Foreclosures: The Lie We Are Living

Most people, including homeowners, believe that the homeowners do owe the money and that the entities that are attempting to foreclose should win. That is why the free house myth is so pervasive.

The result is that foreclosures are being granted to entities that (a) do not exist or (b) have nothing to do with the loan, debt, note or mortgage or both. The benefits of foreclosure all run in favor of the megabanks and against the real parties in interest, the investors. These banks have managed to separate the debt from the paperwork in a highly effective way that can be, but usually isn’t, challenged on cross examination and well-founded objections.

The truth is that the homeowners do not owe any money to the people who are collecting or enforcing the loan. End of story. The rest is a lie.

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

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

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

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.

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

see tps-third-party-strangers-in-mortgage-cases/

One of my favorite lawyers is getting discouraged. He says that it is virtually impossible for a homeowner to successfully defend a foreclosure action especially if it involves a blank endorsement (bearer paper). Foreclosure defense is indeed an uphill battle but it is one in which the homeowner can — and should — prevail.

I don’t agree with the premise that homeowners will and should lose foreclosure cases. I think most of the foreclosures are built on an illusion created and fabricated by the megabanks. I think we would have won the cases we won even without the standing issue, with or without blank or special indorsements.

*
The compounding error that keeps recurring is the difference between enforcement of the note and enforcement of the mortgage. You can enforce the note without owning the debt but you can’t enforce the mortgage without owning the debt. But in court they are conflated because few people draw the distinction.
*
Possession of bearer paper (the note) raises a presumption that the debt was transferred. But that is a rebuttable presumption and proof at trial should be required as to the transfer (purchase) of the debt for value. But if the debt was actually transferred that would mean it was purchased for value. And if it was purchased for value then any transferee with half a brain would assert status of a holder in due course. They don’t assert HDC status because they didn’t pay value for the debt because the debt was never transferred and the fictitious delivery of the original note was intended to deceive the homeowner, his/her lawyer and the court.
*
If a trust is involved, the existence of the trust should be pled and proven. Nobody is raising that issue even though it is a winner.
*
It is an uphill battle and many judges will disregard the appropriate arguments because they don’t see or don’t want to see the consequences of their assumptions and bias.
*
As a result we have a name being used as a DBA by multiple layers of conduits that don’t lead back to the actual owner of the debt. Homeowners did not create this problem nor should they suffer the consequences of bank chicanery. Banks did it because the big lie was extremely overwhelmingly and pornographically profitable. Banks have already made windfall profits on the loan whether the borrower pays or not. They then get an extra windfall by foreclosing because they can. At the same time the foreclosure sale raises yet another false presumption that everything that went before the sale was valid and authorized.
*
This all happens under the cover of why should homeowners get a windfall free house? Most people don’t believe that the banks are getting a windfall for an investment that has been paid off multiple times. They believe the lie that the homeowner’s debt is still out there and belongs to someone who ultimately is connected to the entities that seek foreclosure or collection. It is a lie. Windfall results are more common than most people realize. It frequently happens that one litigant, because of a decision or the wording some legislation will get a windfall. In many cases the question is which party should get the windfall?
*
The real question is who should get the windfall that has been created by the banks? Should it be the banks who have already profited in multiples of the loan amount or the homeowner whose signature and credit reputation was used as the foundation for the multiple sales of his loan? On a level playing field, the courts ought to tilt toward the homeowners who have mostly been lured into loans based upon wildly false appraisals on terms that they could not afford — and remember that under law the affordability of the loan is the responsibility of the lender, not the borrower.
*
Finding excuses to rule in favor of a foreclosing party that usually doesn’t even exist much less own the debt, note and mortgage is simply the wrong way to go. This is not a matter of policy for the legislature although the legislatures could intervene. It is a matter of equity and foreclosures are in a court of equity not at law. The party who caused the mess and who brought the country to its knees should not be the party who is rewarded with a foreclosure to cover a nonexisting loss.
*
If the investors were included I could see why both investors and homeowners would be considered victims and how the court could rule in favor of the investors. But the investors are decidedly NOT involved. They are unaffected by foreclosure of the loans because in reality they have only received a promise to pay from one of the megabanks doing business as “XYZ Trust”. They are completely uninformed about the debt or its enforcement and do not get the proceeds of a foreclosure sale.
*
The underwriting is done by the megabank but the loan comes from investors who believe they are investing in a trust when in fact they are merely making a deposit with the underwriting investment bank.
*
The whole reason why these banks were converted from investment banks to commercial banks over a weekend was not just to gain access to the Fed window to sell worthless mortgage bonds. It was because they had already been acting as though they were commercial banks by taking money from investors and merely starting an “account” for each of the investors wherein the only party who could draw money out of it was the “bank.”
*
So after our experience in the courts, it is unfair to homeowners and unfair to us as the attorneys who made it happen, to say that it is impossible for homeowners to win foreclosure cases. Good cross examination, and trial practice including the use of well-founded objections still wins the day more often than not. 

Making Objections and Opposing Them

A new publication has come to my attention that every trial lawyer should have, regardless of where they practice. It’s entitled NEW YORK OBJECTIONS. Obviously once you latch on to a point you would need to refer to the laws of evidence in your state or the laws of evidence in Federal proceedings or both. But because of constitutional protections all states must and do subscribe to the same rules of evidence with very few variations. The link is to an article/advertisement for the book. From there you can go buy it. I’m not selling it. I am recommending it.

If you are like most lawyers and pro se litigants you will need help in how to use your new found knowledge of objections and cross examination (there are separate books on cross examination).

Trial law is all about evidence. And evidence is all about the rules under which information or data can be accepted into evidence. Evidence is an asserted fact that can be considered by the trier of fact in making a final determination as to who wins and who loses. The amount of weight given to any evidence is entirely up to the trier of fact. Getting evidence into the record does not mean you won anything.

The trial court has maximum discretion on what evidence carries greater weight than other evidence admitted into the record. Decisions are reversed on appeal in only 15% of the filed appeals. The job of the appellate court is to determine whether there is any evidence that could support the Judge’s decision in the trial. The appellate court might tacitly agree with you that had they been trying the case it would have been decided differently. But that is not the standard. And THAT is why doing well at the trial level is the key to all cases.

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

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR 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.

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

All information proffered as evidence, whether in testimony or documents, must have foundation. Foundation is credible information supporting the existence of an asserted fact. So for example if the question is “what is the amount presently due?” then in the absence of foundation, the answer is not admissible. However, if the objection is not made timely then the objection is waived. A late objection without some realistic explanation as to why it is late, will fail to keep the information out of evidence AND it will drill home the fact being asserted by mentioning it for a second time. Before asking a question like that the lawyer proffering the witness must establish that the witness knows through personal knowledge of facts showing that he/she knows the answer and not because someone else told him/her.

There are many other objections about which I have written on this blog. The most common error by lawyers representing homeowners is their failure to object as soon as the question is asked. And the most common excuse for that is that they don’t want to irritate the judge or look  foolish. You might just as well concede the entire case if you feel that way. At my age, it’s like doing squats at the gym. If your legs get tired after jumping up to object so often, then you may be doing the right thing. My legs often hurt and I have been known to seek permission of the court to remain seated for my objections.

Raising objections is more of an art rather than any objective set of rules. Preparation for trial means figuring out what objections you will raise and why. It’s easy for a judge to overrule your hearsay or foundation objection if you either don’t know what you are talking about or if you haven’t thought this out. The general practice is to rise and say “objection!” at the same time, the moment you figure out that the question is objectionable — which needs to be before the witness speaks. I like to do that adding”may I explain?” At that point I better have something thought out before trial as to why I raised an objection.

So in order to go to trial and be effective as defense counsel for a homeowner, you need to have a clear narrative in your head as to what you believe to be true and tailor your objections to that narrative. And your narrative needs to be extremely focused on the few paths that might provide traction for the defense. Shotgun trial objections almost always fail.

Timeliness is the principal reason why objections are overruled. Lawyers and pro se litigants will wait patiently, politely for the line of questioning to be concluded. That is when virtually every objection you could ever think of will be overruled.

Be careful about trial orders. I have seen judges repeatedly overrule any objections to admission into evidence simply because the objections were not preserved in accordance with the trial order. That doesn’t mean you lost the case; because on cross examination you can destroy the credibility of the witness and the evidence by showing a lack of foundation, even though you were not permitted to raise the objection. If something is admitted into evidence, that doesn’t mean you can’t attack it.

In foreclosure litigation cases, cross examination is all about foundation. Cross examination continues the narrative driving your objections. Each objection, each question should drive home the central points of your defense strategy.

Breaking it Down: What to Say and Do in an Unlawful Detainer or Eviction

Homeowners seem to have more options than they think in an unlawful detainer action based upon my analysis. It is the first time in a nonjudicial foreclosure where the foreclosing party is actually making assertions and representations against which the homeowner may defend. The deciding factor is what to do at trial. And the answer, as usual, is well-timed aggressive objections mostly based upon foundation and hearsay, together with a cross examination that really drills down.

Winning an unlawful detainer action in a nonjudicial foreclosure reveals the open sores contained within the false claims of securitization or transfer.

NEED HELP PREPARING FOR UNLAWFUL DETAINER TRIAL? We can help you with Discovery and Compelling Responses to Discovery Requests with Our Paralegal Team that works directly with Neil Garfield! We provide services directly to attorneys and to pro se litigants.

Get a LendingLies Consult and a LendingLies Chain of Title Analysis! 202-838-6345 or info@lendinglies.com.

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

OR fill out our registration form FREE and we will contact you!

https://fs20.formsite.com/ngarfield/form271773666/index.html?1502204714426

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

—————-

HAT TIP TO DAN EDSTROM

Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiffs title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.” (Emphasis added.) (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159-160.) My emphasis added

So we can assume that they are specifically preserving your right to sue for damages. But also, if they still have the property you can sue to get it back. If you do that and file a lis pendens they can’t sell it again. If a third party purchaser made the bid or otherwise has “bought” the property you probably can’t touch the third party — unless you can show that said purchaser did in fact know that the sale was defective. Actual knowledge defeats the presumptions of facially valid instruments and recorded instruments.

The principal point behind all this is that the entire nonjudicial scheme and structure becomes unconstitutional if in either the wording of the statutes or the way the statutes are applied deprive the homeowner of due process. Denial of due process includes putting a burden on the homeowner that would not be there if the case was brought as a judicial foreclosure. I’m not sure if any case says exactly that but I am sure it is true and would be upheld if challenged.


It is true that where the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. Hewitt v. Justice’ Court, 131 Cal.App. 439, 21 P.(2d) 641; Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.(2d) 522; Berkeley Guarantee Building & Loan Ass’n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782. — [160] * * * In our opinion, the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title

So the direct elements are laid out here and other objections to title are preserved (see above):

  • The existence of a sale under nonjudicial statutes
  • Acquisition of title by purchase at the sale
  • Compliance with statutes
  • Compliance with deed of trust

The implied elements and issues are therefore as follows:

  • Was it a Trustee who conducted the sale? (i.e., was the substitution of Trustee valid?) If not, then the party who conducted the sale was not a trustee and the “sale” was not a trustee sale. If Substitution of Trustee occurred as the result of the intervention of a party who was not a beneficiary, then no substitution occurred. Thus no right of possession arises. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.
  • Was the “acquisition” of title the result of a purchase — i.e., did someone pay cash or did someone submit a credit bid? If someone paid cash then a sale could only have occurred if the “seller” (i.e., the trustee) had title. This again goes to the issue of whether the substitution of trustee was a valid appointment. A credit bid could only have been submitted by a beneficiary under the deed of trust as defined by applicable statutes. If the party claiming to be a beneficiary was only an intervenor with no real interest in the debt, then the “bid” was neither backed by cash nor a debt owed by the homeowner to the intervenor. According there was no valid sale under the applicable statutes. Thus such a party would have no right to possession. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.

The object is to prevent the burden of proof from falling onto the homeowner. By challenging the existence of a sale and the existence of a valid trustee, the burden stays on the Plaintiff. Thus you avoid the presumption of facial validity by well timed and well placed objections.

” `To establish that he is a proper plaintiff, one who has purchased property at a trustee’s sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter ‘duly perfected’ his title. [Citation.]’ (Vella v. Hudgins (1977) 20 Cal.3d 251,255, 142 Cal.Rptr. 414,572 P.2d 28; see Cruce v. Stein (1956) 146 Cal.App.2d 688,692,304 P.2d 118; Kelliherv. Kelliher(1950) 101 Cal.App.2d 226,232,225 P.2d 554; Higgins v. Coyne (1946) 75 Cal.App.2d 69, 73, 170 P2d 25; [*953] Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 288-289, 25 P2d 522.) One who subsequently purchases property from the party who bought it at a trustee’s sale may bring an action for unlawful detainer under subdivision (b)(3) of section 1161a. (Evans v. Superior Court (1977) 67 Cai.App.3d 162, 169, 136 Cal.Rptr. 596.) However, the subsequent purchaser must prove that the statutory requirements have been satisfied, i.e., that the sale was conducted in accordance with section 2924 of the Civil Code and that title under such sale was duly perfected. {Ibid.) ‘Title is duly perfected when all steps have been taken to make it perfect, i.e. to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt (Hocking v. Title Ins. & Trust Co, (1951), 37 Cal.2d 644, 649 [234 P.2d 625,40 A.L.R.2d 1238] ), which includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73 P. 851] ), (Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, 327 P.2d 241.) ¶ To the limited extent provided by subdivision (b){3) of section 1161a, title to the property may be litigated in an unlawful detainer proceeding. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159, 69 P.2d 832.) While an equitable attack on title is not permitted (Cheney, supra, 9 Cal.2d at p. 160, 69 P.2d 832), issues of law affecting the validity of the foreclosure sale or of title are properly litigated. (Seidel) v. Anglo-California Trust Co. (1942) 55 Cai.App.2d 913, 922, 132 P.2d 12, approved in Vella v. Hudgins, supra, 20 Cal.3d at p. 256, 142 Cal.Rptr. 414, 572 P.2d 28.)’ ” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cai.App.3d 948, 952-953.)
 
Here the court goes further in describing the elements. The assumption is that a trustee sale has occurred and that title has been perfected. If you let them prove that, they win.
  • acquisition of property
  • regularly conducted sale
  • duly perfecting title

The burden on the party seeking possession is to prove its case “beyond all reasonable doubt.” That is a high bar. If you raise real questions and issues in your objections, motion to strike testimony and exhibits etc. they would then be deemed to have failed to meet their burden of proof.

Don’t assume that those elements are present “but” you have a counterargument. The purpose of the law on this procedure to gain possession of property is to assure that anyone who follows the rules in a bona fide sale and acquisition will get POSSESSION. The rights of the homeowner to accuse the parties of fraud or anything else are eliminated in an action for possession. But you can challenge whether the sale actually occurred and whether the party who did it was in fact a trustee. 

There is also another factor which is whether the Trustee, if he is a Trustee, was acting in accordance with statutes and the general doctrine of acting in good faith. The alleged Trustee must be able to say that it was in fact the “new” beneficiary who executed the substitution of Trustee, or who gave instructions for issuing a Notice of Default and Notice of sale.

If the “successor” Trustee does not know whether the “successor” party is a beneficiary or not, then the foundation testimony and exhibits must come from someone who can establish beyond all reasonable doubt that the foreclosure proceeding emanated from a party who was in fact the owner of the debt and therefore the beneficiary under the deed of trust. 

WATCH FOR INFORMATION ON OUR UPCOMING EVIDENCE SEMINAR COVERING TRIAL OBJECTIONS AND CROSS EXAMINATION

 

Fla 4th DCA Reverses Based Upon Trial by Ambush

For further information please call 954-495-9867 or 520-405-1688

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

see 4th DCA Reive v Deutsch Trial by Ambush J Oftedal reversed DOC032515-001

Those of us who have been fighting this ground war have seen it again and again. The “corporate representative” is allegedly employed by the servicer. Nobody shows up representing the Plaintiff, except a lawyer who says he represents the Trust or other Plaintiff but we really don’t know that this lawyer has been retained by, say, US Bank as trustee for XYZ Securities Pass Through Trust 200X-A. In fact, we don’t even know if US Bank is the Trustee.

And even if they are the Trustee neither they nor their so-called trust (probably unfunded, so it couldn’t have purchased or originated any loans) have legal standing because they don’t own the loan. There is a huge difference between pleading and proof. AND standing means different things depending upon what you are looking at. If party files a complaint alleging the requirements of standing then the complaint will stand up to a motion to dismiss based upon standing. But if at trial they don’t prove standing, they lose.

The erroneous procedure I have seen at trial is that the standing issue has already been decided when the borrower filed the motion to dismiss. But that required the court to assume the allegations of the complaint were true —a presumption that definitely does not apply at trial. But Judges use it anyway because of the pressure to clear their docket. As a result, cases are not heard on the merits — they are tried by presumptions to which the banks and servicers are not entitled to use because the testimony and the exhibits are fabricated for trial and they have a long history of submitting fraudulent documents to courts across the country.

Hence the presumption of credibility, trustworthiness and authenticity should not apply and the servicer or bank or trustee must be required to prove the facts, which they cannot. Which is why the foreclosures all mostly wrongfully entered as judgments end up in a judicial sale despite the actual facts that would show that none of the parties in the chain relied upon by the foreclosing party actually have any interest in any of the transaction, any of the documents or any actual loan to the borrower.

Piling inference upon inference and then applying legal presumptions that the banks are certainly NOT entitled to employ (given their prior conduct in fabricating, forging, backdating, and robo-signing), the Judges enter rulings that make it inevitable that a foreclosure judgment will be entered.

One of the ways that the Servicer (allegedly representing the Trust) comes to court is with new witnesses and new documents never before seen by the Defendants. Judges frequently point to the fact that you didn’t try to depose them nor compel your previous request for production so somehow you waived your right to object to new witnesses, new testimony, and new documents never provided to you.

Two lessons come out of this decision from the 4th DCA in Florida.

The first lesson is that attorneys should object to anything new that was not provided before trial. The use of witness lists with 35 names on it is the equivalent of no notice at all and puts a burden far too great on the Defendant, who must guess which witness will be used. The defendant can investigate off record or take the deposition of the actual witness or both. If you file a motion in limine to strike their witness list and exhibit list as not giving you notice of what or who they intend to use, you will probably now be sustained in the jurisdiction of the 4th DCA. The key here as specifically enunciated per curium by the 4th DCA is that they will not stand for any “trial by ambush,” which has been the stock and trade of lawyers representing alleged parties owning the loan contract, note or mortgage.

The second lesson is that if there is time, you should move to compel discovery and actually take the deposition of the actual witness who will testify at trial. This is a problem for the servicers since they have robo witnesses whose schedule is not confirmed for more than 30 days at a time.

With Patrick Giunta, Esq. as my counsel we employed the same objections and the objection was sustained. An attempt was made to introduce for the first time a new power of attorney that corrected obvious deficiencies in the first power of attorney we were shown. The trial judge sustained the objection and denied the motion for continuance on the grounds that even the new power of attorney, taken in the context of the other evidence, failed to convey or confer any rights to SPS to represent either the previous servicer or the Trustee of the REMIC, or the REMIC Trust itself or even the holders of certificates in the trust.

The rest of the evidence showed that there was nobody present to testify the date of the alleged default, which in that case was because there was no default. A Final Judgment of dismissal was entered referring to the court’s finding of fact and law in the transcript of the trial.

PRACTICE NOTE: What the banks and servicers are doing is slipping layers in between the true actors and the companies that send robo-witnesses in to testify at trial. They are relying on the so-called “boarding process” done by a “new servicer” who has not serviced a single payment in or out of the subject loan account. They do this because the prior servicer has a lot of explaining to do and would be subject to investigation and discovery as to whether the Plaintiff (REMIC Trust or other entity) actually purchased the loan or was in fact representing an unidentified creditor. The boarding process does not stand up to scrutiny. It IS evidence in most cases but it is NOT credible evidence. The witness cannot explain anomalies in the records of the prior servicer nor testify as to actual ownership or beneficial interest in the loan. But your cross examination (and/or  voir dire examination) will be a lot better if you have already found those errors. These witnesses have no connection with any actual transaction either with money coming in from the borrower, from a third party or anyone else. And they can’t say who the money was paid to as creditor. Failure to object to surprise witnesses or surprise documents is a fatal error at trial.

Trial Objections in Foreclosures

 

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.

GLARUM CASE: COURTS NOW WANT EVIDENCE — NOT REPRESENTATIONS OF COUNSEL

MOST POPULAR ARTICLES

SEND ALL ROBOSIGNING (SURROGATE SIGNING) EXAMPLES AND PLEADINGS TO ROBOSEARCH.LIVINGLIES@GMAIL.COM

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

If you want to save your home, you’ve got to get a good lawyer who knows how to take a deposition—no exceptions.”

COMPETENT EVIDENCE REQUIRED — FOR BOTH SIDES

EDITOR’S NOTE: Be careful before you celebrate over this. Yes, it is now more difficult for the banks to lie their way through foreclosure. The word is “difficult” not “impossible.”

They can still lie their way through foreclosure if you don’t know how to challenge or object to affidavits, business records, testimony that is not from a COMPETENT (that has a technical definition) witness, etc. And you must also satisfy the same requirements if YOU want to put evidence in the record and have the Judge hear it. Getting it in the record is not usually half as hard as having the Judge actually consider it — that is a matter of ease of presentation and style.

LAWYERS: I RECOMMEND YOU ALWAYS HAVE A  COPY OF THE FEDERAL AND STATE RULES OF EVIDENCE IN YOUR POSSESSION — ESPECIALLY THE PARTS ON HEARSAY AND COMPETENCY OF WITNESS. I ALSO STRONGLY RECOMMEND THAT YOU CARRY WITH YOU TRIAL OBJECTIONS 2D BY MARK A DOMBROFF.

http://floridaforeclosurefraud.com/2011/09/oh-no-we-have-to-actually-prove-our-cases-bank-lawyers-respond-to-the-glarum-case/

Oh, no, we have to actually prove our cases!” Bank lawyers respond to the Glarum case
by Mike Wasylik Esq. on September 16, 2011

Glarum has the banks running scared.
The biggest challenge banks face in today’s foreclosure crisis is that they still haven’t come to grips with the need to tell the truth when they testify. The recent case of Glarum v. LaSalle [PDF] http://floridaforeclosurefraud.com/wp-content/uploads/2011/09/4D10-1372.op_.pdf has put even more pressure on the banks to tell the truth in foreclosure court, and now the banks and their lawyers are in a blind panic.

Banks have to provide admissible evidence in foreclosure cases

In the Glarum case, the trial judge had granted a summary judgment in favor of the bank, and ordered the Glarum home to be sold at auction. In support of its motion for that summary judgment, the bank offered the sworn affidavit of Ralph Orsini, who swore that the Glarums had defaulted on their loan and that they owed the bank a particular amount of money. Unfortunately, Orsini didn’t know these things were true, so he relied on the computer database to tell him these things. And according to the appellate court, that’s where the problem began:

Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. He relied on data supplied by Litton Loan Servicing, with whose procedures he was even less familiar. Orsini could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system. Despite Orsini’s intimate knowledge of how his company’s computer system works, he had no knowledge of how that data was produced, and he was not competent to authenticate that data.

(Emphasis mine.) The appellate court threw out the affidavit, and the resulting judgment, because Orsini’s statements were mere hearsay. They didn’t prove anything.

Applying long-held evidentiary principles to foreclosure cases

Bank lawyers, instead of recognizing this case as reaffirming long-understood principles of basic evidence, have sounded the alarm. Here’s what one “client alert” from Greenberg Traurig had to say:
http://www.gtlaw.com/NewsEvents/Publications/Alerts?find=152634

The Fourth District Court of Appeals has sent a strong statement that more generic affidavits currently utilized in some cases will no longer be sufficient where they do not include specific and detailed factual information regarding the compilation of the loan and payment data into a computer system. In doing so, the appellate court may have achieved the unintended result of dramatically changing the foreclosure landscape in Florida.

Again, emphasis mine. Changing the landscape? Hardly. Here are some of the things that Greenberg Traurig recommends banks will need to do in future foreclosure cases:

  • The affiant should be familiar with and have a specific understanding as to how the records are kept by the company and about the company’s recordkeeping practices in general.
  • The affidavit may need to include factual information establishing that the records relied upon were kept in the ordinary course of the company’s regularly conducted business activity, with specific reference to each record that is relied upon.
  • …the affidavit may need to contain language addressing the procedures that the company takes to ensure that the information input into its computer system is accurate.
  • …the information included in the affidavit will need to be sufficient to show that the records were made by or from information transmitted by a person with knowledge.
  • The courts may even require the affidavit to provide information regarding the procedures used by the prior loan servicer to ensure that the information is kept within the normal course of its business…
  • Particular care should be given to who the company selects as the affiant…

None of this is revolutionary, or even surprising, to anyone who’s ever litigated a commercial case before—it’s “Business Records 101.” Business records are never admissible, because they are hearsay, unless you do all those things. Why? Because business records are hearsay, so you have to lay the groundwork to get them admitted.

Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence
may be admitted into evidence as business records if the proponent of
the evidence demonstrates the following through a record’s custodian:

(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person
with knowledge; (3) was kept in the ordinary course of a
regularly conducted business activity; and (4) that it was a
regular practice of that business to make such a record.

That’s always been the law in every case, and the Glarum court has now ruled that the same law that applies to everyone else now applies to banks, too. And that’s just fair.

If you want to save your home, you’ve got to take depositions.
What lessons can be learned from Glarum? first, that banks are terrified of having their affiants’ depositions taken, and will fight even harder to prevent that from happening. They are terrified of what “borrower’s counsel” like us can do when we have the opportunity to ask them questions under oath. And when we do get the chance to ask those questions, we can blow a foreclosure case right out of the water, just like in Glarum.

Finally, borrowers, homeowners, and other foreclosure defendants should know this: taking depositions in your foreclosure case is a critical step in protecting your home—one that our law firm has long viewed as essential in almost every foreclosure case. And it’s a step that almost no foreclosure defendant is competent to handle on their own. If you want to save your home, you’ve got to get a good lawyer who knows how to take a deposition—no exceptions.

%d bloggers like this: