Don't Take on the Burden of Persuasion

I keep getting the same feedback. I tried the Garfield method but the Judge wasn’t buying it. From many others, I am getting feedback that they prevailed on the motion to lift stay, they prevailed on the motion to dismiss and they prevailed on the motion for summary judgment. So what is the difference?

The reason is that the methods and strategies I am suggesting are not being followed. Homeowners are coming into court with or without counsel land diving into the chain of documentation which is a way in which you drown in paperwork covering up the fact that no financial transaction ever took place supporting the paperwork.

Deny and Discover means just that. By denying a fact that is implicitly or explicitly alleged by the other side the burden of persuasion is shifted to them. If you use the information you have as the basis for alleging the REAL story then you are alleging facts as the movant or pleader and therefore must prove them. If the burden of proof falls on you then the only thing you can do is to establish a good record for appeal.

Secondarily, stop trying to win the whole case in a single hearing. Realize that motion practice is a chess game and the goal is not to win the whole case but to get to the next hearing where you can inch your way closer and closer to discovery wherein you can ask for what you know the other side doesn’t have, never had, and can’t get — a proof of the money trail which would corroborate the documents upon which they are relying. The documents are only shown to be fabrications with false signatures etc if they recite facts that are untrue.

Your job, as lawyer for the homeowner, is to get to the point where you can demonstrate to the court during motions to compel in discovery that there is something wrong with this picture, that the borrower/debtor had nothing to do with what is wrong, and that if there is a problem, it is up to the other side to clean it up — a job not for the court based upon presumptions of liability and damages by the Judge nor by the borrower/debtor.

It is all in the way that you present it. By denying the existence of the trust, the funding of the trust, the obligation to the trust, the note as evidence of the obligation, and the mortgage as guaranteeing a defective, worthless note, you mean to convey that the various interests in the trust are a matter for others to sort out, but that if the trust itself never received nor accepted the loan, because it was was impossible for even a valid, funded trust to accept to a non-performing loan outside of the 90 day window required by the PSA, which merely re-state the requirements of the Internal Revenue Code allowing REMIC entities, you are attacking the ownership of your loan transaction.

What we need to bridge this gap is less argument and more action. We need to come up with a hedge fund (Which I am working on) wherein the offer is made to buyout the loan if the creditor can prove it owns the loan, which means they must show that they actually had transactions in which the funded the origination of the loan, and/or paid for the transfer of the,loan. No such proof exists, because the transactions never took place — but they created the paperwork to make it appear as though those transactions existed.

If you go back and read some of  my more recent posts over the last week, you will see how I arrive at this.

The other part is that you are affirmatively alleging facts instead of denying that the facts supporting the foreclosers position exist. By affirmative alleging facts, you take on the burden of proof, thus placing a burden of persuasion to come up with the real evidence to show what really happened when those facts are exclusively in the hands of the chain of entities claiming that REAL securitization of this loan occurred when it did not.

Your answer should be simply, then that you are seeking for them to establish evidence of actual transactions, which is what is required in any foreclosure, wherein a complete accounting for the loan, the receipts and disbursements are set forth and where the actual bank accounts have the required evidence of wire transfers, checks or other indicia of the actual movement of money, which there wasn’t.

While at this point you probably can’t deny that there was ANY movement of money, you can deny that any movement of money was unrelated to this transaction and therefore deny that the “originator” was never the proper payee on the note, lender or beneficiary, directly or as nominee.

Posted in bubble, Corruption, Eviction, securities fraud |