Writ of Mandamus: The Right Procedure

Posted on June 21, 2010 by Neil Garfield

submitted by Frank D’Anna

Writ of Mandate 2 Frank D’Anna

COMMENT: I don’t know if Frank got help, but however he did it, this is a fine piece of work. He obviously understands that if you want to take an appeal, you must state a reason that the trial court erred. If you want to win it, you better come up with a procedural issue that is compelling. Most appeals fail. The reason is that the Appellant wants the appellate court to say the Judge was wrong on the facts. They don’t do that except in the rarest of cases, so don’t bother.

The best appeal is to be able to say and show IN THE COURT RECORD that you didn’t get your day in court, which is to say that the trial judge refused to hear your case on the merits. Any other appeal will get “Per Curium, Affirmed” without comment.

The second best appeal is to imply that the trial judge was tone deaf and ruled based upon presumptions he wasn’t allowed to make. D’Anna’s appeal is a combination of the the two approaches. They both amount to the same thing: you were not heard on the merits and the trial judge prejudged the case based upon incorrect presumptions.

Speaking in legalese this means that the trial judge presumed that YOU had the burden of proof and allowed your opposition, over your objection, to introduce information that was not authenticated, verified or given proper foundation to be taken into evidence. In many cases there is no evidentiary hearing. Your case is a denial of the allegations of the oppositions whether they have filed (judicial states) or they haven’t filed them (Non-judicial states).

The mistake repeatedly made in the trial court is acceptance by the borrower that the borrower has some burden of proof regarding the standing of the opposing party, whether the opposing party is a real party in interest, and whether the note was properly assigned or ever made it into the “Trust.”

This is just plain wrong: There is only party actually seeking affirmative relief — the one who wants to enforce the note and foreclose on the property. The party seeking affirmative relief is the ALWAYS charged with pleading a case upon which relief could be granted and ALWAYS required to prove each and every allegation. The allegations and the proof must line up with the elements of their cause of action as stated by statute, the rules of civil procedure and previous common law decisions.

In non-judicial states these errors are magnified. Because the law is universally misapplied, a party can foreclose through power of sale even if they would have no right to foreclose judicially. That is not the law and if it was the law it would be unconstitutional.

  • The fact that the forecloser ignores the basic elements of law does not shift the burden of pleading or the burden of proof onto the borrower.
  • The fact that the borrower/debtor must bring an action seeking injunction or restraining order to stop the non-judicial sale does not change the burden of pleading or the burden of proof.
  • Once the denial or objection is registered in any fashion, the Trustee in a non-judicial state and the mortgagee in a judicial state MUST, under all conditions, plead and prove their case in a court of law.
  • Non-judicial election is simply not available.

BUT HERE’S THE RUB: IF YOU DON’T OBJECT TO WHAT THE COURT IS DOING, YOUR OPPOSITION IS GOING TO ARGUE, MANY TIMES SUCCESSFULLY THAT YOU WAIVED THAT ARGUMENT. BUT JURISDICTIONAL ISSUES CAN BE HEARD AT ANY TIME EVEN IF THEY ARE FIRST BROUGHT UP ON APPEAL.

Filed under: CASES, CDO, CORRUPTION, evidence, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, Investor, MODIFICATION, Mortgage, Pleading, STATUTES | Tagged: , , , , , , , , , , , , , , | 10 Comments »

Re-Orienting the Parties to Clarify Who is the Real Plaintiff

Posted on June 11, 2010 by Neil Garfield

The procedural motion missed by most lawyers is re-orienting the parties. Just because you are initially the plaintiff doesn’t mean you should stay that way. Once it is determined that the party seeking affirmative relief is seeking to sell your personal residence and that all you are doing is defending, they must become the plaintiff and file a lawsuit against you which you have an opportunity to defend. A Judge who refuses to see that procedural point is in my opinion committing clear reversible error.

If the would-be forecloser could not establish standing and/or could not prove their case in a judicial foreclosure action, there is no doubt in my mind that the ELECTION to use the power of sale is UNAVAILABLE to them. They must show the court that they have a prima face case and the homeowners must present a defense. But that can only be done if the parties are allowed to conduct discovery. Otherwise the proceedings are a sham, and the Judge is committing error by giving the would-be forecloser the benefit of the doubt (which means that the Judge is creating an improper presumption at law).

If the Judge says otherwise, then he/she is putting the burden on the homeowner. But the result is the same. Any contest by the would-be forecloser should be considered under the same rules as a motion to dismiss, which means that all allegations made by the homeowner are taken as true for purposes of the preliminary motions.

Some people have experienced the victory of a default final judgment for quiet title only to have it reversed on some technical grounds. While this certainly isn’t the best case scenario, don’t let the fight go out of you and don’t let your lawyer talk you into accepting defeat. Reversal of the default doesn’t mean anyone won or lost. It just means that instead of getting the ultimate victory by default, you are going to fight for it. The cards are even more stacked in your favor with the court decisions reported over the last 6 months and especially over the last two weeks. See recent blog entries and articles.

All that has happened is that instead of a default you will fight the fight. People don’t think you can get the house for free. Their thinking is based upon the fact that there IS an obligation that WAS created.

The question now is whether the Judge will act properly and require THEM to have the burden of proof to plead and prove a case in foreclosure. THEY are the party seeking affirmative relief so they should have the burden of pleading and proving a case. Your case is a simple denial of default, denial of their right to foreclose and a counterclaim with several counts for damages and of course a count for Quiet Title. As a guideline I offer the following which your lawyer can use as he/she sees fit.

The fact that you brought the claim doesn’t mean you have to plead and prove their case. Your case is simple: they did a fraudulent and wrongful foreclosure because you told them you denied the claim and their right to pursue it. That means they should have proceeded judicially which of course they don’t want to do because they can’t make allegations they know are not true (the note is NOT payable to them, the recorded documentation prior to sale doesn’t show them as the creditor etc.).

I don’t remember if MERS was involved in your deal but if it was the law is getting pretty well settled that MERS possesses nothing, is just a straw man for an undisclosed creditor (table funded predatory loan under TILA) and therefore can neither assign nor make any claim against the obligation, note or mortgage.

Things are getting much better. Follow the blog — in the last two weeks alone there have been decisions, some from appellate courts, that run in your favor. There is even one from California. So if they want to plead a case now in foreclosure they must first show that they actually contacted you and tried to work it out. Your answer is the same as before. I assume you sent a qualified written request. Under the NC appellate decision it is pretty obvious that you do have a right of action for enforcement of RESPA. They can’t just say ANYONE contacted you they must show the creditor contacted you directly or through an authorized representative which means they must produce ALL the documentation showing the transfers of the note, the PSA the assignment and assumption agreement etc.

They can’t produce an assignment dated after the cutoff date in the PSA. They can’t produce an assignment for a non-performing loan. Both are barred by the PSA. So there may have been an OFFER of assignment  but there was no authority to accept it and no reasonable person would do so knowing the loan was already in default. And they must show that the loan either was or was not replaced by cash or a substitute loan in the pool, with your loan reverting back to the original assignor. Your loan probably is vested in the original assignor who was the loan aggregator. If it’s in the pool it is owned by the investors, collectively. There is no trust nor any assets in the trust since the ownership of the loans were actually conveyed when the investors bought the mortgage backed securities. They don’t want you going near the investors because when you compare notes, the investors are going to realize that the investment banker did not invest all the money that the investor gave the investment banker — they kept about a third of it for themselves which is ANOTHER undisclosed yield spread premium entitling you to damages, interest and probably treble damages.

The point of all this is that it is an undeniable duty for you to receive disclosure of the identity of the creditor, proof thereof, and a full accounting for all receipts and disbursements by the creditor and not just by the servicer who does not track third party payments through insurance, credit default swaps and other credit enhancements. It’s in federal and state statutes, federal regulations, state regulations and common law.

The question is not just what YOU paid but what ANYONE paid on your account. And even if those payments were fraudulently received and kept by the investment banker and even if the loan never made it through proper assignment, indorsement, and delivery, those payments still should have been allocated to your account, according to your note first to any past due payments (i.e., no default automatically, then to fees and then to the borrower). That is a simple breach of contract action under the terms of the note.

Again they don’t want to let you near those issues in discovery or otherwise because the fraud of the intermediaries would be instantly exposed. So while you have no automatic right to getting your house free and clear, that is often the result because they would rather lose the case than let you have the information required to prove or disprove their case in foreclosure. The bottom line is that you don’t want to let them or have the judge let them (Take an immediate interlocutory appeal if necessary) use the power of sale which is already frowned upon by the courts and use it as an end run around the requirements of due process, to wit: if you think you have a claim you must plead and prove it and give the opposition an opportunity to defend.

The procedural motion missed by most lawyers is re-orienting the parties. Just because you are initially the plaintiff doesn’t mean you should stay that way. Once it is determined that the party seeking affirmative relief is seeking to sell your personal residence and that all you are doing is defending, they must become the plaintiff and file a lawsuit against you which you have an opportunity to defend. A Judge who refuses to see that procedural point is in my opinion committing clear reversible error.

The worst case scenario if everything is done PROPERLY is that you get the full accounting, you are not in default (unless there really were no third party payments which is extremely unlikely) and they must negotiate new terms based upon all the money that is owed back to you, which might just exceed the current principal due on the loan — especially once you get rid of the fabricated fees and costs they attach to the account (see Countrywide settlement with FTC on the blog).

Filed under: CASES, CORRUPTION, evidence, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, Mortgage, Motion Practice and Discovery, Motions, Pleading, securities fraud, Securitization Survey, trustee, workshop | Tagged: , , , , , , , , , , , , , , , , , , , | 13 Comments »

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