Tonight! Contrived Ignorance and Plausible Deniability 3PM PST 3PM EST

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260, 6pm Eastern Thursdays

David Luban of Georgetown University Law Center wrote an interesting article re the structure of Contrived Ignorance — involving complex business arrangements of all sorts — where in step one the party acting shields itself from unwanted knowledge, then in step two, performs actions which but for the lack of that knowledge, would be engaged in conduct subject to being interpreted as illegal, and or fraudulent, etc.

In recent discovery responses, MERS’s response to the question: identify the Holder in Due Course of the Note–which note was attached–was “MERS has no information as to which entity is or has been the holder in due course of the subject Note”. Which begs the question: How can MERS then be acting as a bona fide assigner of interest–even as an intermediary for other parties–when they have no knowledge re the bona fides of the assigning party? Contrived ignorance indeed!

On the Show today Charles and Bill will address how servicers are in some instances trying to pass themselves off in Bk court as the holder in due course of a note, without sufficient evidence, or any evidence in some cases.

This situation is analogous in some ways to where Bk courts have kept certificateholders of securitized mortgage trusts from enforcing any rights in Bk court, because their relationship to the Debtor is one of a ‘creditor to a creditor’–not a direct creditor to the debtor. On the contrary, these certificate holders are creditors only of the issuers of the trust notes (certificates). Mortgage servicers without contrary evidence are not even creditors of creditors, but servicing agents–payment collecting agents–for supposed holders of securitized mortgage trust notes.

Finally on the Show today Charles and Bill address a recent California Second Appellate court decision, in which it was decided that in certain cases during a deposition, the attorney for the deponent–the party being directed to answer questions–can and maybe should put their own client or other witness under direct examination–as in a full-blown trial. The holding for this comes from a non-foreclosure case, but is notable as the holding can potentially apply to foreclosure cases as well. The holding also potentially allows prior testimony given in other jurisdictions based on the same set of facts in the other proceeding, be used in a current proceeding. 

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