Trick Questions From the Judge

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DENY AND DISCOVER AND MAKE THE COURT FOLLOW THE RULES

I had a question from a reader recently that got me to thinking about the rules of civil procedure for which I received the book award when I was in law school. I’m not boasting, I’m apologizing for not thinking of this before. If you have a hearing on a motion to quash, motion to dismiss, motion for summary judgment or any other hearing in which it has not been specifically noticed as an evidential hearing at which witnesses and exhibits will be proffered as evidence, then you should challenge the Judge if he asks you a factual question.

The appropriate answer is something like this (Check with local counsel): “Judge, this hearing was noticed as a hearing on the motion filed by XXXX, and relates to oral argument regarding the legal sufficiency of YYYY. I am reluctant to answer your question because it turns the hearing, over my strenuous objection, into an evidential hearing, for which I have had no notice, no opportunity to prepare and no opportunity to gather witnesses. Your question further presumes a fact that is not in evidence which is whether or not I ever had any financial transactions with these people or their predecessors — a fact that I have denied.”

The question in one form or another, is going to be something like”why did you buy a house you couldn’t afford?” or “isn’t that your signature on the note?” “When was your last payment” “Why did you stop paying on the note?” and on and on. Your answers should always be the same thread or message. I deny the transaction, I deny the note, I deny the mortgage (Deed of trust), I deny the obligation or debt, I deny the default, I deny these people have any actual viable claim, I deny they ever funded any loan to me (Don’t say ‘the loan’ as that has a different connotation), I deny they ever acquired any obligation due from me.

If they wish to plead and prove a case they can only do so if they have standing, which is a jurisdictional issue which must meet threshold requirements at the commencement of the foreclosure. In the absence of a statement that they entered into a transaction in which this would-be forecloser paid money and that they have a right to recover that money from me, they have failed to establish standing.

There is nothing in the statutes that says in a non-judicial foreclosure that the submissions filed by the beneficiary are presumed true. If challenged, they must prove their claim. Since the trustee is not empowered to conduct hearings, the matter is before the Court.

Since the would-be forecloser is the one seeking affirmative relief and the homeowner is seeking only defensive relief, the homeowner is entitled to know the allegations and documents that will be used to prove a case in foreclosure. The homeowner would then have the ability to admit or deny the facts alleged, assert affirmative defenses and even file a counterclaim.

Otherwise the homeowner is placed in the absurd position of guessing at the allegations and documents and witnesses, and then formulating a defense against what the homeowner supposes would be the allegations from the alleged creditor. The documents from the creditor or alleged beneficiary have in most cases never even been presented to the trustee, who is often entity owned or controlled by the party claiming to be the beneficiary. This explains our denial that the party posing as trustee is nothing of the sort. This is a strawman for the beneficiary. And that is why we deny that either the named trustee nor the alleged substitute trustee nor the beneficiary claimed in the notice of default or notice of sale are real.

If the Court wishes to allow the alleged creditor the opportunity to plead and prove its case, we of course cannot have or maintain any objection. But if the filings of the alleged creditor are presumed to be true by the Court, then the burden of persuasion is unfairly loaded on the homeowner who can defend himself only with facts that are peculiarly in the possession of the alleged creditor and alleged trustee. This again forces the homeowner to speculate on the nature of the claim against him and how it allegedly arose. Such a theory, besides violating applicable rules and statutes, might require or permit a potential defendant to rush to court to file a defense in advance of a claim filed by an injured party.

Unless it was an evidentiary hearing for which you had proper and adequate notice, the Judge has no business asking you a factual question or getting you to admit or deny a fact, regardless of whether you were sworn or not. The fact that he asked you that question is sufficient in itself to take it up on appeal. Your appeal would be based upon the fact that without notice required under CA rules of procedure, the Judge turned it into an evidentiary hearing, leaving the homeowner unprepared and unable to bring counsel etc.

If you appeal — I think you should bring it up on an interlocutory appeal which means an appeal before the case is over. Your argument is that the Judge’s bias was showing, sure, but your main argument is that he committed fatal errors in asking factual questions in a hearing that was never noticed, set or heard. If he wanted a factual hearing then you should have had the opportunity of bringing your witnesses, challenges to their witnesses, voir dire, cross examination and clarification of your answers to a surprise question from the Judge.

Check with local counsel about what that does to the Judge’s jurisdiction once the notice of appeal is filed. It MIGHT automatically stay the action. I don’t know. If you are beyond the time limit to file notice of appeal, you can file a motion for reconsideration and let him deny that too and then file the notice of appeal.
ALWAYS CHECK WITH LOCAL COUNSEL BEFORE ACTING

Tags: evidence, judge's discretion, judicial bias, motions, notice of hearing, questions from the judge
Posted in bubble, Corruption, Eviction, securities fraud |