidner, Esq.

I want to share with the class a transcript of a foreclosure trial where defense counsel rattles off the evidentiary objections, many of which were properly sustained by the judge.

Servicers have a very real problem proving their cases over proper and clear evidence objections….they just cannot link up their evidence from one servicer to another without real effort…and in some cases they will not be able to do it.

So this is a roadmap that shows how to do it correctly….bone up folks, work hard.

Fight like every single case represents the very fate and future of the entire American judicial system.

because every case does

PARRISTRANSCRIPT

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: 60 minutes, affidavits • attesting • Daniel Edstrom • DTC-Systems • fabricating • false information • false sworn documents • foreclose • illicit business practices • improper statements • imp, AHMSI, appraisal fraud, attorney general, auction fraud, Chris Koster, credit bids, cross examination, DocX Indictment, evidence, foreclosure fraud, FORECLOSURE SETTLEMENT, foreclosures, forgery, housing market, housing prices, investors, linda green, LPS, Missouri, mortgage fruad, mortgages, OBJECTIONS, Robo-Signing, settlement, strategic default, voir dire, Weidner, Wells Fargo | 14 Comments »

THE FIRST LIE: “WE REPRESENT THE PLAINTIFF BANK”

Posted on December 20, 2011 by Neil Garfield

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“My head almost exploded clear off my body last week when I heard a foreclosure mill exclaim to a judge when questioned about how she was going to get a complaint verified: “But we don’t represent the Plaintiff, we represent the servicer!” (Editor’s Note: That is an admission that they filed a lawsuit on behalf of someone they do not represent. They are not the attorney for the Plaintiff but they filed the suit anyway!)

EDITOR’S NOTE: Weidner has it right here and this is a very ripe area of vulnerability for Banks and the lawyers who represent them. The article below gives you a couple if ideas about that.

As I have repeatedly said on these pages, the first words out of the mouth of the lawyer seeking to foreclose is probably a lie: “Good Morning, your honor my name is John Smith and I represent the holder of this loan, Aurora Loan Servicing.” After stating his name, the rest was at best a misstatement from lack of knowledge and probably just a lie.

The foreclosure mills send out lawyers who have no idea whether they represent the bank or any other party who is seeking to foreclose. And when he states that he represents the holder,, he only knows that he was told to say that, not that it is true or even if the party whom he alleges to represent would agree. This entire game is made up of plausible deniability and “excusable neglect” so that when caught in the lies, each one can say we didn’t realize our information was bad. But they do know their information is bad and that is their vulnerability.

I would counsel attorneys to file a motion for proof of authority to represent as soon as the first pleading is filed — the compliant in judicial states and the motion to dismiss in the non-judicial states. And I would suggest you press the point by testing their proof through discovery. Most of the time they will cave and revamp their strategy. I actually know of a few cases where the filing of that motion alone was enough for the foreclosing parties to simply vanish.

Second, I again repeat that you should raise an immediate objection, based in part on your challenge to their authority to represent. When the statement is made that “we represent the Plaintiff” or “we represent the holder” or “we represent the creditor” that is a statement of fact, which the lawyers want to be tacitly admitted into the narrative of the case. Your objection should be along the lines of no foundation, that counsel is testifying, that if he is testifying you want to conduct a voir dire examination to determine if he has any personal knowledge for making that assertion, and if so, where he got his information.

Even if he say “I represent U.S. Bank” the same objections would apply after he makes his first argument of “fact” rather than law. It is the same as the “default.” How does he know that a default has occurred. What contact has he had with the creditor? Who is the creditor. How do we know the creditor has not been satisfied and that the note and mortgage are therefore satisfied? We know that the servicers and others are trying to sneak in under the umbrella of the note and mortgage when their claim, for themselves, has nothing to do with the note or mortgage.

BE ALERT! And don’t assume anything. Challenge everything.

Fraudclosure Mill- Just Who Is Your Client Anyway?
Author: Matthew D. Weidner, Esq.

http://mattweidnerlaw.com/blog/2011/12/fraudclosure-mill-just-who-is-your-client-anyway/

A question that must be asked in every foreclosure case is just who hired the Plaintiff mill that is prosecuting the case…and who is paying that mill?

There has been a battle raging for years now between consumer attorney warriors who have been working to crack the secret relationship between their attorneys and the fake plaintiff that is named in the foreclosure lawsuit.

We’re especially cracking this relationship when judges start asking real questions or start putting the plaintiff actually comply with the Supreme Court’s rules.

My head almost exploded clear off my body last week when I heard a foreclosure mill exclaim to a judge when questioned about how she was going to get a complaint verified:

“But we don’t represent the Plaintiff, we represent the servicer!”

This is exactly the case and this is precisely the problem. Well, here’s where things get even more interesting. The referrals don’t come from the servicer, they come from a computer….and that’s a problem….or at least it should be if state bars and judges really started digging into this. It’s one of the backstories that’s running behind the Nevada Attorney General v. LPS Lawsuit, first addressed by my friend, Nick Wooten and a dude named Bubba Grimsley, see this article in HousingWire:

The alleged splitting of attorney fees between foreclosure law firms and third-party mortgage servicing providers is the subject of another lawsuit, bringing the number of cases filed on this issue to five within the past seven months, said Nick Wooten, an Alabama-based plaintiff’s attorney involved in all of the cases.

By mid-May, Wooten said he expects to file 10 to 12 additional cases, making similar allegations about what he claims are illegal, split-attorney fee arrangements between mortgage servicing outsourcers and law firms. The cases are concentrated in the Northern District of Mississippi, the Southern District of Alabama and the Northern District of Florida-Pensacola division.

NICK WOOTEN
http://www.housingwire.com/2011/04/22/lawyer-intensifies-fee-splitting-battle-against-mortgage-servicing-providers

And what did the banksters do when confronted by these allegations? Why they attacked the attorney that dared to challenge them? From another article in HousingWire:

An Alabama circuit court judge denied a motion Wednesday from Lender Processing Services (LPS: 14.30 -17.53%) for sanctions against attorney Nick Wooten and also declined to seal a transcript and default services agreement at the heart of Wooten’s cases.

LPS alleged in April http://www.housingwire.com/2011/04/26/lps-fires-back-with-motion-seeking-sanctions-against-alabama-attorney that Wooten, who is suing LPS in several cases on behalf of homeowners, used confidential information from a bankruptcy case he was handling between Larry David Wood and Karen Wilborn Wood against Option One Mortgage, and filed multiple lawsuits against LPS in other states using that information.

http://www.housingwire.com/2011/05/12/judge-declines-to-sanction-lawyer-involved-in-lps-fee-splitting-cases
KEEP AT THEM NICK!

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: authority to represent, bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, OBJECTIONS, quiet title, rescission, RESPA, securitization, TILA audit, trustee, Weidner, WEISBAND | 57 Comments »

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An alternative explanation is that the documents were not fabricated but prepared in anticipation of an actual transaction that failed to occur. Either way the conclusion is the same, i.e., that the documents refer to a nonexistent transaction and should be discarded.

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