Why Show Me the Note Isn’t Enough

Posted on March 14, 2010 by Neil Garfield

see no-silver-bullet

The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.

My observation is that many lawyers and pro se litigants are left with their mouths hanging open when the the other side (pretender lender) does in fact produce a note, copy of a note, assignment, separated allonge, indorsement or other document giving the appearance of propriety. You have to ask yourself what if I was physically holding that note, copy etc.? Would that mean I had the power to enforce it?

Those who have not studied securitization don’t know what to say because deep down inside they think the show is over — when in fact it has only just begun, which is the point of Brad’s Workshop on forensic analysis.

Lawyers have complained that we tried to pack too much information into one day in the our workshops we did over the last two years. They are right. The reason lawyers should attend the forensics workshop is not so they can do forensic analysis (although they certainly would be in a better position to do so), but rather because they need to know what to do with the information once they get a report of results from a forensic review and analysis.

That note or copy they produced is probably not the evidence that is required. It probably is a copy of the note as it existed at the closing, and does not contain the chain of custody, assignment, indorsements or other indicia of ownership.

There is no doubt that a workshop on motion practice and discovery for lawyers only needs to be done and I am working on that. My problem is the same as any trial judge would have. How can we go that level unless the lawyer knows what evidence exists, what evidence to ask for, and how to use that evidence? That is the purpose of the forensic workshop. Unless the lawyer or pro se litigant knows what to do and say about the information produced in a forensic analysis, it is of little use. Logically, they could not possibly know what to say or do with the information unless they understood the significance of the information when it is presented to them.

Brad’s forensic workshop, together with my participation and other guest speakers, weaves together the issues presented by the loan transaction itself, the securitization of the mortgage, the transfers and chain of title issues combined with what works and doesn’t work with Judges because it is seen as truly significant as opposed to merely technicalities designed to delay the proceedings. Indisputable evidence that raises questions of fact that helps the Judge “get it” is what is necessary to win.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , | 49 Comments »

Florida 2d DCA Gets It — Rules of Evidence Prevail!

Posted on February 16, 2010 by Neil Garfield

See 2D08-3553 Fla 2d DCA BAC v Ginelle Jean-Jacques

This is the reason why I am offering the workshop on Expert Witnesses, i.e. — to highlight the rules of evidence, to coach those who would present opinions as evidence and to hone the skills of the litigator. While apparently narrow in its scope and reasoning, this decision nails down the issue of evidence versus assumptions or presumptions with finality. The case clearly establishes that merely filing papers with “argument” about what they are or what they mean is insufficient to establish anything at all.

The lesson here is not only that you can beat the pretender lenders, but also that YOU must conform to the rules of evidence, establishing a proper foundation and not try to finesse the court. And in non-judicial states the argument is plain: if they could not prevail in a judicial action, why should the court rubber stamp their non-judicial actions?

U.S. Bank filed documents that named other parties along with defective assignments that were not executed in recordable form. They tried to finesse the court by filing “original Note and Mortgage”. The Trial Court granted Summary Judgment, fooled by the appearance of proper documentation and the appellate court said that was an error and reversed the trial court’s summary final judgment.

Notable excerpts follow:

the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence.

U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006)

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”).

U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the note in the absence of record evidence of such).

The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. Essentially, U.S. Bank’s argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon record proof—not assumptions.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , | 46 Comments »

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