Oct 16, 2018
Foreclosure defense litigants usually find themselves in a fog of questions they can’t answer. That is because the banks are using a tactic that I have called “step-over.” If they can’t prove an essential element of a case they step over it and pretend it was already established before.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Well this is a good example of what I teach lawyers about cross examination for opposition to testimony by affidavit or even oral testimony under oath. It’s easy to say yes, that’s right. Not so easy to say how you know that is right. Good litigators chip away at each component part of each answer. In virtually all cases, the numbers and the documents don’t add up and there is no escape for the banks. They settle those cases under seal of confidentiality.
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The banks have been getting away with this for years.
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The foundation for all evidence of anything in a foreclosure case is whether the foreclosing party exists and whether it has any power to foreclose that has been granted by the owner of the debt. The banks step over this problem by producing a witness that says “we are the servicer of this loan, I am employed by the servicer, these are our business records.” In other words they pretend that they answered the question. But they didn’t. And they know it.
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Other than prior conduct that “speaks” to the issue, there is no testimony from the actual party named as the foreclosing party. This insulates the only witnesses produced from answering any questions about the origin, existence of the foreclosing party or even whether the foreclosing party is a creditor or instead is acting as “holder” which means as a conduit for another party who might also be a conduit. More importantly no witness testifies that the nonparty claiming servicing rights actually has servicing rights and what duties are performed by the servicer at the direction of the undisclosed party behind the scenes. Hence most important of all is the fact that no witness testifies that the servicer’s business records are the business records of the foreclosing party. It is presumed. Attack it and it falls apart.
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Let’s assume that the Trust actually did acquire the debts, notes and mortgages. Exactly how likely is it that the trustee would allow the servicer to see everything in the trust? ZERO. Why would they? Exactly how likely is it that the Trustee would grant total unfettered control over all of its assets without so much as a report to the trustee? ZERO. I could go on forever. Hopefully you get the idea. Exactly how likely is it that a Trustee would allow its name to be used in litigation without its knowledge or consent? ZERO. It’s only when the Trust doesn’t exist and doesn’t acquire anything that such behavior is perfectly OK.
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Here is the truth: no lawyer at any foreclosure mill ever gets a call or even an email from the named foreclosing party nor anyone else. Instead it is all automated in the loose meaning of that word. In truth the referral for foreclosure, the selection of the name of the foreclosing party, and all decisions regarding any given loan are made by people who are employed by an organization with no right, title or interest in the subject loan. They in turn answer to a higher power — the big banks on Wall Street who are thoroughly insulated from liability as long as they can play trick or treat.
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