DID YOU OBJECT?

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

ORAL ARGUMENT IN HEARINGS AND APPEALS

In listening to the questions of BAP Judges sitting on a 3 Judge panel in appeals from rulings of the sitting Bankruptcy Judge, there were a few things that jumped out at me besides what I have already reported. The fundamental argument on appeal is , in theory, that pretenders are foreclosing on property despite the fact that if the rules of procedure and rules of evidence were applied they would not only be dismissed, they would be sanctioned. Cases from around the country corroborating this premise have been reported on these pages where the lawyer and the client (including large institutions like BOA, Wells Fargo etc.) have been fined huge amounts of money.

Setting apart bias and prejudiced and conflicts of interests with their own pension funds, as well as worrying about opening flood gates of litigation that could not be contained, the question that sticks out  like a sore thumb is why the Judges are ruling so often against the borrower? Answer is abysmally clear: Lawyers are not lawyering.

In my seminars, DVD’s, media appearances and writing I keep making the point that you should be objecting as soon as the opposing attorney starts talking and you should keep objecting until you are in handcuffs threatened with contempt — not that you should be disrespectful to a Judge (that is just stupid) but you should be persistent far past annoying. Having a Judge annoyed with you is very different from having mad at you in a personal way. Very frequently, when I sat on the bench as a substitute master or judge, my annoyance was actually a reflection of my rising discomfort. PASSION, communicated in a consistent, respectful way without fear of intimidation, will often turn the head of the Judge.

The example is an attorney who is really good at at this stuff — knows chain of title, securitization, TILA, RESPA etc. But he or she is not prepared for the drop dead question: “counselor, are you questioning the authenticity of the note or mortgage.” The answer is “YES” but 99 out of 100 lawyers are afraid to say that. Most lawyers are as hypnotized by the Wall Street myth as the Judges, and so when even a copy of the note shows up attached to an unverified pleading, the lawyer feels compelled to admit the “obvious.” That is exactly what happens on appeal and in the record, the attorney is often quoted in the record from the trial proceedings as saying “NO we are not objecting to their authenticity, we are objecting to their enforceability”.OOPS. If they are authentic then they are presumed to be enforceable unless they have something illegal or against public policy in the document itself. So if you admit authenticity, you lose.

Here is a little tip for you would-be litigators: if your position is that you know your client is wrong or has violated a contract but that for some technical or equitable reason you want the Judge to turn the law on its head, you are (1) going to lose that case and (2) you will have very little credibility in the next 10 cases you have in front of that Judge.

Here is another tip: if your position is that you know the facts don’t look good the way the other side has presented it, but that you object to everything opposing counsel has proffered and you object to the authenticity of the copies AND the originals based upon advice of experts who have examined the available evidence, then your Judge will know that this is going to be a fight AND the next ten times you appear in front of that Judge, the Judge will be listening for issues that could result in being overturned on appeal.

Specifically, here are some SAMPLE objections you can raise at the trial level, so you don’t sound like an idiot when you go in front of an appellate panel:

1. Objection: Counsel has represented facts that are not in evidence. If Counsel is testifying, I would like to voir dire counsel to determine whether counsel is a material witness, whether counsel is a competent witness with personal knowledge and whether counsel is attempting to proffer argument in lieu of inadmissible hearsay.
2. Objection: Counsel has stated that he/she represents Wells Fargo when in fact the homeowner received a letter from another law firm and another lawyer stating that they represented the real party in interest. If that other letter was referring to Wells Fargo, then we have two lawyers who each claim to represent Wells Fargo, in which case, I am demanding that counsel provide proof of authority to represent Wells Fargo naming he/she and the law firm. If the party referred to in the prior correspondence is not Wells Fargo, then we obviously have two different financial institutions who are competitors in the open market, each making a claim to enforce a note and mortgage, each of which documents is subject to numerous objections as to authenticity and admissibility as evidence. The only thing we know is that they both want to buy this home without offering any money to anyone by submitting a credit bid.
   
3. Objection: Counsel is attempting to refer to an exhibit to pleadings that have not been admitted into evidence. We object to those copies being used and we will object to the use of any purported original until we can examine and determine the authenticity of the so-called original, since there are now numerous cases on record involving these same parties wherein the documents offered as originals were in fact mechanically produced, fabricated and forged. WE DO NOT ADMIT THE AUTHENTICITY OF THE NOTE, MORTGAGE, ASSIGNMENT, INDORSEMENT OR ANY OTHER DOCUMENT THEY HAVE OFFERED. QUITE THE CONTRARY, WE BELIEVE THEY ARE FAKE AND THAT LIKE ANY OTHER CASE THEY SHOULD BE REQUIRED TO PLEAD AND PROVE THEIR CASE.
   
4. Objection: Counsel is arguing for a presumption in favor of his alleged client in lieu of presenting evidence that can be tested on the merits. Counsel is also arguing and attempting to raise the presumption in favor of his client that in a judicial forum the burden of proof is on the party with the least information. First they stonewall us despite Federal law that requires them to answer and then they say we lack specificity. They can’t have it both ways.
   
5. Objection: We are the defending party (same statement in both judicial and non-judicial state). They want to sell real property without the requirement of proof that would be admissible in a judicial forum — a forum in which they would lose every time and in which, when pushed they always dismiss the day of trial. They are the party seeking affirmative relief — they want a home that currently belongs to my client and they want to be able to take it without paying for it by submitting a credit bid as though they were the creditor. So they are not only asking the court to allow the foreclosure to go forward, they also will use your order as proof of a judicial finding that they are in fact the creditor and can submit a credit bid at auction without using any money whatsoever. And they want you to do all this for them because their client has the word “bank” in it — and that should be enough with no pleadings or proof from the party seeking affirmative relief — namely his client who wants to sell my client’s property without a hearing and buy it without any money.

Now it is your turn counselors — add to this list and I’ll publish it…

Posted in bubble, Corruption, Eviction, securities fraud |