What Works and What Doesn’t

us-bank-na-v-mattos-sup-ct-hi-no-scwc-14-0001134-jun-6-2017

Note that the courts try to calls balls and strikes not decide, at least on appeal, who should win and then give an opinion that fits. It doesn’t always work that way but many courts do follow that simple rule of blind justice.

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WORKS: Objection to qualified witness status, no records from the actual claimant, failure to establish entitlement to enforce before foreclosure was started.

We address the third issue on certiorari first. We hold that the ICA erred by concluding the declaration of Richard Work (“Work”), the Contract Management Coordinator of Ocwen Loan Servicing, LLC (“Ocwen”), rendered him a “qualified witness” under State v. Fitzwater, 122 Hawai􏰀i 354, 227 P.3d 520 (2010)

for U.S. Bank’s records under the Hawai‘i Rules of Evidence (“HRE”) Rule 803(b)(6) hearsay exception for records of regularly conducted activity. In addition, U.S. Bank failed to establish that it was a holder entitled to enforce the note at the time the foreclosure complaint was filed. See Bank of America, N.A. v. Reyes-Toledo, 139 Hawai􏰀i 361, 370-71, 390 P.3d 1248, 1257-58 (2017).

DOESN’T WORK: “Robosigning” assertion without proof that attacks the foundation of the document, BUT:

With respect to the first issue on certiorari, because it
is unclear what Defendants mean by “robo-signing” and because a
ruling on the legal effect of “robo-signing” is not necessary to

conclusory assertions that fail to offer factual allegations or a legal theory indicating how alleged “robo- signing” caused harm to a mortgagee are insufficient to establish a defense in a foreclosure action. Addressing the factual allegations underlying the “robo-signing” claim, however, we conclude there is a genuine issue of material fact as to whether Ocwen had the authority to sign the second assignment of mortgage to U.S. Bank. (e.s.)

BEST PRACTICES. Objections must be made timely and with some specificity. You should also be prepared to argue why the objections apply. Payment records will come in evidence not only of the record of payments but also as to anything else shown on the records. Objection to such records, once they have already been introduced or even accepted into evidence, is basically futile, although they could conceivably be later undermined and even potentially struck from the record on cross examination.

If you have a pretrial court order that requires disclosure of all exhibits and expressly states that the parties must state their objections to the proposed exhibits, you must file a notice of such objections. It is wise to state as many grounds as possible for the objection and cite to specific rules of evidence in your jurisdiction.

This is not a legal opinion. Get a lawyer before you act on anything contained in this article.

Foreclosure Defense: Notes on Practice

I went to a hearing a few days ago and discovered to my surprise a Judge, in a remote section of Florida, who was fully conversant in the rules of procedure, due process and the laws of evidence. It would be improper for me to name him as I am currently counsel of record in an active case before him. The first thing that caught my attention was that in a case before me the Judge reserved ruling on an uncontested motion for summary judgment, to give himself time to review the paperwork and make sure that the paperwork was all in order. That is old style court practice.

In the 1970’s through the 1990’s that is what judges did to make sure the lawyer for the Bank had done his job properly — and that was before routine questions relating to who made the loan, whether the loan was properly originated, whether the loan was properly sold, whether the balance due was properly stated and whether there was an actual creditor who was present in court — someone who fulfilled Florida laws on the description of a creditor who could submit on credit bid at the auction.

The Judge also mentioned that he had presided over three bench trials the day before, two of which he had given judgment to the borrower because the Plaintiff had been unable to make its case. This bespeaks an understanding, knowledge, acceptance and execution of the procedural requirement of establishing a prima facie case thus shifting the burden of proof to the Defendant. And contrary to current practice in many courts, this Judge does not view his role as rubber stamping Foreclosures.

This Judge wants to see the things we have been pointing out on this blog: that if you are the Plaintiff you must prove your case according to the rules. First you must have a witness that actually knows something instead of merely reading off of a computer or a computer report. You must establish a proper foundation rather than an illusion by merely giving the appearance of proffering testimony from an incompetent witness with no knowledge of their own whose employment description consists of testifying in court. And your chain of evidence must be complete before you can be recognized as having established a prima facie case.

In the case in which I appeared the Plaintiff had filed a foreclosure against two homeowners, husband and wife, who then pro se fended off the Plaintiff with materials mostly from this blog and from other sources. But they were at the point where being a lawyer counts, knowing the content and timing of objections, filing motions to strike, motions in limine, responding to 11 th hour motions for protective order etc.

In this case their exists a legitimate question over whether the loan was subject to securitization. Originated in 1996 the loan date goes to the beginning of the era of securitization and this one didn’t have MERS, which I argue is evidence per se of securitization because there is no reason for MERS if your intent is not securitization. But 2 days after the alleged closing the loan was transferred to a player in the world of securitization. Thus the first argument is that this was obviously a table funded loan. Hence the question of where the money came from at the alleged closing table.

Adding to the above, the notice letter to the borrowers of default, acceleration and the right to reinstate suggests that the then “holder” was, in their own words “either a Servicer or lender.” So the very first piece of evidence in the file raises the issue of securitization since the party who sent the notice was not the transferee mentioned above two days after the alleged closing.

Thus questions about the origination and transfers of the loan were appropriately asked in discovery. The Judge was on the fence. Could one slip of the pen open up a whole area of discovery even with the table funded loan allegation?

But in the halls of the foreclosure mills, they had decided to file standardized pretrial statements disclosing witnesses and exhibits. So they filed a motion for protective order as to the discovery, refusing to answer the Discovery, and filed a statement that identified the witness they would use at trial 19 days later as “a corporate representative.” That is no disclosure of a witness and is subject to a motion in limine to block the introduction of any witness. The witness disclosure also attached a list of possible witnesses —37 of them, which I argued is worse than no disclosure and the Judge agreed.

Then in their list of exhibits that they will present at trial they refer to powers of attorney, pooling and servicing agreement, investors, servicer’s, sub-servicers, and all the other parties and documents used in creating the illusion of securitization.

I argued that if they filed a pretrial statement referring to all the parts of securitization of a mortgage loan, then the issues surrounding that are properly the subject of inquiry in discovery and that the 11 th hour filing of a sweeping motion for protective order and failure to respond to any discovery was in bad faith entitling us to sanctions and granting our two motions in limine. The judge agreed but removed the problem by setting the trial for February, and setting forth a schedule of deadlines and hearings a few days after the deadlines so both sides could develop their cases. The ruling was in my opinion entirely proper, even if it denied the motions in limine since he was giving both sides more time to develop their cases.

The moment the hearing ended, opposing counsel approached and was asking about settlement. I countered with a demand that his client immediately show us the chain of actual money starting with origination. He said that wouldn’t be a problem because this was definitely not a securitized loan. I told him I actually knew the parties involved and that most probably this was amongst the first group of securitized loans. I also told him that he would most likely fail in getting the proof of payment at closing, and proof of payment in each of the alleged transfers of the loan.

We’ll see what happens next but I would guess that there will be a lot of wrestling over discovery and more motions in limine. But this time I have a Judge who no matter his personal views that are most likely very conservative, will dispassionately call balls and strikes the way a judge is supposed to do it.

Fagan: Defeats Wells Fargo on Judicial Notice

Editor’s Comment: Following up with the offensive strategy and the concept of attacking every weak point in the pretender lender’s strategies, Fagan went after Wells Fargo on the seemingly innocuous motion for the Judge to take Judicial notice of several documents.

Besides the obvious fact that Judicial notice is narrowly construed to allow the FACT that a document was RECORDED (and not as proof of the matters asserted in such documents), Fagan took the offensive and essentially argued that Wells was trying to win a non-judicial foreclosure (in court, which is an oxymoron) using proof that could not be accepted in a judicial foreclosure.

His argument and his citations are right on point. The moral of this story is that if you keep the faith and realize that this entire foreclosure mess is just one part of the securitization scam, then you arrive at the inescapable conclusion that the homeowners should win, not just delay the foreclosures. Once you know you should win, it is easier to take the offensive and start thinking about the cases in a different way.

The question is not just “how do I protect my client” but also how do I win this case.”

Read the documents below and you’ll see how Fagan artfully slices up the Wells Motion for Judicial Notice and how the Court concluded correctly that Wells can’t get away with violating the rules of evidence simply by slipping documents in through the back door.

It looks to me like we are turning the corner here. Deny and Discover has been getting a lot of traction. Stopa has surprised pretender lenders with summary judgment granted in favor of the borrowers and Fagan, is picking apart Wells Fargo. A fellow I know recently said to me “if you you can make it bleed, you can kill it.” He was referring to foreclosures.

SC117023 WELLS FARGO’S REQUEST FOR JUDICIAL NOTICE OF THE DOT, NOD, & SOT Exhibits A B & C

Barry Fagan v WELLS FARGO BANK SC117023 OBjection to Request for Judicial Notice Craig D. Karlan Oct. 23 12

FAGAN V WELLS FARGO RE ORDER DENYING RJN OF THE DOT, NOD & SOT SC117023

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

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

Fla Judge rehearing of summary judgement 4 04 10

5035SCAN4838_000 vesicaro Briefs

Vesicaro transcript

Posted originally in April, 2010

RIGHT ON POINT ABOUT WHAT WE WERE JUST TALKING ABOUT

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

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

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

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

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

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