BOA's Tactic of Attempting to Use Judicial Notice in Lieu of Evidence

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see BOA Request for Judicial Notice

Pro Se litigants and attorneys who have not dealt with evidentiary issues surrounding judicial notice get caught by this tactic all too often. Judicial Notice can ONLY be used to establish that something is in the public domain or in public records. It does not eliminate the need to establish a foundation for the document nor are the contents of the document taken as true unless you let it be that way. By citing to the statutes allowing for judicial notice and maintaining your hearsay and other objections (foundation, authenticity, truth of the matter asserted) you can be sure that BOA or any of the other players achieve nothing.

The factual issues surrounding the possession of the note, creation of the documents, authority to sign, forgery, fabrication and notarization are all preserved unless you waive them. And that is exactly what happens in many courtroom situations. The Judge is not going to help you out on this. You have to know what you are doing and make the proper objections once the judicially recognized document is attempted to be used to prove something. Judicial notice only establishes the existence of the document, not that what is contained in the document is true.

The Banks are successfully using this ploy to escape the necessity of putting on perjured or incompetent testimony from a witness who has no personal knowledge to establish the foundation and authenticity of the document and the truth of what is recited in the document. Pro se litigants and lawyers who have not researched the issue assume a defeatist attitude when the court agrees to take judicial notice, without realizing that the court is only saying “OK, I’ll take it as a fact that this document was recorded on the date shown at the book and page shown on the document.” The Court is saying “there is no need to bring someone in from the property records office to establish that the document was recorded.” For everything else BOA needs a live speaking witness with personal knowledge and competence to establish the document and authenticate it.

What the Judge is not saying is “I accept this document and everything in it as true and I accept this document as evidence of the truth of the matters asserted in the documents, including the authenticity and authority for signatures.” The mistake made is out of ignorance, and staying silent as the attorney for the megabank blithely asserts that the matter is settled. Don’t let it happen to you.

Tags: bankruptcy, borrower, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, judicial notice, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee
Posted in bubble, Corruption, Eviction, securities fraud |